1. 03 THE LAW OF TORTS WEEKEND SCHOOL 1 27-29 May 2016 Professor Sam Blay

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

4. 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

5. DEFINITION: THE NATURE OF TORTS INTRODUCTION

6. 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

7. 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

8. 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

9. 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

11. TORTS DISTINGUISHED FROM BREACH OF CONTRACT A breach of contract arises from breach of promise(s) made by the parties themselves.

12. 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

13. 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

14. Questions What are the objectives of tort law?

15. 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.

16. Question What interests are protected by the Law of Torts, and how are these interests protected?

17. INTERESTS PROTECTED IN TORT LAW Personal security Trespass Negligence Reputation Defamation Property Trespass Conversion Economic and financial interests

18. 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

19. 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

20. LIABILITY IN TORTS

21. 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.

22. TYPES OF FAULT LIABILITY IntentionalNegligence Fault

23. 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’

24. 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.

25. STRICT LIABILITY No fault is required for strict liability

26. INTENTIONAL TORTS TO THE PERSON BATTERY ASSAULT FALSE IMPRSONMENT

27. Trespass Conversion Defamation Misrepresentation Deceit Intentional Torts

28. 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* caused directly – injury* to the P or to his/her property – No lawful justification

29. *INJURY IN TRESPASS Injury = a breach of right, not necessarily actual damage Trespass requires only proof of injury not actual damage

30. Intentional Act Direct Absence of lawful justification Interference with person or their property The Elements of Trespass TRESPASS

31. SPECIFIC FORMS OF TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT TREAPASS

32. The Nature of the tort Battery :

33. 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

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

35. 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)

36. Rixon v Star City Casino D places hand on P’s shoulder to attract his attention; no battery

37. 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

38. 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’

39. THE INJURY MUST BE CAUSED DIRECTLY 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)

40. 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

41. ASSAULT

42. WHAT IS 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

43. ASSAULT

44. 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:

45. 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

46. 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

47. D’ act must induce apprehension in P It must be a ‘reasonable’ apprehension of imminent unlawful physical interference What is imminent depends on the circumstance Police v Greaves Barton v Armstrong Zanka v Vartzokas

48. 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

49. 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?

50. 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

51. FALSE IMPRISONMENT

52. SPECIFIC FORMS OF TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT TREAPASS

53. 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

54. THE ELEMENTS OF THE TORT It requires all the basic elements of trespass: Intentional act Directness Absence of lawful justification Total restraint

55. 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)

56. 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

57. State of South Australia v Lampard- Trevorrow (2010) 106 SASR 331 When P was about a year old, he was taken from hospital by an officer of the Aborigines Protection Board and later placed in long-term foster care without his parents knowing of the removal or the fostering. Issue whether there was FI. The Full Court unanimously held that, while neither the plaintiff nor his parents had consented to his foster placement, he was not falsely imprisoned during the period of his foster care. The fact that the plaintiff was an infant and needed care and nurture spoke against any finding of restraint. Any element of restraint, whilst he grew as a young child, was solely attributable to the obligation of his foster parents to care for him and also attributable to his immaturity. However that the plaintiff’s claim of negligence against the State was upheld by the appeal court.

58. INTENTIONAL TORTS TO PROPERTY

59. SPECIFIC FORMS OF TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT TREAPASS CHATTELS LAND

60. TRESPASS TO PROPERTY: LAND

61. TRESPASS TO LAND The intentional of D which directly interferes with the plaintiff’s exclusive possession of land

62. 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

63. 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

64. 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

65. 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 The nature of possession depends on the material possessed

66. 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)¯

67. THE POSITION OF TRESPASSERS AND SQUATTERS A trespasser/squatter in exclusive possession can maintain an action against any other trespasser – Newington v Windeyer (1985) 3 NSWLR

68. 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)

69. 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 a b initio/pro tanto

70. Case Law – Singh v Smithenbecker: D entered land to take sheep lawfully purchased. But became trespasser once he removed P’s gate and took certain sheep without permission. – Bond v Kelly: D became trespasser when he cut more timber from P’s land than permitted amount. – However see: Healing (Sales) v Inglic Electrix: D went to P’s house to take some of their property, but also took P’s. Held: Barwick CJ and Menzies J -D was not liable as part of purpose was lawful. Kitto J said taking P’s stuff made them liable. Thus, there is some doubt as to the trespass pro tanto doctrine.

71. THE POSITION OF POLICE OFFICERS Unless authorized by law, police officers have no special right of entry into any premises without consent of P. ( 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 )

72. 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.

73. TRESPASS TO CHATTELS

74. 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.

75. DAMAGES It may not be actionable per se (Everitt v Martin)

76. CONVERSION The act of D in relation to another’s chattel which constitutes an unjustifiable denial of his/her title

77. 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 )

78. 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

79. 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 )

80. 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)

81. 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)

82. ACTION ON THE CASE FOR INDIRECT INJURIES

83. 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

84. 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)

85. 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 Nationwide News v Naidu

86. 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

87. THE SCOPE OF THE RULE The rule does not cover ‘pure’ mental stress or mere fright – Wainright v Home Office The act must be reasonably capable of causing mental distress to a normal* person: – Bunyan v Jordan – Stevenson v Basham

88. The Future of the Wilkinson v Downtown The High Court obiter dicta Magill v Magill – Subsequent developments in Anglo-Australian law recognise these cases as early examples of recovery by reference to imputed intention to cause physical harm ; a cause of action later subsumed under the unintentional tort of negligence ( Per Gummow, Kirby and Crennan JJ) – Wilkinson v Downton, decided in 1987 and Janvier v Sweeney decided in 1919, which were cases of deception causing nervous shock, would probably now be explained either on the basis of negligence or intentional infliction of personal injury ( per Gleeson CJ)

89. ONUS OF PROOF In Common Law, he who asserts proves Traditionally, in trespass D was required to disprove fault once P proved injury. Depending on whether the injury occurred on or off the highway ( McHale v Watson; Venning v Chin ) The current Australian position is contentious but seems to support the view that in off highway cases D is required to prove all the elements of the tort once P proves injury – Hackshaw v Shaw – Platt v Nutt – See Blay; ‘Onus of Proof of Consent in an Action for Trespass to the Person’ Vol. 61 ALJ (1987) 25 – But see McHugh J in See Secretary DHCS v JWB and SMB (Marion’s Case) 1992 175 CLR 218

90. 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

91. DEFENCES TO INTENTIONAL TORTS

92. 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:

93. 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

94. 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

95. VALID CONSENT To be valid, consent must be informed and procured without fraud or coercion: ( R v Williams ;) 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)

96. CONSENT IN SPORTS http://www.youtube.com/watch?v=VgtKW5PLso 4 http://www.youtube.com/watch?v=VgtKW5PLso 4 http://www.youtube.com/watch?v=W- BmKXU12yE http://www.youtube.com/watch?v=W- BmKXU12yE Alex McKinnon has been diagnosed as a quadriplegic and warned by doctors he may never walk again after this tackle. Jordan McLean was suspended for seven weeks after being found guilty of a 'dangerous throw' on Newcastle Knights player Alex

97. 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

98. 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

99. 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’

100. 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

101. A Critique of the Current Position On Provocation To discourage vengeance and retributive justice The compensation theory argument The gender based thesis

102. 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.

103. 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

104. 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

105. 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 )

106. 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 )

107. 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)

108. 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