THE LAW OF TORTS
INTRODUCTION
INTENTIONAL TORTS: TRESPASS
WHAT IS A TORT?
•A tort is a civil wrong
•That (wrong) is based a breach
of a duty imposed by law
•Which (breach) gives rise to a
(personal) civil right of action
for for a remedy not exclusive
to another area of law
Discussion/Question
•Tort and Crime
–How does a tort differ
from Crime?
THE DIFFERENCE BETWEEN A
TORT AND A CRIME
•A crime is public /community wrong that
gives rise to sanctions usually designated in
a specified code. A tort is a civil ‘private’
wrong.
•Action in criminal law is usually brought by
the state or the Crown. Tort actions are
usually brought by the victims of the tort.
• The principal objective in criminal law is
punishment. In torts, it is compensation
THE DIFFERENCE BETWEEN A
TORT AND A CRIME
•
Differences in Procedure:
–
Standard of Proof
Criminal law: beyond reasonable
doubt
»Torts: on the balance of probabilities
»
Question
•Are there any similarities
between a tort and a crime?
SIMILARITIES BETWEEN
TORTS AND CRIME
•They both arise from wrongs imposed by
law
•Certain crimes are also actionable torts; eg
trespass: assault
•In some cases the damages in torts may be
punitive
•In some instances criminal law may award
compensation under criminal injuries
compensation legislation.
TORT and CRIME
• The "roots of tort and crime" are "greatly intermingled".
And it is not only the roots of tort and crime that are
intermingled. The increasing frequency with which civil
penalty provisions are enacted, the provisions made for
criminal injuries compensation, the provisions now made
in some jurisdictions for the judge at a criminal trial to
order restitution or compensation to a person suffering
loss or damage (including pain and suffering) as a result
of an offence all deny the existence of any "sharp
cleavage" between the criminal and the civil law. ( Per
GLEESON CJ, McHUGH, GUMMOW AND HAYNE JJ. In Gray v
Motor Accident Commission )
TORTS DISTINGUISHED FROM
BREACH OF CONTRACT
•A breach of contract arises from
promises made by the parties
themselves.
SIMILARITIES BETWEEN TORT
AND CONTRACT
•Both tort and breach of contract
give rise to civil suits
•In some instances, a breach of
contract may also be a tort: eg
an employer’s failure to provide
safe working conditions
Questions
•What are the objectives of
tort law?
THE OBJECTIVES OF TORT
LAW
•Loss distribution/adjustment: shifting
losses from victims to perpetrators
•Compensation: Through the award of
(pecuniary) damages
–The object of compensation is to place the
victim in the position he/she was before
the tort was committed.
•Punishment: through exemplary or punitive
damages. This is a secondary aim.
Question
•What interests are protected by
the Law of Torts, and how are
these interests protected?
INTERESTS PROTECTED IN
TORT LAW
• Personal security
– Trespass
– Negligence
• Reputation
– Defamation
• Property
– Trespass
– Conversion
• Economic and financial interests
SOURCES OF TORT LAW
•Common Law:
– The development of torts by precedent through the
courts
» Donoghue v Stevenson
•Statute:
– Thematic statutes: eg Motor Accidents legislation
» Motor Accidents Compensation Act 1999
– General statutes: eg Civil Liability legislation
» The Civil Liability Act (NSW) 2002
LIABILITY IN TORT LAW
• Liability = responsibility
• Liability may be based on fault or it may be strict
• Fault liability: the failure to live up to a standard
through an act or omission .
• Types of fault liability:
FAULT LIABILITY
NEGLIGENCE
INTENTION
Intention in Torts
•Deliberate or wilful conduct
•‘Constructive’ intent: where the
consequences of an act are
substantially certain: the
consequences are intended
•Where conduct is reckless
•Transferred intent: where D
intends to hit ‘B’ but misses and
hits ‘P’
Negligence in Torts
•When D is careless in his/her
conduct
•When D fails to take reasonable
care to avoid a reasonably
foreseeable injury to another.
STRICT LIABILITY
•No fault is required for strict
liability
ACTIONS IN TORT LAW
• Trespass
–Directly caused injuries
–Requires no proof of damage
•Action on the Case/Negligence
–Indirect injuries
–Requires proof of damage
THE DOMAIN OF TORTS
Negligence
Trespass
Nuisance
Defences
Financial loss
Conversion
Defamation
Breach of statutory duty
Particular Duty Areas
Vicarious liability
Liability of public authorities
Product liability
Concurrent liability
INTENTIONAL TORTS
INTENATIONAL TORTS
Trespass
Conversion
Detinue
WHAT IS TRESPASS?
• Intentional act of D which
directly causes an injury to the P or
his /her property without lawful
justification
•The Elements of Trespass:
– fault: intentional act
– injury* must be caused directly
– injury* may be to the P or to his/her property
– No lawful justification
THE GENERAL ELEMENTS OF
TRESPASS
Intentional
act
+
Direct interference
with person or property
+
Absence of lawful
justification
+
“x” element
=
A specific
form of trespass
SPECIFIC FORMS OF
TRESPASS
TRESPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT
PROPERTY
BATTERY
• The intentional act of D which
directly causes a physical
interference with the body of P
without lawful justification
•The distinguishing element:
physical interference with P’s body
THE INTENTIONAL ACT IN
BATTERY
• No liability without intention
• The intentional act = basic willful
act + the consequences.
CAPACITY TO FORM THE
INTENT
• D is deemed capable of forming
intent if he/she understands the
nature of (‘intended’) his/her act
• -Infants
» Hart v A. G. of Tasmania ( infant
cutting another infant with razor
blade)
– Lunatics
» Morris v Masden
THE ACT MUST CAUSE
PHYSICAL INTERFERENCE
• The essence of the tort is the protection of the
person of P. D’s act short of physical contact is
therefore not a battery
•The least touching of another could be
battery
– Cole v Turner (dicta per Holt CJ)
•‘The fundamental principle, plain and
incontestable, is that every person’s body is
inviolate’ ( per Goff LJ, Collins v Wilcock)
The Nature of the Physical
Interference
•Rixon v Star City Casino (D places hand
on P’s shoulder to attract his attention;
no battery)
• Collins v Wilcock (Police officer holds D’s
arm with a view to restraining her when D
declines to answer questions and begins to
walk away; battery)
SHOULD THE PHYSICAL
INTERFERENCE BE HOSTILE?
•Hostility may establish a
presumption of battery; but
•Hostility is not material to proving
battery
•The issue may revolve on how one
defines ‘hostility’
THE INJURY MUST BE
CAUSED DIRECTLY
• Injury should be the immediate
Case Law:
The
– Scott v Shepherd ( Lit squib/fireworks in
market place)
– Hutchins v Maughan( poisoned bait left
for dog)
– Southport v Esso Petroleum(Spilt oil on
P’s beach)
THE ACT MUST BE WITHOUT
LAWFUL JUSTIFICATION
• Consent is Lawful justification
• Consent must be freely given by the P if
P is able to understand the nature of the
act
– Allen v New Mount Sinai Hospital
• Lawful justification includes the lawful
act of law enforcement officers
TRESPASS:ASSAULT
•
The intentional act or threat of
D which directly places P in
reasonable apprehension of an
imminent physical interference
with his or her person or of
someone under his or her
control
THE ELEMENTS OF
ASSAULT
• There must be a direct threat:
– Hall v Fonceca (Threat by P who shook hand in
front of D’s face in an argument)
– Rozsa v Samuels ( threat to cut P into bits)
• In general, mere words are not actionable
– Barton v Armstrong
• In general, conditional threats are not actionable
– Tuberville v Savage
– Police v Greaves
– Rozsa v Samuels
THE ELEMENTS OF ASSAULT
• The apprehension must be reasonable;
the test is objective
• The interference must be imminent
Police v Greaves
– Rozsa v Samuels
– Barton v Armstrong
– Hall v Fonceca
Zanker v Vartzokas (P jumps out of a moving
van to escape from D’s unwanted lift)
THE GENERAL ELEMENTS OF
TRESPASS
Intentional act
+
Direct interference
+
Absence of lawful
justification
+
“x” element
=
A specific
form of trespass
SPECIFIC FORMS OF
TRESPASS
TRESPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT
PROPERTY
FALSE IMPRISONMENT
• The intentional act of D which
directly causes the total restraint
of P and thereby confines him/her
to a delimited area without lawful
justification
• The essential distinctive element
is the total restraint
THE ELEMENTS OF THE
TORT
•It requires all the basic elements of
trespass:
– Intentional act
– Directness
– absence of lawful justification/consent
, and
• total restraint
RESTRAINT IN FALSE
IMPRISONMENT
• The restraint must be total
– Bird v Jones (passage over bridge)
– The Balmain New Ferry Co v Robertson
• Total restraint implies the absence of a
reasonable means of escape
– Burton v Davies (D refuses to allow P out of car)
• Restraint may be total where D subjects P to
his/her authority with no option to leave
– Symes v Mahon (police officer arrests P by mistake)
– Myer Stores v Soo
FORMS OF FALSE IMPRISONMENT
• See the following Cases:
– Cowell v. Corrective Services
Commissioner of NSW (1988) Aust. Torts
Reporter ¶81-197.
– Louis v. The Commonwealth of Australia
87 FLR 277.
– Lippl v. Haines & Another (1989) Aust.
Torts Reporter ¶80-302; (1989) 18
NSWLR 620.
– Dickenson Waters
VOLUNTARY CASES
• In general, there is no FI where one
voluntarily submits to a form of restraint
– Herd v Werdale (D refuses to allow P out of mine
shaft)
– Robison v The Balmain New Ferry Co. (D refuses
to allow P to leave unless P pays fare)
– Lippl v Haines
• Where there is no volition for restraint, the
confinement may be FI (Bahner v Marwest Hotels
Co.)
WORDS AND FALSE
IMPRISONMENT
•In general, words can constitute FI
KNOWLEDGE IN FALSE
IMPRISONMENT
•The knowledge of the P at the
moment of restraint is not essential.
– Merring v Graham White Aviation
– Murray v Ministry of Defense
THE BURDEN OF PROOF IN
TRESPASS
•The traditional position in Common
Law:
– The D bears the burden of disproving fault
•The Highway exception
– Off highway: D disproves fault
– In highway trespass: P proves fault