Laws1100 - Final Exam - Booklet PDF

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Causing Harm 1. Criminal Liability If someone has done something that causes harm to another person and harmful act is a crime and will lead to prosecution by the state and punishment. “Concerned with punishment of the wrongdoer”

2. Tortious Liability Harmful act may be a tort, other than a breach of contract, giving victim right to sue for compensation, trespass, negligence, defamation, nuisance . “provision of remedy to the harmful act”

3. Contractual Liability If a person who engages in harmful conduct has a contractual relationship with the victim of harm, then the harmful conduct may give rise to contractual liability. Tortious liability is used mostly however contractual arises when contract has been breached.

4. Statutory Liability A harmful act may in addition to being a crime, a tort or breach of contract may contravene one or more statutes ( law made by parliament) as torts and contractual are case laws.

5. Vicarious Liability. Occurs mostly with employer and employee where circumstances a person will be held liable for harm caused by another. If an employee is undertaking authorised work in an unauthorised or wrongful manner, employer will still be vicariously liable for these actions. - Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] - However if employee is acting well outside the scope of their employment than the employer will not be vicariously liable. (Deatons Pty Ltd v Flew)

The tort of trespass. Commiited when one person interferes directly with the person or property

Land Must meet all: 1. X interferes with Y’s exclusive possession of land 2. X interference is direct 3. X’s interference is either international or negligent 4. There is no consent by Y or justification for the interference Does not have to be physical trespass of the airspace will still be trespass Kelson v Imperial Tobacco. Is not trespass if path or entrance to land is obstructed, entrance gates are unlocked, no sign or indication there is forbidden entry. Implied grant of permission by the occupier of property in favour of members of the public to use that path or driveway to communicate or delivery to a person in the building. Halliday v Nevill

Goods. Committed if all are met: 1. X interferes with Y’s exclusive possession of goods 5. X interference is direct 6. X’s interference is either international or negligent 7. There is no consent by Y or justification for the interference Conversion is intentional. A tort committed when one person wrongfully deals with goods of another in a way that is inconsistent with their ownership or rightful possession. Wrongfully detaining the goods of another is called detinue. Will occur if defendant rightfully has possession of goods of the plaintiffs but when the plaintiff demands that they return the goods, defendant refuses to do so.

Trespass to the person. Pg 174 1. Battery Intentional or negligent conduct that directly causes contact with the body of the plaintiff without their consent. Punching, kicking, stabbing and even kissing or hugging however within reasonable measures. Rixon v Star City 2. Assault- tort committed when one person unlawfully threatens another with imminent physical harm. It is the threat of physical contact is battery. The plaintiff needs to reasonably believe the threat even if it isn’t carried out pg 175 for requirements 3. False imprisonment – a tort committed when one person unlawfully deprives another of their freedom of movement. Not necessarily physical Pg 175

Tort of Trespass Defences : 4. Accident – the interference was neither intentional nor negligent

5. Consent – The plantiff either expressly or by implication voluntarily consented to the trespass 6. Necessity – The trespass was necessary to protect life, land or goods from imminent and real harm: London Borough of Southwark v Williams

Tort of Nuisance Pg 176

Nuisance An act by the defendant that indirectly interferes with the plaintiff’s use and enjoyment of private and public land. Two forms 1. Private 2. Public Tort of Nuisance Defences: Consent by the plaintiff (expressly or implied) Statutory authority (legislation that may permit the defendant to engage in the harmful conduct)

Contributory Negligence (by the plaintiff) Tort of Negligence 1. Duty of Care Issue Whether there was a duty of care. Law Whether the defendant owed the plaintiff a duty of care is a question of law. The onus is on the plaintiff to establish the existence of the duty of care. Whether the defendant owed the plantiff a duty of care is a question of law. If the relationship does not fall within one of the established categories, the plaintiff must establish that two tests are satisfied. 1. First, it must be shown that at the time of the incident it was reasonably foreseeable that the defendant’s conduct could cause harm to someone in the plaintiff’s position. Donoghue v Stevenson [1932] UKHL 100 Hay v Young [1943] UKHL 5 2. Second, the plaintiff must show that the salient features of the case are consistent with the existence of a duty of care. Sullivan v Moody [2001] HCA 59

CAUSING HARM CARELESSLY 1. Full Tort of Negligence Issue A person commits the tort of negligence Law A person commits the tort of negligence if: 1. they owe the other person a duty of care; and (established pg163) 2. they breach the duty of care; and 3. their breach causes the other person to suffer reasonably foreseeable harm. Requirement 1. Whether the defendant owed the plantiff a duty of care is a question of law. If the relationship does not fall within one of the established categories, the plaintiff must establish that two tests are satisfied. First, it must be shown that at the time of the incident it was reasonably foreseeable that the defendant’s conduct could cause harm to someone in the plaintiff’s position. Donoghue v Stevenson [1932] UKHL 100 Hay v Young [1943] UKHL 5 Second, the plaintiff must show that the salient features of the case are consistent with the existence of a duty of care. Sullivan v Moody [2001] HCA 59

Requirement 2. To establish a breach of duty it must be shown that the defendant failed to do what a reasonable person would have done in the same circumstances. A defendant breaches their duty of care if; i) the risk was foreseeable: Bolton v Stone ii) the risk was not insignificant : Paris v Stepney Borough Council iii) in the circumstances, a reasonable person in their position would have taken the precautions: Latimer v AEC Requirement 3 The defendant is only responsible for the harm if: i) The plaintiff must establish that the careless act caused, either directly or indirectly, the harm suffered by the plaintiff. Yates v Jones ii) it is appropriate for the scope of the liability of the person in breach to extend to harm so caused. Rowe v MCartney Salient features of the case: This means that the court will consider the relationship between the parties and other features of the case and then compare those features with the features of other cases where a duty of care has been found to exist.

CAUSING HARM DELIBERATELY Tort of Defamation. Issue Tort of defamation Law A person commits the tort of defamation if they publish to a third party, in spoken or written form, a statement about another person that would damage the reputation of the other person. The other person must show that: 1. the statement about them was defamatory; : Bjelke-Peterson v Warburton and 2. the statement identified them; and 3. the statement was published to a third party. Requiremen1.  Makes ordinary people think less of the plantiff  Causes people to shun or ridicule the plantiff or  Causes the plaintiff to be excluded from society

CAUSING FINANCIAL HARM DELIBERATELY Tort of Deceit Issue Tort of deceit Law A person commits the tort of deceit if: 1. they make a statement of fact to another person knowing that it is false; and 2. they make the statement with the intention that it be relied upon by the other person; and 3. the other person relies upon the statement; and 4. the other person suffers harm as a result of relying upon the statement.

Tort of Passing off. Also used in Issue Tort of Passing off Law A person commits the tort of passing off if: 1. they make a misrepresentation (expressly or by implication) that their goods or services are connected with another person or have the other person’s endorsement or approval; and 2. the misrepresentation is made in the course of trade; and 3. the misrepresentation is intended to deceive potential purchasers.

Pacific Dunlop v Hogan [1989] FCA 185

Duty of Care issues. 1. Occupiers Issue Occupiers owe a duty of care? Law Occupiers owe a duty of care to all persons entering the premises to ensure that the premises are safe. Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7 Phillips v Daly [1989] Aust Torts Reports 80-234 Does an occupier also owe a duty of care to people who are on their premises without their permission? Hackshaw v Shaw [1984] HCA 84

2. Liability of Public Authorities Issue Liability of public authorities Law Where the danger is unnatural or hidden, the public authority will owe a duty of care to warn persons using the area as intended by the public authority of foreseeable risks. Nagle v Rottnest Island Authority [1993] HCA 76 Romeo v Conservation Commission of Northern Territory [1998] HCA 5

3. Negligent Misstatement and Third Party Issue Negligent misstatement Law When a person is giving advice they owe a duty of care if: 1. the advice is of a business or serious nature; and 2. they know or should know that the other person intends to rely on the advice; and 3. it is reasonable in the circumstances for the other person to rely on the advice. The person giving advice may owe a duty of care even if they are not a professional adviser such as a lawyer or accountant.

Issue Negligent misstatement third party Law A person giving advice will owe a duty of care to a third party if: 1. they give their client business or serious advice knowing that the client will communicate that advice to the third party; and 2. the advice is likely to lead the third party to enter into a particular type of transaction; and 3. it is likely that the third party will suffer financial loss if they enter into that transaction and the advice is wrong.

Tort Defences Tort of defamation Defences: pg 106 Justification (truth) Absolute privilege Qualified privilege Honest opinion and Innocent dissemination Triviality Tort of Negligence Defences: Voluntary assumption of risk pg175 - If it can be established that the plaintiff was fully aware of the risk at the time the harm was caused and they voluntarily assumed that risk, the defendant is relieved of all liability. Insurance Commissioner v Joyce [1948] HCA 17 Rootes v Shelton [1967] HCA 39 Contributory negligence - If it can be established that the plaintiff contributed in some way to their own loss or injury, liability will be apportioned between the defendant and the plaintiff. Ingram v Britten [1994] Aust Torts Rep 81-291 Other defences: pg 176

Consequences of Causing Harm Injunction An injunction is a court order whereby a person is required to do or refrain from doing certain acts. An injunction will be an appropriate remedy if they are committing a tort on an ongoing basis, such as nuisance, trespass or defamation. If they fail to comply with the injunction they will face civil or criminal penalties. Damages Damages is monetary compensation. The purpose of an award of damages is to compensate the plaintiff for the loss or injury suffered as a result of the defendant’s harmful conduct. Damages are assessed ‘once and for all’: the plaintiff is not able to return to court at a later date seeking further compensation, and it is therefore necessary to estimate any future losses the plaintiff may incur as a consequence of the harmful conduct. This is why damages payments can appear to be very large.

Contracts. Is there a contract? Issue Is there a contract formed? Law A contract is a legally enforceable agreement. 3 requirements must be satisfied: 1. There must be an agreement between two or more persons 2. Both parties must intend that their agreement be legally enforceable 3. Both parties must pay a price or make a promise (consideration) Requirement 1. An agreement is a meeting of minds, and exists when two or more people share understanding and intention. An offer is when a person expresses a willingness to immediately enter into a contract with the offeree, the person to whom the offer is directed. An offer can be revoked at any time prior to acceptance. Goldsbrough Mort v Quinn (, unless the offeree has paid for the offeror’s promise to keep the offer open, for example by paying a deposit.) An advertisement is usually not an offer. Instead, it is an invitation to treat. cf: Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 A shop window display is an invitation to treat: Fisher v Bell [1961] 1 QB 394 The agreement is generally not complete until the offeree communicates their acceptance to the offeror. (An Acceptance is only effective if communicated): Powell v Lee An exception to this general rule .. pg6 of blue Requirement 2. The parties to the agreement must intend the agreement to be legally enforceable. In deciding whether or not the second requirement is satisfied, the court applies an objective test, the courts have traditionally made two important presumptions. 1) If the agreement was made in a social or domestic context, the court will presume that the agreement was not intended to be legally enforceable. Balfour v Balfour [1919] 2 KB 571 cf: Wakeling v Ripley (1951) 51 SR (NSW) 183 2) If the agreement is made in a commercial or business context, the court will presume that it was intended to be legally enforceable. Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 Requirement 3. Consideration An agreement is not a contract unless both parties to the agreement have paid, or promised to pay, a price, called consideration. Consideration need not be adequate. Thomas v Thomas Consideration must be sufficient, and not: • a vague promise: White v Bluett • past consideration, or : Roscorla v Thomas

• performance of a prior legal obligation. : Stilk v Myrick A promise will be legally enforceable if: Promissory estoppel 1. The promisor intended the promise to rely upon a clear and unambiguous promise. 2. The promisee has, in fact, relied upon the promise by changing their circumstances, and if the promisor does not keep their promise, the promisee will suffer a material disadvantage. 3. It would be unconscionable (unfair) for the promisor to break their promise. However, if a statement is made by one party (the promisor) to the other party (the promisee) before the promisee provides consideration, the promisee’s subsequent consideration will be considered as good consideration for the statement and the statement is enforceable: Dunlop Pneumatic Tyre v. Selfridge.

Is the contract enforceable? Issue Enforceability Law Even if all three essential requirements are satisfied, a contract may not be enforceable in any of the following circumstances. 1. Lack of consent – One or both parties have not entered into the contract willingly 2. Lack of capacity – One of the parties lacks the legal capacity to enter into contracts. 3. Lack of legality – Either the purpose of the contract or the performance of the contract is illegal 4. Lack of formality – the contract fails to satisfy the necessary formal requirements such as a requirement to be in writing. 5. Lack of Authority – The contract was made by someone acting without authority.

Issue Authority LAW The authority of a partner to act on behalf of another partner may be express, implied or apparent. Express authority is the authority explicitly given to a partner, verbally or in writing. A partner has implied authority to act on behalf of the other partners in doing all the usual things that are necessary to carry on the business of the partnership including to buy good of the kind usually employed in the partnership business. . Hely-Hutchinson v Brayhead Where a partner acts on apparent authority, the other partners will be still liable for the actions of the partner if four requirements are satisfied. 1. The partner was carrying on business of the kind carried by the firm 2. That business was being carried on by the partner in the usual way. : Goldberg v Jenkins 3. The person with whom the partner was dealing knew or believed that they were a partner 4. The person with whom the partner was dealing did not know or suspects that the partner had no actual authority Construction Engineering Pty Ltd v Hexyl Pty Ltd

Issue Terms of the contract Law There are two types of contractual term: express terms and implied terms. A written term may be an express term if it is a term in a written and signed contract or if it is brought to that attention of the other party by reasonable notice before the contract is formed. L’Estrange v Graucob ; Olley v Marlborough Court A term may also be implied into the contract as a result of prior dealing: Balmain New Ferry Co ltd v Robertson. A court may also imply a term into the contract if: 1. reasonable and fair, 2. necessary to make the contract viable, 3. so obvious that it ‘goes without saying’, 4. able to be clearly expressed, and 5. consistent with the express terms Burger King Corporation v Hungry Jack’s Pty Ltd A contract for the sale of goods is a contract where the seller transfers, or agrees to transfer, the ownership of goods to the buyer in return for a monetary price. Sale of Goods Act 1896 A seller will have breached the statutory implied term regarding merchantable quality if: 1. the contract is for the sale of goods; 2. the buyer has relied upon a description of the goods; 3. the seller normally sells goods of that description; 4. the goods are not of merchantable quality; and 5. the buyer has not examined the goods or, if they have examined the goods, the defect is not one that would have been revealed by the examination. David Jones ltd v Willis A seller will have breached the statutory implied term regarding fitness for purpose if: 1. the contract is for the sale of goods; 2. the seller normally sells goods of that description; 3. the buyer has either expressly or by implication told the seller the purpose for which they were buying the goods; 4. the buyer has relied on the seller’s skill and judgement; 5. the goods are not fit for the stated purpose; and 6. the buyer has not requested the particular goods by name. Grant v Australian Knitting Mills ltd

Issue Disclaimer Law A disclaimer is only a term of the contract if: 1. It is a term in a written and signed contract or 2. It is brought to the attention of the other party by reasonable notice before the contact is formed; or 3. It is implied into the contract as a result of prior dealing. Curtis v Chemical Cleaning and Dyeing Co Disclaimers in consumer contracts are interpreted contra proferentum, against the interests of the party that included the disclaimer: White v John Warwick & Co Ltd.

Issue Parol Evidence rule ( promise is not a term of the contract) Law According to the parol evidence rule, in the event of an inconsistency between a written term of an apparently complete contract and a verbal representation or promise, the court will favour the written term and disregard the verbal representation or promise: Van den Esschert v Chappell The representation or promise may still be enforceable if the other party can establish that the false representation or broken promise was: • a breach of a collateral contract, or • a misrepresentation, or • a breach of the ACL. Issue Collateral contract ( prompted the other party to enter into contract) Law A collateral contract is a secondary contract: in return for the representation or promise the other party has entered into the main contract. If the representation turns out to be untrue or the promise is broken the other party can sue for breaching the collateral contract. De Lasalle v Guildford [...