03 THE LAW OF TORTS WEEK 1 Professor Sam Blay

THE LECTURE STRUCTURE  Texts  Definition, aims and scope of law of torts  Intentional torts

TEXT BOOKS Dominic Villa Annotated Civil Liability Act Lawbook Co. (2013) Balkin and Davis The Law of Torts 5 th Ed LexisNexis Luntz & Hambly, Torts - Cases and Commentary, 7th ed. LexisNexis, Stewart and Stuhmcke, Australian Principles of Torts Law Federation Press, 3 rd Ed Blay, Torts in a Nutshell LBC

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DEFINITION: THE NATURE OF TORTS INTRODUCTION

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 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

TORT A civil action Brought by the victim Remedy: compensation Proof: balance of probabilities CRIME A criminal actionBrought by the CrownRemedy: punishment Proof: beyond reasonable doubt

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 breach of promise(s) made by the parties themselves.

TORTSCONTRACT Duty to other contracting party Duty arises from parties’ promises Protects expectation of future benefits Damages often liquidated Duty owed generallyDuty imposed by law Protects what is already owned or possessed Damages unliquidated

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

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

LIABILITY IN TORTS

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 IntentionalNegligence Fault

Intention in Torts Deliberate or wilful conduct ‘Constructive’ intent: where the consequences of an act are substantially certain: t 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