THE LAW OF TORTS

1
THE LAW OF TORTS

• WEEK 1

2
THE LECTURE STRUCTURE

• Texts
• Definition, aims and scope of law of torts
• Intentional torts

3
TEXT BOOKS

• Dominic Villa Annotated Civil Liability Act
  Lawbook Co. (2013)
• Balkin and Davis The Law of Torts 5th Ed
  LexisNexis
• Luntz Hambly, Torts - Cases and Commentary, 7th
  ed. LexisNexis,
• Stewart and Stuhmcke, Australian Principles of
  Torts Law Federation Press, 3rd Ed
• Davies and Malkin, Torts LexisNexis 6th Ed
• Blay, Torts in a Nutshell LBC

4
DEFINITION THE NATURE OF TORTS
INTRODUCTION

• WEEK 1

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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 a Crime?

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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

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

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TORTS and CRIME

• TORTS

• CRIME

• A civil action
• Brought by the victim
• To provide a remedy
• Remedy compensation
• Proof balance of probabilities

• A criminal action
• Brought by the Crown
• To punish the perpetrator
• Remedy punishment
• Proof beyond reasonable doubt

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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 )

13
TORTS DISTINGUISHED FROM BREACH OF CONTRACT

• A breach of contract arises from breach of
  promise(s) made by the parties themselves.

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TORTS and CONTRACT

• TORTS

• CONTRACT

• Duty owed generally
• Duty imposed by law
•  promises or agreement
• Protects what is already owned or possessed
• Damages unliquidated

• Duty to other contracting party
• Duty arises from parties'
• Protects expectation of future benefits
• Damages often liquidated

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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

16
Questions

• What are the objectives of tort law?

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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.

18
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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INTEREST PROTECTED AND RELEVANT ACTIONS

• INTEREST

• TORT

• Personal Security
• Reputation
• Property
• Liberty
• Mental tranquility
• Abuse of legal process
• Financial Interest

• Trespass, Negligence
• Defamation
• Trespass, Negligence, Conversion, Detinue
• False Imprisonment
• Nervous shock, Wilkinson v Downtown
• Malicious prosecution
• Negligence ( pure financial loss)

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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 and
  that party suffers damage.

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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 ( actionable per se)
• Action on the Case/Negligence
• Indirect injuries
• Requires proof of damage

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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
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Particular torts
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INTENTIONAL TORTS

INTENTIONAL TORTS
Trespass
Conversion
Detinue
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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

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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 The DNA
Direct interference with person or property
Intentional act
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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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)

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The Nature of the Physical Interference

• Battery

38
Rixon v Star City Casino

• D places hand on Ps shoulder to attract his
  attention no battery

39
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

40
Platt v Nutt
41
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.

42
Dean v Phung 2012 NSWCA 223,
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Dean v Phung

• Plaintiff was injured at work causing minor
  injuries to his front teeth. His employer
  arranged for him to see the defendant, a dental
  surgeon. Over a 12-month period, the defendant
  carried out root-canal therapy and fitted crowns
  on all the plaintiffs teeth at a cost of
  73,640. D accepted liability in negligence but
  denied liability for trespass.
• Issue whether the action lay in trespass and
  was excluded by s3B of the CLA

44
Dean v Phung 2

• P argued that Advice that the treatment was
  necessary must have been fraudulent, consequently
  the fraud vitiated any consent given to the
  procedure. Accordingly, the plaintiff argued, the
  dentist was liable for battery in treating him
  without a valid consent

45
Dean v Phung 3

• Basten JA held that the dentists concessions
  were sufficient to show that the appellant did
  not consent to the treatment because it was not
  necessary for his particular condition. As a
  result, the treatment constituted a trespass to
  the person and s 3B operated to exclude the
  defendants liability from the operation of the
  Act.
• Macfarlan JA The practitioner had performed the
  treatment to generate income for himself. This
  enabled a conclusion that consent was vitiated
  and a trespass had occurred

46
X v The Sydney Childrens Hospitals Network
(2013) 85 NSWLR 294
47
X v The Sydney Childrens Hospitals Network

• X only a few months away from his 18th birthday
  had refused to receive his own treated blood
  products. The treatment was necessary to preserve
  his life. He had provided cogent reasons for his
  refusal, based on his religious beliefs. His
  refusal was fully supported by his parents who
  were of the same religious persuasion
• The court, exercising its parens patriae
  jurisdiction, essentially overrode these genuine
  beliefs, holding that the welfare of the patient
  required that the primary judge make the order
  permitting the treatment.

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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)

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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

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THE LAW OF TORTS

• WEEK 2
• ASSAULT
• FALSE IMPRISONMENT
• TRESSPASS TO LAND

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assault

• TRESPASS TO THE PERSON

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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
• 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

54
State of New South Wales v Ibbett (2005) 65 NSWLR
168

• Two policemen gave chase to Mr Ibbett, suspecting
  that he may have been involved in a criminal
  offence. They pursued him to a house where he
  lived with his mother, Mrs Ibbett. Without legal
  justification, one of the policemen entered the
  property and arrested Mr Ibbett. His mother came
  into the garage where these events occurred. The
  police officer produced a gun and pointed it at
  Mrs Ibbett saying
• Open the bloody door and let my mate in.
• Mrs Ibbett, who was an elderly woman, had never
  seen a gun before and was, not unnaturally,
  petrified.

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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

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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)
• 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

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THE ELEMENTS OF ASSAULT

• The apprehension must be reasonable the test is
  objective
• The interference must be imminent
• -Police v Greaves
• Barton v Armstrong
• Zanker v Vartzokas (P jumps out of a moving van
  to escape from Ds unwanted lift)

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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

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Zanker v Vartzokas The Issues

• Was the victims fear of sexual assault in the
  future reasonable?
• Was the feared harm immediate enough to
  constitute assault?

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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

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THE GENERAL ELEMENTS OF TRESPASS
Intentional act
Direct interference
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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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

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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)
• 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)

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Correctional Cases

• In State of New South Wales v TD (2013) 83 NSWLR
  566,
• Respondent suffering from mental illness was
  found guilty and sentenced to 20 months.
  Following a determination by the Mental Health
  Tribunal, the District Court was ordered that
  she be detained in a hospital. Contrary to this
  order, for some 16 days, the appellant was
  detained in a cell at Long Bay Goall in an area
  which was not gazetted as a hospital.
• In State of New South Wales v Kable (2013) 87
  ALJR 737,
• the High Court of Australia held that a detention
  order which had been made by the Supreme Court
  (but under legislation which was later held
  invalid) provided lawful authority for Mr Kables
  detention.

67
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.)

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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