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THE LAW OF TORTS

THE LAW OF TORTS. WEEK 1. THE LECTURE STRUCTURE. Texts Definition , aims and scope of law of torts Intentional torts The tort of negligence Duty of care. TEXT BOOKS. Dominic Villa Annotated Civil Liability Act Lawbook Co. Blay, Torts in a Nutshell LBC 2010

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THE LAW OF TORTS

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  1. THE LAW OF TORTS WEEK 1

  2. THE LECTURE STRUCTURE • Texts • Definition, aims and scope of law of torts • Intentional torts • The tort of negligence • Duty of care

  3. TEXT BOOKS • Dominic Villa Annotated Civil Liability Act Lawbook Co. • Blay, Torts in a Nutshell LBC 2010 • Richards, Ludlow and Gibson, Torts Law in Principle, 5th ed. Thomson Reuters • Sappideen et al Torts Cases Commentary LBC • Balkin and Davies, The Law of Torts • Stuhmcke, Principles of Australian Tort Law • Luntz and Hambly Torts Cases and Commentary Butterworths

  4. INTRODUCTION THE LAW OF TORTS DEFINITION: THE NATURE OF TORTS

  5. 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 exclusiveto another area of law

  6. Discussion/Question • Tort and Crime • How does a tort differ from a Crime?

  7. 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 iscompensation

  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. Question • Are there any similarities between a tort and a crime?

  10. 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.

  11. 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 )

  12. TORTS DISTINGUISHED FROM BREACH OF CONTRACT • A breach of contract arises from promises made by the parties themselves.

  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. 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

  20. 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’

  21. 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.

  22. STRICT LIABILITY • No fault is required for strict liability

  23. ACTIONS IN TORT LAW • Trespass • Directly caused injuries • Requires no proof of damage • Action on the Case/Negligence • Indirect injuries • Requires proof of damage

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

  25. INTENTIONAL TORTS INTENATIONAL TORTS Trespass Conversion Detinue

  26. WHAT IS TRESPASS? • Intentional act of D which directly causes an injury to the P or his /her propertywithout 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

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

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

  29. SPECIFIC FORMS OF TRESPASS TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

  30. 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

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

  32. CAPACITY TO FORM THE INTENT • D is deemed capable of forming intent if he/she understands the nature of (‘intended’) his/her act • -Infants • Hart v A. G. of Tasmania ( infant cutting another infant with razor blade) • Lunatics • Morris v Masden

  33. 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)

  34. 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)

  35. 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’

  36. 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)

  37. 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

  38. 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

  39. THE LAW OF TORTS WEEK 2 ASSAULT FALSE IMPRISONMENT TRESSPASS TO LAND

  40. 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:

  41. 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

  42. 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

  43. THE ELEMENTS OF ASSAULT • The apprehension must be reasonable; the test is objective • The interference must be imminent • -Policev Greaves • Barton v Armstrong Zanker v Vartzokas (P jumps out of a moving van to escape from D’s unwanted lift)

  44. 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

  45. 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?

  46. 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

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

  48. SPECIFIC FORMS OF TRESPASS TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

  49. FALSE IMPRISONMENT • The intentionalact 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

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