1. THE LAW OF TORTS
WEEK 1

2. Definition, aims and scope of law of torts Intentional torts
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
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 exclusive to another area of law

6. How does a tort differ from a Crime?
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 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. 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

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

11. 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.

12. 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.

14. 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

15. 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

16. What are the objectives of tort law?
Questions
What are the objectives of tort law?

17. 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?

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

20. INTEREST PROTECTED AND RELEVANT ACTIONS
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)

21. SOURCES OF TORT LAW Common Law: Statute:
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

22. 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

23. 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’

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. 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

27. THE DOMAIN OF TORTS Trespass Defences Defamation Particular Duty Areas
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

28. Particular torts

29. INTENTIONAL TORTS Trespass
Conversion
Detinue

30. 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

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

32. 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 =

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

34. 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

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

36. 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)

37. The Nature of the Physical Interference
Battery :
The Nature of the Physical Interference

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

39. 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

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,

43. 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 plaintiff’s 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 dentist’s 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 defendant’s 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 Children’s Hospitals Network (2013) 85 NSWLR 294

47. X v The Sydney Children’s 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.

48. 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’

49. 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)

50. 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

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

52. TRESPASS TO THE PERSON
assault

53. 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:

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.

55. 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

56. 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

57. 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 D’s unwanted lift)

58. 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

59. 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?

60. 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

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

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

63. 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

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

65. 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)

66. ‘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 Kable’s 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.)

68. 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