THE LAW OF TORTS
Weekend School 1
TEXT BOOKS
• Dominic Villa Annotated Civil Liability Act
Lawbook Co. (2013)
• Balkin and Davis The Law of Torts 5th Ed
LexisNexis
• Luntz & Hambly, Torts - Cases and Commentary,
7th ed. LexisNexis,
• Stewart and Stuhmcke, Australian Principles of
Torts Law Federation Press, 3rd Ed
• Davies and Malkin, Torts LexisNexis 6th Ed
• Blay, Torts in a Nutshell LBC
INTRODUCTION
WEEK 1
DEFINITION: THE NATURE
OF TORTS
WHAT IS A TORT?
•A tort is a civil wrong
•That (wrong) is based a breach
of a duty imposed by law
THE DIFFERENCES BETWEEN
A TORT AND A CRIME
•A crime is a public /community wrong that
gives rise to sanctions usually designated in
a specified code. A tort is a civil ‘private’
wrong.
• An 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
»
TORTS and CRIME
TORTS
• A civil action
• Brought by the victim
• To provide a remedy
• Remedy: compensation
• Proof: balance of
probabilities
CRIME
• A criminal action
• Brought by the Crown
• To punish the
perpetrator
• Remedy: punishment
• Proof: beyond reasonable
doubt
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.
TORTS DISTINGUISHED FROM
BREACH OF CONTRACT
•A breach of contract arises from breach
of promise(s) made by the parties
themselves.
TORTS and CONTRACT
•
•
•
•
•
TORTS
Duty owed generally
Duty imposed by law
promises or agreement
Protects what is already
owned or possessed
Damages unliquidated
•
•
•
•
CONTRACT
Duty to other contracting
party
Duty arises from parties'
Protects expectation of
future benefits
Damages often
liquidated
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
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.
INTEREST PROTECTED AND
RELEVANT ACTIONS
INTEREST
• Personal Security
TORT
• Trespass, Negligence
• Reputation
• Property
• Defamation
• Trespass, Negligence,
Conversion, Detinue
• False Imprisonment
• Nervous shock,
Wilkinson v Downtown
• Malicious prosecution
• Negligence ( pure
financial loss)
•
•
•
•
Liberty
Mental tranquility
Abuse of legal process
Financial Interest
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
and that party suffers damage.
STRICT LIABILITY
•No fault is required for strict
liability
ACTIONS IN TORT LAW
• Trespass
–Directly caused injuries
–Requires no proof of damage (
actionable per se)
•Action on the Case/Negligence
–Indirect injuries
–Requires proof of damage
Particular torts
INTENTIONAL TORTS
•
INTENTIONAL 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: The ‘DNA’
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.
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)
Battery :
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 TO THE PERSON
assault
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
• It is any act — and not a mere
omission to act — by which a
person intentionally — or
recklessly — causes another to
apprehend immediate and
unlawful violence:
State of New South Wales v
Ibbett (2005) 65 NSWLR 168
• Two policemen gave chase to Mr Ibbett, suspecting
that he may have been involved in a criminal
offence. They pursued him to a house where he
lived with his mother, Mrs Ibbett. Without legal
justification, one of the policemen entered the
property and arrested Mr Ibbett. His mother came
into the garage where these events occurred. The
police officer produced a gun and pointed it at Mrs
Ibbett saying:
• “Open the bloody door and let my mate in”.
• Mrs Ibbett, who was an elderly woman, had
never seen a gun before and was, not unnaturally,
petrified.
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)
– Barton v Davis
• In general, mere words are may not actionable
– Barton v Armstrong
• But mere silence as in silent telephone calls, may
constitute an assault: R v Burstow; R v Ireland [1998] AC 147.
• In general, conditional threats are not actionable
– Tuberville v Savage
– Police v Greaves
THE ELEMENTS OF ASSAULT
• The apprehension must be reasonable;
the test is objective
• The interference must be imminent
– -Police v Greaves
– Barton v Armstrong
Zanker v Vartzokas (P jumps out of a moving
van to escape from D’s unwanted lift)
Zanker v Vartzokas and the
issue of imminence/immediacy
• The Facts:
– Accused gives a lift to victim and offers
money for sex; victim refuses.
– Accused responds by accelerating car, Victim
tries to open door, but accused increases
acceleration
– Accused says to victim: I will take you to my
mates house. He will really fix you up
– Victim jumps from car then travelling 60km/h
Zanker v Vartzokas: The Issues
Was the victim’s fear of sexual
assault in the future
reasonable?
•Was the feared harm
immediate enough to constitute
assault?
•
Zanker v Vartzokas: The
Reasoning
• Where the victim is held in place and unable
to escape the immediacy element may be
fulfilled.
• The essential factor is imminence not
contemporaneity
• The exact moment of physical harm injury is
known to the aggressor
• It remains an assault where victim is
powerless to stop the aggressor from carrying
out the threat
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)
– Rudduck v Vadarlis
– 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)
‘Correctional Cases’
• In State of New South Wales v TD (2013) 83 NSWLR 566,
– Respondent suffering from mental illness was found
guilty and sentenced to 20 months. Following a
determination by the Mental Health Tribunal, the
District Court was ordered that she be detained in a
hospital. Contrary to this order, for some 16 days, the
appellant was detained in a cell at Long Bay Goall in an
area which was not gazetted as a hospital.
• In State of New South Wales v Kable (2013) 87 ALJR 737,
– the High Court of Australia held that a detention order
which had been made by the Supreme Court (but under
legislation which was later held invalid) provided
lawful authority for Mr Kable’s detention.
TRESPASS TO PROPERTY
TRESPASS TO PROPERTY
LAND
GOODS/CHATTELS
TRESPASS TO LAND
• The intentional of D
which directly interferes
with the plaintiff’s
exclusive possession of
land
THE NATURE OF THE
TORT
• Land includes the actual
soil/dirt, the structures/plants
on it and the airspace above it
• Cujus est solum ejus est
usque ad coelum et inferos
–Bernstein of Leigh v Skyways &
General Ltd
–Kelson v Imperial Tobacco
The Nature of D’s Act: A
General Note
•...[E]very invasion of private property, be it
ever so minute, is a trespass. No man can
set his foot upon my ground without my
license, but he is liable to an action, though
the damage be nothing.... If he admits the
fact, he is bound to show by way of
justification, that some positive law has
empowered or excused him ( Entick v
Carrington (1765) 16 St Tr 1029, 1066)
THE NATURE OF D’S ACT
• The act must constitute
some physical interference
which disturbs P’s exclusive
possession of the land
–Victoria Racing Co. v Taylor
–Barthust City Council v Saban
–Lincoln Hunt v Willesse
THE NATURE OF THE PLAINTIFF’S
INTEREST IN THE LAND
• P must have exclusive
possession of the land at the
time of the interference
exclusion of all others
THE NATURE OF
EXCLUSIVE POSSESSION
• Exclusive possession is distinct from
ownership.
• Ownership refers to title in the land.
Exclusive possession refers to physical
holding of the land
•The nature of possession depends on the
material possessed
THE POSITION OF TRESPASSERS
AND SQUATTERS
A trespasser/squatter in
exclusive possession can
maintain an action against
any other trespasser
•Newington v Windeyer
(1985) 3 NSWLR
•
THE POSITION OF POLICE
OFFICERS
• Unless authorized by law, police
officers have no special right of
entry into any premises without
consent of P. (Halliday v Neville)
• A police officer charged with the
duty of serving a summons must
obtain the consent of the party in
possession (Plenty v. Dillion )
TRESPASS TO PROPERTY
TRESPASS TO PROPERTY
LAND
GOODS/CHATTELS
TRESPASS TO PROPERTY
TRESPASS TO PROPERTY
LAND
TRESPASS TO
GOODS/CHATTEL
• The intentional/negligent act of D
which directly interferes with the
plaintiff’s possession of a chattel
without lawful justification
• The P must have actual or constructive
possession at the time of interference.
•
DAMAGES
•It may not be actionable per se
(Everitt v Martin)
CONVERSION
• The act of D in relation to
another’s chattel which
constitutes an unjustifiable
denial of his/her title
CONVERSION: Who
Can Sue?
• Owners
• Those in possession or entitled to
immediate possession
– Bailees*
– Bailors*
– Mortgagors* and
Mortgagees*(Citicorp Australia v B.S.
Stillwell)
– Finders (Parker v British Airways;
Armory v Delmirie)
ACTS OF CONVERSION
•
Mere asportation is no conversion
– Fouldes v Willoughby
• The D’s conduct must constitute an unjustifiable
denial of P’s rights to the property
– Howard E Perry v British Railways Board
• Finders of lost property
– Parker v British Airways
• The position of the auctioneer
– Willis v British Car Auctions
• Destruction of the chattel is conversion
– Atkinson v Richardson;)
• Taking possession
• Withholding possession
– Clayton v Le Roy
ACTS OF CONVERSION
• Misdelivery ( Ashby v Tolhurst
(1937 2KB); Sydney City Council v
West)
• Unauthorized dispositions in any
manner that interferes with P’s title
constitutes conversion (Penfolds
Wines v Elliott)
DETINUE
•
Detinue: The wrongful refusal
to tender goods upon demand
by P, who is entitled to
possession It requires a
demand coupled with
subsequent refusal (General
and Finance Facilities v Cooks
Cars (Romford)
DAMAGES IN CONVERSION
AND DETINUE
• In conversion, damages usually take the form of
pecuniary compensation
• In detinue, the court may in appropriate circumstances
order the return of the chattel
• Damages in conversion are calculated as at the time of
conversion; in detinue it is as at the time of judgment
– The Mediana
– Butler v The Egg and Pulp Marketing Board
– The Winkfield
– General and Finance Facilities v Cooks Cars
(Romford)
THE LAW OF TORTS
Action on the Case for
Indirect Injuries
INDIRECT
INTENTIONAL INJURIES
• ACTION ON THE CASE
FOR PHYSICAL INJURIES
OR NERVOUS SHOCK
INDIRECT INTENTIONAL
INJURIES: CASE LAW
• Bird v Holbrook (trap set in
garden)
–D is liable in an action on the
case for damages for intentional
acts which are meant to cause
damage to P and which in fact
cause damage (to P)
THE INTENTIONAL ACT
• The intentional may be deliberate
and preconceived(Bird v Holbrook )
• It may also be inferred or implied;
the test for the inference is
objective
Wilkinson v Downton
• Janvier v Sweeney
•Nationwide News v Naidu
•
Action on the Case for Indirect
Intentional Harm: Elements
• D is liable in an action on the case for damages
for intentional acts which are meant to cause
damage to P and which in fact cause damage to
P
• The elements of this tort:
– The act must be intentional
– It must be one calculated to cause harm/damage
– It must in fact cause harm/actual damage
• Where D intends no harm from his act but the
harm caused is one that is reasonably
foreseeable, D’s intention to cause the resulting
harm can be imputed/implied
THE SCOPE OF THE RULE
• The rule does not cover ‘pure’
mental stress or mere fright
– Wainright v Home Office
• The act must be reasonably
capable of causing mental
distress to a normal* person:
– Bunyan v Jordan
– Stevenson v Basham
The Future of the Wilkinson v
Downtown
• The High Court obiter dicta Magill v Magill
– Subsequent developments in Anglo-Australian law
recognise these cases as early examples of recovery by
reference to imputed intention to cause physical harm ; a
cause of action later subsumed under the unintentional tort
of negligence ( Per Gummow, Kirby and Crennan JJ)
– Wilkinson v Downton, decided in 1987 and Janvier v
Sweeney decided in 1919, which were cases of deception
causing nervous shock, would probably now be explained
either on the basis of negligence or intentional infliction of
personal injury ( per Gleeson CJ)
ONUS OF PROOF
• In Common Law, he who asserts proves
• Traditionally, in trespass D was required to disprove
fault once P proved injury. Depending on whether
the injury occurred on or off the highway ( McHale v
Watson; Venning v Chin)
• The current Australian position is contentious but
seems to support the view that in off highway cases
D is required to prove all the elements of the tort
once P proves injury
– Hackshaw v Shaw
– Platt v Nutt
– See Blay; ‘Onus of Proof of Consent in an Action for
Trespass to the Person’ Vol. 61 ALJ (1987) 25
– But see McHugh J in See Secretary DHCS v JWB and SMB
(Marion’s Case) 1992 175 CLR 218
IMPACT OF THE CIVIL
LIABILITY ACT
• Section 3B Civil liability excluded from Act
(1) The provisions of this Act do not apply to or
in respect of civil liability (and awards of
damages in those proceedings) as follows:
(a) civil liability in respect of an intentional
act that is done with intent to cause injury
or death or that is sexual assault or other
sexual misconduct – the whole Act except
Part 7 (Self-defence and recovery by
criminals) in respect of civil liability in
respect of an intentional act that is done
with intent to cause injury or death
THE LAW OF TORTS
Defences to Intentional Torts
INTRODUCTION: The
Concept of Defence
• Broader Concept: The content of
the Statement of Defence- The
response to the P’s Statement of
Claim-The basis for non-liability
•Statement of Defence may contain:
Denial
– Objection to a point of law
– Confession and avoidance:
–
MISTAKE
• An intentional conduct done under
a misapprehension
• Mistake is thus not the same as
inevitable accident
• Mistake is generally not a defence
in tort law ( Rendell v Associated
Finance Ltd, Symes v Mahon)
• ‘Mistake’ may go to prove
MEDICAL CASES
CONSENT IN MEDICAL
CASES
• Medical practitioners must obtain consent from
the patient to any medical or surgical procedure.
• Absent the patient’s consent, the practitioner who
performs a procedure will have committed a
battery and trespass to the person.
• Note that consent to one procedure does not imply
consent to another.
• Subject to any possible defence of necessity, the
carrying out of a medical procedure that is not the
procedure, the subject of a consent, will constitute
a battery.
Exercise
• P was admitted for abdominal surgery for which he duly
consented. While he was under general anesthetic, his
surgeon noticed a sebaceous cyst on the top of his head. P is
bald and the so the surgeon decided to do him a favour and
get rid of the unsightly cyst. He removed it without incident.
In the recovery ward, P was incensed when he discovered
what had happened. His cyst had apparently been the source
of many a free pint of ale. He habitually wore a bowler hat
and it had been his habit to place a second, tiny bowler hat
on top of the sebaceous cyst itself. Whenever he removed his
hat at the local pub to expose the tiny bowler underneath,
sitting on the cyst, this invariably caused general amusement
and free shouts of beer. P was upset at the loss of the cyst,
his one major social asset.
• P has been advised that since he did not suffer
any “real damage” he can hardly expect to
succeed in a tort action against the surgeon.
Do you agree?
‘EXTRA’ OR UNECESSARY
MEDICAL PROCEDURE NOT
AUTHORISED
Exercise
• P saw a dental surgeon following injury
at work. Over a period of 12 months the
surgeon performed root-canal treatment
and fitted crowns on all of P’s teeth at
considerable cost
• Surgeon later admitted the crowns
were unnecessary and he had been
negligent
• Issue could P argue trespass?
Dean v Phung [2012] NSWCA
223
– Consent is validly given in respect of medical
treatment where the patient has been given
basic information as the nature of the proposed
procedure. If however, it could be demonstrated
objectively that a procedure of the nature
carried out was not capable of addressing the
patient’s problem, there would be no valid
consent.
– It is necessary to distinguish between core
elements of the procedure and peripheral
elements, including risks of adverse outcomes.
Wrong advice about the latter may involve
negligence but will not vitiate consent.
– Burden of proof will lie on the practitioner to
establish the existence of a valid consent where
that is in issue.
COMPETING PRINCIPLES
•A competent adult’s right of
autonomy or selfdetermination, or the right to
control his or her own body,
versus the interest of the State
in protecting and preserving
the lives and health of its
citizens.
Hunter and New England Area Health
Service v A (2009) 74NSWLR 88
•A had prepared an advance care
directive stating that he would refuse
dialysis. He then developed renal
failure and was being kept alive by
mechanical ventilation and kidney
dialysis.
• McDougall J concluded that, when in
conflict, the former principle should
generally prevail
Re JS [2014] NSWSC 302
• JS a 27 year old man requested hospital to stop providing
him with life-sustaining treatment. The hospital sought a
declaration from the NSW Supreme Court that it was entitled
to discontinue the treatment.
• JS had been a quadriplegic since the age of seven. And had
needed full invasive ventilator support via a tracheotomy
since that age. In 2013 his lungs collapsed. His condition
worsened and required full-time care and treatment in
hospital. His quality of life was significantly impaired. JS
expressed a wish for that treatment to stop on his 28th
birthday. Issue whether hospital could comply with his
request:
• Held: Medical practitioners would be acting lawfully if they
acted in accordance with JS’s re
MATURE MINORS
GILLICK COMPETENCY
• Gillick v West Norfolk and Wisbech Area Health
Authority [1986] 1 AC 112,
– A mature minor who is capable of understanding
the nature and consequences of a particular type of
medical treatment, can provide effective consent to
such treatment
• Secretary Department of Health and Community
Services v JWB (Marion’s case) (1992) 175 CLR 218
• s 49(2) of the Minors (Property and Contracts) Act
1970 (NSW) provides that children over the age of 14
are able to consent to medical and dental treatment
Children and Young Persons (Careand
Protection) Act 1988(NSW)
•s 174:
Protection to medical practitioners who give e
mergency or urgent medical treatment in
circumstances where such treatment is
necessary to save the life of a minor
• The Act is however silent on
whether a mature minor can refuse
treatment
THE PARENS PATRIAE
JURISDICTION OF COURTS
• It originates from the Crown’s obligation to make decisions for
those who are not able to care for themselves, such as minors
or those of “unsound mind”
• The jurisdiction of the court is invoked with caution:
– the court must act cautiously, not as if it were a private
person acting with regard to his own child, and acting in
opposition to the parent only when judicially satisfied
that the welfare of the child requires that the parental
right should be suspended or superseded ( In Re
O’Hara [1900] 2IR 232
• The guiding principle is the best interest or welfare of the
child within its jurisdiction
X v The Sydney Children’s Hospitals
Network [2013] NSWCA 320
–
X a teenager refused to receive his own
treated blood products. The treatment was
necessary to preserve his life; his refusal was
based on his religious beliefs. His refusal was
fully supported by his parents who were of the
same religious persuasion.
– The court, exercising its “parens patriae”
jurisdiction, essentially overrode these genuine
beliefs, holding that the welfare of the patient
required that the primary judge make the
order permitting the treatment.
CONSENT IN SPORTS
•http://www.youtube.com/watch?v=
W-BmKXU12yE
• Alex McKinnon has been diagnosed as a
quadriplegic and warned by doctors he may
never walk again after this tackle.
Jordan McLean was suspended for seven weeks
after being found guilty of a 'dangerous throw'
on Newcastle Knights player Alex
CONSENT IN SPORTS (2)
•In contact sports, consent is not
necessarily a defence to foul play
(McNamara v Duncan; Hilton v
Wallace)
• To succeed in an action for trespass in
contact sports however, the P must of
course prove the relevant elements of
the tort.
– Giumelli v Johnston
SELF DEFENCE,
DEFENCE OF OTHERS
• A P who is attacked or threatened with
an attack, is allowed to use reasonable
force to defend him/herself
• In each case, the force used must be
proportional to the threat; it must not be
excessive. (Fontin v Katapodis)
• D may also use reasonable force to
defend a third party where he/she
reasonably believes that the party is
being attacked or being threatened
THE DEFENCE OF
PROPERTY
• D may use reasonable force to defend
his/her property if he/she reasonably
believes that the property is under attack or
threatened
• What is reasonable force will depend on
the facts of each case, but it is debatable
whether reasonable force includes ‘deadly
force’ (See CLA 52(3) for the scope )
Section 52 CLA
• No civil liability for acts in self-defence
– (1) A person does not incur a liability to which this Part applies arising from
any conduct of the person carried out in self-defence, but only if the conduct
to which the person was responding:
– (a) was unlawful, or
– (b) would have been unlawful if the other person carrying out the conduct to
which the person responds had not been suffering from a mental illness at
the time of the conduct.
– (2) A person carries out conduct in self-defence if and only if the person
believes the conduct is necessary:
– (a) to defend himself or herself or another person, or
– (b) to prevent or terminate the unlawful deprivation of his or her liberty or
the liberty of another person, or
– (c) to protect property from unlawful taking, destruction, damage or
interference, or
– (d) to prevent criminal trespass to any land or premises or to remove a person
S52 Cont’ed
• and the conduct is a reasonable response in the
circumstances as he or she perceives them.
• (3) This section does not apply if the person
uses force that involves the intentional or
reckless infliction of death only:
– (a) to protect property, or
– (b) to prevent criminal trespass or to remove a person
committing criminal trespass.
Section 53 CLA
Damages limitations apply even if selfdefence not reasonable response
• If section 52 would operate to prevent a person
incurring a liability to which this Part applies in respect
of any conduct but for the fact that the conduct was not
a reasonable response in the circumstances as he or she
perceived them, a court is nevertheless not to award
damages against the person in respect of the conduct
unless the court is satisfied that:
• (b) in the circumstances of the case, a failure to award
damages would be harsh and unjust.
PROVOCATION
• Provocation is not a defence in tort
law.
• It can only be used to avoid the
award of exemplary damages:
Fontin v Katapodis; Downham
Ballett and Others
The Case for Allowing the
Defence of Provocation
• The relationship between provocation
and contributory negligence
• The implication of counterclaims
•Note possible qualifications Fontin v
Katapodis to:
– Lane v Holloway
– Murphy v Culhane
– See Blay: ‘Provocation in Tort Liability: A Time
for Reassessment’,QUT Law Journal, Vol. 4 (1988)
pp. 151-159.
NECESSITY
• The defence is allowed where
an act which is otherwise a tort
is done to save life or property:
urgent situations of imminent
peril
Urgent Situations of
Imminent Peril
• The situation must pose a threat to life or property
to warrant the act: Southwark London B. Council v
Williams
• Lord Denning MR:
– ‘If homelessness were once admitted as a defence to
trespass, no one’s house could be safe. Necessity would
open a door no man could shut. It would not only be
those in extreme need who would enter. There would
be others who would imagine they were in need or
would invent a need, so as to gain entry. The plea would
be an excuse for all sorts of wrongdoing. So the courts
must refuse to admit the plea of necessity to the hungry
and the homeless: and trust that their distress will be
relieved by the charitable and good.’
• The defence is available in very strict
circumstances R v Dudley and Stephens
• D’s act must be reasonably necessary
and not just convenient Murray v
McMurchy
– In re F
– Cope v Sharp
INSANITY
• Insanity is not a defence as such to
an intentional tort.
• What is essential is whether D by
reason of insanity was capable of
forming the intent to commit the
tort. (White v Pile; Morris v
Marsden)
ILLEGALITY:
Common Law
• Persons who join in committing an
illegal act have no legal rights inter
se in relation to torts arising directly
from that act.
– Hegarty v Shine
– Smith v Jenkins (D injured while he and
accomplice drive stolen vehicle)
– Jackson v Harrison ( P not barred from claiming
merely because he was aware that D had lost
his license)
– Gala v Preston
ILLEGALITY: The CLA
• Section 54: Criminals not to be awarded
damages
– A court is not to award damages in respect of liability to which
this Part applies if the court is satisfied that:
– (a) the death of, or the injury or damage to, the person that is the
subject of the proceedings occurred at the time of, or following,
conduct of that person that, on the balance of probabilities,
constitutes a serious offence, and
– (b) that conduct contributed materially to the death, injury or
damage or to the risk of death, injury or damage.
– (2) This section does not apply to an award of damages against a
defendant if the conduct of the defendant that caused the death,
injury or damage concerned constitutes an offence (whether or
not a serious offence).
The CLA and Intentional Torts
• S3B:(1) The provisions of this Act do not apply to or in
respect of civil liability (and awards of damages in those
proceedings) as follows:
• (a) civil liability of a person in respect of an intentional
act that is done by the person with intent to cause injury
or death or that is sexual assault or other sexual
misconduct committed by the person-the whole Act
except:
•…
• (ii) Part 7 (Self-defence and recovery by criminals) in
respect of civil liability in respect of an intentional act that
is done with intent to cause injury or death, and
The Exclusion of Intentional
torts from the CLA
• New South Wales v Ibbet: Assault and trespass to land: The
restrictions on the award of exemplary and aggravated
damages under the CLA held not to apply
• Honda v NSW [2005]: wrongful arrest, malicious prosecution
and false imprisonment by a police officer. Issue whether
injury in s3B included only bodily injury. Held injury not
limited to bodily injury
• Zorom Enterprise v Zabow: P suffered head injuries as a
result of an attack by a security guard employed by D. P sued
D for vicarious liability. D argued that CLA restrictions
applied because s3B only excluded only the intentional acts
of the person who actually committed torts and not the D
who was only vicariously liable. Argument was rejected
s3B: ‘In respect of ….’
• NSW v Bujdoso [2007]
• P was attacked by inmates while in prison. He brought
an action the D for their negligence. Since the conduct of
the inmates was intentional, the issue was whether the
provision of 3B applied to exclude the restrictions of the
CLA in the award of damages.
• The argument centred on the phrase ‘in respect of’ P
argued that in respect of was broad and means that D’s
liability arose in respect of the intentional act of the
inmates and so s3B applied. The court rejected the
argument. In respect of interpreted to refer to the person
who did the act and the person whose negligence led to
the doing of the act.