THE LAW OF TORTS
WEEK 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
THE LECTURE STRUCTURE
•Texts
•Definition, aims and scope
of law of torts
•Intentional torts
INTRODUCTION
THE LAW OF TORTS
DEFINITION: THE NATURE OF TORTS
B&D Chapter 1
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
TORTS AND CRIMES:
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
»
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
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.
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
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.
WHAT INTERESTS ARE PROTECTED
BY THE LAW OF TORTS, AND HOW
ARE THESE INTERESTS PROTECTED?
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
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
•
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
*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)
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
Platt v Nutt
In Re F
• Per Lord Goff: It is well established that, as a
general rule, the performance of a medical
operation upon a person without his or her
consent is unlawful, as constituting both the
crime of battery and the tort of trespass to the
person.
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 without lawful
justification
THE LAW OF TORTS
WEEK 2
ASSAULT
FALSE IMPRISONMENT
TRESPASS 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 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