THE LAW OF TORTS WEEK 1

TEXT BOOKS Dominic Villa Annotated Civil Liability Act Lawbook Co. (2013) Dominic Villa Annotated Civil Liability Act Lawbook Co. (2013) Balkin and Davis The Law of Torts 5 th Ed LexisNexis 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 Davies and Malkin, Torts LexisNexis 6 th Ed Blay, Torts in a Nutshell LBC Blay, Torts in a Nutshell LBC

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

THE LAW OF TORTS DEFINITION: THE NATURE OF TORTS B&D Chapter 1 B&D Chapter 1 INTRODUCTION

WHAT IS A TORT? A tort is a civil wrong A tort is a civil wrong That (wrong) is based a breach of a duty imposed by law 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 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. 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. 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 principal objective in criminal law is punishment. In torts, it is compensation

THE DIFFERENCE BETWEEN A TORT AND A CRIME Differences in Procedure: Differences in Procedure: – Standard of Proof » Criminal law: beyond reasonable doubt » Torts: on the balance of probabilities

TORTS and CRIME TORTS and CRIME TORTS TORTS A civil action A civil action Brought by the victim Brought by the victim To provide a remedy To provide a remedy Remedy: compensation Remedy: compensation Proof: balance of probabilities Proof: balance of probabilities CRIME A criminal action A criminal action Brought by the Crown Brought by the Crown To punish the perpetrator To punish the perpetrator Remedy: punishment Remedy: punishment Proof: beyond reasonable doubt 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 They both arise from wrongs imposed by law Certain crimes are also actionable torts; eg trespass: assault Certain crimes are also actionable torts; eg trespass: assault In some cases the damages in torts may be punitive In some cases the damages in torts may be punitive In some instances criminal law may award compensation under criminal injuries compensation legislation. 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 ) 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. A breach of contract arises from promises made by the parties themselves.

TORTS and CONTRACT TORTS Duty owed generally Duty owed generally Duty imposed by law Duty imposed by law promises or agreement promises or agreement Protects what is already owned or possessed Protects what is already owned or possessed Damages unliquidated Damages unliquidated CONTRACT Duty to other contracting party Duty to other contracting party Duty arises from parties' Duty arises from parties' Protects expectation of future benefits Protects expectation of future benefits Damages often liquidated Damages often liquidated

SIMILARITIES BETWEEN TORT AND CONTRACT Both tort and breach of contract give rise to civil suits 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 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 Loss distribution/adjustment: shifting losses from victims to perpetrators Compensation: Through the award of (pecuniary) damages 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. 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 PROTECTED AND RELEVANT ACTIONS INTEREST Personal Security Personal Security Reputation Reputation Property Property Liberty Liberty Mental tranquility Mental tranquility Abuse of legal process Abuse of legal process Financial Interest Financial Interest TORT Trespass, Negligence Trespass, Negligence Defamation Defamation Trespass, Negligence, Conversion, Detinue Trespass, Negligence, Conversion, Detinue False Imprisonment False Imprisonment Nervous shock, Wilkinson v Downtown Nervous shock, Wilkinson v Downtown Malicious prosecution Malicious prosecution Negligence ( pure financial loss) Negligence ( pure financial loss)

SOURCES OF TORT LAW Common Law: Common Law: – The development of torts by precedent through the courts » Donoghue v Stevenson Statute: 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 = responsibility Liability may be based on fault or it may be strict 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. Fault liability: the failure to live up to a standard through an act or omission. Types of fault liability: Types of fault liability: NEGLIGENCE INTENTION FAULT LIABILITY

Intention in Torts Deliberate or wilful conduct Deliberate or wilful conduct ‘ Constructive ’ intent: where the consequences of an act are substantially certain: the consequences are intended‘ Constructive ’ intent: where the consequences of an act are substantially certain: the consequences are intended Where conduct is reckless Where conduct is reckless Transferred intent: where D intends to hit ‘ B ’ but misses and hits ‘ P ’ 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 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. 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 No fault is required for strict liability

ACTIONS IN TORT LAW Trespass Trespass – Directly caused injuries – Requires no proof of damage (actionable per se ) Action on the Case/Negligence Action on the Case/Negligence – Indirect injuries – Requires proof of damage

THE DOMAIN OF TORTS Trespass Negligence Nuisance Defences Financial loss Conversion Defamation Breach of statutory duty Particular Duty Areas Concurrent liability Product liability Liability of public authorities Vicarious liability

INTENTIONAL TORTS INTENTIONAL TORTS Trespass ConversionDetinue

WHAT IS TRESPASS? Intentional act of D which directly causes an injury to the P or his /her property without lawful justification Intentional act of D which directly causes an injury to the P or his /her property without lawful justification The Elements of Trespass: 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 Injury = a breach of right, not necessarily actual damage Trespass requires only proof of injury not actual damage Trespass requires only proof of injury not actual damage

THE GENERAL ELEMENTS OF TRESPASS: The ‘DNA’ Intentional act “x” element Direct interference with person or property Absence of lawful justification = A specific form of trespass

SPECIFIC FORMS OF TRESPASS TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

BATTERY The intentional act of D which directly causes a physical interference with the body of P without lawful justification 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 distinguishing element: physical interference with P’s body

THE INTENTIONAL ACT IN BATTERY No liability without intention No liability without intention The intentional act = basic willful act + the consequences. 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 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 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 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 Battery :

Rixon v Star City Casino D places hand on P’s shoulder to attract his attention; no battery 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 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 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 may establish a presumption of battery; but Hostility is not material to proving battery Hostility is not material to proving battery The issue may revolve on how one defines ‘hostility’ The issue may revolve on how one defines ‘hostility’

THE INJURY MUST BE CAUSED DIRECTLY Injury should be the immediate The Case Law: Injury should be the immediate The Case Law: – 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 is Lawful justification Consent must be freely given by the P if P is able to understand the nature of the act 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 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 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 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 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: 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 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 … 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: 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 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. 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 In general, conditional threats are not actionable – Tuberville v Savage – Police v Greaves

The apprehension must be reasonable; the test is objective The apprehension must be reasonable; the test is objective The interference must be imminent 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) THE ELEMENTS OF ASSAULT

Zanker v Vartzokas and the issue of imminence/immediacy The Facts: 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

Z a nker v Vartzokas : The Issues Was the victim’s fear of sexual assault in the future reasonable? Was the victim’s fear of sexual assault in the future reasonable? Was the feared harm immediate enough to constitute assault? 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. 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 essential factor is imminence not contemporaneity The exact moment of physical harm injury is known to the aggressor 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 It remains an assault where victim is powerless to stop the aggressor from carrying out the threat

THE GENERAL ELEMENTS OF TRESPASS Intentional act “x” element Direct interference Absence of lawful justification = A specific form of trespass

SPECIFIC FORMS OF TRESPASS TRESPASS PERSON PROPERTY BATTERY ASSAULT 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 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 essential distinctive element is the total restraint

THE ELEMENTS OF THE TORT THE ELEMENTS OF THE TORT It requires all the basic elements of trespass: It requires all the basic elements of trespass: – Intentional act – Directness – absence of lawful justification/consent, and total restraint total restraint

RESTRAINT IN FALSE IMPRISONMENT The restraint must be total 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 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 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 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.) 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. The knowledge of the P at the moment of restraint is not essential. – Merring v Graham White Aviation – Murray v Ministry of Defense