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2. THE LAW OF TORTS WEEKEND SCHOOL 1

3. THE LECTURE STRUCTURE Texts Definition, aims and scope of law of torts Intentional torts The tort of negligence – – Duty of care

4. THE LAW OF TORTS DEFINITION: THE NATURE OF TORTS 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. Discussion/Question Tort and Crime 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. 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. Question Are there any similarities between a tort and a crime? Are there any similarities between a tort and a crime?

10. 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.

11. 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 ) 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 )

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. 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

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

15. 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.

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

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

18. 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

19. 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

20. 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 ’

21. 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.

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

23. ACTIONS IN TORT LAW Trespass Trespass – Directly caused injuries – Requires no proof of damage Action on the Case/Negligence Action on the Case/Negligence – Indirect injuries – Requires proof of damage

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

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

28. 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

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

30. 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

31. 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.

32. 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)

33. The Nature of the Physical Interference Rixon v Star City Casino (D places hand on P’s shoulder to attract his attention; no battery) 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) 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)

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. ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti [2008] VSCA 274: A plaintiff seeking to establish a cause of action for the tort of assault, in circumstances where no physical contact or battery in fact takes place, must prove the following elements:A plaintiff seeking to establish a cause of action for the tort of assault, in circumstances where no physical contact or battery in fact takes place, must prove the following elements: – A threat by the defendant, by words or conduct, to inflict harmful or offensive contact 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 – 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

39. 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) – Rozsa v Samuels ( threat to cut P into bits) In general, mere words are not actionable In general, mere words are not actionable – B arton v Armstrong In general, conditional threats are not actionable In general, conditional threats are not actionable – Tuberville v Savage – Police v Greaves – Rozsa v Samuels

40. The apprehension must be reasonable; the test is objective The apprehension must be reasonable; the test is objective The interference must be imminent Police v Greaves The interference must be imminent Police v Greaves – Rozsa v Samuels – Barton v Armstrong – Hall v Fonceca Zanker v Vartzokas ( P jumps out of a moving van to escape from D’s unwanted lift) THE ELEMENTS OF ASSAULT

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

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

43. 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

44. 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

45. RESTRAINT IN FALSE IMPRISONMENT The restraint must be total The restraint must be total – Bird v Jones (passage over bridge ) – The Balmain New Ferry Co v Robertson Total restraint implies the absence of a reasonable means of escape 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) – Myer Stores v Soo

46. 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) – Robinson 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.) Where there is no volition for restraint, the confinement may be FI ( Bahner v Marwest Hotels Co.)

47. WORDS AND FALSE IMPRISONMENT In general, words can constitute FI In general, words can constitute FI

48. 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

49. 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

50. OTHER FORMS OF TRESPASS TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

51. TRESPASS TO PROPERTY LAND GOODS/CHATTELS

52. 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

53. 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

54. 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)

55. 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

56. 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

57. 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

58. 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)¯

59. 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

60. 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)

61. THE TRESPASSORY ACT Preventing P’s access Waters v Maynard) Preventing P’s access Waters v Maynard) The continuation of the initial trespassory act is a trespass continuing trespass The continuation of the initial trespassory act is a trespass continuing trespass Where D enters land for purposes different from that for which P gave a license, D’s conduct may constitute trespass a b initio (Baker v Crown) Where D enters land for purposes different from that for which P gave a license, D’s conduct may constitute trespass a b initio (Baker v Crown)

62. THE POSITION OF POLICE OFFICERS Unless authorized by law, police officers have no special right of entry into any premises without consent of P. But see Halliday v Neville Unless authorized by law, police officers have no special right of entry into any premises without consent of P. But see Halliday v Neville A police officer charged with the duty of serving a summons must obtain the consent of the party in possession ( Plenty v. Dillion ) A police officer charged with the duty of serving a summons must obtain the consent of the party in possession ( Plenty v. Dillion )

63. Police Officers; The Common Law Position The poorest man may in his cottage bid defiance to all forces of the Crown. It may be frail- its roof may shake- the wind may blow through it- the rain may enter- but the King of England cannot enter- all his force dares not cross the threshold of the ruined tenement. So be it- unless he has justification by law’. ( Southam v Smout [1964] 1QB 308, 320. The poorest man may in his cottage bid defiance to all forces of the Crown. It may be frail- its roof may shake- the wind may blow through it- the rain may enter- but the King of England cannot enter- all his force dares not cross the threshold of the ruined tenement. So be it- unless he has justification by law’. ( Southam v Smout [1964] 1QB 308, 320.

64. REMEDIES Ejectment Ejectment Recovery of Possession Recovery of Possession Award of damages Award of damages Injunction Injunction

65. TRESPASS TO PROPERTY LAND GOODS/CHATTELS

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

67. 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.

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

69. 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

70. 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 )

71. 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

72. 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 )

73. DETINUE Detinue: The wrongful refusal to tender goods upon demand by P, who is entitled to possession It requires a demand coupled with subsequent refusal ( General and Finance Facilities v Cooks Cars (Romford) Detinue: The wrongful refusal to tender goods upon demand by P, who is entitled to possession It requires a demand coupled with subsequent refusal ( General and Finance Facilities v Cooks Cars (Romford)

74. DAMAGES IN CONVERSION AND DETINUE In conversion, damages usually take the form of pecuniary compensation In conversion, damages usually take the form of pecuniary compensation In detinue, the court may in appropriate circumstances order the return of the chattel In detinue, the court may in appropriate circumstances order the return of the chattel Damages in conversion are calculated as at the time of conversion; in detinue it is as at the time of judgment Damages in conversion are calculated as at the time of conversion; in detinue it is as at the time of judgment – The Mediana – Butler v The Egg and Pulp Marketing Board – The Winkfield – General and Finance Facilities v Cooks Cars (Romford)

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

76. INDIRECT INTENTIONAL INJURIES INDIRECT INTENTIONAL INJURIES ACTION ON THE CASE FOR PHYSICAL INJURIES OR NERVOUS SHOCK ACTION ON THE CASE FOR PHYSICAL INJURIES OR NERVOUS SHOCK ACTION ON THE CASE REFERS TO ACTIONS BASED ON INJURIES THAT ARE CAUSED INDIRECTLY OR CONSEQUENTIALLY ACTION ON THE CASE REFERS TO ACTIONS BASED ON INJURIES THAT ARE CAUSED INDIRECTLY OR CONSEQUENTIALLY

77. 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)

78. 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

79. 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

80. Nationwide News Pty Ltd v Naidu [2007] NSWCA 377 Facts: Nationwide News’ Fire and Safety Officer subjected the plaintiff to humiliating and harassing treatment. The plaintiff suffered psychiatric injury in the form of Post Traumatic Stress D Facts: Nationwide News’ Fire and Safety Officer subjected the plaintiff to humiliating and harassing treatment. The plaintiff suffered psychiatric injury in the form of Post Traumatic Stress D Held : P successful. Spigelman CJ considered the intention required to establish a tort:

81. “Calculated” can mean: – – Subjective, actual, conscious desire to bring about the specific result; or – – What is likely, perhaps overwhelmingly likely to occur considered objectively – – However the subjective intention is unlikely to be required because of the “imputed intention” in Wilkinson v Downton. – – It may be enough to satisfy a test of “substantial certainty” – – ‘Reckless indifference” will satisfy the intention While there is no finding that the superior in this case actually intended to inflict the psychiatric damage, the nature and scale of his conduct was such as to constitute a recognised psychiatric injury as a natural and probable consequence of that course of conduct.

82. Carrier v Bonham [2002] Carrier v Bonham [2002] A mentally ill D stepped in front of a bus in a deliberate effort to commit suicide. Issue was whether D could be held liable for an ‘act calculated to cause harm’ A mentally ill D stepped in front of a bus in a deliberate effort to commit suicide. Issue was whether D could be held liable for an ‘act calculated to cause harm’ Held: the concept imported a purely objective test Held: the concept imported a purely objective test See Carter v Walker. P claimed suffered shock when his mother called to inform him of an assault on her and his brother. He hurried to scene. He subsequently brought action under Wilkinson v Downtown. Action failed. See Carter v Walker. P claimed suffered shock when his mother called to inform him of an assault on her and his brother. He hurried to scene. He subsequently brought action under Wilkinson v Downtown. Action failed.

83. 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 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

84. The CLA and Intentional Torts S3B:(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: S3B:(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:awards (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person-the whole Act except: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person-the whole Act except:injury … (ii) 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, and (ii) 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, andinjury

85. The Exclusion of Intentional torts from the CLA New South Wales v Ibbet : Assault and trespass to land: The restrictions on the award of exemplary and aggravated damages under the CLA held not to apply New South Wales v Ibbet : Assault and trespass to land: The restrictions on the award of exemplary and aggravated damages under the CLA held not to apply Honda v NSW [2005]: wrongful arrest, malicious prosecution and false imprisonment by a police officer. Issue whether injury in s3B included only bodily injury. Held injury not limited to bodily injury Honda v NSW [2005]: wrongful arrest, malicious prosecution and false imprisonment by a police officer. Issue whether injury in s3B included only bodily injury. Held injury not limited to bodily injury Zorom Enterprise v Zabow : P suffered head injuries as a result of an attack by a security guard employed by D. P sued D for vicarious liability. D argued that CLA restrictions applied because s3B only excluded only the intentional acts of the person who actually committed torts and not the D who was only vicariously liable. Argument was rejected Zorom Enterprise v Zabow : P suffered head injuries as a result of an attack by a security guard employed by D. P sued D for vicarious liability. D argued that CLA restrictions applied because s3B only excluded only the intentional acts of the person who actually committed torts and not the D who was only vicariously liable. Argument was rejected

86. s3B: ‘In respect of ….’ NSW v Bujdoso [2007] NSW v Bujdoso [2007] P was attacked by inmates while in prison. He brought an action the D for their negligence. Since the conduct of the inmates was intentional, the issue was whether the provision of 3B applied to exclude the restrictions of the CLA in the award of damages. P was attacked by inmates while in prison. He brought an action the D for their negligence. Since the conduct of the inmates was intentional, the issue was whether the provision of 3B applied to exclude the restrictions of the CLA in the award of damages. The argument centred on the phrase ‘in respect of’ P argued that in respect of was broad and means that D’s liability arose in respect of the intentional act of the inmates and so s3B applied. The court rejected the argument. In respect of interpreted to refer to the person who did the act and the person whose negligence led to the doing of the act. The argument centred on the phrase ‘in respect of’ P argued that in respect of was broad and means that D’s liability arose in respect of the intentional act of the inmates and so s3B applied. The court rejected the argument. In respect of interpreted to refer to the person who did the act and the person whose negligence led to the doing of the act.

87. THE LAW OF TORTS Defences to Intentional Torts

88. 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:

89. 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

90. 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

91. 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)

92. CONSENT IN SPORTS 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

93. THE BURDEN OF PROOF Since the absence of consent is a definitional element in trespass, it is for the P to prove absence of consent and not for the D to prove consent Since the absence of consent is a definitional element in trespass, it is for the P to prove absence of consent and not for the D to prove consent

94. STATUTORY PROVISIONS ON CONSENT Minors (Property and Contracts) Act 1970 ( NSW) ss 14, 49 Minors (Property and Contracts) Act 1970 ( NSW) ss 14, 49 Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW)

95. 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

96. 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’

97. 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

98. 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

99. 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.

100. 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

101. 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

102. 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 )

103. 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 )

104. 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)

105. ILLEGALITY: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

106. SELF DEFENCE-TRESPASS & CLA 2002 SELF DEFENCE-TRESPASS & CLA 2002 s.3B(1)(a) Civil Liability Act (“CLA”) i.e. CLA does not apply to “intentional torts”, except Part 7 of the Act. s.3B(1)(a) Civil Liability Act (“CLA”) i.e. CLA does not apply to “intentional torts”, except Part 7 of the Act. s.52 (2) CLA subjective/objective test i.e. subjective ("…believes…" & "…perceives…")/ objective ("…reasonable response…") test. s.52 (2) CLA subjective/objective test i.e. subjective ("…believes…" & "…perceives…")/ objective ("…reasonable response…") test. s.53(1)(a) & (b) CLA i.e. “and” = two limb test; "exceptional" and "harsh and unjust“ are not defined in the Act so s.34 of the Interpretation Act 1987. s.53(1)(a) & (b) CLA i.e. “and” = two limb test; "exceptional" and "harsh and unjust“ are not defined in the Act so s.34 of the Interpretation Act 1987. s.54(1) & (2) CLA i.e. "Serious offence" and "offence" are criminal terms so reference should be made to the criminal law to confirm whether P's actions are covered by the provisions. s.54(1) & (2) CLA i.e. "Serious offence" and "offence" are criminal terms so reference should be made to the criminal law to confirm whether P's actions are covered by the provisions.

107. NEGLIGENCE INTRODUCTION

108. NEGLIGENCE AND FAULT IN TORTS NEGLIGENCE TRESPASS NEGLIGENCE the action CARELESS FAULT INTENTION

109. Donoghue v. Stevenson Ginger beer-decomposing snail-P has shock- gastroenteritis Ginger beer-decomposing snail-P has shock- gastroenteritis No privity of contract between P and D. Issue was whether D owed P a duty No privity of contract between P and D. Issue was whether D owed P a duty Dicta of Lord Atkin Dicta of Lord Atkin You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are closely and directly affected by my act that I ought reasonably to have them in mind to the acts or omissions You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are closely and directly affected by my act that I ought reasonably to have them in mind to the acts or omissions

110. Negligence: The Elements Duty of care Breach Damage Negligence

111. NEGLIGENCE Grant v Australian Knitting Mills (1936) Grant v Australian Knitting Mills (1936) The application of the rule in D v S The application of the rule in D v S a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer ’ s life or property, owes a duty to the consumer to take that reasonable care a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer ’ s life or property, owes a duty to the consumer to take that reasonable care

112. whenever one person is by circumstances placed in such a position with regard to another, that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the p e rson or property of the other (person) a duty arises to use ordinary care and skill to avoid such danger. whenever one person is by circumstances placed in such a position with regard to another, that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the p e rson or property of the other (person) a duty arises to use ordinary care and skill to avoid such danger. NEGLIGENCE: THE DUTY OF CARE

113. Negligence: (Duty of Care) The Duty of care is the obligation to avoid acts or omissions which are reasonably foreseeable to cause damage to another. The Duty of care is the obligation to avoid acts or omissions which are reasonably foreseeable to cause damage to another. When does one owe a duty of care? When does one owe a duty of care? – Whenever one is engaged in an act which he or she can reasonably foresee would be likely to injure another person, one owes a duty of care to that other person

114. General Principles: The CLA S 5B:(1) A person is not negligent in failing to take precautions against a risk of harm unless:S 5B:(1) A person is not negligent in failing to take precautions against a risk of harm unless: –(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and –(b) the risk was not insignificant, and –(c) in the circumstances, a reasonable person in the person ’ s position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): –(a) the probability that the harm would occur if care were not taken, –(b) the likely seriousness of the harm, –(c) the burden of taking precautions to avoid the risk of harm, –(d) the social utility of the activity that creates the risk of harm.

115. What is Reasonable Foreseeability? Reasonable foreseeability presupposes an objective or a reasonable person ’ s standard Reasonable foreseeability presupposes an objective or a reasonable person ’ s standard The reasonable person is an embodiment of community values and what the community expects of a responsible citizen The reasonable person is an embodiment of community values and what the community expects of a responsible citizen The concept allows us to evaluate D ’ s conduct not from his or her peculiar position, but from that of a reasonable person similarly placed The concept allows us to evaluate D ’ s conduct not from his or her peculiar position, but from that of a reasonable person similarly placed Reasonable foreseeability is a question of law Reasonable foreseeability is a question of law

116. Reasonable Foreseeability: Case Law Nova Mink v. Trans Canada Airlines [1951] (Air traffic noise causing minks to eat their young ones- No foreseeability) Nova Mink v. Trans Canada Airlines [1951] (Air traffic noise causing minks to eat their young ones- No foreseeability) United Novelty Co. v Daniels 42 So. 2nd 395 Miss 1949 Palsgraf v. Long Island R.R. Co. (1928) (Railway guards helping falling passenger-fireworks explosion causing injury to plaintiff.-No foreseeability) Palsgraf v. Long Island R.R. Co. (1928) (Railway guards helping falling passenger-fireworks explosion causing injury to plaintiff.-No foreseeability) Chapman v. Hearse (1961) (Car accident-Dr. stops to help-gets killed by another vehicle-action against D who caused initial accident- Foreseeability upheld) Chapman v. Hearse (1961) (Car accident-Dr. stops to help-gets killed by another vehicle-action against D who caused initial accident- Foreseeability upheld)

117. [5] DUTY CATEGORIES: To whom is duty owed? One owes a duty to those so closely and directly affected by his/her conduct that she ought reasonably to have them in contemplation as being so affected when undertaking the conduct in question. One owes a duty to those so closely and directly affected by his/her conduct that she ought reasonably to have them in contemplation as being so affected when undertaking the conduct in question. Examples: Examples: – Consumers, users of products and structures » Donoghue v Stevenson » Grant v Australian Kitting Mills » Bryan v Maloney – Road users » Bourhill v Young – Users and purchasers of premises etc. » Australian Safeway Stores v Zaluzna

118. DUTY CATEGORIES: To whom is the Duty Owed? The unborn child: The unborn child: – There can be no justification for distinguishing between the rights… of a newly born infant returning home with his /her mother from hospital in a bassinet hidden from view on the back of a motor car being driven by his proud father and of a child en ventre sa mere whose mother is being driven by her anxious husband to the hospital on way to the labour ward to deliver such a child ( Per Gillard J in Watt v Rama ) – Lynch v Lynch (1991) But see the wrongful life cases But see the wrongful life cases – Waller v James 2002 – Harriton v Stephens – Harriton v Stephens [2002] NSWSC 461 – Edwards v Blomeley 2002 – www.lawlink.nsw.gov.au

119. 5.6 RESCUERS There are two separate issues in rescue: There are two separate issues in rescue: – The ‘ duty ’ to rescue – The duty of care owed to the rescuer There is no positive legal obligation in the common law to rescue There is no positive legal obligation in the common law to rescue – The law does not ‘ cast a duty upon a man to go to the aid of another who is sin peril or distress, not caused by him There may however exist a duty to rescue in master servant relationships or boat owner and guest relationships for instance There may however exist a duty to rescue in master servant relationships or boat owner and guest relationships for instance – Horsley v Macleran (The Ogopogo) (1971) 22 DLR One is only required to use reasonable care and skill ion the rescue One is only required to use reasonable care and skill ion the rescue

120. Unforeseeable Plaintiffs In general the duty is owed to only the foreseeable plaintiff and not abnormal Plaintiffs. In general the duty is owed to only the foreseeable plaintiff and not abnormal Plaintiffs. – Bourhill v Young [1943] AC 92 – Levi v Colgate-Palmolive Ltd – Haley v L.E.B. [1965] AC 778