Summary Australian Principles of Tort Law lectures, tutorial work PDF

Preview

Summary

Download Summary Australian Principles of Tort Law lectures, tutorial work PDF

Description

LLB 240 – Tort Law - Principles Notes Week 1 - Introduction to the Law of Torts. Pages: 1 – 30 Main legislation- Civil Liability Act 2002 (Cth) – high profile cases (911) led to law reform thus this law was enacted. 1.1 The Genius of the Law of Torts  Torts are common law causes of action.  Tort law is a legal mechanism of which attributes fault to another person.  Tort law is civil wrongs.  Tort prescribes our rights and obligations to each other – “each tort describes, forbids and provides a legal remedy for a particular kind of interpersonal wrongdoing.” - Julia Davis, Connecting with Tort Law (OUP 2012) p 10 Part of a body of law that develops and derives through judicial decisions rather than legislative enactments. As per Mc Hugh J Burnie Port Authority v General Jones Ltd (1994)



The genius of the common law is that the first statement of common law rule or priniciple is not its final statement. Rules and principles are modified and expanded by the pressure of changing social conditions and the experience of their practical application in the life of the community.

Kirby made similar observation about the common law of negligence in Harriton v Stephens (2006) -



Part of the genius of the tort of negligence in the common law as been its malleability and versatility, which permit it to respond to the exigencies of changing times.



Common law torts is to: (a) Remain constant- Developing from ‘ancient’ common law principles when require human interaction to be placed within different categories such as trespass, negligence and nuisance (b) Develop constantly- Torts constantly evolve to meet changing social conditions through the creation of ‘new’ torts such as negligence (Donoghue v Stevenson) and the removal of old such as strict liability for the escape of dangerous substances.

I.e. Dual role to be constant yet constantly change – As per, Perre v Apand Pty Ltd (1999) 198 CLR 180 at 215 

The law of torts reflects stability as judicial decisions made centuries ago are still being applied as precedent today. Additionally, the law of torts looks to the future as the rules and principles of tort develop and adapt to changing social conditions. From 2002, common law nature of torts, particularly regarding negligence, has been extensively modified through statute. Tort law reform legislation operates to supplement the common law or to replace the common law or to amend the ongoing application of common law. Aim is to ensure national consistency and uniformity in the application of remedies and legal principles to tortuous claims throughout Aus, this is not the practical result.

 

1.1 Examples of Constancy in the common law – Pg. 3 

Many causes of action in tort which remain as relevant today as they were originally developed by common law. I.e. 1773 case Scott v Shepard – continues to be a tort that provides a remedy for interference with goods.

1.1.2 Examples of adaptability of the common law 

Measured against constancy is the ability of the law of tort to grow, develop and change, as Windeyer J states, Hargrave v Goldman (1963) 1

   



Development of negligence illustrates an incredible facility to adapt to changing notions of justive and social policy. Negligence allows recovery for damage caused through fault. Negligence requires a person to take reasonable care and skill even in situations where a contractual relationship cannot be established. Yet courts are concerned to ensure that the coherence of law is maintained so that the imposition of liability in tort doesn’t come into direct collisions with an obligation imposed by other statutory or common law. Miller v Miller[2011] Hill v Van Erp (1997) – Tort with its many ‘distinct species of negligence’ has grown to become the singular most important common law means of recovery for injury through the negligent acts and omissions of those who owe a duty to take care.

1.1.3 What then is the law of torts? Pg. 4-5       

  

 

The word ‘tort’ is of Anglo-French origin and it means a ‘wrongful’ or ‘illegal’ act. It is the law of torts which determines when an individual has committed a civil wrong. Law of torts crosses over with other areas of civil liability such as contracts and property law. Developments in tort law are influenced by politics, economy and social mores, and by the existence of gaps in civil liability law. Law of torts known to fill ‘gaps’ through developments of new torts – as per gaps filled in contract law – in legislation for when there is a gap Hill v Van Erp The creation of new torts is a question of policy open to judicial determination and therefore, can be neither uniform nor certain. The continuous development of the law of torts also raised the question as o whether there is on unifying notion of tort or whether this body of law comprises individual unrelated torts. Fridman implies that tort is a coherent body of law with unifying principles capable of internal organic development, whereas the alternative view is that the law of torts is a collection of actions that are essentially dissimilar from one another. Tort doesn’t compromise of a unifying law but rather is a diverse collection of laws that place human interaction within separate legal categories such as trespass, negligence and nuisance. Nevertheless, law of tort regards ‘compensating those who are wrongfully injured’. Unifying feature of torts as a legal remedy is that there is wrong done by one person that has traversed the interests of another. Therefore, tort law centres upon the relationship/interaction between plaintiff & defendant, its focus being the notion that wrongful gains and wrongful losses are to be corrected between wrongdoer and victim. However the focus is not the participants themselves, but the interests the law of torts should protect. Courts decide cases on the basis of existing defined legal rights.

When is conduct sufficiently twisted to be a tort? Slide 8  It must be serious and wrongful  It must be harmful to another person  It must attract a legal response that is seen as doing justice between the parties  It must not fit more comfortably in another category of common law or equitable wrongdoing Examples of torts:  Negligence  Trespass  Misrepresentation  Breach of statutory duty  Intentional damage to economic interests 2

 

Interference with employment and family relations Occupation of land

Interests protected by tort Law – Slide 10        

Reputation Privacy? Possession and use of goods Possession and employment of land Economic and business interests Dignity Personal and Mental Personal/Physical

Aims of tort law:    

 

Compensation Deterrence- Accidents Setting community standards Loss spreading – instead of loss falling on victim, aims to spread the loss on more people (insurance- complicates idea of tort law, as community is paying i.e 911 – high profile cases) – medical expenses, emotional distress, motor accidents. Providing Justice Appeasing victims

How do tort’s arise? 1. Person experiences loss 2. Fault has to be attributed to another person 3. Causation links – act of the wrongdoer causes the loss experienced by the person. When misfortune strikes… 

We have a choice about how we (as a society) responds: 1. We do nothing. We let the loss ‘lie where it falls’. 2. We shift the loss (in whole or in part) from victim to wrongdoer. 3. We spread the loss across the broader community

Doing ‘Justice’ – Slide 19 Corrective justice – an injustice or imbalance from the wrongdoer’s negative act needs to be corrected by a positive act – typically compensation to put the victim in the position they were in before their injury Limits to remedies ◦ Not all harms recognised by law ◦ Impact of insurance ◦ Wrongdoers must take their victim as they find them Distributive justice – ‘focuses on the general distribution of benefits and burdens, resources and opportunities between different members of the community’ (Julia Davis)  Legislators tailor law to satisfy broader aims, alter behaviour, redistribute costs … 3



Therefore alongside legal rules and principles, it is important to consider POLICY matters as they affect legal argument.

Tort law and social justice? Slide 21- ONWARDS - Quotes ‘When we talk about tort law, we should start with the premise that it is designed to protect dignity and promote social equality and social justice. Our causes of action and remedies should be tailored to best achieve those ends.’ - Leslie Bender, ‘Tort Law’s Role as a Tool for Social Justice Struggle’ (1998) 37 CONCERNS – LECTURE SLIDES Central Task of Tort Law  

1. Define types of wrongful conduct 2. Provide a system for righting wrong

Challenges for tort law … Slide 11    

1. Dealing with uncertainty 2. Setting standards 3. Stability v change 4. Limits to the law

1. DEALING WITH UNCERTAINTY (a) Ambiguity is inherent in the subject matter – deal with it! (b) Wrongdoing, harm and justice – abstract and highly contested concepts (c) Physical harm occurs within a social, political and economic framework that the law must respond to (d) Beware of values – of the law, the community, your own: they may conflict. “ ‘law’ is not just a set of rules and principles, but is also a culture of argument about those rules and principles.” (Julia Davis, p 14) Important legal skills: 1. 2. 3. 4.

case analysis statutory interpretation legal argument problem solving

(a) Ways of balancing certainty v flexibility in defining wrongdoing: 1. Clear rules with exceptions/defences 2. Incorporation of a reasonableness standard (b) WRONGDOING AND FAULT  Legal liability usually dependent upon: 1. wrongdoer personally at fault – motivated by ‘wrong’ values or failure to respect the rights of others. 2. conduct falling short of acceptable standards (ie wrongdoing)  Relevant considerations: state of mind, motives, intention, attitude, knowledge, extent of control …to form a judgment about how the individual responded to the circumstances they found themselves in. Types of fault 4

Intentional:  Deliberate  Reckless Negligent  Carless  Failure to take reasonable care Strict Liability 1.2 The ‘Concerns’ of the Law of Torts - Pg. 6 



3 concerns acknowledged in the judgement of Gummow in Pyrenees Shire Council v Day (1998) 192 CLR 330, ‘the law of tort of tort, with its concerns for compensation, deterrence and “loss spreading”. These concerns make an efficient system of tort law valuable in society. Concerns do overlap.

1.2.1 Compensation   

  

Compensation is the primary justification for tortuous liability.. Regarded as just and reasonable that a person who has caused the harm should pay for the correction of the damage caused. Compensation therefore aims to provide a sum of money which, as for as money can do, will put the injured party in the same position they would have been in but for the wrong doing which is committed. Compensation most clearly applies to the tort of negligence, and assessment of damages for personal injury. Notions of ‘fault’ and ‘fairness’ are bound into an assessment of compensation. Fault covered in Perre v Apand (1999), fault is the basis of the law of negligence, Mc Hugh J states: Negligence at common law is still a fault-based system. It would offence current community standards to impost liability on a defendant for acts or omissions which he/she could not apprehend would damage the interests of another.

 

Notion of fault is complex, doesn’t include intentional acts but includes carelessness. In Perre v Apand, McHugh J refers to tort law as an ‘instrument of corrective justice’ meaning, the law of torts requires those who have harmed others to correct their actions.



Corrective justice has limits – number of reasons why an innocent plaintiff wrongfully injured by a defendant may not be compensated. 1. Plaintiff may not be aware of or have means to pursue their tortuous cause of action. 2. Fault is a moral concept and in relation to determining compensations, moral notion of fault can be affected by public policy considerations such as the fair distribution of loss and profit. 3. Law of torts has elements of distributive justice which act both to negate the rightful claim of a plaintiff and also to impose liability upon classes of person who may not be at fault.

1.2.2 Deterrence – Pg. 8  

This concern of law of torts is to send a message to society at large that people should not act in harmful ways. Social goal is to prevent wrongdoing before harm is inflicted rather than just shifting the losses when they occur.

5



  

Donoghue v Stevenson; ‘You must take reasonable care to avoid acts or omissions which you can

reasonably foresee would be likely to injure your neighbour’ – Statement reflects the goal of deterrence: that if we can and do avoid negligent acts and omissions then there will be no harm. Law of torts attempts to prevent people acting in harmful ways by deterring them from engaging in wrongful future conduct. Vicarious liability, the notion of future harm, fixes a person with responsibility for another’s act even where they themselves are not negligent. Economist’s theorists characterise the notion of deterrence as a central function of the law of torts. On this view, the concern of deterrence should result in fewer injuries and save the community in terms of lost productivity, health care and other associated costs. However, notion of deterrence’s doesn’t always sit well with tortuous concepts of accidental injury and notions of fault.

1.2.3 Loss spreading – Pg. 9   



 

Tort law allows victims the opportunity to shift the costs that befall them to wrongdoers. Law of torts offers an avenue to seek redress and not gurantee a recovery. If compensation is denied to plaintiffs through the tort system, the costs they incur through their injuries or damage do not disappear, those costs are instead borne by the plaintiff, plaintiffs family or usually, the community as a whole through welfare systems. On the other hand, if a tortuous clam is made out, the law of torts shifts loss from the victim to the perpetrator. Reflecting, the notion that the party who is in the position to avoid the accident should bear the cost of that accident. Not the aim of law of tort to destroy defendant financially. Concern of loss spreading has become easier to achieve in torts due to insurance. As per, Kars v Kards (1996)

 





In most tort actions perpetrators are insured, the tort system operates to spread the loss through the insurance policy amongst an entire pool of insured persons. Aim of insurance is to allow individuals to spread the risk of loss amongst a group of policy holders. Individual defendants are therefore protects against full costs of misfortunes that may befall them. Tort law and insurance are intimately linked. Insurance determines whether a matter is pursued in court, who defends the claim and how much the plaintiff will ultimately pay. This practical relationship was acknowledged in Kars v Kars. –pg 9 However, as a legal issue, the courts are not willing to be influenced by whether the individual defendant before them is insured. Perre v Apand : not a relevant factor whether or not the defendant is insured in determining whether a duty of negligence exists. 1.3 The Limits and Policy of the Law of Torts – Pg. 10



Difficult with assessing the success or otherwise of the law of torts in addressing the 3 concerns of o Compensation o Deterrence o Loss Spreading

rests in the fact that there is no accurate or accepted measure by which to do so. 

The more claims there are, the more fair and just the society. Alternatively, it can be argued that the problem with this measure is too many claims may be viewed as frivolous, an abuse of process and a waste of court administrative costs. Indeed, over litigious society is seen by policy makers as undesirable.

1.3.1 The law of torts creates unfair and unequal treatment 6

Argued that law of tort potentially creates unfair and unequal treatment. For instance, 





Failure to take monetary inequality between the parties into account. Easier for wealthy individuals, corporations and govt. to sustain court actions in tort. I.e. Donoghue v Stevenson [1932] Ability of plaintiff to receive compensation is entirely dependent on establishing fault by the alleged wrongdoer. Persons with similar injuries will be treated vastly different by the law of torts which will enable those who can establish fault to recover whilst others who are unable to prove fault on the part of a defendant will not. Tort of law role is not to compensate all injury victims. Central tenet of rots remains fault-based compensation, the necessity of this requirement acting at times as an impediment to compensating victims equitably.

1.3.2 The ability to balance needs according to society’s expectations  

As common law tool, law of torts is reactive to the dispute brought before the court. This causes the law of torts to be viewed as lacking in its ability to remain perceptive and adaptable to the changing needs of society. Tame v Nsw; Annets v Aus Stations 1.4 The Current Challenges Facing the Law of Torts – Pg. 12

 

Some people unable to establish fault or Injuries are their own fault or result of bad luck, these people has no prospect to receive damages to compensate them for their injuries. Argues law of torts is not an appropriate method for determining whether injured persons should be compensated or how much compensation they should receive. 1.5. Workers Compensations – Pg. 12-16

  

  



Tort system was regarded as inadequate in regards to workplace injuries. Due to industrial revolution there was a number of factory/workplace accidents resulting in serious injury or death. Defence of volenti non fit injuria was commonly used and successful, and doctrine of ‘common employment’ meaning, the accident was fault of a fellow employee, the employer was not vicariously liable for the tort. Fault is an irrelevant concept in workers compensation legislation. Employers carry workers compensation insurance to ensure their ability to meet claims made pursuant to legislation. Main benefits payable under Australian workers compensation legislation are: o periodic or weekly payments (replaces wages) for total/partial legislation for work o lump sums for permanent disability (calculated by reference to ‘whole person permanent impairment’ o pain and suffering (subject to a serious impairment threshold) o death benefits payable to the dependents of a deceased worker o medical and other ‘out of pocket’ expenses. Workers compensation generally restricts and in some instances removes, the right of an injured worker to sue at common law. Workers comp. schemes originally operated independently of common law, and were a set of rights granted separately from the common law and usually in addition to any rights which might exist at common law.

Current law: NSW – Pg. 15 

Damages may be awarded only for past loss of income and loss of earning capacity (s 151G) with a ceiling on the maximum amount recoverable. 7

  



  

No other heads of damage are allowed: plaintiff must rely on workers compensation payments for other losses. Plaintiff must be at least 15% permanently impaired (s151H) with the degree of impairment t...