Torts Eo Y Exam Structures PDF

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PrivacyThe issue of privacy is a new tort in both New Zealand and overseas. Whata J describes it as the right to be alone balancing “Secrecy, solitude and anonymity”. The UK previously dealt with claims of such nature through the tort of ‘breach of confidence (Campbell) however this was recognised a...

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Ben Hardisty

Privacy The issue of privacy is a new tort in both New Zealand and overseas. Whata J describes it as the right to be alone balancing “Secrecy, solitude and anonymity”. The UK previously dealt with claims of such nature through the tort of ‘breach of confidence (Campbell) however this was recognised as a tort of privacy in 2015 ( Google). Australia has allowed claims in the lower courts (Purvis) and is likely to properly adopt the tort in the near future. The New Zealand privacy tort predates that of the UK being acknowledged in Tucker in 1986 and further developed in Bradley and P v D and a tort of inclusion into seclusion being introduced in C v Holland. The current New Zealand test for a privacy claim is set out in the 3:2 split decision of Hosking. Keith J dissented saying it would place a limit freedom of speech without good reason. However the majority stated “few would seriously question the desirability of protecting from publication some aspects of private life”. Privacy requirements: (Hosking) 1. A reasonable expectation of privacy - “In particular circumstances children may be entitled to protection where an adult would not be” Tugendhat J (Spelman) - Can still have an expectation even if already known to multiple people (Prince of Wales) - Includes false information (McKennit) though arguable no personal information - Can be in a public place is person particularly vulnerable (Peck) - A reasonable expectation of may be reduced by “Plaintiff culpability” Allan J (Andrews) 2. Must be highly offensive to a reasonable person - Sympathetic tone may fail this test – high burden (Andrews) - Courts will protect dignity and autonomy (Gulati) 3. The harm protected against is humiliation and distress, not financial. - Reasonable person test (Brown) 4. Can be defended as a public interest - Campbell gives two stage test i. Legitimate public concern ii. Benefit must exceed harm done - Sexual behaviour is not a moral issue and cannot be a public defence story ( Mosley) - More likely public interest with role models (Hosking) - May be overridden to protect children (PJS) - Must be of actual importance not just interesting (TV3 network) 5. Privacy cannot limit justified free speech - Not to breach rights the tort must be kept “within tight confinement” Blanchard J in Hosking 6. Can be remedied by damages or injunction - Highest NZ damages has been 25k (Brown) 100k pounds in UK - For name suppression injunction must prove likely to win ( Clague) Intrusion into seclusion C v Holland established the tort and was accepted in Canada in Jones. Whata J sets out the requirements: 1. 2. 3. 4. 5.

An intentional and unauthorised intrusion Which is into seclusion Breaching a reasonable expectation of privacy Which is highly offensive to a reasonable person There is a public interest defence - Asher J in Jenkin argues that NZ only needs one tort.

Ben Hardisty

Defamation 1. The words must be defamatory - Definition: “A statement which may tend to lower the plaintiff in the estimation of right-thinking members of society generally” - Lord Atkin (Sim) - Requires substantial harm either real or anticipated (Thornton) likely adopted in NZ Examples of defamation -

Criminal accusations – (Lewis) 3 tiers; suggesting guilt, suspicion without justification, wrongfully suggesting grounds for inquiry. Adopted in NZ in APN Immoral conduct – generally okay (Polanski) but not for homosexuality (Trimingham) Ridicule – political cartoon ones often acceptable on grounds of importance (Massey) if not (Burton) Statement causing ‘avoidance’ – causing someone to be shunned is defamatory e.g. disease (Youssoupoff) Incompetence – is defamatory unless proven true (Holloway) possible honest opinion defence (Holloway) Financial difficulty – is defamatory (Wright) possible investment public interest for company Insult & abuse – can be defamatory 2:1, Neill J says hard line to find where it scorns but does diminish standing. Millet J says unwarranted restriction of FoS (Berkoff) Business ethics – defamatory on grounds of loss of moral basis (Mt Cook) Negligence – court rejected idea of negligence and defamatory claim as often fails proximity test (King)

Construction and Meaning Steps for finding meaning: (Hadlee) i. (1) Objectively (2) Of ordinary knowledge (3) Doesn’t have to be literal meaning (4) From the words in publication (5) Cannot be a strained meaning (6) Must be read in context - Meaning can emerge over a number of days and stories ( McGee) - Innuendo – legal/true innuendo must prove ‘special knowledge’ or facts are relied on, popular/false innuendo is simply objective (Tolley) - Intention is irrelevant (Cassidy) 2. The words must refer to the plaintiff - If not names is a reasonable person test (Knupffer) adopted in NZ (McGaveston) - Statement of group or class must reasonably refer to each member (Peterson) 3. Communication to 3rd party - Must be commutated to be defamatory (Powell) but not if stolen and published (Coulthard) - Subsequent publishers is limited to where they should have known it would be further published (Beckham) media who feed off other media are liable (TVNZ) -

Defences 1. Innocent dissemination – no knowledge that it’s defamatory - Requires (1) lack of knowledge; (2) nothing that should’ve led to knowledge; (3) no negligence (Vizetelly) adopted in the Defamation Act - Being on cyberspace is no defence (O’Brien) hyperlinks aren’t a defence if knowledge (Karam) ISP (Demon) 2. Consent Defamation Act, s22 - though the test is strict and requires consent of the defamatory statement (Mihaka) 3. Truth - ‘Proving the sting’ the defamatory bit must be true allows minor wrong details ( Lange) - Where the statements are distinct the defendant can prove truth of things not referred to by the plaintiff (DA, s8(2)) though unclear (Haines) - If one clear meaning defendant cannot seek truth on what was not alleged ( Crush) 4. Honest Opinion - Value judgements must have a clear basis allowing reader to judge for themselves ( Foot) - Inferences must have descriptive reasoning (Fairfax) and based off true fact (Kemsley)

Ben Hardisty - Them more exaggerated the views the harder to prove (Awa) onus on defendant DA, s10(1) - No requirement of public interest as not put in DA 5. Privilege - Absolute – parliamentary privilege, witness statements, judicial proceedings etc. Defamation Act s13 - Common Law Qualified –Requires: a. Where there is a duty to tell of someone committing a crime ( Adam) b. Publication must only be to people with an interest (Jones) excludes news papers c. Can be used as a defence against an attack (Alexander) d. Can fail on grounds of ill will (s19(1) DA) - Constitutional qualified privilege – allows privilege to be published broadly in regards to MPs at a qualifying time. (Lange) a. May stretch to local MPs (Vickery) b. May have a public interest defence ( Osmose) - Statutory qualified privilege – a. Stronger - reports of parliament proceedings (s16 DA) b. Weaker – inquiries and external proceedings (s18 DA)

Remedies Damages: -

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Qualification damages - to restore reputation, injury to feelings, grief and distress ( Beckham) a. Extent of publication is considered (Columbus) b. Mitigating factors considered (Wright) Exemplary damages are available in exceptional circumstances ( Columbus) Juries are guided that the amount claimed is merely a ceiling, they need to practically acknowledge the amount, that punitive damages are exceptional

Injunction -

General rule – the damages by publication must outweigh the disadvantage of the defendant in not publishing (Ethicon) Strict test in NZ (BCNZ)

Declaration -

To put back reputation other than through money authorised in s 24(1) DA

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Causation and Remoteness Cause in Fact 

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The ‘but-for’ test - Lost must not occur if not for the defendants wrongdoing (Robinson) a. e.g. medically (Barnet), advice (Appleton) Multiple causes - But for test over exclusionary and exceptions have been stablished (Kuwait) - Laws LJ stated indivisible = fully liable; divisible = only liable for what they caused ( Rahman) i. Same time is often divisible 50/50 (Corey) often indivisible if concurrent or unwitnessed (Paterson) or slow onset medical (Wardlaw) ii. If 1 is tortious and 1 isn’t it is split 2/3 and 1/3 if divisible ( Wilson) Proof of risk of harm - Single agency rule a. they must prove adequate proof of risk with proof of cause ( McGhee) multiple causes fails proof of cause (Wilsher) but multiple defendants with the same cause succeeds – asbestos ( Fairchild) b. Considerations set out by Lord Bingham: (1) all employers; (2) each had duty which was breached; (3) caused illness from no other cause; (4) unknown which caused it. (Fairchild) - Proportionate liability a. Where the person might have caused the hard they are only liable for the probability they caused it based off time of exposure (Barker) b. Overruled by Compensation Act 2006 (UK) but still applies where act doesn’t (Zurich) - Source of the risk a. 18% chance of cause was sufficient (Greif) though McLachlin CJ required a “material contribution to risk” as the global approach (Clements) b. Exceptional case of (Ellis) failed where not most likely source Loss of a chance - Split into determininstic = natural world, and indeterministic = human agents a. Deterministic is on the balance of probabilities b. Indeterministic must prove defendant cause the loss of chance. - Loss of the chance of a better outcome which must be “substantial” but can be less than 50% (Davies) - Late diagnosis reduced chance of cure from 42% to 25% and failed ( Gregg) - Often awarded where there is an indeterministic hypothetical chance e.g. beauty context ( Chaplin); commercial opportunity (Poseidon); employment (Spring) Causation distinguished from quantification - Successive causes – later damage does not undo earlier damages and both liable (Baker) - Quantifying the damage – here supervening illness was not ignored. if tort is only accelerating future loss they are only liable for the acceleration part (Jobling) - Property damage – claims fail if no extra damage done (Sunrise ) Overview - Glazebrook J set out general rules in Ambros: a. Burden of proof may shift b. Inferences of cause can be drawn where there is no scientific evidence c. Claimant can use statistics in defence d. Proximity between cause and effect is relevant

Cause in Law

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- Thomas J – it is a “common sense” question (Sew Hoy) - Tipping J – must distinguish between causing loss and providing opportunity for its occurrence ( Price) Intervention by a third party - Where human action caused a link, the action must have been something “ likely” to happen – Lord Reid (Home Office)

Ben Hardisty e.g. car crash (Hearse) , leaving safe unattended (McCarthy) leaving prisoner unattended (Home Office), arming unstable police officer (Hartwell), - Limits – crash victim’s car was robbed, defendant not liable ( Duce), causing brain injury not liable for later conduct (Meah) - Lamb liked the test to a reasonable foreseeable one – failed for squatters Intervention by the plaintiff - plaintiff creates own loss - Risk of the loss must be foreseeable relate to defendants actions (Sew Hoy) a. E.g. head injury and suicide (Corr), arrest and suicide though was contributory negligence ( Reeves) - Damages with multiple causes such as negligence are reduced (Sayers) even while drunk (March) but not if caused by own conduct (McKew) incl. gambling (Sinclair) -

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Remoteness of damage 

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Foreseeable - The direct consequence test in Polemis was overruled by (The Wagon Mount No 1) with a foreseeability test as directness creates “never ending and insoluble problems of causation” – Viscount Simonds How foreseeable? The risk must occur ‘in the mind of a reasonable man in the position of the defendant” which would not be brushed aside as far-fetched - Lord Reid (The Wagon Mount No 2) Concurrent liability cases - The reasonable contemplation test applies (Wellesley) Foreseeable damages - Kinds of damages a. Only the type of damage must be foreseeable not how it got there ( Hughes) e.g. burning was foreseeable but the explosion wasn’t. Can sound extreme but strip question down b. If multiple foreseeable damages each are recoverable, one was here (Springman) c. Often loss of profits are foreseeable but not cause (Mainguard) d. Foreseeability of injury is enough, court is inclined not to distinguish what type ( Suton) e. Foreseeability some damage is enough, extent isn’t needed e.g. depression & suicide ( Corr) - Extent of damages a. Loss has to be quantifiable doesn’t matter the extent (Geothermal) - Existing physical states a. Take your victim as you find them NZ approach – pre ACC (Stephenson) applies to physical (Smith) or mental state (Page) or family/cultural setting (Akhtar) property (McColl) - Existing financial state a. Law applies to financial state (Alcoa) and are set on date of trial - Intervening events a. Too remote where 3rd parties are negligent in between ( Johns) -

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Ben Hardisty

Leaky Buildings Question: Give the legal background to the leaky building litigation in New Zealand and explain why claims by property owners against those responsible for designing, building or approving leaky buildings pose special problems for the law of torts in this country. Leaky buildings problems relate to the liability of building industry from individuals to owners including subsequent owners of negligently built buildings. The law for defective buildings differs greatly between jurisdictions but New Zealand’s approach is very liberal. Defective buildings are not like ordinary torts as the claim is due to the defective not the physical damage (Mount Albert). Paragraph 1: Is there a duty? (UK/Can & Aus/NZ) The first main case for defective buildings is Anns v Merton in England. This identified that builders owe a duty to subsequent owners of Houses as the building is unsafe on the grounds of “material, physical damage”. This was followed in New Zealand in Bowen and Mount Albert where this treated was treated as a physical damage claim. From this point the laws in different countries diverged. Anns was treated in different ways in the UK until Murphy finally abolished Anns and this stated that builders owe no duty to subsequent owners. The reasons were fears of “indefinitely transmissible warranties of quality” and the possible liability of manufacturers of chattel. They claimed that the danger to health arguments were really just about the defect and that ultimately it was a question for the legislature. However in Australia (Byran v Maloney) declined to follow Murphy for not being modern enough and allowing claims for purely economic loss. In Canada the Courts also did not follow Murphy but only allowed claims that were a danger to health not ‘mere shoddy workmanship.’ (Winnipeg Condo- La Forrest J) Similar to Australia before Murphy, in New Zealand Stieller extended Anns to claims for economic loss and then after Murphy the case Hamlin, still followed Stieller even though it went all the way to the UK Privy Council because the English Courts didn’t want to interfere with New Zealand law so it was held that there is a duty to subsequent owners in New Zealand. In Sunset Terraces which is the first of the leaky buildings cases. It was uncertain that whether the Stieller duty could still be owed to owners of residential properties on mass for investment purposes and whether the change for the 1990 Building Act to the 2004 Building Act would undermine the Stieller principles. However it was held that these distinctions were arbitrary and a duty was owed to subsequent owners of all residential properties including the council’s duty and their duty of inspection. Paragraph 2: What standard of duty is owed? Leaky building litigation is what standard is of care builders must uphold. In Murphy it was argued that nothing outside the contractual standards could be applied. In Winnipeg it was held that the standard was just at the point of safety however in New Zealand in Stieller it was stated that there was a standard of good quality workmanship and materials. In Spencer on Byron held that the standard was just up to the point upheld in the building code. Although in these two cases Woodcock and Rolls Royce were hesitant to undermine contractual ‘remedies?’ rule. Contraction may maintain a minimum requirement of the Building standards anyway as this is a reasonable requirement. This code focusses on health and safety therefore aesthetic complaints are not actionable as defective buildings claims. (Pilkington Glass) Paragraph 3: Commercial properties The next issue in New Zealand about leaky buildings is whether the Hamlin’s standards also apply to commercial properties. There was a fear of the floodgates opening however the building act s393 imposes a 10 year restriction on claims and although Councils are the party likely to be standing the costs are just distributed amongst ratepayers. So there is where New Zealand law differentiates from Australia so Woodcock refused a commercial claim due to the fact that commercial parties are less vulnerable with possible defences already available to them such as warranties. So the New Zealand courts followed this principle in Rolls Royce. No commercial claim was allowed due to the contractual contexts of sophisticated and equal parties and the courts hesitant to interfere with remedies already in place due to contract and this was followed by Te Mata properties and Queenstown Lakes. However the arbitraness of this distinction showed in Spencer on Byron about a leaky building that was 80% of the building was a hotel and on the top had a few residential apartment blocks. So that proved that drawing a line between commercial and residential standards was kind of pointless. Chambers J didn’t like the reasoning of Te Mata as flawed as they did not

Ben Hardisty carry the public interest of habitation over to commercial hotels. So the Court of Appeal said that it was mostly commercial so there is no claim however the Supreme Court allowed the claim and said the standard for all buildings is the Building code and if not met the subsequent owners can all lay a claim. The reasons for this is the distinction is not principled or part of the building code and that it is unfair to assumes that all commercial parties are invulnerable and all residential parties are vulnerable. The next issue is time limits. There are issues were limitations of a claim. So s4 of the Limitations Act which covers all tort claims from 2011 says that you have to claim in 6 years however s 393 of the Building Act 2004 stated that it was 10 years for building claims. The question is whether this is 10 years from the point of defective or 10 years from the damage or 10 years from the point of discovery. So Pirelli in the UK said that it was from the point that the damage occurs and can see how this is restrictive because if it is 10 years from the point where the building was built badly the actual issue cannot show up until 20 years down the line when it starts causing issues. So that is quite harsh whereas in Hamlin which is a New Zealand case they applied the reasoning of Todd from his article ‘Policy Issues and defective property’ and applied the reasoning that it should be from the point of financial damage which is the loss being claimed. As before it is known there is no financial harm to the defendant as of yet.This is supported by the 2003 case of Johnson which said that the 10 year period was from the point of the damage occurring. So the limitation is pretty uncertain. Chattels The question of whether there is a similar duty to subsequent owners of defective chattels in New Zealand. In general they are not actionable per NZ Food Group as some claims to house hold goods can be made under the CGA, s27. However for defective building materials and subsequent owners this was opened up in Carter Holt Harvey v Ministry o...