THE LAW OF TORTS

1
THE LAW OF TORTS

• INTRODUCTION
• INTENTIONAL TORTS TRESPASS

2
TEXT BOOKS

• Baker, Blay et al Torts Law in Principle LBC
  2005
• Blay, Torts in a Nutshell LBC 2006
• Luntz and Hambly Torts Cases and Commentary
  (2006) 5th Rev. Ed. Butterworths
• Sappideen et al Torts Cases Commentary (2006)LBC
• Swanton, McDonald and Anderson, Cases on Torts
  3rd ed. Federation Press
• Balkin and Davies, The Law of Torts
• Stuhmcke, Essential Tort Law

3
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

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Discussion/Question

• Tort and Crime
• How does a tort differ from Crime?

5
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

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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

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Question

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

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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.

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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 )

10
TORTS DISTINGUISHED FROM BREACH OF CONTRACT

• A breach of contract arises from promises made by
  the parties themselves.

11
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 employers failure to provide
  safe working conditions

12
Questions

• What are the objectives of tort law?

13
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.

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Question

• What interests are protected by the Law of Torts,
  and how are these interests protected?

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INTERESTS PROTECTED IN TORT LAW

• Personal security
• Trespass
• Negligence
• Reputation
• Defamation
• Property
• Trespass
• Conversion
• Economic and financial interests

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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

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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
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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

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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.

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STRICT LIABILITY

• No fault is required for strict liability

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ACTIONS IN TORT LAW

• Trespass
• Directly caused injuries
• Requires no proof of damage
• Action on the Case/Negligence
• Indirect injuries
• Requires proof of damage

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THE DOMAIN OF TORTS
Trespass
Negligence
Defences
Financial loss
Nuisance
Conversion
Defamation
Breach of statutory duty
Particular Duty Areas
Vicarious liability
Product liability
Liability of public authorities
Concurrent liability
23
INTENTIONAL TORTS

INTENATIONAL TORTS
Trespass
Conversion
Detinue
24
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

25
INJURY IN TRESPASS

• Injury a breach of right, not necessarily
  actual damage
• Trespass requires only proof of injury not actual
  damage

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THE GENERAL ELEMENTS OF TRESPASS
Intentional act
Direct interference with person or property
Absence of lawful justification



A specific form of trespass
x element

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SPECIFIC FORMS OF TRESPASS
TRESPASS
PERSON
PROPERTY
BATTERY
ASSAULT
FALSE IMPRISONMENT
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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 Ps body

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THE INTENTIONAL ACT IN BATTERY

• No liability without intention
• The intentional act basic willful act the
  consequences.

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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

31
THE ACT MUST CAUSE PHYSICAL INTERFERENCE

• The essence of the tort is the protection of the
  person of P. Ds 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 persons body is
  inviolate ( per Goff LJ, Collins v Wilcock)

32
The Nature of the Physical Interference

• Rixon v Star City Casino (D places hand on Ps
  shoulder to attract his attention no battery)
• Collins v Wilcock (Police officer holds Ds arm
  with a view to restraining her when D declines to
  answer questions and begins to walk away
  battery)

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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

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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 Ps beach)

35
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

36
TRESPASSASSAULT

• 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

37
THE ELEMENTS OF ASSAULT

• There must be a direct threat
• Hall v Fonceca (Threat by P who shook hand in
  front of Ds 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

38
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 Ds unwanted lift)

39
THE GENERAL ELEMENTS OF TRESPASS
Intentional act
Direct interference
Absence of lawful justification



A specific form of trespass
x element

40
SPECIFIC FORMS OF TRESPASS
TRESPASS
PERSON
PROPERTY
BATTERY
ASSAULT
FALSE IMPRISONMENT
41
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

42
THE ELEMENTS OF THE TORT

• It requires all the basic elements of trespass
• Intentional act
• Directness
• absence of lawful justification/consent , and
• total restraint

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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

44
FORMS OF FALSE IMPRISONMENT

• See the following Cases
• Cowell v. Corrective Services Commissioner of NSW
  (1988) Aust. Torts Reporter 81-197.
• Louis v. The Commonwealth of Australia 87 FLR
  277.
• Lippl v. Haines Another (1989) Aust. Torts
  Reporter 80-302 (1989) 18 NSWLR 620.
• Dickenson Waters

45
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)
• 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.)

46
WORDS AND FALSE IMPRISONMENT

• In general, words can constitute FI

47
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

48
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