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THE LAW OF TORTS
WEEKEND SCHOOL 1
THE LECTURE STRUCTURE
•Texts
•Definition, aims and scope
of law of torts
•Intentional torts
•The tort of negligence
–Duty of care
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
ACN 087 528 774 Pty Ltd (formerly Connex
Trains Melbourne Pty Ltd) v Chetcuti [2008]
VSCA 274:
• A plaintiff seeking to establish a cause of action for the tort of
assault, in circumstances where no physical contact or battery
in fact takes place, must prove the following elements:
– A threat by the defendant, by words or conduct, to inflict harmful or offensive
contact upon the plaintiff forthwith
– A subjective intention on the part of the defendant that the threat will create in
the mind of the plaintiff an apprehension that the threat will be carried out
forthwith
– The threat must in fact create in the mind of the plaintiff an apprehension that
the threat
– will be carried out forthwith:
– The apprehension in the mind of the plaintiff must be objectively reasonable
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
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)
– Robinson 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
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 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
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
•Recovery of Possession
•Award of damages
• Injunction
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
• 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
•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
Nationwide News Pty Ltd v
Naidu [2007] NSWCA 377
• Facts: Nationwide News’ Fire and Safety Officer subjected
the plaintiff to humiliating and harassing treatment. The
plaintiff suffered psychiatric injury in the form of Post
Traumatic Stress D
• Held: P successful. Spigelman CJ considered the intention
required to establish a tort:
• “Calculated” can mean:
– Subjective, actual, conscious desire to bring about the specific result; or
– What is likely, perhaps overwhelmingly likely to occur considered
objectively
– However the subjective intention is unlikely to be required because of
the “imputed intention” in Wilkinson v Downton.
– It may be enough to satisfy a test of “substantial certainty”
– ‘Reckless indifference” will satisfy the intention
• While there is no finding that the superior in this case
actually intended to inflict the psychiatric damage, the
nature and scale of his conduct was such as to constitute a
recognised psychiatric injury as a natural and probable
consequence of that course of conduct.
Carrier v Bonham [2002]
• A mentally ill D stepped in front of a bus in a
deliberate effort to commit suicide. Issue was
whether D could be held liable for an ‘act
calculated to cause harm’
• Held: the concept imported a purely objective
test
• See Carter v Walker. P claimed suffered shock
when his mother called to inform him of an
assault on her and his brother. He hurried to
scene. He subsequently brought action under
Wilkinson v Downtown . Action failed.
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
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.
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)
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
SELF DEFENCE-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.
NEGLIGENCE
INTRODUCTION
NEGLIGENCE AND FAULT IN
TORTS
FAULT
INTENTION
NEGLIGENCE
TRESPASS
CARELESS
NEGLIGENCE
the action
Donoghue v. Stevenson
• Ginger beer-decomposing snail-P has shockgastroenteritis
• No privity of contract between P and D. Issue was
whether D owed P a duty
• Dicta of Lord Atkin
• You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be
likely to injure your neighbour. Who then in law is my
neighbour? The answer seems to be persons who are
closely and directly affected by my act that I ought
reasonably to have them in mind to the acts or
omissions
Negligence: The Elements
Duty of care
Negligence
Breach
Damage
NEGLIGENCE
• Grant v Australian Knitting Mills (1936)
• The application of the rule in D v S
•a manufacturer of products, which he sells in such
a form as to show that he intends them to reach the
ultimate consumer in the form in which they left
him with no reasonable possibility of intermediate
examination, and with the knowledge that the
absence of reasonable care in the preparation or
putting up of the products will result in an injury
to the consumer’s life or property, owes a duty to
the consumer to take that reasonable care
NEGLIGENCE: THE DUTY OF
CARE
• whenever one person is by circumstances placed in
such a position with regard to another, that every one
of ordinary sense who did think would at once
recognise that if he did not use ordinary care and
skill in his own conduct with regard to those
circumstances he would cause danger or injury to the
person or property of the other (person) a duty arises
to use ordinary care and skill to avoid such danger.
Negligence: (Duty of Care)
•The Duty of care is the obligation to avoid
acts or omissions which are reasonably
foreseeable to cause damage to another.
•When does one owe a duty of care?
– Whenever one is engaged in an act which he or
she can reasonably foresee would be likely to
injure another person, one owes a duty of care to
that other person
General Principles: The CLA
• S 5B:(1) A person is not negligent in failing to take
precautions against a risk of harm unless:
– (a) the risk was foreseeable (that is, it is a risk of which the person knew or
ought to have known), and
– (b) the risk was not insignificant, and
– (c) in the circumstances, a reasonable person in the person’s position
would have taken those precautions.
• (2) In determining whether a reasonable person would
have taken precautions against a risk of harm, the court
is to consider the following (amongst other relevant
things):
–
–
–
–
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
What is Reasonable
Foreseeability?
• Reasonable foreseeability presupposes an
objective or a reasonable person’s standard
• The reasonable person is an embodiment of
community values and what the community
expects of a responsible citizen
• The concept allows us to evaluate D’s conduct not
from his or her peculiar position, but from that of a
reasonable person similarly placed
• Reasonable foreseeability is a question of law
Reasonable Foreseeability: Case
Law
• Nova Mink v. Trans Canada Airlines [1951] (Air
traffic noise causing minks to eat their young onesNo foreseeability)
• United Novelty Co. v Daniels 42 So. 2nd 395 Miss
1949
• Palsgraf v. Long Island R.R. Co. (1928) (Railway
guards helping falling passenger-fireworks
explosion causing injury to plaintiff.-No
foreseeability)
• Chapman v. Hearse (1961) (Car accident-Dr. stops to
help-gets killed by another vehicle-action against D
who caused initial accident- Foreseeability upheld)
[5] DUTY CATEGORIES: To
whom is duty owed?
• One owes a duty to those so closely and directly affected by
his/her conduct that she ought reasonably to have them in
contemplation as being so affected when undertaking the
conduct in question.
• Examples:
– Consumers, users of products and structures
» Donoghue v Stevenson
» Grant v Australian Kitting Mills
» Bryan v Maloney
– Road users
» Bourhill v Young
– Users and purchasers of premises etc.
» Australian Safeway Stores v Zaluzna
DUTY CATEGORIES: To whom
is the Duty Owed?
• The unborn child:
– There can be no justification for distinguishing between the rights… of
a newly born infant returning home with his /her mother from hospital
in a bassinet hidden from view on the back of a motor car being driven
by his proud father and of a child en ventre sa mere whose mother is
being driven by her anxious husband to the hospital on way to the
labour ward to deliver such a child ( Per Gillard J in Watt v Rama)
– Lynch v Lynch (1991)
• But see the wrongful life cases
–
–
–
–
Waller v James 2002
Harriton v Stephens [2002] NSWSC 461
Edwards v Blomeley 2002
www.lawlink.nsw.gov.au
5.6 RESCUERS
• There are two separate issues in rescue:
– The ‘duty’ to rescue
– The duty of care owed to the rescuer
• There is no positive legal obligation in the
common law to rescue
– The law does not ‘cast a duty upon a man to go to the aid of another
who is sin peril or distress, not caused by him
• There may however exist a duty to rescue in master
servant relationships or boat owner and guest
relationships for instance
– Horsley v Macleran (The Ogopogo) (1971) 22 DLR
• One is only required to use reasonable care and
skill ion the rescue
Unforeseeable Plaintiffs
• In general the duty is owed to
only the foreseeable plaintiff
and not abnormal Plaintiffs.
– Bourhill v Young [1943] AC 92
– Levi v Colgate-Palmolive Ltd
– Haley v L.E.B. [1965] AC 778