THE LAW OF TORTS
WEEK 1
THE LECTURE STRUCTURE
•Texts
•Definition, aims and scope
of law of torts
•Intentional torts
•The tort of negligence
–Duty of care
TEXT BOOKS
• Dominic Villa Annotated Civil Liability Act
Lawbook Co.
• Luntz & Hambly, Torts - Cases and Commentary,
7th ed. LexisNexis, 2013
• Richards, Ludlow and de Zwart, Tort Law
Principles, Thomson Reuters, 2012
• Blay, Torts in a Nutshell LBC 2010
• Sappideen et al Torts Cases Commentary LBC
• Balkin and Davies, The Law of Torts
INTRODUCTION
THE LAW OF TORTS
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
•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 a 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
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
•Action on the Case/Negligence
–Indirect injuries
–Requires proof of damage
THE DOMAIN OF TORTS
Financial loss
Trespass
Nuisance
Breach of statutory duty
Particular Duty Areas
Negligence
Defences
Defamation
Conversion
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
*INJURY IN TRESPASS
• Injury = a breach of right, not necessarily
actual damage
• Trespass requires only proof of injury
not actual damage
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)
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 LAW OF TORTS
WEEK 2
ASSAULT
FALSE IMPRISONMENT
TRESSPASS TO LAND
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:
The Gist of the Action
• …Assault
necessarily involves the
apprehension of injury or the instillation
of fear or fright. It does not necessarily
involve physical contact with the person
assaulted: nor is such physical contact, if it
occurs, an element of the assault.
(Barwick CJ in The Queen v Phillips (1971)
45 ALJR 467 at 472
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)
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.)
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 LAW OF TORTS
WEEK 3
Trespass to property
Action on the case for Intentional Harm
Defences to Intentional Torts
OTHER FORMS OF TRESPASS
TRESPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT
PROPERTY
TRESPASS TO PROPERTY
TRESPASS TO PROPERTY
LAND
GOODS/CHATTELS
TRESPASS TO LAND
• The intentional act 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
• Possession may be immediate or
constructive
•The nature of possession depends on the
material possessed
EXCLUSIVE POSSESSION:
CO-OWNERS
• In general, a co-owner cannot
be liable in trespass in respect of
the land he/she owns; but this is
debatable where the
’trespassing’ co-owner is not in
possession. (Greig v Greig)
•A co-possessor can maintain an
action against a trespasser (Coles
Smith v Smith and Ors)¯
THE POSITION OF TRESPASSERS
AND SQUATTERS
•
A trespasser/squatter in
exclusive possession can
maintain an action against
any other trespasser
–Newington v Windeyer (1985)
•
THE POSITION OF
LICENSEES
• A licensee is one who has the
permission of P to enter or use land
(belonging to P)
• A licensee is a party not in
possession, and can therefore not
sue in trespass
• A licensee for value however may
be entitled to sue(E.R. Investments
v Hugh)
THE TRESPASSORY ACT
• Preventing P’s access Waters v
Maynard)
• The continuation of the initial
trespassory act is a trespass
continuing trespass
• Where D enters land for purposes
different from that for which P gave
a license, D’s conduct may
constitute trespass ab initio (Baker v
Crown)
THE POSITION OF POLICE
OFFICERS
• Unless authorized by law, police
officers have no special right of
entry into any premises without
consent of P. But see 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 )
Police Officers; The Common
Law Position
•The poorest man may in his cottage bid
defiance to all forces of the Crown. It
may be frail- its roof may shake- the
wind may blow through it- the rain may
enter- but the King of England cannot
enter- all his force dares not cross the
threshold of the ruined tenement. So
be it- unless he has justification by
law’. ( Southam v Smout [1964] 1QB 308,
320.
REMEDIES
• Ejectment
•Self help:
– Self redress is a summary remedy, which is
justified only in clear and simple cases, or in
an emergency…the courts have confined the
remedy by way of self redress to simple cases
such as an overhanging branch, or an
encroaching root, which would not justify the
expense of legal proceedings, and urgent cases
which require an immediate remedy. (Burton
v Winters [1993] 3 All ER 847)
TRESPASS TO PROPERTY
TRESPASS TO PROPERTY
LAND
GOODS/CHATTELS
TRESPASS TO PROPERTY
•GOODS/CHATTELS
TRESPASS
TO PROPERTY
•Personal 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
• Destruction of the chattel is conversion
– Atkinson v Richardson;)
• Taking possession
• Withholding possession
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
•ACTION ON THE CASE
REFERS TO ACTIONS BASED
ON INJURIES THAT ARE
CAUSED INDIRECTLY OR
CONSEQUENTIALLY
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
•
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
• The act must be reasonably capable
of causing mental distress to a
normal* person:
– Bunyan v Jordan
– Stevenson v Basham
– Carrier v Bonham
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
CONSENT
• In a strict sense, consent is not a
defence as such because in trespass,
the absence of consent is an element
of the tort
– See: Blay; ‘Onus of Proof of Consent in an
Action for Trespass to the Person’ Vol. 61
ALJ (1987) 25
– But McHugh J in See Secretary DHCS v
JWB and SMB (Marion’s Case) 1992 175 CLR
218
VALID CONSENT
• To be valid, consent must be
informed and procured without
fraud or coercion: ( R vWilliams;)
• To invalidate consent, fraud must
relate directly to the agreement
itself, and not to an incidental
issue: (Papadimitropoulos v R
(1957) 98 CLR 249; R v Linekar (the
Times, 1994)
CONSENT IN SPORTS
• 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
THE BURDEN OF PROOF
•
Since the absence of
consent is a definitional
element in trespass, it is for
the P to prove absence of
consent and not for the D to
prove consent
STATUTORY PROVISIONS ON
CONSENT
•Minors (Property and
Contracts) Act 1970 (NSW) ss
14, 49
•Children and Young Persons
(Care and Protection) Act 1998
(NSW)
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’
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
A Critique of the Current
Position On Provocation
To discourage vengeance and
retributive justice
• The compensation theory
argument
• The gender based thesis
•
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
• 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)
INFANTS
• Minority is not a defence as such in
torts.
•What is essential is whether the D
understood the nature of his/her
conduct (Smith v Leurs; Hart v AG
of Tasmania)
DISCIPLINE
• PARENTS
– A parent may use reasonable and
moderate force to discipline a
child. What is reasonable will
depend on the age, mentality, and
physique of the child and on the
means and instrument used. (R v
Terry)
DISCIPLINE
• TEACHERS
• CAPTAINS OF VESSELS
• SPOUSES
ILLEGALITY:Ex turpi causa
non oritur actio
• 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
– Jackson v Harrison
– Gala v Preston
TRESPASS & CLA 2002
• s.3B(1)(a) Civil Liability Act
(“CLA”) i.e. CLA does not apply to “intentional torts”,
except Part 7 of the Act.
• s.52 (2) CLA subjective/objective
test i.e. subjective ("…believes…" & "…perceives…")/
objective ("…reasonable response…") test.
• s.53(1)(a) & (b) CLA i.e. “and” = two limb test;
"exceptional" and "harsh and unjust“ are not defined in the Act
so s.34 of the Interpretation Act 1987.
• s.54(1) & (2) CLA i.e. "Serious offence" and
"offence" are criminal terms so reference should be made to the
criminal law to confirm whether P's actions are covered by the
provisions.