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LAW OF TORTS – 70311Week One + Two ReadingsIntroduction to the Law of Torts (Ch)1 The Genius of the Law of Torts  Torts are common law causes of action. As such, they are part of a body of law that develops and derives through judicial decisions rather than legislative enactments  The genius of th...

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LAW OF TORTS – 70311 Week One + Two Readings Introduction to the Law of Torts (Ch.1) 1.1 The Genius of the Law of Torts  Torts are common law causes of action. As such, they are part of a body of law that develops and derives through judicial decisions rather than legislative enactments  The genius of the common law of torts is therefore: a) To remain constant – developing from ‘ancient’ common law principles b) To develop constantly – torts constantly evolve to meet changing social conditions This dual role of torts – to be constant and yet constantly change – is described by McHugh J in Perre v Apand Pty Ltd (1999) 198 CLR 180 at 215: Law is one of the most important means by which a Western society remains socially cohesive while encouraging the autonomy of its individual members and the achieving of its social, political and economic goals. But the effectiveness of law as a social instrument is seriously diminished when legal practitioners believe they cannot confidently advise what the law is or how it applies to the diverse situations of everyday life or when the courts of justice are made effectively inaccessible by the cost of litigation. When legal practitioners are unable to predict the outcome of cases with a high degree of probability, the choice for litigants is to abandon or compromise their claims or defences or to expose themselves to the great expense and unpredictable risks of litigation. And, in relation to adaptability: In many areas of law, Judges cannot realistically ignore the past or change legal rules. This is the case with constitutional law and statutes. In those areas the doctrine of separation of powers requires that judges be faithful to the past decisions of legislators and the makers of the Constitution. But in the area of judge-made law, the duty of judges to be faithful to the past is weaker. While stare decisis is a sound policy because it promotes predictability of judicial decision and facilitates the giving of advice, it should not always trump the need for desirable change in the law. In developing the common law, judges must necessarily look to the present and to the future as well as to the past. (at 216)  The law of torts reflects stability as judicial decisions made centuries ago are still being applied as precedent today  The civil liability legislation operates variously to supplement the common law, or to replace the common law or to amend the ongoing application of common law 1.1.1 Examples of Constancy in the Common Law  Scott v Shepherd, a defendant was held liable for throwing an exploding firework that resulted in the plaintiff losing an eye. The principle of this case, that a plaintiff may sue for trespass which is a direct result of a defendant’s action, still operates to protect the 21st century person from unwanted contact 1.1.2 Examples of Adaptability of the Common Law  The development of negligence illustrates an incredible facility to adapt to changing notions of justice and social policy. Negligence allows recovery for damage caused through fault

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This tort with its many ‘distinct species of negligence’ (Gummow J in Hill v Van Erp (1997) 188 CLR 159) 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?  The word ‘tort’ means a ‘wrongful’ or ‘illegal’ act. It is the law of torts which determines when an individual has committed a civil wrong  Developments in the law of torts will be influenced by politics, the economy and social mores, and will also be influenced to fill in gaps in the law of contracts, as noted in Hill v Van Erp (1997) where Gummow J observes ‘the law of torts may, in appropriate circumstances, fill what otherwise are perceived to be “gaps” in what should be one coherent system of law.’  While there is no unanimity as to whether tort law is a coherent body of law, it is accurate to observe that the law of torts is about ‘compensating those who are wrongfully injured’. 1.2 The ‘Concerns’ of the Law of Torts 1.2.1 Compensation  Compensation is the primary justification for tortious liability.  Compensation therefore aims to provide a sum of money which, as far as money can do, will put the injured party in the same position they would have been in but for the wrong which was committed  Notions of ‘fault’ and ‘fairness’ are bound into an assessment of compensation. In relation to ‘fault’, Gummow J states in Perre v Apand Pty Ltd (1999) 198 CLR 180, that fault is the basis of the law of negligence and, in the same case, McHugh J states: Negligence at common law is still a fault-based system. It would offend current community standards to impose liability on a defendant for acts or omissions which he or she could not apprehend would damage the interes of another (at 230)  In relation to ‘fairness’ in Perre v Apand McHugh J refers to tort law as an ‘instrument of corrective justice’ (at 220) meaning that the law of torts requires those who have harmed others to correct their actions  ‘corrective justice’ is the concept of one party being at fault and being morally bound to compensate the victim. 1.2.2 Deterrence  This concern of the law of torts is to send a message to society at large that people should not act in harmful ways. The social goal is to prevent wrongdoing before harm is inflicted rather than just shifting the losses when they occur  For example, a central principle in the tort of negligence is that from Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580: ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’. 1.2.3 Loss Spreading  If compensation is denied to plaintiffs though the tort system, the costs they incur through their injuries or damage do not disappear; those costs are instead borne by the plaintiff, the plaintiffs family or, more often, the community as a whole through the welfare system.

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On the other hand, if a tortious cause of action is made out, the law of torts shifts the loss from the victim to the perpetrator Today, tort law and insurance are intimately linked. Insurance may determine whether a matter is pursued in court, who defends the claim and how much the plaintiff may ultimately recover.

1.3 The Limits of the Policy of the Law of Torts 1.3.1 The law of torts creates unfair and unequal treatment  First, the unfairness and inequality of the law of torts lie in a failure to take monetary inequality between the parties into account. Indeed, one of the most famous tort cases, Donoghue v Stevenson, was only made possible through the legal profession assisting Mrs Donoghue (a pauper) to bring her cause of action  Secondly, the ability of a plaintiff to receive compensation is entirely dependent on establishing fault by the alleged wrongdoer 1.3.2 The ability to balance needs according to society’s expectations 1.4 The Current Challenges Facing the Law of Torts 1.5 Universal Compensation Schemes 1.6 Motor Accident Compensation 1.7 Workers Compensation 1.8 Criminal Injuries Compensation 1.9 Civil Liability Legislation  Statute is increasingly encroaching upon the common law  The most recent and most important example of such incursion in Australia into the common law of torts is that of the reform legislation which has been introduced in every jurisdiction following the Review of the Law of Negligence 2002 (the IPP Report)  The IPP Report made recommendations aiming to redress this perceived imbalance at common law by swinging the pendulum of the balance of interest back to the defendant. The resulting legislation which was introduced across Australia is however non-uniform and more extremely weighted in favour of the defendant that the IPP Report recommended. Indeed, Justice Ipp, who chaired the review, in a speech to the insurance industry in May 2007, labelled the compensation laws which had been introduced as a result of the civil liability legislation as ‘inconsistent, unbalanced and unfair to injured people’. The President of the Law Council of Australia states that due to the civil liability legislation: Three very important functions of negligence law have been extremely diluted: - Fair and just compensation for people injured through fault has become, in many instances, a thing of the past - Individuals and organisations no longer have the same tort law deterrence for employing poor safety and risk management practices - Personal responsibility among wrongdoers has been diminished

The Nature of Intentional Torts (Ch. 2) 2.1 Introduction  The so-called ‘intentional torts’ exist to protect an individual’s person or property rights from unwanted interference by others. They include the ‘trespass’ torts as well as several other torts such as detinue and conversion.  These torts provide remedies in many situations, including the human rights abuses, sexual abuse, violence, unauthorised medical procedures and more.  The trespass torts have an important role to play in our society in providing a remedy to individual citizens for infringement of civil liberties and the excessive use of executive power by the state.  In Bulsey v Queensland [2015] QCA 187, a case where a citizen successfully sued the Queensland police for the torts of false imprisonment, assault and battery, McMeekin Ja held: The executive, through the police, wield enormous power. It is essential that that power be used within the confines of the law. It is important that the courts acknowledge fully the hurt that can be done when the power is misused 2.2 Development of the Intentional Torts: What is the Difference between Trespass and Case?  Writs were forms of action giving individuals the right to pursue legal remedies through the courts  The basis of the modern law of torts in Australia stems from the writ system  The modern law of torts is the product of two principal historic writs: (1) The writ of trespass (‘trespass’) (2) The write of trespass on the case (‘case’) The relevant historical differences between the two forms of action were: (a) Proof of Damage Case: It was necessary for the plaintiff to prove physical injury or property damage – damage was the ‘gist of the action’ Trespass: Was actionable ‘per se’ (by itself). It was not necessary for the plaintiff to prove any damage (b) The nature of interference Case: Based on indirect or consequential interference Trespass: Based on direct interference (c) Onus of proof Case: The plaintiff bears the burden to prove all elements of the claim including the defendant’s fault (actions and intention) Trespass: The plaintiff bears the burden to prove the facts which constitute the trespass but not the fault of the defendant. The onus is on the defendant to prove lack of fault. Trespass protects a plaintiff from direct interference; case protects a plaintiff from indirect interference. As Fortescue CJ in Reynolds v Clarke (1725) explains: The difference between trespass and case is, that in trespass the plaintiff complains of an immediate wrong, and in case, of a wrong that is the consequence of another act. The classic illustration of the difference between a trespass (direct interference) and case (indirect interference) is found in the following passage from Reynolds:

If a man throws a log into the highway and in that act it hits me; I may maintain trespass, because it is an immediate wrong; but if as it lies there I tumble over it, and receive an injury I must bring an action upon the case. In terms of policy, the law of trespass aims to prevent people from intentionally interfering with others. On the other hand, actions on the case are based on indirect interference and it is the damage which the law aims to compensate 2.3 Elements of the Torts Derived from the Action for Trespass  The trespass torts comprise Trespass to Person (being Battery, Assault and False Imprisonment), Trespass to Land and Trespass to Goods  The elements are that the defendant’s intentional (or reckless or negligent) act directly caused an interference with the plaintiff’s person, goods or land. 2.3.1 Intentional, reckless or negligent act: fault Ruddock v Tatlor (2005) 222 CLR 612 Kirby J: Wrongful imprisonment is a tort of strict liability. Lack of fault, in the sense of absence of bad faith, is irrelevant to the existence of the wrong. This is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant. A plaintiff who proves his or her imprisonment was cause by the defendant therefore has a prima facie case. At common law it is the defendant who must then show lawful justification for his or her actions.  The concept of ‘fault’ that Kirby J describes is moral blameworthiness.  Trespass to person torts are forms of strict liability in the sense that there is no requirement for moral blameworthiness or ill-will on the part of the defendant  ‘Fault’ is an essential element in trespass. If the act is deliberate or reckless or negligent, this element will be established  This distinction between a wrongful wilful or negligent act and one which is done without fault is illustrated in Stanley v Powell [1891], where the defendant to an action of trespass was with a shooting party. He shot at a pheasant and the shot glanced off a tree and hit the defendant in the eye. The court held that the injury was accidental, pointing out that while an accident may lead to trespass, in this case there was no negligence or lack of due caution.  In Weaver v Ward (1616), the defendant shot the plaintiff unintentionally when exercising in a trained band with live ammunition. The defendant was found liable, as the court stated: ‘No man shall be excused of trespass… except that it may be judged utterly without his fault’.  There is no need for intent by the defendant to cause actual harm but the act causing the interference with the plaintiff must be deliberate, reckless or negligent.  In McNamara v Duncan (1971) the court held the defendant liable in trespass even though the court did not consider that the defendant intended to harm the plaintiff. Fox J stated: I have come to the conclusion that the striking of the plaintiff by the defendant was intentional; he meant to do it. I do not suggest that he meant to incapacitate or indeed to cause him any serious injury  Recklessness is where the consequences of the defendant’s acts are not certain but the defendant is so indifferent to the consequences of his or her acts that the result must have been or should have been foreseen.

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In order to determine whether an individual has been negligent, reference must be made to what the reasonable person would have done in the same situation (McHale v Watson (1966)) In Australia, the case of Williams v Milotin (1957) 97 CLR 465 established that trespass to person by battery may be committed by a negligent act. The NSW Court of Appeal has held that negligent conduct could satisfy the elemetns of the tort of assault, another trespass to person tort. The case was NSW v McMaster [2015] NSWCA 228 where Beazley P held: If ‘unlawful’ as it appears in s 52 is understood to include the conduct which is merely tortious, the question arises whether [the plaintiff’s] conduct amounted to a trespass against the person, namely a civil assault. That tort is, for the relevant purposes, made out where an act of a person causes another person to reasonably apprehend a threat of force or violence. Commentary in Halsbury’s Laws of Australia states that there appears to be no decision where a negligent act has been relied upon as an assault. However, there is authority that a defendant will not be liable in trespass to the person unless the act was either intentional or negligent: see Venning v Chin (1974) in which Bray CJ accepted that the law had been so settled. On the assumption that these authorities are good law, the State’s submission that [the plaintiff] was committing a civil assault at the time he was shot should be accepted. The constable…said…she ‘thought [the plaintiff] was about to assault myself or somebody.’ In the context of the facts…there is no question that this apprehension of violence was reasonable. [The plaintiff]… was at the very least negligent in the manner in which he conducted himself that created the apprehension of violence. It follows that s 52 applies also on the basis of [the plaintiff’s] commission of a tort that was, for relevant purposes unlawful.

2.3.1.2 Negligent trespass and the tort of negligence  The case of Williams v Milotin (1957) and the availability of an action for negligent trespass to person is settled law in Australia. Where the circumstances of a case would satisfy the elements of a cause of action in trespass as well as a cause of action in negligence, a plaintiff may sue in either or both torts. 2.3.2 Directness  A trespass will lie when the defendant’s act directly causes contact with the plaintiff’s person, goods or land.  In Hutchins v Maughan [1947], it was held that the element of directness is satisfied where the contact ‘follows so immediately upon the act of the defendant that it may be termed part of that act’. 2.3.2.1 Immediacy  Illustrated in Reynolds v Clarke (1725) – the log on the road case 2.3.2.2 Continuation of the defendant’s act: ‘no new power’  Directness does not require personal physical contact between the plaintiff and defendant. For trespass to occur, the defendant’s act must set in motion an unbroken sequence of events which results in the interference complained of by the plaintiff 2.3.2.3 No intervening event  Clearly, the finding that the defendant had committed a trespass in Scott v Shepherd (1773) was assisted by the immediacy of the actions of the people in the marketplace

who threw the fireworks on – their acts were extensions of the act of the defendant. It is then logical that where there had been an intervening event, the issue of directness is removed. 2.3.3 Loss or damage  A plaintiff who is able to establish the elements of a trespass but who has not suffered physical injury or property damage may be given judgment against the trespasser – damages awarded = nominal  Damages for trespass to the person may be awarded not only in respect of physical injury but also in respect of insult, injury to feelings, indignity, disgrace and mental suffering which may have occurred  Where personal injury results from the trespass, compensatory damages are awarded. In torts such as trespass to the person, where damage or injury may be to a person’s dignity or bodily integrity, damages may be awarded to compensate for injured feelings (aggravated damages) or by way of punishment where the defendant’s behaviour is contemptuous (exemplary damages)  Exemplary Damages are awarded by way of penalty as ‘punishment to the guilty, to deter from any such proceedings for the future, and as proof of the detestation to the jury of the action itself’ (Henry v Thompson [1989]. It is only punitive or exemplary damages that may be reduced due to a plaintiff’s conduct. Compensatory damages are not mitigated by the plaintiff’s conduct.  Aggravated Damages are awarded as compensation for a plaintiff’s injured feelings 2.3.4 Onus of proof  In trespass torts, the onus is on the plaintiff to prove the facts that constitute the elements of the trespass. However once the plaintiff has established the facts of the trespassory act – the contact in battery, the apprehension of imminent contact in assault, the loss of liberty in false imprisonment – the onus of proof then shifts to the defendant who will need to disprove fault in order to avoid liability by establishing that the trespass was not intentional. 2.3.4.1 Onus of proof in negligent trespass cases  In McHale v Watson (1964), Windeyer J held that in an action for trespass to person by battery as a result of a negligent act, the onus of proof of absence of fault rested on the defendant  In an action for trespass, the plaintiff must prove only the trespassory act of the defendant and direct interference with the plaintiff’s person. The burden of proof then shift...