1. THE LAW OF TORTS WEEKEND SCHOOL 1 WEEKEND SCHOOL 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) Dominic Villa Annotated Civil Liability Act Lawbook Co. (2013) Balkin and Davis The Law of Torts 5 th Ed LexisNexis 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 Davies and Malkin, Torts LexisNexis 6 th Ed Blay, Torts in a Nutshell LBC Blay, Torts in a Nutshell LBC

4. THE LAW OF TORTS DEFINITION: THE NATURE OF TORTS B&D Chapter 1 B&D Chapter 1 INTRODUCTION

5. WHAT IS A TORT? A tort is a civil wrong A tort is a civil wrong That (wrong) is based a breach of a duty imposed by law 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 Which (breach) gives rise to a (personal) civil right of action for for a remedy not exclusive to another area of law

6. TORTS AND CRIMES: 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. 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. 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 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: Differences in Procedure: – Standard of Proof » Criminal law: beyond reasonable doubt » Torts: on the balance of probabilities

9. TORTS and CRIME TORTS and CRIME TORTS TORTS A civil action A civil action Brought by the victim Brought by the victim To provide a remedy To provide a remedy Remedy: compensation Remedy: compensation Proof: balance of probabilities Proof: balance of probabilities CRIME A criminal action A criminal action Brought by the Crown Brought by the Crown To punish the perpetrator To punish the perpetrator Remedy: punishment Remedy: punishment Proof: beyond reasonable doubt Proof: beyond reasonable doubt

10. ARE THERE ANY SIMILARITIES BETWEEN A TORT AND A CRIME?

11. SIMILARITIES BETWEEN TORTS AND CRIME They both arise from wrongs imposed by law They both arise from wrongs imposed by law Certain crimes are also actionable torts; eg trespass: assault Certain crimes are also actionable torts; eg trespass: assault In some cases the damages in torts may be punitive In some cases the damages in torts may be punitive In some instances criminal law may award compensation under criminal injuries compensation legislation. In some instances criminal law may award compensation under criminal injuries compensation legislation.

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

13. TORTS and CONTRACT TORTS Duty owed generally Duty owed generally Duty imposed by law Duty imposed by law promises or agreement promises or agreement Protects what is already owned or possessed Protects what is already owned or possessed Damages unliquidated Damages unliquidated CONTRACT Duty to other contracting party Duty to other contracting party Duty arises from parties' Duty arises from parties' Protects expectation of future benefits Protects expectation of future benefits Damages often liquidated Damages often liquidated

14. SIMILARITIES BETWEEN TORT AND CONTRACT Both tort and breach of contract give rise to civil suits 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 In some instances, a breach of contract may also be a tort: eg an employer ’ s failure to provide safe working conditions

15. WHAT ARE THE OBJECTIVES OF TORT LAW?

16. THE OBJECTIVES OF TORT LAW Loss distribution/adjustment: shifting losses from victims to perpetrators Loss distribution/adjustment: shifting losses from victims to perpetrators Compensation: Through the award of (pecuniary) damages 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. Punishment: through exemplary or punitive damages. This is a secondary aim.

17. WHAT INTERESTS ARE PROTECTED BY THE LAW OF TORTS, AND HOW ARE THESE INTERESTS PROTECTED?

18. INTEREST PROTECTED AND RELEVANT ACTIONS INTEREST PROTECTED AND RELEVANT ACTIONS INTEREST Personal Security Personal Security Reputation Reputation Property Property Liberty Liberty Mental tranquility Mental tranquility Abuse of legal process Abuse of legal process Financial Interest Financial Interest TORT Trespass, Negligence Trespass, Negligence Defamation Defamation Trespass, Negligence, Conversion, Detinue Trespass, Negligence, Conversion, Detinue False Imprisonment False Imprisonment Nervous shock, Wilkinson v Downtown Nervous shock, Wilkinson v Downtown Malicious prosecution Malicious prosecution Negligence ( pure financial loss) Negligence ( pure financial loss)

19. SOURCES OF TORT LAW Common Law: Common Law: – The development of torts by precedent through the courts » Donoghue v Stevenson Statute: Statute: – Thematic statutes: eg Motor Accidents legislation » Motor Accidents Compensation Act 1999 – General statutes: eg Civil Liability legislation » The Civil Liability Act (NSW) 2002

20. LIABILITY IN TORT LAW Liability = responsibility Liability = responsibility Liability may be based on fault or it may be strict 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. Fault liability: the failure to live up to a standard through an act or omission. Types of fault liability: Types of fault liability: NEGLIGENCE INTENTION FAULT LIABILITY

21. Intention in Torts Deliberate or wilful conduct Deliberate or wilful conduct ‘ Constructive ’ intent: where the consequences of an act are substantially certain: the consequences are intended‘ Constructive ’ intent: where the consequences of an act are substantially certain: the consequences are intended Where conduct is reckless Where conduct is reckless Transferred intent: where D intends to hit ‘ B ’ but misses and hits ‘ P ’ Transferred intent: where D intends to hit ‘ B ’ but misses and hits ‘ P ’

22. Negligence in Torts When D is careless in his/her conduct 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. When D fails to take reasonable care to avoid a reasonably foreseeable injury to another and that party suffers damage.

23. STRICT LIABILITY No fault is required for strict liability No fault is required for strict liability

24. ACTIONS IN TORT LAW Trespass Trespass – Directly caused injuries – Requires no proof of damage ( actionable per se ) Action on the Case/Negligence Action on the Case/Negligence – Indirect injuries – Requires proof of damage

25. INTENTIONAL TORTS INTENTIONAL TORTS Trespass ConversionDetinue

26. WHAT IS TRESPASS? Intentional act of D which directly causes an injury to the P or his /her property without lawful justification Intentional act of D which directly causes an injury to the P or his /her property without lawful justification The Elements of Trespass: 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. THE GENERAL ELEMENTS OF TRESPASS: The ‘DNA’ Intentional act “x” element Direct interference with person or property Absence of lawful justification + + + = A specific form of trespass

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

29. BATTERY The intentional act of D which directly causes a physical interference with the body of P without lawful justification 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 The distinguishing element: physical interference with P’s body

30. THE INTENTIONAL ACT IN BATTERY No liability without intention No liability without intention The intentional act = basic willful act + the consequences. The intentional act = basic willful act + the consequences. Carter v Walker (2010) 32 VR 1 at [215]

31. 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 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 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) ‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate’ ( per Goff LJ, Collins v Wilcock)

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

33. 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 Police officer holds D’s arm with a view to restraining her when D declines to answer questions and begins to walk away; battery

34. SHOULD THE PHYSICAL INTERFERENCE BE HOSTILE? Hostility may establish a presumption of battery; but Hostility may establish a presumption of battery; but Hostility is not material to proving battery Hostility is not material to proving battery The issue may revolve on how one defines ‘hostility’ The issue may revolve on how one defines ‘hostility’

35. THE INJURY MUST BE CAUSED DIRECTLY Injury should be the immediate The Case Law: 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)

36. THE ACT MUST BE WITHOUT LAWFUL JUSTIFICATION Consent is 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 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 Lawful justification includes the lawful act of law enforcement officers

37. 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 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

38. TRESPASS:ASSAULT 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: 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:

39. The Gist of the Action 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 … 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

40. ACN 087 528 774 Pty Ltd v Chetcuti [2008] VSCA 274 A threat by the defendant, by words or conduct, to inflict harmful or offensive contact A threat by the defendant, by words or conduct, to inflict harmful or offensive contact upon the plaintiff forthwith: upon the plaintiff forthwith: A subjective intention on the part of the defendant that the threat will create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith: A subjective intention on the part of the defendant that the threat will create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith: The threat must in fact create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith The threat must in fact create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith The apprehension in the mind of the plaintiff must be objectively reasonable The apprehension in the mind of the plaintiff must be objectively reasonable

41. R v Knight (1988) 35 A Crim R 314. The threats included, "I had him in my rifle sights", "we are going to put a bomb at his front gate", "I will poke your fucking eyes out with a screw driver" and "I'm going to shoot you. I was going to shoot you last night but I will leave it to tonight [at] your party".

42. THE ELEMENTS OF ASSAULT There must be a direct threat: 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 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. 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 In general, conditional threats are not actionable – Tuberville v Savage – Police v Greaves

43. The apprehension must be reasonable; the test is objective The apprehension must be reasonable; the test is objective The interference must be imminent 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) THE ELEMENTS OF ASSAULT

44. Zanker v Vartzokas and the issue of imminence/immediacy The Facts: 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. Z a nker v Vartzokas : The Issues Was the victim’s fear of sexual assault in the future reasonable? Was the victim’s fear of sexual assault in the future reasonable? Was the feared harm immediate enough to constitute assault? 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. 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 essential factor is imminence not contemporaneity The exact moment of physical harm injury is known to the aggressor 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 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 “x” element Direct interference Absence of lawful justification + + + = A specific form of trespass

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

49. 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 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 The essential distinctive element is the total restraint

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

51. RESTRAINT IN FALSE IMPRISONMENT The restraint must be total 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 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 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)

52. VOLUNTARY CASES In general, there is no FI where one voluntarily submits to a form of restraint 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) – Where there is no volition for restraint, the confinement may be FI ( Bahner v Marwest Hotels Co.)

53. KNOWLEDGE IN FALSE IMPRISONMENT The knowledge of the P at the moment of restraint is not essential. The knowledge of the P at the moment of restraint is not essential. – Merring v Graham White Aviation – Murray v Ministry of Defense

54. THE BURDEN OF PROOF IN TRESPASS The traditional position in Common Law: The traditional position in Common Law: – The D bears the burden of disproving fault The Highway exception The Highway exception – Off highway: D disproves fault – In highway trespass: P proves fault

55. TRESPASS TO PROPERTY LAND GOODS/CHATTELS

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

57. THE NATURE OF THE TORT Land includes the actual soil/dirt, the structures/plants on it and the airspace above it 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 Cujus est solum ejus est usque ad coelum et inferos – Bernstein of Leigh v Skyways & General Ltd – Kelson v Imperial Tobacco

58. The Nature of D’s Act: A General Note...[E]very invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing.... If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him ( Entick v Carrington (1765) 16 St Tr 1029, 1066)...[E]very invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing.... If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him ( Entick v Carrington (1765) 16 St Tr 1029, 1066)

59. THE NATURE OF D’S ACT The act must constitute some physical interference which disturbs P’s exclusive possession of the land 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

60. 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 P must have exclusive possession of the land at the time of the interference exclusion of all others

61. THE NATURE OF EXCLUSIVE POSSESSION Exclusive possession is distinct from ownership. Exclusive possession is distinct from ownership. Ownership refers to title in the land. Exclusive possession refers to physical holding of the land Ownership refers to title in the land. Exclusive possession refers to physical holding of the land Possession may be immediate or constructive Possession may be immediate or constructive The nature of possession depends on the material possessed The nature of possession depends on the material possessed

62. 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 ) 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)¯ A co-possessor can maintain an action against a trespasser (Coles Smith v Smith and Ors)¯

63. THE POSITION OF TRESPASSERS AND SQUATTERS A trespasser/squatter in exclusive possession can maintain an action against any other trespasser A trespasser/squatter in exclusive possession can maintain an action against any other trespasser

64. 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 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 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) A licensee for value however may be entitled to sue (E.R. Investments v Hugh)

65. THE POSITION OF POLICE OFFICERS Unless authorized by law, police officers have no special right of entry into any premises without consent of P. Unless authorized by law, police officers have no special right of entry into any premises without consent of P. A police officer charged with the duty of serving a summons must obtain the consent of the party in possession A police officer charged with the duty of serving a summons must obtain the consent of the party in possession

66. Case law Halliday v Neville Halliday v Neville Plenty v. Dillion Plenty v. Dillion State of New South Wales v Ibbett (2005) 65 NSWLR 168 (The police officer on P’s property produced a gun and pointed it at Mrs Ibbett saying, “Open the bloody door and let my mate in”)

67. TRESPASS TO PROPERTY LAND GOODS/CHATTELS

68. TRESPASS TO PROPERTY LAND GOODS/CHATTELSGOODS/CHATTELS Personal propertyPersonal property

69. 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 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. The P must have actual or constructive possession at the time of interference.

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

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

72. CONVERSION: Who Can Sue? Owners Owners Those in possession or entitled to immediate possession 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 )

73. ACTS OF CONVERSION Mere asportation is no 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 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 Finders of lost property – Parker v British Airways The position of the auctioneer The position of the auctioneer – Willis v British Car Auctions Destruction of the chattel is conversion Destruction of the chattel is conversion – Atkinson v Richardson; ) Taking possession Taking possession Withholding possession Withholding possession – Clayton v Le Roy

74. ACTS OF CONVERSION Misdelivery ( Ashby v Tolhurst (1937 2KB) ; Sydney City Council v West ) 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 ) Unauthorized dispositions in any manner that interferes with P’s title constitutes conversion ( Penfolds Wines v Elliott )

75. THE LAW OF TORTS Action on the Case for Indirect Injuries

76. INDIRECT INTENTIONAL INJURIES: CASE LAW Bird v Holbrook (trap set in garden) 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)

77. THE INTENTIONAL ACT The intentional may be deliberate and preconceived( Bird v Holbrook ) The intentional may be deliberate and preconceived( Bird v Holbrook ) It may also be inferred or implied; the test for the inference is objective It may also be inferred or implied; the test for the inference is objective Wilkinson v Downton Wilkinson v Downton Janvier v Sweeney Janvier v Sweeney Nationwide News v Naidu Nationwide News v Naidu

78. 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 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 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 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

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

80. The Future of the Wilkinson v Downtown The Future of the Wilkinson v Downtown The High Court obiter dicta Magill v Magill 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)

81. ONUS OF PROOF In Common Law, he who asserts proves 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 ) 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 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

82. IMPACT OF THE CIVIL LIABILITY ACT Section 3B Civil liability excluded from 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

83. THE LAW OF TORTS Defences to Intentional Torts

84. 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 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: Statement of Defence may contain: – Denial –Objection to a point of law –Confession and avoidance:

85. MISTAKE An intentional conduct done under a misapprehension An intentional conduct done under a misapprehension Mistake is thus not the same as inevitable accident 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 is generally not a defence in tort law ( Rendell v Associated Finance Ltd, Symes v Mahon ) ‘Mistake’ may go to prove ‘Mistake’ may go to prove

86. 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 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

87. CONSENT An interference or injury to which a person has consented cannot be wrongful It is for the defendant has to raise and prove consent If the defendant proves that the plaintiff has consented to the acts in question then a claim in assault, battery (or false imprisonment) will not succeed.( Hart v Herron [1984] Aust Torts Reports ¶80–201 at 67,814)

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

89. CONSENT IN SPORTS http://www.youtube.com/watch?v= VgtKW5PLso4 http://www.youtube.com/watch?v= VgtKW5PLso4 http://www.youtube.com/watch?v= VgtKW5PLso4 http://www.youtube.com/watch?v= VgtKW5PLso4 http://www.youtube.com/watch?v= W-BmKXU12yE http://www.youtube.com/watch?v= W-BmKXU12yE 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 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

90. CONSENT IN MEDICAL CASES Medical practitioners must obtain consent from the patient to any medical or surgical procedure. Absent the patient’s consent, the practitioner who performs a procedure will have committed a battery and trespass to the person. Note that consent to one procedure does not imply consent to another. Subject to any possible defence of necessity, the carrying out of a medical procedure that is not the procedure, the subject of a consent, will constitute a battery.

91. Dean v Phung [2012] NSWCA 223, – –Consent is validly given in respect of medical treatment where the patient has been given basic information as the nature of the proposed procedure. If however, it could be demonstrated objectively that a procedure of the nature carried out was not capable of addressing the patient’s problem, there would be no valid consent. – –It is necessary to distinguish between core elements of the procedure and peripheral elements, including risks of adverse outcomes. Wrong advice about the latter may involve negligence but will not vitiate consent. – –Burden of proof will lie on the practitioner to establish the existence of a valid consent where that is in issue.

92. MEDICAL CASES X v The Sydney Children’s Hospitals Network [2013] NSWCA 320 – – A young man refused to receive his own treated blood products. The treatment was necessary to preserve his life; his refusal was 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.

93. In contact sports, consent is not necessarily a defence to foul play ( McNamara v Duncan; Hilton v Wallace ) 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. 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

94. 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 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) 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 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

95. Self-Defence against Unlawful conduct: (Part 7 CLA) S52:The legislation provides immunity to the defendant who causes damage to the plaintiff while acting in self-defence in circumstances where the plaintiff’s conduct that provoked the act of self-defence was unlawful.S52:The legislation provides immunity to the defendant who causes damage to the plaintiff while acting in self-defence in circumstances where the plaintiff’s conduct that provoked the act of self-defence was unlawful.

96. Self-Defence: The Scope S52(2)The defence is only available ‘if and only if’ at the time of the relevant act, the defendant believed the conduct was necessary:S52(2)The defence is only available ‘if and only if’ at the time of the relevant act, the defendant believed the conduct was necessary: –(a) to defend himself or herself or another person, or –(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or –(c) to protect property from unlawful taking, destruction, damage or interference, or –(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them and the conduct is a reasonable response in the circumstances as he or she perceives them

97. Self-Defence: The Scope S54: Where D’s conduct is judged to be an unreasonable response ‘a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that:S54: Where D’s conduct is judged to be an unreasonable response ‘a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that: (a) the circumstances of the case are exceptional, and(a) the circumstances of the case are exceptional, and (b) in the circumstances of the case, a failure to award damages would be harsh and unjust(b) in the circumstances of the case, a failure to award damages would be harsh and unjust

98. 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 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’ What is reasonable force will depend on the facts of each case, but it is debatable whether reasonable force includes ‘deadly force’

99. PROVOCATION Provocation is not a defence in tort law. 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 It can only be used to avoid the award of exemplary damages: Fontin v Katapodis; Downham Ballett and Others

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

101. The Case for Allowing the Defence of Provocation The relationship between provocation and contributory negligence The relationship between provocation and contributory negligence The implication of counterclaims The implication of counterclaims Note possible qualifications Fontin v Katapodis to : 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.

102. 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 The defence is allowed where an act which is otherwise a tort is done to save life or property: urgent situations of imminent peril

103. 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 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 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 D’s act must be reasonably necessary and not just convenient Murray v McMurchy – In re F – Cope v Sharp

104. INSANITY INSANITY Insanity is not a defence as such to an intentional tort. 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 ) 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 )

105. INFANTS Minority is not a defence as such in torts. 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 ) What is essential is whether the D understood the nature of his/her conduct ( Smith v Leurs; Hart v AG of Tasmania )

106. DISCIPLINE PARENTS 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)

107. Illegality in Common Law :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. 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

108. Illegality under the Civil Liability Act Section 54Section 54 –(1) A court is not to award damages in respect of liability… if the court is satisfied that: –(a) the person whose death, injury or damage is the subject of the proceedings was, at the time of the incident that resulted in death, injury or damage, engaged in conduct that (on the balance of probabilities) constitutes a serious offence, and –(b) that conduct contributed materially to the risk of death, injury or damage

109. The Scope of the section The section applies ‘whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned’The section applies ‘whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned’