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THE LAW OF TORTSTHE LAW OF TORTS

WEEKEND SCHOOL 1WEEKEND SCHOOL 1

THE LECTURE STRUCTURETHE LECTURE STRUCTURE

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

•Intentional torts•The tort of negligence

–Duty of care

THE LAW OF TORTSTHE LAW OF TORTS

DEFINITION: THE NATURE OF TORTSDEFINITION: THE NATURE OF TORTS

INTRODUCTIONINTRODUCTION

WHAT IS A TORT?WHAT IS A TORT?

•A tort is a A tort is a civilcivil wrong wrong•That (wrong) is based a That (wrong) is based a breach of a duty breach of a duty imposed by imposed by lawlaw

•Which (breach) gives rise to a Which (breach) gives rise to a (personal) civil right of action (personal) civil right of action for for for a remedy not for a remedy not exclusiveexclusive to another area of to another area of lawlaw

Discussion/QuestionDiscussion/Question

•Tort and CrimeTort and Crime–How does a tort How does a tort differ from a differ from a CrimeCrime??

THE THE DIFFERENCE DIFFERENCE BETWEEN A TORT AND A BETWEEN A TORT AND A

CRIMECRIME•A crime is A crime is public /communitypublic /community wrong that wrong that

gives rise to sanctions usually gives rise to sanctions usually designated in a specified code. A tort is a designated in a specified code. A tort is a civil civil ‘‘privateprivate’’ wrong. wrong.

•Action in criminal law is Action in criminal law is usually brought usually brought by the state or the Crownby the state or the Crown. Tort actions . Tort actions are usually brought by the victims of the are usually brought by the victims of the tort.tort.

• The principal objective in criminal law The principal objective in criminal law is is punishmentpunishment. In torts, it is. In torts, it is compensationcompensation

THE THE DIFFERENCE DIFFERENCE BETWEEN A TORT AND A BETWEEN A TORT AND A

CRIMECRIME• Differences in Procedure:Differences in Procedure:

– Standard of ProofStandard of Proof» Criminal law: beyond Criminal law: beyond reasonable doubtreasonable doubt

»Torts: on the balance of Torts: on the balance of probabilitiesprobabilities

QuestionQuestion

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

SIMILARITIES BETWEEN SIMILARITIES BETWEEN TORTS AND CRIMETORTS AND CRIME

• They both arise from wrongs They both arise from wrongs imposed by lawimposed by law

• Certain crimes are also actionable Certain crimes are also actionable torts; eg trespass: assaulttorts; eg trespass: assault

• In some cases the damages in torts In some cases the damages in torts may be punitivemay be punitive

• In some instances criminal law may In some instances criminal law may award compensation under award compensation under criminal injuries compensation criminal injuries compensation legislation.legislation.

TORT and CRIMETORT and CRIME

• The "roots of tort and crime" are "greatly The "roots of tort and crime" are "greatly intermingled". And it is not only the roots of intermingled". And it is not only the roots of tort and crime that are intermingled. The tort and crime that are intermingled. The increasing frequency with which civil penalty increasing frequency with which civil penalty provisions are enacted, the provisions made provisions are enacted, the provisions made for criminal injuries compensation, the for criminal injuries compensation, the provisions now made in some jurisdictions for provisions now made in some jurisdictions for the judge at a criminal trial to order restitution the judge at a criminal trial to order restitution or compensation to a person suffering loss or or compensation to a person suffering loss or damage (including pain and suffering) as a damage (including pain and suffering) as a result of an offence all deny the existence of result of an offence all deny the existence of any "sharp cleavage" between the criminal and any "sharp cleavage" between the criminal and the civil law. ( Per the civil law. ( Per GLEESON CJ, McHUGH, GUMMOW GLEESON CJ, McHUGH, GUMMOW AND HAYNE JJ. In AND HAYNE JJ. In Gray v Motor Accident CommissionGray v Motor Accident Commission ) )

TORTS DISTINGUISHED FROM TORTS DISTINGUISHED FROM BREACH OF CONTRACTBREACH OF CONTRACT

•A breach of contract arises A breach of contract arises from promises made by the from promises made by the parties themselves.parties themselves.

SIMILARITIES BETWEEN TORT SIMILARITIES BETWEEN TORT AND CONTRACTAND CONTRACT

•Both tort and breach of Both tort and breach of contract give rise to civil contract give rise to civil suitssuits

•In some instances, a breach In some instances, a breach of contract may also be a of contract may also be a tort: eg an employertort: eg an employer’’s s failure to provide safe failure to provide safe working conditionsworking conditions

QuestionsQuestions

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

THE OBJECTIVES OF TORT THE OBJECTIVES OF TORT LAWLAW

• Loss distribution/adjustment: shifting Loss distribution/adjustment: shifting losses from victims to perpetratorslosses from victims to perpetrators

• Compensation: Through the award of Compensation: Through the award of (pecuniary) damages(pecuniary) damages–The object of compensation is to place The object of compensation is to place the victim in the position he/she was the victim in the position he/she was before the tort was committedbefore the tort was committed..

• Punishment: through exemplary or Punishment: through exemplary or punitive damages. This is a secondary punitive damages. This is a secondary aim.aim.

QuestionQuestion

•What What interests interests are are protected by the Law of protected by the Law of TortsTorts, and how are these , and how are these interests protected?interests protected?

INTERESTS PROTECTED IN INTERESTS PROTECTED IN TORT LAWTORT LAW

• Personal securityPersonal security– TrespassTrespass– NegligenceNegligence

• ReputationReputation– DefamationDefamation

• PropertyProperty– TrespassTrespass– ConversionConversion

• Economic and financial interestsEconomic and financial interests

SOURCES OF TORT LAWSOURCES OF TORT LAW

•Common Law:Common Law:– The development of torts by precedent The development of torts by precedent

through the courtsthrough the courts» Donoghue v StevensonDonoghue v Stevenson

•Statute:Statute:– Thematic statutes: eg Motor Accidents Thematic statutes: eg Motor Accidents

legislationlegislation» Motor Accidents Compensation Act 1999Motor Accidents Compensation Act 1999

– General statutes: eg Civil Liability legislationGeneral statutes: eg Civil Liability legislation» The Civil Liability Act (NSW) 2002The Civil Liability Act (NSW) 2002

LIABILITY IN TORT LAWLIABILITY IN TORT LAW

• Liability = responsibilityLiability = responsibility• Liability may be based on Liability may be based on faultfault or it may or it may

be be strictstrict• Fault liability: the failure to live up to a Fault liability: the failure to live up to a

standard through an act or omission .standard through an act or omission .• Types of fault liability:Types of fault liability:

NEGLIGENCE INTENTION

FAULT LIABILITY

Intention in TortsIntention in Torts

•Deliberate or wilful conductDeliberate or wilful conduct• ‘‘ConstructiveConstructive’’ intent: where intent: where

the consequences of an act the consequences of an act are substantially certain: the are substantially certain: the consequences are intendedconsequences are intended

•Where conduct is recklessWhere conduct is reckless•Transferred intent: where D Transferred intent: where D

intends to hit intends to hit ‘‘BB ’’ but misses but misses and hits and hits ‘‘PP ’’

Negligence in TortsNegligence in Torts

•When D is When D is carelesscareless in in his/her conducthis/her conduct

•When D fails to take When D fails to take reasonable carereasonable care to avoid to avoid a a reasonably foreseeable reasonably foreseeable injuryinjury to another and to another and that party suffers that party suffers damage.damage.

STRICT LIABILITYSTRICT LIABILITY

•No No faultfault is required for is required for strict liabilitystrict liability

ACTIONS IN TORT LAWACTIONS IN TORT LAW

• TrespassTrespass–Directly caused injuriesDirectly caused injuries–Requires no proof of Requires no proof of damagedamage

•Action on the Action on the Case/NegligenceCase/Negligence–Indirect injuriesIndirect injuries–Requires proof of damageRequires proof of damage

THE DOMAIN OF TORTSTHE DOMAIN OF TORTS

TrespassNegligence

Nuisance Defences

Financial loss

Conversion

Defamation

Breach of statutory duty Particular Duty

Areas

Concurrent liability

Product liabilityLiability of public authorities

Vicarious liability

INTENTIONAL TORTSINTENTIONAL TORTS

• INTENATIONAL TORTS

Trespass Conversion Detinue

WHAT IS TRESPASS?WHAT IS TRESPASS?

• Intentional Intentional act of D which act of D which directlydirectly causes an injury to causes an injury to the the P or his /her propertyP or his /her property without lawful justificationwithout lawful justification

•The Elements of Trespass:The Elements of Trespass:– fault: fault: intentional intentional actact– injuryinjury* must be caused * must be caused directlydirectly– injury* may be to the P or to his/her injury* may be to the P or to his/her

propertyproperty– No No lawful justificationlawful justification

*INJURY IN TRESPASS*INJURY IN TRESPASS

• Injury = a breach of right, not Injury = a breach of right, not necessarily actual damagenecessarily actual damage

• Trespass requires Trespass requires onlyonly proof of proof of injury injury not actual damagenot actual damage

THE GENERAL ELEMENTS THE GENERAL ELEMENTS OF TRESPASS: The ‘DNA’OF TRESPASS: The ‘DNA’

Intentionalact

“x” element

Direct interference with person or property

Absence of lawfuljustification+ +

+=

A specificform of trespass

SPECIFIC FORMS OF SPECIFIC FORMS OF TRESPASSTRESPASS

TRESPASSTRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT

BATTERYBATTERY

• TheThe intentional act intentional act of D of D which which directlydirectly causes a causes a physical interferencephysical interference with with the body of P the body of P without lawful without lawful justificationjustification

•The distinguishing element: The distinguishing element: physical interference physical interference with with P’s bodyP’s body

THE INTENTIONAL ACT IN THE INTENTIONAL ACT IN BATTERYBATTERY

• No liability No liability without without intentionintention

• The intentional act = basic The intentional act = basic willful act + the willful act + the consequences.consequences.

THE ACT MUST CAUSE THE ACT MUST CAUSE PHYSICAL INTERFERENCEPHYSICAL INTERFERENCE

• The essence of the tort is the protection The essence of the tort is the protection of the person of Pof the person of P. D’s act short of . D’s act short of physical contact is therefore not a batteryphysical contact is therefore not a battery

•The least touching of another could The least touching of another could be batterybe battery– Cole Cole vv Turner Turner (dicta per Holt CJ)(dicta per Holt CJ)

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

The Nature of the The Nature of the Physical InterferencePhysical Interference

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

• Collins v Wilcock (Collins v Wilcock (Police officer holds Police officer holds D’s arm with a view to restraining D’s arm with a view to restraining her when D declines to answer her when D declines to answer questions and begins to walk away; questions and begins to walk away; battery)battery)

SHOULD THE PHYSICAL SHOULD THE PHYSICAL INTERFERENCE BE HOSTILE?INTERFERENCE BE HOSTILE?

•Hostility may establish a Hostility may establish a presumption of battery; butpresumption of battery; but

•Hostility is not material to Hostility is not material to proving batteryproving battery

•The issue may revolve on how The issue may revolve on how one defines ‘hostility’one defines ‘hostility’

THE INJURY MUST BE THE INJURY MUST BE CAUSED DIRECTLYCAUSED DIRECTLY

• Injury should be the immediateInjury should be the immediate The Case Law:The Case Law:– Scott Scott v v Shepherd Shepherd ( Lit ( Lit

squib/fireworks in market place)squib/fireworks in market place)

– Hutchins Hutchins vv Maughan Maughan( poisoned ( poisoned bait left for dog)bait left for dog)

– Southport Southport vv Esso Esso PetroleumPetroleum(Spilt oil on P’s beach)(Spilt oil on P’s beach)

THE ACT MUST BE THE ACT MUST BE WITHOUT LAWFUL WITHOUT LAWFUL

JUSTIFICATIONJUSTIFICATION• Consent is Lawful justificationConsent is Lawful justification• Consent must be freely given by Consent must be freely given by

the P if P is able to understand the P if P is able to understand the nature of the actthe nature of the act– Allen v New Mount Sinai HospitalAllen v New Mount Sinai Hospital

• Lawful justification includes the Lawful justification includes the lawful act of law enforcement lawful act of law enforcement officersofficers

TRESPASS:ASSAULTTRESPASS:ASSAULT

• The The intentional act or intentional act or threatthreat of D which of D which directlydirectly places P in places P in reasonable reasonable apprehension of an apprehension of an imminent physical imminent physical interferenceinterference with his or with his or her person or of someone her person or of someone under his or her control under his or her control

ACN 087 528 774 Pty Ltd (formerly ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Connex Trains Melbourne Pty Ltd) v

Chetcuti [2008] VSCA 274:Chetcuti [2008] VSCA 274:

• A plaintiff seeking to establish a cause of action for the A plaintiff seeking to establish a cause of action for the tort of assault, in circumstances where no physical tort of assault, in circumstances where no physical contact or battery in fact takes place, must prove the contact or battery in fact takes place, must prove the following elements:following elements:

– A threat by the defendant, by words or conduct, to inflict A threat by the defendant, by words or conduct, to inflict harmful or offensive contact upon the plaintiff forthwithharmful or offensive contact upon the plaintiff forthwith

– A subjective intention on the part of the defendant that the threat will 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 create in the mind of the plaintiff an apprehension that the threat will be carried out forthwithbe carried out forthwith

– The threat must in fact create in the mind of the plaintiff an The threat must in fact create in the mind of the plaintiff an apprehension that the threatapprehension that the threat

– will be carried out forthwith:will be carried out forthwith:– The apprehension in the mind of the plaintiff must be objectively The apprehension in the mind of the plaintiff must be objectively

reasonablereasonable

THE ELEMENTS OF THE ELEMENTS OF ASSAULTASSAULT

• There must be a direct threat:There must be a direct threat:– Hall v Fonceca (Hall v Fonceca (Threat by P who shook Threat by P who shook hand in front of D’s face in an argument)hand in front of D’s face in an argument)

– Rozsa v Samuels Rozsa v Samuels ( threat to cut P into bits)( threat to cut P into bits)• In general, In general, mere wordsmere words are not actionable are not actionable

– BBarton arton v v Armstrong Armstrong

• In general, conditional threats are not In general, conditional threats are not actionableactionable– Tuberville Tuberville v v SavageSavage– Police Police v v Greaves Greaves – Rozsa v SamuelsRozsa v Samuels

• The apprehension must be The apprehension must be reasonable; the test is objectivereasonable; the test is objective

• The interference must be The interference must be imminent Policeimminent Police vv Greaves Greaves– Rozsa v SamuelsRozsa v Samuels– Barton Barton v v Armstrong Armstrong – Hall v FoncecaHall v Fonceca

Zanker v Vartzokas (Zanker v Vartzokas (P jumps out of a P jumps out of a moving van to escape from D’s moving van to escape from D’s unwanted lift)unwanted lift)

THE ELEMENTS OF ASSAULTTHE ELEMENTS OF ASSAULT

THE GENERAL ELEMENTS THE GENERAL ELEMENTS OF TRESPASSOF TRESPASS

Intentional act

“x” element

Direct interference Absence of lawfuljustification+ +

+=

A specificform of trespass

SPECIFIC FORMS OF SPECIFIC FORMS OF TRESPASSTRESPASS

TRESPASSTRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT

FALSE FALSE IMPRISONMENTIMPRISONMENT

• The The intentionalintentional actact of D of D which which directly directly causes the causes the total restraint total restraint of P and of P and thereby confines him/her to thereby confines him/her to a delimited area a delimited area without without lawful justificationlawful justification

• The essential distinctive The essential distinctive element is the element is the total restrainttotal restraint

THE ELEMENTS OF THE ELEMENTS OF THE TORT THE TORT

• It requires all the basic It requires all the basic elements of trespass:elements of trespass:– Intentional actIntentional act– DirectnessDirectness

– absence of lawful absence of lawful justification/consent justification/consent , , andand

• total restrainttotal restraint

RESTRAINT IN FALSE RESTRAINT IN FALSE IMPRISONMENTIMPRISONMENT

• The restraint must be The restraint must be totaltotal– Bird Bird v v Jones Jones (passage over bridge(passage over bridge))

– The Balmain New Ferry Co v RobertsonThe Balmain New Ferry Co v Robertson

• Total restraint implies the absence of a Total restraint implies the absence of a reasonable means of escapereasonable means of escape– Burton Burton v v Davies Davies (D refuses to allow P out of car)(D refuses to allow P out of car)

• Restraint may be total where D subjects P to Restraint may be total where D subjects P to his/her authority with no option to leavehis/her authority with no option to leave– Symes Symes v v Mahon Mahon (police officer arrests P by (police officer arrests P by

mistake)mistake)– Myer Stores Myer Stores v v SooSoo

VOLUNTARY CASESVOLUNTARY CASES

• In general, there is no FI where one In general, there is no FI where one voluntarily submits to a form of voluntarily submits to a form of restraintrestraint– HerdHerd v v Werdale Werdale (D refuses to allow P out (D refuses to allow P out

of mine shaft)of mine shaft)– Robinson Robinson v v The Balmain New Ferry Co. The Balmain New Ferry Co. (D (D

refuses to allow P to leave unless P pays refuses to allow P to leave unless P pays fare)fare)

– Lippl Lippl v v HainesHaines

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

WORDS AND FALSE WORDS AND FALSE IMPRISONMENTIMPRISONMENT

• In general, words can In general, words can constitute FIconstitute FI

KNOWLEDGE IN KNOWLEDGE IN FALSE FALSE

IMPRISONMENTIMPRISONMENT•The knowledge of the P at The knowledge of the P at

the moment of restraint is the moment of restraint is not essential.not essential.– Merring Merring v v Graham White AviationGraham White Aviation– Murray Murray v v Ministry of DefenseMinistry of Defense

THE BURDEN OF PROOF IN THE BURDEN OF PROOF IN TRESPASSTRESPASS

•The traditional position in The traditional position in Common Law: Common Law: – The D bears the burden of disproving The D bears the burden of disproving

faultfault

•The Highway exceptionThe Highway exception– Off highway: D disproves faultOff highway: D disproves fault– In highway trespass: P proves faultIn highway trespass: P proves fault

OTHER FORMS OF OTHER FORMS OF TRESPASSTRESPASS

TRESPASSTRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT

TRESPASS TO TRESPASS TO PROPERTYPROPERTY

TRESPASS TO PROPERTYTRESPASS TO PROPERTY

LAND GOODS/CHATTELS

TRESPASS TO LANDTRESPASS TO LAND

• The The intentionalintentional of D of D which which directly directly interferes interferes with the with the plaintiff’s plaintiff’s exclusive exclusive possession of landpossession of land

THE NATURE OF THE THE NATURE OF THE TORTTORT

• Land includes the actual Land includes the actual soil/dirt, the soil/dirt, the structures/plants on it and structures/plants on it and the airspace above itthe airspace above it

• Cujus est solum ejus est Cujus est solum ejus est usque ad coelum et inferosusque ad coelum et inferos–Bernstein of LeighBernstein of Leigh v v Skyways & Skyways & General LtdGeneral Ltd

–Kelson v Imperial Tobacco Kelson v Imperial Tobacco

The Nature of D’s Act: A The Nature of D’s Act: A General NoteGeneral Note

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

THE NATURE OF D’S ACTTHE NATURE OF D’S ACT

• The act must constitute The act must constitute some physical some physical interference which interference which disturbs P’s exclusive disturbs P’s exclusive possession of the landpossession of the land–Victoria Racing Co. v TaylorVictoria Racing Co. v Taylor–Barthust City Council v SabanBarthust City Council v Saban–Lincoln Hunt v WillesseLincoln Hunt v Willesse

THE NATURE OF THE THE NATURE OF THE PLAINTIFF’S INTEREST IN THE PLAINTIFF’S INTEREST IN THE

LANDLAND

• P must have P must have exclusive exclusive possession possession of the land of the land at the time of the at the time of the interference interference exclusion exclusion of all othersof all others

THE NATURE OF THE NATURE OF EXCLUSIVE EXCLUSIVE

POSSESSIONPOSSESSION• Exclusive possession is distinct Exclusive possession is distinct

from ownership. from ownership. • Ownership refers to Ownership refers to titletitle in the in the

land. Exclusive possession refers land. Exclusive possession refers to to physicalphysical holding of the land holding of the land

• Possession may be Possession may be immediateimmediate or or constructive constructive

•The nature of possession depends The nature of possession depends on the material possessedon the material possessed

EXCLUSIVE EXCLUSIVE POSSESSIONPOSSESSION: CO-: CO-

OWNERSOWNERS• In general, a co-owner In general, a co-owner cannot be liable in trespass in cannot be liable in trespass in respect of the land he/she respect of the land he/she owns; but this is debatable owns; but this is debatable where the ’trespassing’ co-where the ’trespassing’ co-owner is not in possession. owner is not in possession. ((Greig Greig v v GreigGreig))

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

THE POSITION OF THE POSITION OF TRESPASSERS AND TRESPASSERS AND

SQUATTERSSQUATTERS

• A trespasser/squatter A trespasser/squatter in exclusive possession in exclusive possession can maintain an action can maintain an action against any other against any other trespassertrespasser

THE POSITION OF THE POSITION OF LICENSEESLICENSEES

• A licensee is one who has the A licensee is one who has the permission of P to enter or permission of P to enter or use land (belonging to P)use land (belonging to P)

• A licensee is a party not in A licensee is a party not in possession, and can therefore possession, and can therefore not sue in trespass not sue in trespass

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

THE TRESPASSORY THE TRESPASSORY ACTACT

• Preventing P’s access Preventing P’s access Waters Waters v v Maynard)Maynard)

• The continuation of the initial The continuation of the initial trespassory act is a trespass trespassory act is a trespass ccontinuing trespassontinuing trespass

• Where D enters land for Where D enters land for purposes different from that purposes different from that for which P gave a license, for which P gave a license, D’s conduct may constitute D’s conduct may constitute ttrespass arespass ab initio b initio (Baker v (Baker v Crown)Crown)

THE POSITION OF THE POSITION OF POLICE OFFICERSPOLICE OFFICERS

• Unless authorized by law, Unless authorized by law, police officers have no police officers have no special right of entry into any special right of entry into any premises without consent of premises without consent of P. But see P. But see Halliday v NevilleHalliday v Neville

• A police officer charged with A police officer charged with the duty of serving a the duty of serving a summons must obtain the summons must obtain the consent of the party in consent of the party in possession (possession (Plenty v. Dillion Plenty v. Dillion ))

Police Officers; The Police Officers; The Common Law PositionCommon Law Position

•The poorest man may in his cottage The poorest man may in his cottage bid defiance to all forces of the bid defiance to all forces of the Crown. It may be frail- its roof may Crown. It may be frail- its roof may shake- the wind may blow through shake- the wind may blow through it- the rain may enter- but the King it- the rain may enter- but the King of England cannot enter- all his of England cannot enter- all his force dares not cross the threshold force dares not cross the threshold of the ruined tenement. So be it- of the ruined tenement. So be it- unless he has justification by law’. ( unless he has justification by law’. ( Southam v SmoutSoutham v Smout [1964] 1QB 308, [1964] 1QB 308, 320.320.

REMEDIESREMEDIES

• EjectmentEjectment•Recovery of PossessionRecovery of Possession•Award of damagesAward of damages• InjunctionInjunction

TRESPASS TO TRESPASS TO PROPERTYPROPERTY

TRESPASS TO PROPERTYTRESPASS TO PROPERTY

LAND GOODS/CHATTELS

TRESPASS TO TRESPASS TO PROPERTYPROPERTY

TRESPASS TO PROPERTYTRESPASS TO PROPERTY

LAND

• GOODS/CHATTELSGOODS/CHATTELS• Personal propertyPersonal property

TRESPASS TO TRESPASS TO GOODS/CHATTELGOODS/CHATTEL

• The The intentional/negligent intentional/negligent act of act of D which D which directly interferesdirectly interferes with with the plaintiff’s the plaintiff’s possessionpossession of a of a chattel chattel without lawful without lawful justificationjustification

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

•

DAMAGESDAMAGES

• It may not be actionable per It may not be actionable per se se (Everitt v Martin)(Everitt v Martin)

CONVERSIONCONVERSION

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

CONVERSION: Who CONVERSION: Who Can Sue?Can Sue?

• OwnersOwners• Those in possession or entitled Those in possession or entitled

to immediate possessionto immediate possession– Bailees*Bailees*– Bailors*Bailors*– Mortgagors* and Mortgagors* and Mortgagees*(Mortgagees*(Citicorp Australia Citicorp Australia v B.S. Stillwell)v B.S. Stillwell)

– Finders (Finders (Parker v British Parker v British Airways; Armory v DelmirieAirways; Armory v Delmirie))

ACTS OF ACTS OF CONVERSIONCONVERSION

• Mere asportation is no conversionMere asportation is no conversion– Fouldes v WilloughbyFouldes v Willoughby

• The D’s conduct must constitute an The D’s conduct must constitute an unjustifiable denial of P’s rights to the unjustifiable denial of P’s rights to the propertyproperty– Howard E Perry v British Railways BoardHoward E Perry v British Railways Board

• Finders of lost propertyFinders of lost property– Parker v British AirwaysParker v British Airways

• The position of the auctioneerThe position of the auctioneer– Willis v British Car AuctionsWillis v British Car Auctions

• Destruction of the chattel is conversion Destruction of the chattel is conversion – Atkinson v Richardson;Atkinson v Richardson;))

• Taking possessionTaking possession• Withholding possession Withholding possession

– Clayton v Le RoyClayton v Le Roy

ACTS OF CONVERSIONACTS OF CONVERSION

• Misdelivery ( Misdelivery ( Ashby v Ashby v Tolhurst Tolhurst (1937 2KB)(1937 2KB); Sydney ; Sydney City CouncilCity Council v v WestWest))

• Unauthorized dispositions Unauthorized dispositions in any manner that in any manner that interferes with P’s title interferes with P’s title constitutes conversion constitutes conversion ((Penfolds Wines v ElliottPenfolds Wines v Elliott))

DETINUEDETINUE

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

DAMAGES IN CONVERSION DAMAGES IN CONVERSION AND DETINUEAND DETINUE

• In conversion, damages In conversion, damages usuallyusually take the form of take the form of pecuniary compensationpecuniary compensation

• In detinue, the court may in appropriate In detinue, the court may in appropriate circumstances order the return of the chattelcircumstances order the return of the chattel

• Damages in conversion are calculated as at the Damages in conversion are calculated as at the time of conversion; in detinue it is as at the time of time of conversion; in detinue it is as at the time of judgment judgment – The MedianaThe Mediana– Butler v The Egg and Pulp Marketing BoardButler v The Egg and Pulp Marketing Board– The WinkfieldThe Winkfield– General and Finance Facilities v Cooks Cars General and Finance Facilities v Cooks Cars

(Romford)(Romford)

THE LAW OF TORTSTHE LAW OF TORTS

Action on the Case Action on the Case for Indirect Injuriesfor Indirect Injuries

INDIRECT INDIRECT INTENTIONAL INTENTIONAL

INJURIESINJURIES• ACTION ON THE CASEACTION ON THE CASE FOR PHYSICAL INJURIES FOR PHYSICAL INJURIES OR NERVOUS SHOCKOR NERVOUS SHOCK

•ACTION ON THE CASE ACTION ON THE CASE REFERS TO ACTIONS REFERS TO ACTIONS BASED ON INJURIES THAT BASED ON INJURIES THAT ARE CAUSED INDIRECTLY ARE CAUSED INDIRECTLY OR CONSEQUENTIALLYOR CONSEQUENTIALLY

INDIRECT INTENTIONAL INDIRECT INTENTIONAL INJURIES: CASE LAWINJURIES: CASE LAW

• Bird v Holbrook Bird v Holbrook (trap set (trap set in garden)in garden)–D is liable in an action on D is liable in an action on the case for damages for the case for damages for intentional acts which are intentional acts which are meant to cause damage to meant to cause damage to P and which in fact cause P and which in fact cause damage (to P)damage (to P)

THE INTENTIONAL THE INTENTIONAL ACTACT

• The intentional may be The intentional may be deliberate and deliberate and preconceived(preconceived(Bird v Holbrook )Bird v Holbrook )

• It may also be inferred or It may also be inferred or implied; the test for the implied; the test for the inference is objectiveinference is objective

• Wilkinson v DowntonWilkinson v Downton• Janvier v SweeneyJanvier v Sweeney

Action on the Case for Action on the Case for Indirect Intentional Harm: Indirect Intentional Harm:

ElementsElements• D is liable in an action on the case for D is liable in an action on the case for

damages for damages for intentional acts intentional acts which which are are meant to cause damage meant to cause damage to P and which to P and which in in fact cause damage fact cause damage to Pto P

• The elements of this tort:The elements of this tort:– The act must be intentionalThe act must be intentional– It must be one calculated to cause It must be one calculated to cause

harm/damageharm/damage– It must in fact cause harm/actual damageIt must in fact cause harm/actual damage

• Where D intends no harm from his act Where D intends no harm from his act but the harm caused is one that is but the harm caused is one that is reasonably foreseeable, D’s intention to reasonably foreseeable, D’s intention to cause the resulting harm can be cause the resulting harm can be imputed/impliedimputed/implied

Nationwide News Pty Ltd v Naidu [2007] NSWCA 377

• Facts: Nationwide News’ Fire and Safety Officer Facts: Nationwide News’ Fire and Safety Officer subjected the plaintiff to humiliating and subjected the plaintiff to humiliating and harassing treatment. The plaintiff suffered harassing treatment. The plaintiff suffered psychiatric injury in the form of Post Traumatic psychiatric injury in the form of Post Traumatic Stress DStress D

• Held: P successful. Spigelman CJ considered the intention required to establish a tort:

• “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.

Carrier v Bonham [2002]Carrier v Bonham [2002]

• A mentally ill D stepped in front of a bus A mentally ill D stepped in front of a bus in a deliberate effort to commit suicide. in a deliberate effort to commit suicide. Issue was whether D could be held liable Issue was whether D could be held liable for an ‘act calculated to cause harm’for an ‘act calculated to cause harm’

• Held: the concept imported a purely Held: the concept imported a purely objective testobjective test

• See See Carter v WalkerCarter v Walker. P claimed suffered . P claimed suffered shock when his mother called to inform shock when his mother called to inform him of an assault on her and his brother. him of an assault on her and his brother. He hurried to scene. He subsequently He hurried to scene. He subsequently brought action under brought action under Wilkinson v Wilkinson v Downtown . Downtown . Action failedAction failed. .

THE SCOPE OF THE THE SCOPE OF THE RULERULE

• The rule does not cover The rule does not cover ‘pure’ mental stress or mere ‘pure’ mental stress or mere fright fright

• The act must be reasonably The act must be reasonably capable of causing mental capable of causing mental distress to a normal* distress to a normal* person:person:– Bunyan Bunyan vv Jordan Jordan– Stevenson Stevenson vv Basham Basham

The CLA and Intentional The CLA and Intentional TortsTorts

• S3B:(1) The provisions of this Act do not apply S3B:(1) The provisions of this Act do not apply to to or or in respect of in respect of civil liability (and civil liability (and awards of of damages in those proceedings) as follows:damages in those proceedings) as follows:

• (a) civil liability of a person in respect of an (a) civil liability of a person in respect of an intentional act that is done by the person with intentional act that is done by the person with intent to cause intent to cause injury or death or that is sexual or death or that is sexual assault or other sexual misconduct committed assault or other sexual misconduct committed by the person-the whole Act except: by the person-the whole Act except:

• ……• (ii) Part 7 (Self-defence and recovery by (ii) Part 7 (Self-defence and recovery by

criminals) in respect of civil liability in respect criminals) in respect of civil liability in respect of an intentional act that is done with intent to of an intentional act that is done with intent to cause cause injury or death, and or death, and

The Exclusion of The Exclusion of Intentional torts from the Intentional torts from the

CLACLA• New South Wales v IbbetNew South Wales v Ibbet: Assault and trespass to : Assault and trespass to

land: The restrictions on the award of exemplary land: The restrictions on the award of exemplary and aggravated damages under the CLA held not and aggravated damages under the CLA held not to applyto apply

• Honda v NSW [2005]: Honda v NSW [2005]: wrongful arrest, malicious wrongful arrest, malicious prosecution and false imprisonment by a police prosecution and false imprisonment by a police officer. Issue whether injury in s3B included only officer. Issue whether injury in s3B included only bodily injury. Held injury not limited to bodily injurybodily injury. Held injury not limited to bodily injury

• Zorom Enterprise v ZabowZorom Enterprise v Zabow: P suffered head injuries : P suffered head injuries as a result of an attack by a security guard as a result of an attack by a security guard employed by D. P sued D for vicarious liability. D employed by D. P sued D for vicarious liability. D argued that CLA restrictions applied because s3B argued that CLA restrictions applied because s3B only excluded only the intentional acts of the person only excluded only the intentional acts of the person who actually committed torts and not the D who was who actually committed torts and not the D who was only vicariously liable. Argument was rejected only vicariously liable. Argument was rejected

s3B: ‘In respect of ….’s3B: ‘In respect of ….’

• NSW v Bujdoso [2007]NSW v Bujdoso [2007]• P was attacked by inmates while in prison. He P was attacked by inmates while in prison. He

brought an action the D for their negligence. brought an action the D for their negligence. Since the conduct of the inmates was intentional, Since the conduct of the inmates was intentional, the issue was whether the provision of 3B applied the issue was whether the provision of 3B applied to exclude the restrictions of the CLA in the to exclude the restrictions of the CLA in the award of damages. award of damages.

• The argument centred on the phrase ‘in respect The argument centred on the phrase ‘in respect of’ P argued that in respect of was broad and of’ P argued that in respect of was broad and means that D’s liability arose in respect of the means that D’s liability arose in respect of the intentional act of the inmates and so s3B applied. intentional act of the inmates and so s3B applied. The court rejected the argument. In respect of The court rejected the argument. In respect of interpreted to refer to the person who did the interpreted to refer to the person who did the act and the person whose negligence led to the act and the person whose negligence led to the doing of the act. doing of the act.

THE LAW OF TORTSTHE LAW OF TORTS

Defences to Intentional Defences to Intentional TortsTorts

INTRODUCTION: The INTRODUCTION: The Concept of DefenceConcept of Defence

• Broader Concept: The Broader Concept: The content of the Statement of content of the Statement of Defence- The response to Defence- The response to the P’s Statement of Claim-the P’s Statement of Claim-The basis for non-liabilityThe basis for non-liability

•Statement of Defence may Statement of Defence may contain:contain:

– DenialDenial– Objection to a point of lawObjection to a point of law– Confession and avoidance:Confession and avoidance:

MISTAKEMISTAKE

• An intentional conduct done An intentional conduct done under a misapprehensionunder a misapprehension

• Mistake is thus not the same Mistake is thus not the same as inevitable accidentas inevitable accident

• Mistake is generally not a Mistake is generally not a defence in tort law (defence in tort law ( Rendell v Rendell v Associated Finance Ltd, Symes Associated Finance Ltd, Symes v Mahonv Mahon) )

• ‘ ‘Mistake’ may go to proveMistake’ may go to prove

CONSENTCONSENT

• In a strict sense, consent is In a strict sense, consent is not a defence as such not a defence as such because in trespass, the because in trespass, the absence of consent is an absence of consent is an element of the tortelement of the tort– See: Blay; ‘Onus of Proof of Consent See: Blay; ‘Onus of Proof of Consent in an Action for Trespass to the in an Action for Trespass to the Person’ Vol. 61 ALJ (1987) 25Person’ Vol. 61 ALJ (1987) 25

– But McHugh J in See But McHugh J in See Secretary Secretary DHCS v JWB and SMB (Marion’s DHCS v JWB and SMB (Marion’s Case) Case) 1992 175 CLR 2181992 175 CLR 218

VALID CONSENTVALID CONSENT

• To be valid, consent must be To be valid, consent must be informed and procured without informed and procured without fraud or coercion: ( fraud or coercion: ( R R vvWilliamsWilliams;);)

• To invalidate consent, fraud To invalidate consent, fraud must relate directly to the must relate directly to the agreement itself, and not to an agreement itself, and not to an incidental issue: incidental issue: ((Papadimitropoulos v R Papadimitropoulos v R (1957) (1957) 98 CLR 249; 98 CLR 249; R v LinekarR v Linekar (the (the Times, 1994)Times, 1994)

CONSENT IN SPORTSCONSENT IN SPORTS

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

• To succeed in an action for To succeed in an action for trespass in contact sports trespass in contact sports however, the P must of however, the P must of course prove the relevant course prove the relevant elements of the tort.elements of the tort.– Giumelli v JohnstonGiumelli v Johnston

THE BURDEN OF THE BURDEN OF PROOFPROOF

• Since the absence of Since the absence of consent is a consent is a definitional element in definitional element in trespass, it is for the P trespass, it is for the P to prove absence of to prove absence of consent and not for consent and not for the D to prove consentthe D to prove consent

STATUTORY PROVISIONS STATUTORY PROVISIONS ON CONSENTON CONSENT

•Minors (Property and Minors (Property and Contracts) Act 1970 Contracts) Act 1970 ((NSW) ss 14, 49NSW) ss 14, 49

•Children and Young Children and Young Persons (Care and Persons (Care and Protection) Act 1998Protection) Act 1998 (NSW)(NSW)

SELF DEFENCE, SELF DEFENCE, DEFENCE OF OTHERSDEFENCE OF OTHERS

• A P who is attacked or threatened A P who is attacked or threatened with an attack, is allowed to use with an attack, is allowed to use reasonable forcereasonable force to defend to defend him/herselfhim/herself

• In each case, the force used must In each case, the force used must be proportional to the threat; it be proportional to the threat; it must not be excessive. (Fontin v must not be excessive. (Fontin v Katapodis)Katapodis)

• D may also use reasonable force to D may also use reasonable force to defend a third party where he/she defend a third party where he/she reasonably believes that the party is reasonably believes that the party is being attacked or being threatened being attacked or being threatened

THE DEFENCE OF THE DEFENCE OF PROPERTYPROPERTY

• D may use D may use reasonable forcereasonable force to to defend his/her property if he/she defend his/her property if he/she reasonably believes that the reasonably believes that the property is under attack or property is under attack or threatenedthreatened

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

PROVOCATIONPROVOCATION

• Provocation is not a Provocation is not a defence in tort law.defence in tort law.

• It can only be used to avoid It can only be used to avoid the award of exemplary the award of exemplary damages: damages: Fontin v Fontin v Katapodis; Downham Ballett Katapodis; Downham Ballett and Othersand Others

A Critique of the Current A Critique of the Current Position On ProvocationPosition On Provocation

• To discourage vengeance To discourage vengeance and retributive justiceand retributive justice

• The compensation The compensation theory argumenttheory argument

• The gender based thesisThe gender based thesis

The Case for Allowing The Case for Allowing the Defence of the Defence of

ProvocationProvocation• The relationship between The relationship between provocation and contributory provocation and contributory negligencenegligence

• The implication of counterclaimsThe implication of counterclaims•Note possible qualifications Note possible qualifications Fontin v KatapodisFontin v Katapodis to to: : – Lane v HollowayLane v Holloway– Murphy v CulhaneMurphy v Culhane– See Blay: See Blay: ‘‘Provocation in Tort Liability: A Provocation in Tort Liability: A Time for ReassessmentTime for Reassessment’’,QUT Law ,QUT Law Journal, Journal, Vol. 4 (1988) pp. 151-159.Vol. 4 (1988) pp. 151-159.

NECESSITYNECESSITY

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

Urgent Situations of Urgent Situations of Imminent PerilImminent Peril

• The situation must pose a threat to The situation must pose a threat to life or property to warrant the act: life or property to warrant the act: Southwark London B. Council v Southwark London B. Council v WilliamsWilliams

• The defence is available in very The defence is available in very strict circumstances R v Dudley and strict circumstances R v Dudley and StephensStephens

• D’s act must be reasonably D’s act must be reasonably necessary and not just convenient necessary and not just convenient Murray v McMurchyMurray v McMurchy – In re FIn re F– Cope v SharpCope v Sharp

INSANITYINSANITY

• Insanity is not a defence as Insanity is not a defence as such to an intentional tort. such to an intentional tort.

• What is essential is whether What is essential is whether D by reason of insanity was D by reason of insanity was capable of forming the capable of forming the intent to commit the tort. intent to commit the tort. ((White v Pile; Morris v White v Pile; Morris v MarsdenMarsden))

INFANTSINFANTS

• Minority is not a defence as Minority is not a defence as such in torts. such in torts.

•What is essential is whether What is essential is whether the D understood the nature the D understood the nature of his/her conduct (of his/her conduct (Smith v Smith v Leurs; Hart v AG of Leurs; Hart v AG of TasmaniaTasmania) )

DISCIPLINEDISCIPLINE

• PARENTSPARENTS– A parent may use reasonable A parent may use reasonable and moderate force to and moderate force to discipline a child. What is discipline a child. What is reasonable will depend on the reasonable will depend on the age, mentality, and physique age, mentality, and physique of the child and on the means of the child and on the means and instrument used. (R v and instrument used. (R v Terry)Terry)

ILLEGALITY:Ex turpi ILLEGALITY:Ex turpi causa non oritur actiocausa non oritur actio

• Persons who join in Persons who join in committing an illegal act committing an illegal act have no legal rights inter se have no legal rights inter se in relation to torts arising in relation to torts arising directly from that act.directly from that act.– Hegarty v ShineHegarty v Shine– Smith v JenkinsSmith v Jenkins– Jackson v HarrisonJackson v Harrison– Gala v PrestonGala v Preston

SELF DEFENCE-TRESPASS SELF DEFENCE-TRESPASS & CLA 2002& CLA 2002

• s.3B(1)(a) Civil Liability Act s.3B(1)(a) Civil Liability Act (“CLA”) (“CLA”) i.e. CLA does not apply to “intentional i.e. CLA does not apply to “intentional torts”, except Part 7 of the Act.torts”, except Part 7 of the Act.

• s.52 (2) CLA s.52 (2) CLA subjective/objective test subjective/objective test i.e. i.e. subjective ("…believes…" & "…perceives…")/ objective subjective ("…believes…" & "…perceives…")/ objective ("…reasonable response…") test.("…reasonable response…") test.

• s.53(1)(a) & (b) CLA s.53(1)(a) & (b) CLA i.e. “and” = two i.e. “and” = two limb test; "exceptional" and "harsh and unjust“ are not limb test; "exceptional" and "harsh and unjust“ are not defined in the Act so s.34 of the Interpretation Act defined in the Act so s.34 of the Interpretation Act 1987.1987.

• s.54(1) & (2) CLA s.54(1) & (2) CLA i.e. "Serious offence" i.e. "Serious offence" and "offence" are criminal terms so reference should be and "offence" are criminal terms so reference should be made to the criminal law to confirm whether P's actions made to the criminal law to confirm whether P's actions are covered by the provisions. are covered by the provisions.

NEGLIGENCENEGLIGENCE

INTRODUCTIONINTRODUCTION

NEGLIGENCE AND FAULT NEGLIGENCE AND FAULT IN TORTSIN TORTS

NEGLIGENCENEGLIGENCE

TRESPASSTRESPASSNEGLIGENCENEGLIGENCE

the actionthe actionCARELESSCARELESS

FAULTFAULT

INTENTIONINTENTION

Donoghue v. StevensonDonoghue v. Stevenson

• Ginger beer-decomposing snail-P has shock-Ginger beer-decomposing snail-P has shock-gastroenteritisgastroenteritis

• No privity of contract between P and D. Issue No privity of contract between P and D. Issue was whether D owed P a dutywas whether D owed P a duty

• Dicta of Lord AtkinDicta of Lord Atkin• You must take reasonable care to avoid acts You must take reasonable care to avoid acts

or omissions which you can reasonably or omissions which you can reasonably foresee would be likely to injure your foresee would be likely to injure your neighbour. Who then in law is my neighbour. Who then in law is my neighbour? The answer seems to be persons neighbour? The answer seems to be persons who are closely and directly affected by my who are closely and directly affected by my act that I ought reasonably to have them in act that I ought reasonably to have them in mind to the acts or omissionsmind to the acts or omissions

Negligence: The ElementsNegligence: The Elements

Duty of care

Breach

Damage

Negligence

NEGLIGENCENEGLIGENCE

• Grant v Australian Knitting Mills Grant v Australian Knitting Mills (1936)(1936)• The application of the rule in The application of the rule in D v SD v S

•a manufacturer of products, which he sells a manufacturer of products, which he sells in such a form as to show that he intends in such a form as to show that he intends them to reach the ultimate consumer in them to reach the ultimate consumer in the form in which they left him with no the form in which they left him with no reasonable possibility of intermediate reasonable possibility of intermediate examination, and with the knowledge that examination, and with the knowledge that the absence of the absence of reasonable care reasonable care in the in the preparation or putting up of the products preparation or putting up of the products will result in an injury to the consumerwill result in an injury to the consumer’’s s life or property, life or property, owes a dutyowes a duty to the to the consumer consumer to take that reasonable careto take that reasonable care

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

NEGLIGENCE: THE DUTY NEGLIGENCE: THE DUTY OF CAREOF CARE

Negligence: (Duty of Care)Negligence: (Duty of Care)

•The Duty of care is the obligation The Duty of care is the obligation to avoid acts or omissions which to avoid acts or omissions which are reasonably foreseeable to are reasonably foreseeable to cause damage to another.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 Whenever one is engaged in an act

which he or she can reasonably foresee which he or she can reasonably foresee would be likely to injure another person, would be likely to injure another person, one owes a duty of care to that other one owes a duty of care to that other personperson

General Principles: The CLAGeneral Principles: The CLA

• S 5B:(1) A person is not negligent in failing to take S 5B:(1) A person is not negligent in failing to take precautions against a risk of harm unless:precautions against a risk of harm unless:– (a) the risk was foreseeable (that is, it is a risk of which the (a) the risk was foreseeable (that is, it is a risk of which the person knewperson knew or or

ought to have known), andought to have known), and– (b) the risk was not (b) the risk was not insignificantinsignificant, and, and– (c) in the circumstances, a reasonable person in the person(c) in the circumstances, a reasonable person in the person ’’s position s position

would have taken those precautions.would have taken those precautions.

• (2) In determining whether a reasonable person would (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant is to consider the following (amongst other relevant things):things):– (a) the probability that the harm would occur if care were not taken,(a) the probability that the harm would occur if care were not taken,– (b) the likely seriousness of the harm,(b) the likely seriousness of the harm,– (c) the burden of taking precautions to avoid the risk of 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.(d) the social utility of the activity that creates the risk of harm.

What is Reasonable What is Reasonable Foreseeability?Foreseeability?

• Reasonable foreseeability presupposes an Reasonable foreseeability presupposes an objective or a reasonable personobjective or a reasonable person’’s standards standard

• The reasonable person is an embodiment of The reasonable person is an embodiment of community values and what the community community values and what the community expects of a responsible citizenexpects of a responsible citizen

• The concept allows us to evaluate DThe concept allows us to evaluate D’’s s conduct not from his or her peculiar conduct not from his or her peculiar position, but from that of a reasonable position, but from that of a reasonable person similarly placedperson similarly placed

• Reasonable foreseeability is a question of Reasonable foreseeability is a question of law law

Reasonable Reasonable Foreseeability: Case LawForeseeability: Case Law

• Nova Mink v. Trans Canada AirlinesNova Mink v. Trans Canada Airlines [1951] [1951] (Air traffic noise causing minks to eat their (Air traffic noise causing minks to eat their young ones-No foreseeability) young ones-No foreseeability)

• United Novelty Co. v Daniels 42 So. 2nd 395 Miss 1949

• Palsgraf v. Long Island R.R. Co. (1928) Palsgraf v. Long Island R.R. Co. (1928) (Railway guards helping falling passenger-(Railway guards helping falling passenger-fireworks explosion causing injury to plaintiff.-fireworks explosion causing injury to plaintiff.-No foreseeability)No foreseeability)

• Chapman v. HearseChapman v. Hearse (1961) (Car accident-Dr. (1961) (Car accident-Dr. stops to help-gets killed by another vehicle-stops to help-gets killed by another vehicle-action against D who caused initial accident- action against D who caused initial accident- Foreseeability upheld)Foreseeability upheld)

[5] DUTY CATEGORIES: To [5] DUTY CATEGORIES: To whom is duty owed?whom is duty owed?

• One owes a duty to those One owes a duty to those so closely and directly so closely and directly affectedaffected by his/her conduct that she ought by his/her conduct that she ought reasonably to have them in contemplation as reasonably to have them in contemplation as being so affected when undertaking the conduct being so affected when undertaking the conduct in question.in question.

• Examples:Examples:– Consumers, users of products and structuresConsumers, users of products and structures

»Donoghue v StevensonDonoghue v Stevenson»Grant v Australian Kitting Mills Grant v Australian Kitting Mills »Bryan Bryan v v Maloney Maloney

– Road usersRoad users» Bourhill v YoungBourhill v Young

– Users and purchasers of premises etc.Users and purchasers of premises etc.»Australian Safeway Stores v ZaluznaAustralian Safeway Stores v Zaluzna

DUTY CATEGORIES: To DUTY CATEGORIES: To whom is the Duty Owed?whom is the Duty Owed?

• The unborn child:The unborn child: – There can be no justification for distinguishing between There can be no justification for distinguishing between

the rights… of a newly born infant returning home with the rights… of a newly born infant returning home with his /her mother from hospital in a bassinet hidden from his /her mother from hospital in a bassinet hidden from view on the back of a motor car being driven by his view on the back of a motor car being driven by his proud father and of a child proud father and of a child en ventre sa mere en ventre sa mere whose whose mother is being driven by her anxious husband to the mother is being driven by her anxious husband to the hospital on way to the labour ward to deliver such a hospital on way to the labour ward to deliver such a child ( Per Gillard J in child ( Per Gillard J in Watt v RamaWatt v Rama))

– Lynch v Lynch Lynch v Lynch (1991)(1991)• But see the wrongful life casesBut see the wrongful life cases

– Waller v JamesWaller v James 2002 2002– Harriton v StephensHarriton v Stephens [2002] NSWSC 461

– Edwards v BlomeleyEdwards v Blomeley 2002 2002– www.lawlink.nsw.gov.auwww.lawlink.nsw.gov.au

5.6 RESCUERS 5.6 RESCUERS

• There are two separate issues in rescue:There are two separate issues in rescue:– The The ‘‘dutyduty’’ to rescue to rescue– The duty of care owed to the rescuerThe duty of care owed to the rescuer

• There is no positive legal obligation in the There is no positive legal obligation in the common law to rescuecommon law to rescue– The law does not The law does not ‘‘cast a duty upon a man to go to the cast a duty upon a man to go to the

aid of another who is sin peril or distress, not caused by aid of another who is sin peril or distress, not caused by himhim

• There may however exist a duty to rescue There may however exist a duty to rescue in master servant relationships or boat in master servant relationships or boat owner and guest relationships for instance owner and guest relationships for instance – Horsley v Macleran (The Ogopogo) (1971) 22 DLRHorsley v Macleran (The Ogopogo) (1971) 22 DLR

• One is only required to use reasonable One is only required to use reasonable care and skill ion the rescue care and skill ion the rescue

Unforeseeable PlaintiffsUnforeseeable Plaintiffs

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