THE LAW OF TORTS WEEK 1

Definition, aims and scope of law of torts Intentional torts THE LECTURE STRUCTURE Texts Definition, aims and scope of law of torts Intentional torts

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

DEFINITION: THE NATURE OF TORTS INTRODUCTION WEEK 1 DEFINITION: THE NATURE OF TORTS

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

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

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

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

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

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

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.

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 )

TORTS DISTINGUISHED FROM BREACH OF CONTRACT A breach of contract arises from breach of promise(s) made by the parties themselves.

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

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

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

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.

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

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

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)

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

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

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’

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.

STRICT LIABILITY No fault is required for strict liability

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

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

Particular torts

INTENTIONAL TORTS Trespass Conversion Detinue

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

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

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 =

SPECIFIC FORMS OF TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

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

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

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)

The Nature of the Physical Interference Battery : 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

Platt v Nutt

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.

Dean v Phung [2012] NSWCA 223,

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

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

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

X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294

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.

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’

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)

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

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

TRESPASS TO THE PERSON assault

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:

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.

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

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

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)

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

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?

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

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

SPECIFIC FORMS OF TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

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

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

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)

‘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.

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.)

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