Revision Notes Torts Contracts And Ii (FINM2400): PDF

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TORTS Study Notes

SEMINAR 1 Objective: distribute loss Tort: civil wrong Parties: plaintiff v defendant Remedy:

monetary compensation to return plaintiff victim to original position before the tort Role of the courts to assess damages to return to original position

Successful action:

finding liability on the balance of probabilities Need to find more likely than not chance that the injury was caused.

Damages Exemplary: awarded to punish the defendant Nominal: where there is no injury *Ideologies in 1970’s Accident victims are undeserving of damages Claims are excessive Allowing a claim opens the litigation floodgates *Chairman, National Crime Authority v Flack (1998) 156 ALR 501 Son of tenant suspected of dealing drugs; police find $433K cash in briefcase as part of raid detaining it; claim of trespass on it; claim successful Person with exclusive possession over private home is presumed to exercise control over each and every part of that home and everything in it Manifest intention to keep everything on the property Rights to retain goods not reasonable after investigation - rebuttable but presumption exists until it has been rebutted Tort law tries to resolve dispute where no one owns property, distribute loss *Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 Victim sued police for negligence in investigation crime – did not exercise proper duty of care All householders are potential victims of a habitual burglar and all females those of an habitual rapist  Police do not owe a duty to members of public who might suffer injury through their careless failure to apprehend a dangerous criminal. *Jane Doe v Metropolitan Toronto (municipality) commissioners of police (1998) 160 DLR (4th) 697 Claim brought on 2 counts – negligent investigation of balcony rapist, failure to warn potential rape victims; defence that not practical due to insufficient resources Police must warn potential victims and have a duty of care. *Ollier v Magnetic Island Country Club [2004] QCA 137 Victim struck in eye by golf ball by a following player; trial judge found action negligent and ordered to pay $2.6m Should have pursued action in trespass as plaintiff is not required to prove negligence – duty of care, breach, causality and damages

COMPENSATION Liability requires plaintiff to prove negligent act (or omission) on part of defendant which caused plaintiff’s injury. No relevant ground of defence -

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Effectiveness of tort law requires defendant having (access to) sufficient funds to pay damages

SEMINAR 2 Civil wrong trespass (direct and intentional) action on the case (indirect and unintentional) Limitation of Actions – Limitation Act 1969 (NSW) Action not maintainable if brought after six years Personal injury founded on negligence not maintainable after three years (once injury has been fully realised) Compensation to relatives on behalf of victim not maintainable after three years Originally only able to choose between trespass and action on the case, if brought claim on one forward and not successful, then claim on the other was barred.

- TRESPASS Trespass vi et armis – direct, forcible and immediate interference with persons, goods or land of another without lawful justification Actionable per se – does not require proof of damage (only requires interference) Violation is enough to bring action on trespass

- ACTION ON THE CASE Arises where there is actual damage (needed to claim a remedy) Indirect interference (intervening factor) Predecessor to negligence Now able to bring both actions together, the failure of one not hindering the success of the other

- History TORTS – any civil wrong originally trespass ~ 13 - 14 C Only pursue trespass if it involved a breach of the peace ie a person’s physical attack on another This was the case until the 1360’s where jurisdictional requirement was relaxed allowing trespasses not involving breaches of the peace  action on the case - 18TH C DISTINCTION If injury inflicted was - immediate/direct  trespass - consequential/indirect  case *Reynolds v Clarke (1725) 92 ER 410 Parties adjoining occupiers; defendant placed spout in plaintiff’s yard; after rain, water rotted walls of plaintiff. Action brought on trespass but found on case Drew distinction between the two, trespass requires immediate wrong, case is an indirect and consequential act *Scot v Shepherd (1773) 95 ER 1124 Defendant through squib onto Yate’s stall; Willis threw it to Ryal’s stall and Ryal then through it to Scott where it exploded in his face causing loss of his eye; action brought on trespass to the original thrower Continuing act may be direct  the doer of a wrong is the doer of all that follows.

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Dissenting, Blackstone J said that it was a consequential act, a result of continuing throws until hitting the plaintiff *Hutchins v Maughan [1947] VLR 131 Plaintiff took two dogs onto land on which baits laid; he had been told by the defendant of their existence yet still took dogs on; dogs died; brought claim on negligence, nuisance and trespass Only negligence maintainable as loss indirect  intervening act by plaintiff of deciding to take dogs onto land rends loss indirect *Southport Corporation v Esso Petroleum Co. [1956] AC 218 Oil tanker stranded; cargo of 400 tonnes oil discharged; affected beaches and ports etc; claim brought on nuisance, trespass and negligence Deemed indirect due to the intervening natural act of the tide

SEMINAR 3 *Williams v Holand (1833) 131 ER 848 Defendant’s carriage collided with plaintiff’s causing them to be injured; accident result of negligence of defendant; action brought on negligence which was affirmed; lawyers argued that injury direct therefore trespass and not maintainable on negligence If direct act, plaintiff can bring action on case (instead of trespass) provided defendant’s act is negligent (unintentional). If act is direct and intentional only action is trespass. Accepted into Australia in 1951

- History 13 - 14th C Trespass only avenue of legal redress 1360 trespass and action on the case 1360-1833 key distinctions of directness pre 1833, Reynolds and Clarke dominant position  direct v indirect, trespass v case Williams v Holland changed significance of directness, now able to bring both regardless of which was direct th

NEGLIGENCE Requires: indirect interference, unintentional, and negligence (element of fault) Developed from action on the case in 19th and 20th C

- TRESPASS Requires Fault Originally no distinction between trespass and case, ie strict liability – no requirement of fault in trespass *Weaver v Ward (1616) ER 134 Rejection of strict liability  must be an element of fault Accident: no wrong, excuses trespass TORT: always fault either negligence or intention *Holmes v Mather (1875) 10 LR Exch 261 Horse and carriage; horse startled by dogs causing carriage to collide; driver acts rightly in attempting to correct the carriage’s path; action brought in trespass As neither wrongful intent or negligence existed, no case on trespass *Stanley v Powell [1891] 1 QB 86

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Pheasant shooting where bullets ricocheted off a tree hitting plaintiff in the eye Could not have foreseen ricochet (negligence) and no intent, therefore no trespass

- Onus Burden or responsibility Procedural advantage if not required to discharge onus of proof  don’t want to have to prove that not one’s fault -

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Case/Negligence o Onus always on plaintiff  Prove act was indirect  Prove act was defendant’s fault Trespass o Onus on plaintiff to prove directness of act  Act by defendant was direct o Then, onus shifts to defendant to prove lack of fault  Defendant must prove on the balance of probabilities that the trespass occurred without the defendant’s fault.

*Blacker v Waters (1928) 28 SR (NSW) 406 Shooting gallery; plaintiff hit in the eye by fragment of bullet; brought case on trespass Onus shifts to defendant to prove lack of fault, however this was not done successfully, he was unable to execute burden of proof *McHale v Watson (1984) 111 CLR 384 Defendant threw dart at post; dart missed hitting plaintiff in the eye; action on trespass Distinguishes that onus is on defendant to prove that there was absence of negligence and intent on his part. *Platt v Nutt (1988) 12 NSWLR 231 Woman with daughter in dispute put hand in way of closing door; claim of trespass Plaintiff unable to prove causation, that action was direct and therefore trespass, action not reflex as it was not a protective action (act of her own) she didn’t have to, breaks causation contra Scott v Shepherd Claim fails as failed to prove causation, must do so before fault (Kirby J in dissent)

Highway Exception Travelling on highway is an exception  onus always lies on plaintiff, must prove both causation and fault in trespass. *Venning v Chin (1974) 10 SASR 299 Highway collision between car and pedestrian; claim of trespass correct Despite trespass, no shift of onus due to highway case, burden always lies with plaintiff as intentionally or not, highway travel has implied acceptance of injury Difficult to take highway type distinctions therefore must look at it case by case. Ie do not assume one rule for vehicle v vehicle or pedestrian or house etc..

- UK approach to forms of action Regardless of direct or not  causation is irrelevant Look at intent Trespass requires intention Negligence is unintentional but breaches duty of care Only hold trespass if intentional Negligence can be pursued if unintentional *Fowler v Lanning [1959] 1 QB 426 Shooting party; plaintiff hit by a shot of the defendant

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Trespass does not lie if action is unintentional, onus lies upon plaintiff to plead and give particulars of negligence if action is unintentional *Letang v Cooper [1965] 1 QB 232 Defendant drove over legs of plaintiff who was sunbathing; brought claim of trespass and negligence; Claim of negligence after 3 years but successful in trespass, however in UK only trespass if intentional, therefore actually negligent trespass but no such thing  must be negligence/case but statute barred

SEMINAR 4 Indirect Acts  negligence Not all negligent acts are indirect (can be direct – negligent trespass) Trespass  direct Not all direct acts are trespass (can be negligent)

- Trespass for negligent injury Plaintiff can plead trespass and negligence for direct, unintentional and negligent injuries *Williams v Milotin (1957) 97 CLR 465 Plaintiff struck by truck driven negligently while on bicycle; action brought more than three but less than six years after. Claim to be brought on negligence but statute barred as after three years (Limitations Act 1936-1948 SA) Claim brought as trespass and allowed, maintainable in Australia to bring trespass where defendant’s fault comprises negligence. Also could have been case *trespass not confined to intentional interference  able to take direct and unintentional act either trespass or negligence. *Parsons v Partridge (1992) 111 ALR 257 Norfolk Island (limitation act)  injury sustained through negligent conduct of defendant; case heard just after 4 years barring trespass from being brought; action on case brought Action on case is maintainable after the reasoning of Williams v Milotin even if it is a direct act.

Consequences of intentional trespass Negligence for intentional trespass *Wilson v Horne (1999) 8 Tas R 363 Negligence of consequential (psychiatric) injury expires in 3 years since injury came to fruition. Trespass expires in 6 years from the sexual assault. Plaintiff sexually assaulted for seven years; after sister came out with similar abuse memories were jogged causing post traumatic stress disorder; this developed 14 years after the last of assaults; - Appellant appealed for trespass being only cause of action and hence statute barred but this was rejected - Action on negligence **entitled to proceed in negligence despite intentional trespass Absence of clear ratio but still valid  if heard now, HC would overturn b/c of lack of clear principles. -

1. 2. 3.

TYPES of Tort Action Intentional trespass (direct and intentional) Negligent trespass (direct and unintentional) Action on the case for wilful injury (indirect and intentional

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4.

Negligence (indirect and unintentional)

- Summary of actions Causation - Direct o Intentional  Trespass (except Wilson v Horne) o Unintentional  Trespass or negligence - Indirect o Case/negligence Choice of trespass over negligence  unintentional but plaintiff unable to establish duty of care  no damage or legally recognised damage (trespass is actionable per se)  non highway case, plaintiff finds difficult to prove fault  plaintiff able to take advantage over longer limitation period

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SEMINAR 5

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Trespass to the person BATTERY

Direct act of defendant causing contact with the plaintiff’s body without the plaintiff’s consent  does not include involuntary acts Can be intentional or negligent

- Intention Act of making contact only – not to harm or injure Must have knowledge of probability of contact

- Hostility No hostility required to constitute battery, merely contact However hostility is required in the UK [UK] *Wilson v Pringle [1987] QB 237 Schoolboy Wilson claims Pringle to have jumped him after school seriously injuring him; pursues trespass and negligence; Pringle’s defence is of induced school antics; judgement for plaintiff; appealed  implied consent, no hostility (defence) No hostility in action nullifies the battery claim as contact must be hostile in the UK  onus on plaintiff to prove intention and hostile touching (unlike Aus where onus on defendant) [AUS] *Rixon v Star City (2001) 53 NSWLR 98 Exclusion orders imposed to protect plaintiff from problem gambling; found in violation of order; security placed hand on shoulder Trial judge found that action lacked hostility necessary for battery, Rixon appealed that hostility not required in Aus, this was affirmed, however upon appeal the contact by security was deemed acceptable in ordinary conduct of daily life and thus not constitute battery.

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Exceptions Implied consensual contact in daily life Reasonable punishment of children Lawful police arrest Collins v Wilcock only in arresting, detaining or investigating is conduct acceptable and not amountable to battery – scratching officer self defence to unlawful arrest Reasonable force in self-defence Not beyond necessary means Necessity

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Elements of battery Direct act resulting in contact Positive and affirmative act Voluntary act – falling asleep at the wheel is involuntary Non-consensual – express or implied in daily life No defence – self defence or necessity

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DAMAGES 

Compensatory  A right, to return plaintiff to original position before the tort (medical expenses, loss of past and future earnings, loss of expectation of life etc..)  Aggravated  an additional award of damages, compensatory in nature catering for insult and humiliation to plaintiff’s feelings o awarded as a right without discretion o depends on reaction of plaintiff, hurt and humiliation o Can arise from racial slurs *Henry v Thompson [1989] 2 QdR 412  aborigine detained, then bashed, beaten and urinated on in public (humiliation) o Injury must be intentional: Civil Liabilities Act  Exemplary  Entirely at court’s discretion  Supplementary to punish defendant for conscious and contumelious disregard for rights and to deter such conduct o Therefore not awarded for negligence. Also not for car accidents o Not awarded if substantial punishment under criminal law (gray) o Provocation may reduce an award of exemplary damages although not defence for battery/assault. *Fontin v Katapodis (1962) 108 CLR 177  provocation reduces exemplary damages awarded

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SEMINAR 6

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Trespass to the person ASSAULT

Creation by defendant of reasonable apprehension in mind of plaintiff of an imminent battery against the plaintiff Closely related to battery but they can occur without each other Actionable per se (requires only transient emotional reaction)

- IMMINENCE  Requires threat of imminent harm *R V Knight (1988) 35 A Crim R 314 Man made threatening phone calls to magistrate; traced calls to telephone box fair distance away; arrested and charged with assault On appeal no evidence to suggest the imminence required for an assault  Imminence in context *Zanker v Vartzokas (1988) 34 A Crim R 11 Woman hitchhiker offered money for sexual favours and upon decline threatened with sexual assault Put in fear of imminent battery which continued towards threatened destination enough for charge of assault.  Context may negate imminence *Tuberville v Savage (1669) 86 ER 684  conditional threats negate imminence ‘if this isn’t happening… I would…’ IF is intervening factor Imminence requires means or apparent present means to carry out threat (assuming threat already carried out) even if defendant restrained before given opportunity *Stephens v Myers (1830) 172 ER 735 Apparent present means of about to commit battery but stopped short constitutes an assault 

- Constituents  Threatening gestures or acts creating fear of immediate force  Words (even silence) accompanied by threatening context (not merely words) *Barton v Armstrong [1969] 2 NSWR 451 Threatening phone calls made repetitively to create atmosphere and suspense Telephone calls may constitute assault where words cause listener to apprehend imminent application of unlawful force *R v Ireland [1997] 4 All ER 225 Silent phone calls or heavy breathing; charged with assault but defence of no imminence but contrary to house of lords Intent was to cause listener to apprehend imminent violence, if listener aware of caller then silence can be used intentionally to arouse apprehension. Silent calls can give rise to imminence assault.

- Knowledge Defendant must intend to create apprehension Recklessness may suffice for intention (likely to create apprehension of imminent violence within plaintiff) *Hall v Fonceca [1983] WAR 309

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Two players in heated discussion, plaintiff waved fist in front of face, defendant to avoid battery struck plaintiff on nose knocking to ground causing brain damage The reckless nature of plaintiff in waving fist in front of face was suffice to assault (or intent to commit assault) therefore allowing self defence of defendant Intention to make contact is irrelevant: whether they intended to  only intend to create apprehension Plaintiff must know of the threat Apprehension of battery must be reasonable  allows persons otherwise unfazed *Brady v Schatzel [1911] St R Qd 206 Mum brandished rifle at man threatening to shoot; man was unfazed by the presence of the rifle instead waiting for her to calm down Despite being unfazed, no apprehension of fear, it would apprehend fear within a reasonable person allowing the assault charge to be held

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Elements Direct physical threat May be conditional threat Threat must create apprehension of imminent contact – requires apparent present means Apprehension must be reasonable in the plaintiff’s mind Irrelevant whether defendant could carry out threat, as long as intention to create apprehension

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SEMINAR 7

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Trespass to the person FALSE IMPRISONMENT

Wrongful total restraint on plaintiff’s liberty or freedom of movement that is directly brought about by the defendant’s act without legal justification (consent) No need for fault, intention or negligence STRICT LIABILITY To protect the liberty of an individual - Total Restraint  Not...