Law Torts Note - past exams PDF

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Week 1 Session 1

Introduction to Torts 1 We will be covering: •

Nature and Purpose of Torts

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Operation of Torts

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Categories of Torts •

Unintentional •

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Negligence

Intentional •

Torts against the person

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Torts against chattels

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Torts against land

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Defamation

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Nuisance

Introduction to Module 1

Nature and Purpose of Torts •

It’s a civil wrong, not a criminal wrong

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Its not a breach of contract

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Torts seeks to provide protection from interferences against:

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Personal rights including property and reputation

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Rules that regulate social interaction

Torts then provides remedies if rules are breached and damage suffered.

Operation of Torts •

A civil wrong is based on a breach of a duty imposed by law because the interest is regarded as worthy of protection. •

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Imposed by law can be via legislation or common law.

A breach gives rise to a civil right of action for a remedy •

Remedies will usually be in the form of damages.

Categories of Torts: •

Unintentional Torts •

Negligence 1

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Elements •

Duty of Care owed

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Duty was Breached

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Damage was suffere

Intentional Torts •

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Torts against the person •

Assault

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Battery

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False Imprisonment

Torts Against Land •

Trespass

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Public Nuisance

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Private Nuisance

Objectives of Tort Law: •

Compensation for the injury or loss suffered

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Shifting the loss from the victim to the perpetrator

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Deterrence

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Remedies

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Plaintiff must prove that the claim falls within one of the established categories of torts.

Torts compared to Crimes •

How are they different? •

A crime is a public or community wrong that gives rise to sanctions usually designated in a specific code eg Crimes Act (Vic) 1957.

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A tort is a civil private wrong

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Actions in criminal law are usually brought by the state

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Tort action are brought by private victims of the wrong

Torts compared to Crimes: How are they different? •

Criminal law has the key objective of punishment

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Torts key objective is compensation

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Torts has a different standard of proof at trial •

Torts plaintiff must prove on the balance of probabilities 2

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Crime – State must prove beyond reasonable doubt

Torts compared to Crimes How are they similar? •

Both arise from wrongs imposed by law

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Some crimes are also actionable in torts •

Trespass, assault

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In some cases damages in tort may be punitive

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In some case victims of a crime may be award compensation under criminal injuries compensation legislation. •

See Victims of Crime Compensation Schemes.

Torts compared to Contract How are they different? •

An action in torts arises out of duties imposed by law

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

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Breach of contract gives rise to damages which is usually predetermined. •

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Contract law is referred to as private law.

This represents the loss of the bargain (benefit that would have been expected if the contract had been honoured)

In Torts damages can included elements that are not quantifiable and represents compensation. (Referred to as general damages)

Torts compared to Contracts How are they similar? •

Both give rise to civil suits

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In some instances, a breach of contract may also be a tort, eg •

Unsafe work environments

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Professional providing incompetent service

Liability in Tort Law •

Liability = responsibility

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Can be based on fault or it may be strict •

Fault based = the failure to live up to a standard through an act or omission

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Actions in Tort Trespass: Direct Injuries Requires no proof of damage Issue of fault Actions on the case / negligence Indirect Injuries Requires proof of fault Requires proof of damage

Compensation (Damages) •

Does the plaintiff’s loss warrant compensation

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If yes, who should bear the burden of providing the compensation •

The defendant personally?

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Community in general?

Compensation (Damages) •

Community or Compulsory insurance schemes •

Defendant has insurance against potential loss eg •

Workcover

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Transport Accident

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Professional indemnity

Compensation (Damages) •

Plaintiff can be entitled to government welfare benefits regardless of the cause

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Government can and does limit the amount of compensation available to plaintiff

Introduction to Negligence Nature / Context / Definition 1. Aims to compensate a victim by compelling the wrongdoer to pay for any loss or damage caused. 2. Two types of liability for conduct causing loss or damage i.

Strict liability – no need to prove fault i.

ii.

Eg an animal escaping and causing damage

Fault based – fault proven by either intention or carelessness.

Definition: 4

1. Dual meaning of negligence i.

Carelessness of conduct in committing other torts

ii.

The particular tort of negligence

Elemenet of Negligence: 1. Defendant owed a duty of care to the plaintiff 2. The defendant breached that duty of care 3. Plaintiff has suffered damage due to the defendants breach of the duty of care.

A duty of care is owed

Duty of care has been breached

The breach caused damage or loss

Origins of Negligence: 1. Early 20th century Action on the Case (AOTC) 2. Elements of duty of care and harm developed into the modern law of negligence. i. See Lord Atkin judgment in Donoghue v Stevenson [1932] AC 562 3. Developed over time to include other previously separate causes of action: i. Occupiers liability, ii. Employer duty of care iii. Liability for dangerous goods etc

Modern Definition: 1. A legally recognised duty of care imposed upon a person towards others in certain situations 2. Tort of negligence is committed where there has been a failure to act carefully and a person suffers damage / loss as a result 3. Most significant area of tort law

Development of a duty of care: 1. Heaven v Pender (1883) 11 QBD 503 i. Majority fond liability existed but used ‘traditional’ occupiers liability principles as the basis ii. Dissenting judgement of Brett Mr flagged a general test for a duty of care 1. Heaven v Pender (1883) 11 QBD 503: Brett MR • “ 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 recognize 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 person or property of the other (person) a duty arises to use ordinary care and skill to avoid such danger” (at 509) 2. Derry v Peek (1889) 14 App Cas 337 1. Lord Herschell at 336: 2. “ I think there is much to be said for the view that this moral duty ought to some extent to be converted into a legal obligation, and that the want of such reasonable care to see that statements made under such circumstances are true should be made an actionable wrong. But this is not the matter for discussion on the present occasion…[matter arose in an action for deceit] legislature must intervene…” 3. Le Lievre v Gould (1893) 1 QB 491 1. Brett MR now Lord Esher qualified his dicta in Heaven v Pender …

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2. “A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them. The case of Heaven v Pender has no bearing upon the present question.” (at 497) Traditional Elements of a duty to care: 1. Donoghue v Stevenson [1932] All ER Rep 1 i. What is the key issue? i. Whether the defendant owes the plaintiff a legal duty and if so what was that duty? 1. Donoghue v Stevenson [1932] All ER Rep 1 • Lord Buckmaster (minority dissenting): • In reviewing the authorities notes the comments of Lord Anderson in Mullen v AG Barr & Co (1929) Sess. Cas. 461 • “In a case like the present, where the goods of the defenders are widely distributed throughout Scotland, it would seem little short of outrageous to make them responsible to members of the public for the condition of the contents of every bottle which issues from their works. (at 479) 1. Donoghue v Stevenson [1932] All ER Rep 1 • The Ratio: • “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” 1. Donoghue v Stevenson [1932] All ER Rep 1 • The dicta of Lord Atkin • 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 recognize 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 person or property of the other (person) a duty arises to use ordinary care and skill to avoid such danger. • You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor/another • Donoghue v Stevenson [1932] All ER Rep 1 • Dicta of Lord Atkin (cont.) • “The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyers question Who 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 which are called in question.” • The duty of care is the obligation to avoid acts or omissions which you can reasonably foreseeable would be likely to cause damage to another • And to whom does one owe a duty of care? • Those persons who are so closely & directly affected by my actions that I should reasonably foresee that they would likely to be affected by my actions

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Week 1 Session 2 Recap from Yesterday • Discussed the differences and similarities between a tort and a crime • Discussed the differences and similarities between a tort and contract • Purpose or objective of Torts • Introduced the concept of duty of care Revision Questions from Session 1

Why does the law of torts exist ? A tort is any civil wrong for which the law provides a remedy. Torts provide compensation for injuries to persons and property caused by the fault of another. ... The existence of our tort law makes it more expensive for corporations and other potential defendants to be negligent or have negligent policies.

How is a tort different from a contract and a crime? In effect, criminal law provides a way of punishing people who commit crimes. It acts to protect all citizens from such wrongdoing. Criminal law is not concerned with the individual victim. The law of torts, on the other hand, provides a way to compensate victims of wrongful acts.

Name the two main categories of torts and the types of to... Torts fall into three general categories: intentional torts (e.g., intentionally hitting a person); negligent torts (e.g., causing an accident by failing to obey traffic rules); and strict liability torts (e.g., liability for making and selling defective products - see Products Liability). Agenda: 1. Australian Development in Novel Cases 2. Categories of Plaintiffs 3. The Ipp Report 4. Legislative Reform

Australian Development in Novel Cases 1. Grant v Australian Knitting Mills [1936] AC 85 i.

On appeal to the Privy Council (UK) from the High Court of Australia

ii.

Privy Council expanded the Donoghue v Stevenson principles to apply to a broader range of products than articles of food or medicine.

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iii.

Lord Wright recognised that the decision in Donoghue ‘treats negligence, where there is a duty to take care as a specific tort in itself…. (At 103)

2. Anns v Merton London Borough Council [1978] AC 728 (HL) i.

Developed a two-stage approach to determine a duty of care is owed: 1. The establishment of a sufficient relationship of proximity; and 2. Consideration of any reasons why that relationship should not give rise to a duty of care.

Reasonable Foreseeability 3. Chapman v Hearse (1961) 106 CLR 112 •

On the point of the existence of a duty of care the Court (Dixon CJ, Kitto, Taylor, Menzies, & Windeyer JJ) said: •

“…in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as a result of a consequence of a sequence of events following the defendant’s carelessness it is not necessary to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence.”

3. Chapman v Hearse (1961) 106 CLR 112 •

On the point of the existence of a duty of care the Court (Dixon CJ, Kitto, Taylor, Menzies, & Windeyer JJ) said: •

Chapman should have reasonably foreseen the sequence of events that could follow from his negligent driving including the possibility of a ‘rescuer’ entering upon the roadway (such as Cherry) and being exposed to risk of injury.

Proximity: 4. Perre v Apand P/L (1999) 198 CLR 180 •

Held: Defendant owed Plaintiff a duty of care because of D’s knowledge, D’s control and P’s vulnerability

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Some Justices indicated that “proximity” was no longer the controlling test

5. Sullivan v Moody; Thompson v Connon (2001) 207 CLR 562 •

Held (on appeal to HCA): •

Harm may have been reasonably foreseeable but this not enough to establish DOC

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No DOC existed 8

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Inconsistent to hold a DOC which would be conflict with the Statute under which the reports were prepared which placed the child’s interest as paramount Proximity – Its demise

5. Sullivan v Moody; Thompson v Connon (2001) 207 CLR 562 •

Gleeson CJ, Gaudron, McHugh, Hayne & Callinan JJ •

The formula is not proximity, and •

“ What has been described as the three stage approach of Lord Bridge of Harwich in Caparo Industries Plc v Dickman [1990] 2 AC 605 does not represent the law in Australia…”

No current definitive test for novel cases The Incremental Approach: •

Favoured by some Justices (e.g. Brennan)

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Identify, by analogy, similar established categories, identify the factors relevant in those categories and apply them to the (novel) case at hand. Results in incremental progress rather than by big steps

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Other Justices not so keen (e.g. Callinan)

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Pre 2001 and the decision in Sullivan v Moody (2001) 207 CLR 562 the test for establishing a duty of care was: •

Foreseeability;

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Proximity; and

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Was it fair and reasonable to impose a duty of care?

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Two Staged Test

See Caparo Industries plc v Dickman [1990] 1 All ER 568.

The Incremental Approach •

In Sutherland Shire Council v Heyman (1985) 157 CLR 424 Brenan J said: •

…..in novel categories of negligence incrementally and by analogy with established categories, rather than by massive extension of a prima facie duty of care restrained only by indefinable considerations which ought to negative or to reduce or limit the scope of the duty or the class of persons to whom it is owed. (at 481) 9

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In essence, identify by analogy, similar established categories, identify the factors relevant in those categories and apply them to the case at hand.

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Small steps Australian Development in Novel Cases: Salient Features Approach

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Allows for a range of factors to be considered in addition to reasonable foreseeability

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Allows for consideration of public policy

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Gleaned from previous cases

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But hardly a unifying principle

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Maybe not so different from incremental approach

6. Stuart v Kirkland-Veenstra (2009) 237 CLR 215 •

Do police owe DOC to potential suicide?

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Facts: police came upon man in car with hose from exhaust through window, engine off, man says not going to do anything stupid & will go home & talk to wife. Police did not intervene. Police had statutory power to apprehend if formed view that person mentally ill and suicidal. Man went home, sent wife away, connected hose & suicided

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Held: Because police did not form that view, they had no statutory power to apprehend

6. Stuart v Kirkland-Veenstra (2009) 237 CLR 215 •

DOC? •

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Depended upon a number of factors: •

power of police to apprehend

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relationship of P & D

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vulnerability of person relying upon exercise of power

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‘as in a number of cases about the exercise of statutory power it is the factor of control that is of critical significance’ and the here the person had control of the risk, not the police

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issue of personal autonomy

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no general duty to rescue

No DOC Remember we are looking at novel negligence cases eg:

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Sullivan v Moody – in part this decision was based on the interests of the child as set out by the Family Law Act.

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Stuart v Kirkland-Veenstra

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In well settled areas of the law of negligence the existence of a duty of care presents no challenge. Gummow J in Varily v Wyong Shire Council (2005) 223 CLR 422 (at [63].

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That is reasonable foreseeability of harm to the plaintiff will ordinarily give rise to a duty of care. What type of factors may be considered?

a) the foreseeability of harm; b) the nature of the harm alleged; c) the degree and nature of control able to be exercised by the defendant to avoid harm; d) the degree of vulnerability of the plaintiff to harm from the d...