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Week 1

Introduction to Torts and Fault

INTRODUCTION TO TORTS

What is a tort?

• A ‘tort’ is a civil wrong other than breach of contract that the law will

redress in the form of an action for damages.

Concurrent liability

• Where the same action can have a claim in tort and contract, P has the

right to determine which cause of action to bring. This is because

compensation is calculated differently. However this is controversial

where there is a contract between the parties.

o Critics argue that P should be able to use tort law to bypass terms

of contract. This creates controversy and affects the decisions of

judges – they may limit the tort liability to D where it clashes with

the contractual relationship of the parties.

Standards of liability

• Fault based liability.

o Intentional fault – D intended to cause the consequence/knows the

consequence was substantially certain. Intention is very narrow.

o Recklessness in fault – D knew consequences that might follow but

did it anyway. This is very broad.

o Negligent fault – Carelessness in falling short of the standard of a

reasonable person’s care.

• Strict liability – fault by D not required as long as he is vicariously liable.

• Joint and several tort feasors – two or more people are found liable for the

same tort.

Common Remedies in Tort

• Damages

o Compensatory – return P to position they were in before tort

committed.

o Exemplary – punish D for moral retribution or to deter D/others.

This is often awarded where there is a guilty conscience and D has

acted recklessly in their disregard to P.

o Nominal – generally awarded when no physical or actual arm

because tort is actionable per se.

• Injunction

• Declarations

Aims of Tort law

• Corrective Justice – correct the wrongs committed by D in order to ensure

the position of justice is restored between the parties. On this view, losses

are repaired through damages. This fits well with battery and assault.

However, in strict liability torts, where D is not at fault, in what sense did

they wrong P and are therefore required to give compensation? This is an

argument of why fault is required.

• Economic efficiency – this approach is all about allocation of losses.

Advocates focus that torts are designed so losses are allocated in an

efficient manner. Eg. if workplace injury, employers should be liable

because employer is better placed to spread losses through insurance.

• Deterrence – assault and battery developed to assist the criminal law. The

more torts you commit, the more it will cost you.

• Compensation – in modern society, accidents are inevitable. The purpose

of tort law is to compensate for these losses. This model has difficulty in

explaining fault – there is no connection between what a party deserves

and the culpable mind of D. Theorists seek to downplay fault greatly.

Problems in compensating accident victims

• Difficulties in satisfying legal requirements – not all torts (defamation)

aim to compensate.

• D may not be able to afford paying compensation.

• There are high administrative costs.

FAULT IN TORTS

What counts as intention?

• There is no requirement that D intended to cause injury, only contact.

o Thus if you hit the wrong target, that does not negate intention.

• In Australia, D must intend their action to cause interference. In UK, it is

enough that the circumstances were substantially certain to result from

D’s act. This is an objective test. The UK approach is not sufficient in

Victoria. There is no clear case outlining the test for fault.

• Recklessness may also satisfy the fault requirement.

English View

Letang v Cooper [1965] QB

F: P, Letang, was sunbaking in car park of hotel. D ran over her legs. Limitation

period for bringing action in negligence expired (3 years), so she sued for battery

(6 years). D argued battery not available as he did not intended to run over her

legs and battery should only apply to intentional acts, not negligent ones.

I: Could P use battery to claim damages? [NO]

H (Denning LJ): Instead of dividing actions for personal injuries based on direct

or consequential damage, they are divided according to whether D acted

intentionally or not. If intentional it is the tort of assault and battery. If negligent

and causing damage, it is the tort of negligence. Denning referred to Fowler

saying ‘I fully agree but would go one step further: when injury is not intentional

but negligent, the only cause of action is negligence, not trespass. Court worried

that if battery can be committed negligently, Ps could claim for negligent battery

in circumstances where negligence would not allow them. Denning wanted to

avoid this conflict in the law, evident in his decision. As the statutory limitation

period on negligence had expired, P lost her claim. Therefore, no such cause of

action as negligent trespass.

Principle

• Where D acts intentionally, can sue for trespass to person.

• Where D acts negligently, must sue in negligence.

Policy

• Neither Fowler or Letang have been challenged in England.

League Against Cruel Sports v Scott [1986] QB

F: P owned land and used it as sanctuary for wild animals. A local hunt came onto

land. P sued hunt master for trespass to land after dogs came onto land chasing a

fox. D said there was no substantial damage so negligent trespass was not

available. P sued in trespass to land.

I: Can you be liable for negligent trespass without any damage? [YES]

H (Park J): Ignored decision in Letang and allowed action for negligent trespass

to land without substantial damage. He held that the master of a hunt is liable in

trespass if he either intended hounds to enter P’s land or negligently failed to

prevent them from entering. As no substantial damage was alleged, P could have

sued in negligent trespass. Nominal damages were awarded. Court said

‘whatever the motive with which the league bought these plots of land it is

entitled to enjoy them without trespass by hounds’.

Principle

• Trespass is available whether D acts intentionally or negligently.

Australian View

Williams v Milotin (1957) HCA

F: P was a cyclist who was injured when D’s truck hit him. P waited four years

before bringing action against D and argued that collision was due to D’s

negligence. D argued action was barred by statutory action limitations.

I: Can P sue in both battery and negligence where act was committed

unintentionally? [YES]

H: D did not intend to strike P. If he did, trespass would apply but not otherwise.

If the action was indirect, only answer would be in case. In the absence of

intention, a violation occurring in course of traffic in a thoroughfare is not

actionable as trespass. However, as P is claiming D acted negligently rather than

intentionally, P had access to claims both battery and negligence. As battery

limitation expired, only negligence was available. There is no clear test for

committing battery negligently. The essential ingredients in an action of

negligence for personal injuries include the special or particular damage – it is

the gist of the action – and the want of due care. Trespass to person includes

neither. But it does include direction violation of the protection which the law

throws around the person… it happens in this case that the actual facts will or

may fulfil requirements of each cause of action. But that does not mean that only

‘one’ cause of action is vested in P.

Principle

• If D acted negligently, P can sue in trespass or negligence.

Policy

• Stanley Yeo: Courts aim to restrict the circumstances to which P will

succeed in a negligence claim, hence the duty of care requirement.

However, it is unlikely that courts want to restrict battery – more

concerned to broaden scope to protect people’s bodily integrity. The law

is unclear on this matter. It would be most surprising if this case was still

the law today as it is not unusual for P to suffer injuries as a consequence

of a wide range of conduct by D which may include the intentional

application of physical force – Evans J in Wilson v Horne.

Advantages of Negligent Trespass

• Burden of proof for fault is on D (except highway cases).

• Negligent trespass is actionable per se.

• There may be no need to prove duty of care was owed by D to P (Williams

v Milotin).

• Legislative restrictions on damages don’t apply – s 28C Wrongs Act.

Is negligent trespass still needed?

• Yes

o Addresses conduct that is ‘wrong’.

o Will cover situations that negligence fails to capture:

▪ Sometimes careless trespasses should be actionable per se.

▪ Where there is no duty of care.

▪ Where there may be challenges proving fault.

• No

o Creates inconsistencies and incongruence within tort.

o A wrong without neither damage or intent should not be

compensable.

Burden of proof in fault

• In Australia, burden with regard to fault generally on D (McHale v

Watson) except in highway cases where onus is on P (Venning).

• In UK, burden with regard to fault is always on P (Fowler).

English View

Fowler v Lanning [1959] QB

F: P’s statement of claim merely alleged that at some time, D shot P. D alleged the

statement of claim is bad in law and discloses no cause of action against him on

the ground that P does not allege that the shooting was either intentional or

negligent. TJ was told P’s injuries were sustained at a shooting party and that it

was suggested that the shooting was intentional.

I: Who had the onus on proving negligence? [PLAINTIFF]

H (Diplock J): Diplock considered that the reported cases on the onus of proof on

the issue of negligence in a trespass action were inconclusive. Concluded that

onus of proving negligence, where trespass was unintentional, rested on P,

whether action was framed in trespass or negligence. Without an allegation on

D’s negligence/trespass, P’s statement that ‘D shot P’ disclosed no cause of

action. It offends the underlying purpose of the modern system of pleading that

P, by calling his grievance ‘trespass to the person” instead of ‘’negligence”, should

force D to come to trial blindfold. Therefore, statement of claim struck out.

Principle

• Burden of proof always on P whether act is intentional or not.

Australian View

McHale v Watson (1964) HCA

F: A 12 year old boy was throwing darts at a wooden post. He missed and hit the

eye of a nine year old girl. P sued boy and parents in trespass and in negligence.

I: Who has the burden of establishing the missile was thrown with intent or so

negligently to hit the girl? [DEFENDANT]

H (Windeyer J): Cited Fowler indicating ‘their judgments support the proposition

that in an action for trespass to the person, based upon a battery by a blow from

a missile, P must prove that act of D in delivering the blow was intentional or

negligent. I do not think this is so. Court referred to Weaver v Ward (1616) where

court said ‘no man shall be excused of a trespass except it be adjudged utterly

without his fault’. Here, ‘utterly without his fault’ does not mean an absence of all

ground for blame and censure of any kind, but an absence of such negligence as

constitutes fault in law. Therefore, Windeyer accepted proposition that D was

liable for throwing the dart unless the court was satisfied on the balance of

probabilities that he did not intend it to hit her and that he was not negligent in

throwing it when he did.

Principle

• Burden of proof concerning fault is generally on D.

Stingel v Clark (2006) HCA

F: P alleged she was assaulted and raped in 1971 by D and that as a result she

suffered injury – post-traumatic stress disorder of delayed onset. In 2002, P

brought action in damages for trespass to person, arguing that it was not until

2000 that she became aware of connection between injury and rape. In order to

avoid being statute barred, she had to show that the relevant legislation that

required ‘breach of duty’ covered intentional trespass and whether P’s injury fell

within the compass of the statutory phrase, ‘damages in respect of personal

injuries consisting of a disease or disorder contracted’.

I: Was P’s claim barred? [NO]

H: Court endorsed judgment in McHale. Words ‘breach of duty’ capable of

including intentional trespass. In present context, to hold otherwise would result

in anomalies because it attributes to parliament an intention to draw a

distinction which defeats, rather than advances, the purpose of the legislation.

Court approved Letang.

D (Kirby J with Gummow J agreeing): ‘Breach of duty’ is a notion alien to

trespass. The words are of negligence. That is the context in which the Act was

introduced. The phrase should be given its ordinary legal meaning which is not

engaged by intentional torts. Negligent trespass with the person coexists with

tort of negligence and has not superseded it in Australia.

Highway Cases

• Highway cases include:

o Collisions between vehicles.

o Collisions between a vehicle and a pedestrian on the highway.

o Damage to property adjoining a highway caused by a vehicle

running off the highway.

o Contact between goods being carried out of a property adjacent to

a highway and a vehicle or person using the highway.

Venning v Chin (1974) SASR

I: Whether P injured in a highway collision could cast onus of proof on issue of

negligence onto D by suing in trespass? [NO]

H (Bray CJ): Affirmed Williams v Milotin saying trespass was still available for

injuries caused by negligence. Dismissed Letang saying ‘I do not think that the

courts have power to legislate so as to deprive Ps of a remedy which they have

enjoyed for over a century’. Followed McHale that for trespass, onus generally on

D to disprove negligence, but that highway cases are an exception to this rule

and that onus is on P to prove either intention or negligence on D’s part.

H (Gibbs J): On appeal in HCA, Gibbs said ‘on appeal before us, counsel for D did

not argue the question whether a person injured in a running-down accident on

the highway may, by suing in trespass, succeed in recovering damages without

proving that D was guilty of negligence or intentional wrongdoing. It is therefore

unnecessary to consider that question. However, if you go out onto the road you

implicitly accept that an accident may occur – some are unavoidable and you

don't accept that someone is going to intentionally or negligently run into you.

This explains why burden is on P. However, not everyone consents to be on the

road – for example, a toddler passenger. Bray CJ admits this is an issue and while

highway cases are treated differently, this is the position in Australia.

Policy

• Theoretical basis for the exception is uncertain. In Nickells v Melbourne

Corporation (1938) CLR, Dixon J said it had been ‘justified and explained

that those who go upon a highway or occupy land adjoining it must be

taken to assume the risk of such injuries by others as are incidental to the

ordinary exercise of the right of user, not the risk of negligence’. This is an

imperfect explanation. Doubt still persists about onus of proof on issue of

fault in non-highway trespass cases. In the absence of a rule, look at the

original rationale behind the exception – there are inherent risks

associated with mass movement of people and goods on highway. By

choosing to use or live hear highway, one impliedly accepts these risks.

• R. J. Bailey argues there is no justification for the continued existence of

two distinct causes of action in the area of personal injuries directly

caused by negligence. Main reason for this is that they are protecting the

one interest – right not to be injured by negligence of others – and this

single interest ought not to be accorded different degrees of protection by

different torts. The result of Venning is that those who cannot prove fault

get no help from common law. Is this acceptable in the field of personal

injuries? Once inevitability of accidents is accepted, it is unjust to make

recovery of compensation depend on proof of fault. Liability on road

should be stricter than accidents on private land due to existence of

insurance. Therefore, since loss is spread over community in this way by

way of premiums charged, the cost involved in a stricter liability would be

easily borne. P who has been injured in a car accident is jut as needing in

compensation if there was no fault of D as if there was. Therefore, burden

should be on D.

Future Directions?

Platt v Nutt (1988) NSW

F: P was D’s mother in law. When daughter and granddaughter finally left the

house, D made a parting remark and slammed the front door. P thrust her arm

out. Her hand went through the glass panel on the door as it was closing. She was

injured. She sued for battery.

I: Had P satisfied the burden of proof? [NO]

H: TJ had conflated issues of causation and negligence. TJ’s findings that he could

not determine whether P’s thrusting of her arm was a reflex or independent act

meant that P had failed to prove that D had caused injury. Hence action should

fail as action was not direct enough. It is unnecessary to determine who had the

burden of proof concerning fault.

D (Kirby P): If instinctive was the act, it would be direct and thus trespass. D had

failed to discharge burden of proving an absence of negligence and gave

judgment for P. Kirby argued Fowler and Letang should be adopted – P should

bear onus in all cases that the injury was caused either by intent or negligence by

D. The difference in the law on the burden of proof in highway and other cases of

trespass is simply unprincipled. Whenever there is an inconsistency, the way to

solve it is by putting the burden on P. Therefore, a more coherent approach is

that those who assert must prove (citing Blacker v Waters). Kirby found TJ

should have found P had acted involuntarily. D ought to have foreseen that risk

hence P had proved a case of negligent trespass. Therefore, Fowler > McHale.

Principle

• Burden concerning fault should be on P in all cases (minority).

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Week 2

Common Elements of Trespass, Battery and Assault

COMMON ELEMENTS OF TRESPASS

Aims of trespass

• Paramount value is given to bodily integrity and bodily liberty and

undisturbed possession of land and goods.

• Trespass provides a means of bringing issues of civil liberties to court.

Common Elements

• Actionable per se

o No need to show damage. Negligence is the opposite. Trespass is

like this because physical integrity is of such importance that it is

seemed to be worthy of protection without damage. Even though

no substantial harm, in an appropriate case compensatory

damages can take account of the circumstances such as the

‘insult… and injury to his feelings, that is, the indignity, disgrace

and humiliation that may be caused’ (McGregor J in Fogg v

McKnight [1968]).

• D’s act must be voluntary and positive

o D must consciously bring about the bodily movements resulting in

the contact, and not merely a reflexive action. It must not be

passive but active.

• Fault

o D must have intended to cause the consequence/knows the

consequence was substantially certain of his act. It can be done

intentionally (narrow) or recklessly (broad). No liability unless

fault is made out.

▪ Both features of fault are (1) a conscious purpose, and (2)

to achieve a legally proscribed result. It is absence of (1)

that makes it reckless. It is also the absence of (1) that

distinguishes negligence from intention with negligence

denoting the failure to take reasonable care (Stanley Yeo

‘Comparing the Fault Elements of Trespass, Action on the

Case and Negligence’ (2001) 5 Southern Cross LR 142).

• Directness

o The interference with P must follow directly from D’s act.

Immediacy of contact may prove directness. While obvious cases

pose no problem, marginal cases like Hutchins v Maughan show

that it sets crude and arbitrary limits on the availability of the

action.

o Question to ask is: was D’s act sufficient on it own to bring about:

▪ Contact with P’s person? (Battery)

▪ An apprehension in the mind of P of imminent physical

contact? (Assault)

▪ Total restraint of P? (False Imprisonment)

o Injury is direct when it follows so immediately upon the act of D

that it may be termed part of that act; it is consequential when by

reason of an intervening cause, it is not regarded as part of D’s act

but a consequence of it (Salmond on Torts 7th ed, 1928, pg. 230).

DIRECT INTERFERENCE

Animal Actions

Hutchins v Maughan [1947] VLR

F: P was droving ewes. D warned about poison baits laid on land. P went on land

anyway. His sheep dogs died of baits. P complained in negligence. Nuisance or

trespass. TJ gave judgment for trespass claim and awarded P damages for loss of

dogs. D claimed on appeal that P’s cause of action sounded only in case and not

trespass, and that P having failed his nuisance and negligence claims is now

without remedy. D argued injury suffered was not occasioned by but was merely

consequential upon D’s act of laying the baits and thus was not trespass.

I: Was laying of baits a direct act? [NO]

Were actions of P alone enough to produce the contact or were other actions

necessary after D had acted? [P’S ACTIONS ARE ENOUGH]

H (Herring CJ): Emphasised need to decide each case on its own facts. Concluded

baits were laid by D before P took dogs onto land and there is a possibility they

may have been there before P arrived in the vicinity. If P had chosen not to come

onto the land, there would be no injury from D’s act. The doing of the act,

therefore, of itself did no mischief. Before P could suffer an injury, he himself had

to intervene by coming to the land and bringing his dogs therein. Therefore

injury was consequential and not directly or immediately occasioned by D’s act.

It is the act of the owner bringing the dogs onto the land that made it indirect,

not the fact that the dogs went and ate the meat. P was warned of the baits in

advance and court analogised to Leame v Bray where man going along a road

trips over a log. If D throws the log and it immediately hits P, then trespass.

However, if P comes along later on, it is indirect and no trespass. Therefore, to

constitute trespass, injury is said to be direct when it follows so immediately

upon the act of D that it may be deemed part of the act and not a consequence of

it. It is consequential when by some reason of an intervening cause, it is regarded

not as part of D’s act, but merely as a consequence of it.

Principle

• Only direct actions can constitute trespass. If consequential, look to action

on the case.

Human Actions

Scott v Shepherd (1773) UK

F: D threw a lighted squib into a crowded market house. It fell on a gingerbread

stall. To prevent injury to himself and the stall, Willis threw the squib away. It fell

on Ryal’s stall and he instantly threw it again. It struck P in the eye and blew up.

P sued D who first threw the squib in trespass.

I: Should Ryal/Willis be held liable? [NO]

H (DeGrey CJ): Directness was made out and D fully liable because the

intermediaries were not free agents, but were acting under a compulsive

necessity for their own safety and self-preservation. Agreed with Blackstone J

about his principles, but not his application of them. Held the real question does

not turn on the lawfulness or unlawfulness of the original act; for the actions of

trespass will lie for legal acts when they become trespasses by accident. They

may also not lie for the consequences even of illegal acts such as casting a log

onto the highway. Rather, the true question is whether the injury was direct and

immediate act of D. Any innocent person removing the danger from himself to

another is justifiable; the blame lights on the first thrower. Therefore, the new

direction and new force flow out of the first force and are not a new trespass.

Directness is defined broadly here: setting in motion a chain of continuous

consequences with no independent or intervening cause.

H (Nares J): Citing Reynolds v Clark, if the act in the first instance is unlawful,

trespass will lie. It is not necessary to maintain trespass that D should personally

touch P. D is the person who gave the mischievous faculty to the squib. That

faculty remained in it until the explosion. No new power of mischief was

communicated to it by Willis or Ryal. Therefore D liable.

D (Blackstone J): Where the injury is immediate, action of trespass will lie; where

it is only consequential, it must be an action on the case. In strictness of law,

trespass would lie against Ryal. Both he and Willis have exceeded the bounds of

self-defence and not used sufficient circumspection in removing the danger from

themselves. Both were free agents and in giving the squib a new force and

direction, they are liable. Analogised to a football kicking in a street between a

hundred people then one smashes a window. Is the original kicker to blame?

Surely only against the law man who gave it that mischievous direction. Acts in

self-preservation don't count as intervening causes. Intention was established

here as it was substantially certain that throwing an explosive would cause

injury.

Principle

• To pass on liability for an action of trespass, last person must be a free

agent.

• There need not be physical contact between P and D – can be an

instrument (Nares J).

• Whoever first creates the mischievous faculty is to be liable.

Natural Forces

Southport Corporation v Esso Petroleum [1954] QB

F: Oil tanker owned by D was stranded in river estuary and to prevent her

breaking her back, master jettisoned 400 tonnes of oil which tide carried to

foreshore, occasioning damage. Foreshore owners, P, brought action on trespass

to land, nuisance and negligence, alleging that the stranding was caused by faulty