Torts. Introduction and Overview of Alternative Compensation Schemes

Transcription

1 Torts Introduction and Overview of Alternative Compensation Schemes What is a tort? - Miscellaneous, unconnected group of civil wrongs, other than breach of contract, for which court of law will afford remedy in form of action for damages (remedy, injunctions) (W Prosser, Handbook of the Law of Torts, 2 nd ed. 1955, p. 1) - Wrongs Act 1958 (Vic) binding - Common law = case law o Aus o Other CL jurisdictions persuasive authority (UK, NZ, Canada) - Owe one another an obligation Interests protected by tort law - Physical integrity freedom from physical injury - Psychological well-being freedom from psychiatric harm - Freedom of movement personal space - Property land, houses - Reputation consumer vs competition - Economic interests personal belongings, theft, assault etc - Protection not absolute interests of defendant need to be protected as well Differences between tort and crime Criminal Law Tort Law Protected Interests Societal Private Proceedings initiated by State Private individual Aim of proceedings Punishment and deterrence (geared towards preventing recidivism) Court order Criminal penalty Damages Compensation (geared towards person getting compensation) Onus of proof Beyond reasonable doubt Balance of probabilities Differences between contract and tort Tort Duties Owed to the whole world Imposed by law Contractual Duties Owed to other contracting party Agreed upon by parties - Concurrent liability o Arise both in contract and tort out of same facts Hawkins v Clayton (1988) 164 CLR 539 o If so, content of duty in tort may be affected by contractual agreement between P and D 1

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3 Classification of Tort Actions 1. Trespass direct interference with person/property oldest form of torts protected interests a. Personal integrity and freedom i. Assault ii. Battery iii. False imprisonment b. Movable property (chattels) i. Trespass to goods c. Land i. Trespass to land 2. (Private) Nuisance indirect interference with use and enjoyment of land 3. Proprietary torts a. Conversion b. Detinue 4. Negligence liability for breach of duty to take reasonable care most pervasive 5. Liability for breach of public and statutory duty a. Public nuisance b. Breach of statutory duties 6. Torts involving misrepresentation a. Deceit b. Innocent misrepresentation c. Defamation d. Injurious false hood e. Passing off 7. Torts protecting against intentionally causing damage to economic and other interests a. Interference with contractual relations b. Conspiracy c. Intimidation d. Malicious prosecution 8. Other torts Functions of Law of Torts - Glanville Williams 4 possible purposes of action for damages in tort: o Appeasement concern with how one may feel puts ones mind at ease o Justice doing what s right, showing what s right/wrong, undo wrong in legal process o Deterrence ensure one are put off from doing harm o Compensation - Other aims of torts law: o Loss Spreading shift law on person who caused harm o Prevention intentional wrong ex, accident - Other ways of describing: o Complex set of ethical principles of personal responsibility (and freedom) concerning how people may, ought, or ought not to behave in dealings with others 3

4 o Defines and protects private rights and redresses infringements of those rights by awarding damages - Vindication protecting rights Remedies for Torts - Damages (standard remedy) o Compensatory damages o Aggravated damages causing harm defamation o Nominal damages minimal amount D interfered with right but no loss suffered ex, trespass o Restitutionary damages what has D gained when committing wrong return to P o Exemplary damages not what plaintiff has lost but what s needed to send message to D - Injunction return something - Declaration declare right Terminology - Damage: actual harm or loss suffered by plaintiff as result of infringement of her/his rights - Damages: monetary sum awarded by the court to the plaintiff to compensate him/her for violation of rights 4

5 Fault Based Liability - Shifting of loss through law of torts depends on fault - Contact due to inevitable accident, excusable, not liable o Show: not merely no negligence but o Interference due to occurrence which D had no control and couldn't have avoided by greatest care and skill - Fault: (act in a way that one shouldn't have acted) o Intention (mind is set) action in trespass o Negligence action in negligence - Conceptual and philosophical base in notions of individual responsibility and autonomy - Liability imposed regardless of fault strict liability o Liability = consequence Identifying bad conduct based on fault shouldn't ve Interest of victim Bad luck on D Williams v Milotin [1957] HCA 83 - If D intended to strike action bought in trespass - Only negligence relied - Had damage caused indirectly/immediately by D action bought as action on case - In action of negligence for personal injuries includes: o Special/particular damage o Want of due care - Trespass to person includes: o Direct violation of protection which law throws round person o In absence of intention of some kind/want of due care 5

6 Onus of Proof Fowler v Lanning [1959] 1 QB Whether necessary for P to prove D negligent - Whether D in trespass action bore onus of proving P s injuries not due to negligence - Held: o Onus of proving negligence, where trespass not intentional, rested on plaintiff, whether action framed in trespass or negligence McHale v Watson [1964] HCA 64 - Is it for P to establish missile with which she was hit was thrown with intent to hit her or negligently or for D who threw it to prove absence of intent and negligence on his part - Held: latter view o Quoted from Weaver v Ward (1616) Hob 134 No man shall be excused of trespass except it be adjudged utterly without his fault Utterly without his fault not an absence of all ground for blame and censure of any kind but absence of such negligence as constitutes fault in law Letang v Cooper [1965] 1 QB 232 (CA) - Held: o If one intentionally applies force to another, P has cause of action in assault and battery o If inflict unintentionally, P no cause of action Only cause of action: negligence only on proof of want of reasonable care o If negligently, caused damage tort of negligence o If P cant prove want of reasonable care no cause of action o Must allege did it intentionally or negligently Platt v Nutt (1988) 12 NSWLR 231 (CA) - Argued above adopted Murray v McMurchy - Intention: intention to do act that amounts to direct interference with another s person, land or goods - Motive that prompts D to do act, however well-meaning, wont prevent it from being a trespass Gibbons v Pepper (1695) 1 Ld Raym 38 - Distinction between intention and involuntariness - If A takes hand of B and with it strikes C, A is trespasser, not B Morris v Marsden [1952] 1 All ER Consider circumstances where mental illness can be defence to action for trespass - If person in condition of complete automatism inflicted injury not actionable o Ex, if sleepwalker inadvertently, without intention/without carelessness, broke vase not actionable 6

7 - Knowledge of wrongdoing is immaterial and where there s capacity to know nature and quality of act sufficient although mind directing hand that did wrong was diseased Criticism of Fault-Based Compensation Systems - Fault-based compensation for injuries lead to arbitrary results because 1. Fault not always sufficient to allow shifting of loss a. Legal responsibility doesn't always coincide with moral blame b. Degree of fault can be out of proportion to loss c. Ability to pay not taken into account 2. Fault not always necessary to justify shifting of loss a. Victim may need of compensation also when no one was at fault b. Proof of fault can be difficult and lack of proof does prevent recovery c. Insurance bear loss Impact of Insurance - First party insurance (indemnity insurance): o Indemnifies insured for loss without ref to tort system o Insurer has right to pursue insured s rights against tortfeasor right to subrogation o (Home insurance, life insurance) - Third party insurance (liability insurance): o Indemnifies insured against all sums that insured becomes liable to pay as damages to 3 rd persons o Subrogation enables insurer claim contribution/indemnity form other persons involved - Availability and presence of insurance undermines system of liability based on fault (individual responsibility) o Courts don't follow consistent policy as to what extent presence of insurance should be recognised Statutory No Fault Compensation Schemes - Alternative to fault based liability - Comprehensive system for personal injuries - Systems for certain injuries o Workplace Accidents (all states) o Transport Accidences (Vic, Tas, NT) o Criminal Injuries Compensation (all states) o National Disability Insurance Scheme Victorian No Fault Compensation Schemes - Transport Accident Act Workplace Injury Rehabilitation and Compensation Act Victims of Crime Assistance Act Advantages: o No need to prove fault o Cheaper to administer - Problems: o Definition of scope o Relationship with common law remedies 7

8 o Reduced deterrent effect o Funding/economic restrictions 8

9 Trespass False Imprisonment and Trespass to Land Trespass vs Negligence Elements of cause of action: Defences include: Trespass 1. Direct interference with protected interest (body, liberty, land) 2. Only in highway cases : Absence of fault Absence of fault (except highway cases) similar to strict liability tort Negligence 1. Duty of care legal relationship 2. Breach of duty (=carelessness (not doing the things that a reasonable person would ve done) acting in a way that one shouldn't ve 3. Causation of damage Contributory negligence partial share burden Consent Voluntary assumption of risk - Highway torts battery traffic accident caused fault is the P Actionable per se - Without proof of damage - V of trespass, not sustained substantial harm can be vindicated by judgement against trespasser Fogg v McKnight [1968] NZLR Even if no substantial harm compensatory damages take account circumstances o Such as: insult arising from interference with person and injury to feelings indignity, mental suffering, disgrace, humiliation caused 9

10 Trespass to the Person - Direct interference (not mere consequence) with a person through voluntary (acts that one has control over) and positive (intentional) act Scott v Shepherd (1773) 2 Wm Bl Injury immediate action of trespass lie - If consequential action on case Hutchins v Maughan [1947] VLR Whether injury complainant suffered in loss of dogs were: o Immediate directly occasioned by D s act in laying baits OR o Consequential Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182 (CA) - Oil discharged from tanker stranded in etuary an carried by tide to P s foreshore not trespass to land - Oil not discharged directly on to foreshore but was carried by tide interference consequential - Omission to act is not sufficient for torts - Nature of interference determines which action applicable: 1. Battery: actual physical contact 2. Assault: threat of physical contract 3. False imprisonment: deprivation of liberty - Trespass would be obvious not vague needs to be DIRECT unwelcome must be intentional commit act 10

11 False imprisonment Myer Stores Ltd v Soo - Action: mere imprisonment - P carries burden of establishing no more than imprisonment o Need not prove unlawful o If imprisonment proved D to prove lawful justification for imprisonment at CL or statute if to escape liability - Right to be free from interference with person and liberty most elementary and important of all CL rights o Trobridge v Hardy (1955) 94 CLR 147 Ruddock v Taylor (2005) 222 CLR Emphasised function of false imprisonment in protecting individual from unauthorised executive detention - Tort reflects protecting individual liberty and freedom of movement - Executive may not interfere with liberty of individual without valid authorisation - In absence of statutory provisions that afford immunity/defence to administrator result favour individual whose rights violated o Brockhill, Cowell - Lack of fault, in absence of bad faith, irrelevant to existence of wrong Marshall v Watson (1972) 124 CLR Positive act by defendant that directly deprives P totally of his/her liberty without lawful justification 11

12 Elements: 1. Positive act directly causes total deprivation of liberty If there s means of getting out partial restraint not total Bird v Jones (1845) 7 QB 742, 115 ER 668 (Held: it must deprive P totally of freedom of movement not partial obstruction of his will, not merely because of inconvenience) a. Application of physical power no reasonable means of egress or escape (look at McFadzean v CFMEU) OR R v Garrett (1988) SASR 392 Threat doesn't have to be physical Sufficient if D restraints liberty of person against his will by Threats of immediate physical force to safety Immediate intimidating conduct intended to bring about that result b. Psychological coercion complete submission to D s power Symes v. Mahon [1922] SASR 447(ex, Police has power over normal citizens) If evaded, refused to go with other party couldn't be said deprived of freedom Intention to submit c. Availability of police assistance i. Where release can be secured through police assistance, confinement end with release through police ii. Where victim doesn't call police out of embarrassment/fear, confinement continue so long as against will No reduction in damages McFadzean v CFMEU (2007) 20 VR 250 Issue matter of principle Depend on purpose of which imprisonment happen Damage: when in prison psychological, economic, Consequences of being confined General damage don't need to prove loss presumed If v confined without physical means of egress v may be able to call for police assistance o If police answer call and procure v s release imprisonment end Calling police to intervene not reasonable means of egress Whether a means of egress is reasonable: o Threat or danger to self o Threat or danger to property (including property of others) o Distance and time o Legality Not sufficient that act of D contributed to/influenced P s decision to remain o To be actionable D s conduct must overborne P s will d. Relevance of Contractual Relationship between parties No false imprisonment if restriction of liberty is in compliance with contract: 12

13 The Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 active restraint o If P aware terms, will be held to have agreed o If been stranger never before on premises sufficient for D to prove done what was reasonably sufficient to give P notice of conditions of admittance Parker v South Easter Railyway Co (1877) 2 CPD 416 o Prima facie any restraint of person s liberty without consent is actionable But when restraint referable to terms on which person entered premises which he complains he was imprisoned Examine terms before determining imprisonment actionable o Private property No one had right to enter without company s permission Could impose on members of public any terms thought fit as condition of entering/leaving premises Herd v Weardale Steel Coke & Cole Co [1915] AC 67 omission, no duty o If man chooses to go into dangerous place at bottom of quarry/mine cant escape doesn't follow that he can compel owner to bring up out of it Owner may/may not be under duty arising from circumstances o If man enters train, doors locked ending arrival at destination not entitled to call for doors to be opened to let him out Entered train on terms that he s to be conveyed to certain station without opportunity of getting out Abide by terms o Man chose to go to bottom of mine under conditions which he accepted No right to call upon employers to bring him to surface when he pleases e. Knowledge of restraint not necessary State of SA v Lampard-Trevorrow [2010] SASC 56 P not aware of restraint/not physically able to exercise freedom of movement doesn't mean wrongful imprisonment cant be made out Doesn t mean no decisive Not incapable of opposing or consenting to placement Not incapable of exercising freedom of movement Louis v The Commonwealth o P deported from HK to Aus against their wishes At liberty to leave Aus Provided could find money to pay relevant fare Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 Person can be imprisoned while: - imprisonment began and ceased in that state o Asleep 13

14 o State of drunkenness o Unconscious o Lunatic f. Directness Often relevant where act of D leads to arrest/detention effected by police/public officer D will be (jointly) liable where D is Myer Stores Ltd v Soo [1991] 2 VR 597 o Active in promoting and causing imprisonment o Not passive role of bystander o Joint tortfeasor Vicariously liable o P suffered serious wrong and a significant insult o P attendance at police station voluntary Not imprisonment Causes and procures (make someone else do something) arrest o Coles Myer Ltd v Wesbter [2009] NSWCA 299 But not where D merely gives info and arrest/detention is result of officer s independent assessment of D s complaint and situation Defences: 1. Absence of fault (intention or negligence) 2. Other defences including: a. Consent b. Legal authority Interference with Land - Possible torts include: o Trespass o Nuisance o Negligence - Remedies include: o Damages o Injunction o Declaration 14

15 Trespass to Land - Committed by directly and intentionally (negligently) entering or remaining on, or causing some object to come into contact with, land in possession of another, without consent of person in possession or other legal justification or excuse Interests Protected by Trespass to Land - Interest in exclusive possession from uninvited physical intrusion - Incidental interests: o Privacy o Civil liberties Against neighbours, state NSW v Ibbett [2006] HCA 57 - Police entering without lawful justification trespass to land - Protects interest of P in maintaining right to o Exclusive possession of place or residence o Free from uninvited physical intrusion by strangers - Not concern of law to protect title in sense of ownership George v Rockett (1990) 170 CLR Search Warrant o Authorises invasion of premises without consent of persons in lawful possession/occupation o Validity depend on fulfilment of conditions o Facilitate gathering of evidence against, apprehension and conviction of, those who broke the law What Constitutes a Trespass? - Positive act causing direct interference with another s possession of land without lawful justification 1. Slightest crossing of boundary is sufficient o Examples of interferences: Entering onto land Remaining on land Placing or leaving a material object on land If trespasser merely damages land/remoces something from it/alters character o Damages recovered once only o Clegg v Dearden o Holmes v Wilson 2. Interference needs to be direct not consequential o Southport Corporation v Esso Petroleum [1954] 2 QB 182 (CA) 3. Trespass is a continuous wrong o Where, after trespassor entry, person (or object of that person) continues to remain on the land a continuing trespass is committed 15

16 o Konskier v B Goodman Ltd [1928] 1 KB 421 Bound to remove rubbish when work finished If didn t remove in reasonable time could not and cannot contend rubbish was lawfully there Examples Mayfair Ltd v Pears - Park car on P s land without permission Gizzard v Hutchesson - Cut branches off tree on P s land whether or not one enters land Hogan v A G Wright Pty Ltd - Operate bulldozer to break P s fence Watson v Cowen - Cause earth to fall on P s building League Against Cruel Sports Ltd v Scott - Allow one s animals to enter P s land Johnson v Buchanan - S 29 Domestic Animal Act 1994 (Vic) o Offence by dog owner for dog to bite and injure person - Defence: if incidence occurred b/c person trespassing where dog kept - Intrusion of arm trespass What is Land? Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380 (SC) - Old Maxim: o Whoever has the land also has the sky above it and the depths below imperfect guide Surface of land things attached to it and growing on surface Strata below surface minerals unless there has been alienation of it Airspace above surface Protection of Airspace Above Land Bernstein v Skyviews & General Ltd [1977] 3 WLR Rights of owner in airspace above his head [limited] to such heights as is necessary for ordinary use and enjoyment of his land and structures on it Graham v K D Morris & Sons Pty Ltd - Injunction granted to restrain invasion of airspace by jib of crane - Trespass not mere nuisance 16

17 - Overhanging crane o Unsightly feature of land o Cause of nervousness and apprehension o Interferes with part of airspace above her land requisite for proper use and enjoyment of land LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR Relevant test is whether incursion was at such height that it may interfere with any ordinary uses of land which plaintiff may see fit to undertake o Not actual use of land Wrongs Act (Vic) 1958: 30. Limitation of liability for trespass or nuisance by flying over property No action shall lie in respect of trespass or nuisance by reason only of the flight of an aircraft over any property at a height above the ground which having regard to the wind the weather and all the circumstances is reasonable, or the ordinary incidents of such flight, so long as the provisions of the Air Navigation Regulations are duly complied with. 31. Liability for damage by aircraft or articles falling therefrom (1) Where material loss or damage is caused to any person or property on land or water by or by a person in or by an article or person falling from an aircraft while in flight taking off or landing then, unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered, damages in respect of the loss or damage shall be recoverable from the owner of the aircraft without proof of negligence or intention or other cause of action as if the loss or damage had been caused by the wilful act neglect or default of the owner: Provided that where material loss or damage is caused as aforesaid in circumstances in which (a) damages in respect of the said loss or damage are recoverable from the owner by virtue only of the foregoing provisions of this subsection; and (b) a legal liability is created in some person other than the owner to pay damages in respect of the said loss or damage the owner shall be entitled to be indemnified by that other person against any claim in respect of the said loss or damage. (2) Where the aircraft concerned has been bona fide demised chartered let or hired out for a period exceeding fourteen days to any other person by the owner thereof and no pilot commander navigator or operative member of the crew of the aircraft is in the employment of the owner the last preceding subsection shall have effect as if for references therein to the owner there were substituted references to the person to whom the aircraft has been so demised chartered let or hired out. - Damage by Airraft Act 1999 (Cth) s 10 17

18 Plaintiff s Standing to Sue - Plaintiff must: o Be entitled to exclusive possession possession to exclusion of others Eg: as owner or tenant OR Tenant can sue landlord Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd Concrete Constructions (NSW) Ltd v Builders Labourers Federation Builders of commercial building had exclusive possession of building site Could sue in trespass trade union officials who entered without permission o Have actual/constructive possession, even if without consent of owner Newington v Windeyer (1985) 3 NSWLR 555 Respondents not owners of registered title Person in possession of land adverse to the true owner has legal interest in land Perry v Clissold But possession isn t sufficient against someone with a better right to possession Defences in Intentional Torts - When P establishes prima facie case, action fail if D successfully rely on justification or excuse for her/his action - Important defences: o Consent o Self-defence/defence of others o Necessity o Legal (statutory) authority - Not a defence in intentional torts are: o Contributory negligence o Provocation 18