Included in the notes: 1. Flowchart, 2. 7-page quick access guide for exams, 3. All content through semester

Transcription

1 Included in the notes: 1. Flowchart, 2. 7-page quick access guide for exams, 3. All content through semester TOPIC LIST: Intro: Common law of tort, Trespass to Person: Assault, Battery & False Imprisonment Elements of battery, assault, false imprisonment Onus of proof, battery Cases for battery Cases for assault, conditional threats False imprisonment Trespass torts Law of torts Trespass to land, Defences to intentional torts (Self-defence; Defence of Another; Consent; Necessity), Cause of action for indirect injury Overview of defences, action on the case and trespass to land cases defences CLA on self defence Consent Necessity, provocation, cases for defences Action on the case for indirect injury (Wilkinson v Downton) Cases for indirect injury SLM 1: Nuisance Private nuisance: title to sue, what is protected, what is nuisance, is the interference substantial Public nuisance, defences: prescription Consent, fault, statutory authorization, remedies Intro to negligence: Duty of care & role of public policy, Legal Ethics: Advocates Immunity; Lawyers and Negligence: the duty to the client Established duties, how to find duty of care otherwise Salient features P v A approach Advocates immunity Introduction to negligence, reasonable foreseeability Salient features Atypical plaintiff Negligence I: Breach of duty of care: tort law reform, reasonable foreseeable & not insignificant risks, calculus of negligence, standard of care for professionals Overview of establishing breach, what is reasonably foreseeable Cases for breach CLA provisions, 5B 50 & 5P Breach, children and the elderly Special skills, professional responsibility Reasonable foreseeability Calculus of negligence Negligence II: Proof & Causation: scope of liability but for test, intervening causation, standard of proof, res ipsa loquitur Res ipsa loquitur, cases for causation CLA 5D Causation But for test and application Novus actus, voluntary and coincidence Material cause, Strong v Woolworths Increase in risk

2 Negligence III: Scope of Liability: Remoteness of damage, egg shell skull rule Wagonmound reasonable foreseeability Egg shell skull rule Negligence IV: Defences for negligence torts: contributory negligence, voluntary assumption of risk, civil liability act defences (dangerous recreational activities, obvious & inherent risks, risk warnings) Overview of all Relevant CLA provisions Cases for defences Contributory negligence and cases, how to prove it Intoxication and CLA provisions Voluntary assumption of risk Obvious risks, inherent risks, recreational activities Falvo and Fallas Good Samaritans, volunteers, criminals, food donors Negligence V: Categories of duty of care: atypical plaintiffs/manufacturers/employers/motorists, unborn children, mental harm/psychiatric injury CLA 3, rescuers/occupiers Atypical plaintiff Unborn child duty of care Wrongful birth CLA provisions, wrongful life Product liability, psychiatric illness Tame and Annetts CLA for mental harm Requirements for pure mental harm Occupier s liability and cases Duties to control third parties, employer duty to employees Employer cases Negligence VI: Pure economic loss: negligent misstatement, negligent acts causing pure economic loss, proportionate liability Policy considerations Negligent misstatement cases Negligent acts Perre v Apand Defective structures Negligence VII: Statutory authorities and omissions: liability of statutory authorities in negligence, part 5 CLA, omissions CLA and policy for statutory authorities Pyrenees, cases Relevant considerations Road authorities, special statutory power Omissions, duty to control third parties Land owners, duty to control children Duty to rescue Negligence VIII: Strict Liability; Multiple defendants: Vicarious liability, independent contractors & non-delegable duty, concurrent liability, contribution amongst tortfeasors, joint & several liability and proportionate liability Vicarious liability, defining an employee Hollis v Vabu During course of employment Criminal acts of employees Prince Alfred case Principal and agent Non-delegable duty Where non-delegable duty applies Contribution amongst tortfeasors Solidary liability- joint and concurrent

3 Contribution Proportionate liability CLA provisions SLM 2: Death Claims Survival of actions Compensation to relatives, damages

4 .. ANSWER OUTLINE: Trespass to person 1. INTENTIONAL TORTS + NUISANCE Elements of battery: A positive voluntary act Which directly (Scott v Shepherd) Causes contact, (Rixon v Star City) Is the act that must be intended (Wilson v Pringle) Can be any contact with the person (Collins v Wilcock) Hostility not necessary Elements of assault: 1. Positive voluntary act 2. Which directly causes 3. Reasonable apprehension of imminent contact (NO CONTACT) (Rozsa v Samuels) creation of fear is gist (Rixon v Star City) (Barton v Armstrong) An assault is any direct threat by a person which intentionally or negligently creates in another an apprehension of imminent, harmful or offensive conduct Elements of false imprisonment: 1. Positive voluntary act (but can also be an omission) 2. Which directly causes (Zanker v Vartzokas) 3. Total restraint (but Symes v Mahon) Imprisonment must be intended, plaintiff doesn't have to be aware of the imprisonment The total restraint may be just mentally believe they have no choice (Balmain Ferry Co) (McFadzean) (Myer Stores v Soo) Trespass to land & indirect injury Trespass to land: Elements: a) Positive voluntary act (Smith v Stone) b) Which directly interferes c) With use and enjoyment of land Trespass to land is a voluntary, intentional (or negligent) direct physical interference with the plaintiff s exclusive possession of land. (p80) OFTEN FOUND WITH A NUISANCE CLAIM The plaintiff must establish exclusive possession of the subject land (Newington v Windeyer), (Halliday v Nevill) implied license, (Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd), (New South Wales v Ibbett) Actions on the case for indirect injury: (intentional act causing harm NOT negligent)- damage is consequential, intentional act of creating the danger, intention of harming someone but is not direct action like trespass to the person harm occurs later. Elements: } 1. A willful act of D: deliberate } 2. Calculated to cause harm does not mean a subjective intention - the calculated intention may be imputed on an objective test: Carrier v Bonham or on the natural & probable consequence of the D s act: Nationwide News v Naidu } 3. Causing harm actual damage to P: psychological/psychiatric harm (more than mere distress/sorrow/fright): Wong v Parkside Health NHS Trust; Wainwright v Home Office; Giller v Procopets The interference is indirect e.g. someone letting dog off leash knowing it bites people and then it bites someone

5 Established by Wilkinson v Downton, also Bird v Holbrook Defences to intentional torts Consent In order for consent to be valid, it must: o be voluntary o be given with knowledge o come from a competent person o be in relation to the act complained of o (Marion s case), (McNamara v Duncan) Self defence of person, another person or property o if the person believes it was necessary to defend themselves against another person, to prevent unlawful deprivation of liberty, to prevent property interference, or to prevent trespass, and the response is reasonable (s52) o Presidential Security v Brilley Necessity o Situation must be one of urgency, mere convenience is not sufficient o Proudman v Allan Damages Intentional tort: nominal damages for no actual damage, or compensatory damages for the damage, or as in Ibbett exemplary damages to make an example of the defendant, or could ask for an injunction if trespass to land and ongoing Nuisance Private nuisance: involves the unreasonable interference by the defendant with the plaintiff s use or enjoyment of real property. Does not need to be a direct interference like trespass (Thompson-Schwab v Costaki, Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia, Halsey v Esso Petroleum Co Ltd, Robson v Leischke, Walsh v Ervin) Public nuisance: A nuisance so widespread in its range that it would be unreasonable to expect one individual to take action against it alone, should be taken by the community as a whole by the Attorney General (Walsh v Ervin) Defences: o Prescription (Miller v Jackson) o Consent (Sturges v Bridgman) o Plaintiffs are not expected to alter their ordinary ways of life to avoid a nuisance Lester-Travers v City of Frankston o Fault: As it isn t strict liability, plaintiff will have to prove fault on the defendant s part. o Statutory authorization (Nielsen v Brisbane Tramways Co Ltd) Remedies: o Abatement (Farley & Lewers Ltd v Attorney General) Damages: May claim damages without or with injunctive relief. Will be awarded for actual damage as well as past intangible interference 2. NEGLIGENCE + VICARIOUS LIABILITY/NON-DELEGABLE DUTY Name the plaintiff and defendant, and the tort. If it is an employee, say it will be vicarious liability, with employer as a joint tortfeasor. Duty of care: D owed duty of care Is it an established duty? 1. Motorist and other highway users: e.g. March v Stramare 2. Occupier of land and lawful entrant: e.g. Australian Safeways Stores v Zaluzna 3. Manufacturer and consumer: e.g. Donoghue v Stevenson 4. Employer and employee: e.g. Kondis v State Transport Authority

6 5. Doctor/dentist and patient: e.g. Rogers v Whitaker 6. Hospital and patient: e.g. Albrighton v Royal Prince Alfred Hospital 7. School and pupil: e.g. Commonwealth v Introvigne - Categories of D.O.C Unborn child owed duty of care. Can be negligent before conception (X & Y v Pal), during IVF or ex utero (Waller v James) or in utero (Watt v Rama; Lynch v Lynch) Wrongful life claim by child that due to negligence, they were born. Cannot win, court will not compare being not born with being alive. (Harriton v Stephens). CONTENT THROUGHOUT SEMESTER Intro: Common law of tort, Trespass to Person: Assault, Battery & False Imprisonment Elements common to all Trespass Torts intentional torts (deliberate): - A positive voluntary act - Which directly - Interferes with the Plaintiff (person, land, goods) - Is actionable per se: Damage is not an element in trespass Elements of battery: 1. A positive voluntary act 2. Which directly (Scott v Shepherd) 3. Causes contact, (Rixon v Star City) Is the act that must be intended (Wilson v Pringle) Can be any contact with the person (Collins v Wilcock) Elements of false imprisonment: 1. Positive voluntary act (but can also be an omission) 2. Which directly causes (Zanker v Vartzokas) 3. Total restraint (but Symes v Mahon) Imprisonment must be intended, plaintiff doesn't have to be aware of the imprisonment The total restraint may be just mentally believe they have no choice (Balmain Ferry Co) (McFadzean) (Myer Stores v Soo) Elements of assault: 1. Positive voluntary act 2. Which directly causes 3. Reasonable apprehension of imminent contact (NO CONTACT) (Rozsa v Samuels) creation of fear is gist (Rixon v Star City) (Barton v Armstrong) An assault is any direct threat by a person which intentionally or negligently creates in another an apprehension of imminent, harmful or offensive conduct Action on the Case } Damage is the gist of the action } Consequential damage } Onus of proof always on Plaintiff The Tort of Negligence is an action on the case Onus of Proof of Fault in Trespass Cases On the defendant except in highway cases: McHale v. Watson: High Court (1964)

7 Interests protected: o Economic interests o Goods, property, land o Personal interests, harm to body, mental harm, defamation (not covered) ð Battery: protects the body ð Assault: protects mental well-being ð False imprisonment: protects liberty Directness: } The interference with the Plaintiff s person, land or goods must be DIRECT. It must be PART of D s act not merely a CONSEQUENCE of it. Reynolds v. Clark Scott v. Shepherd Negligent trespass: } Yes in Australia, High Court in Williams v Milotin(1957). } Windeyer J. in McHale v. Watson (1964) Onus of Proof of Fault in Trespass Cases On the defendant except in highway cases: McHale v. Watson: High Court (1964) Venning v. Chin (SA Full CT. 1974) Battery: 1. A positive voluntary act 2. Which directly (Scott v Shepherd) 3. Causes contact Cole v Turner, Rixon v Star City Nature of the interference required: Collins v Wilcock [1984] 1 WLR 1172 per Robert Goff LJ: We are here concerned primarily with battery. The fundamental principle, plain and incontestable, is that every person s body is inviolate. It has long been established that any touching of another person, however slight might amount to battery. Battery: ð A direct and intentional act by a person which causes contact with the body of another. ð Usually deliberate acts, but can be reckless or careless also ð Force is used, but only needs to be slight. ð Intentionally bringing about unwanted contact with the person of another. ð The violation of being touched without consent is sufficient to enable a plaintiff to bring action even though there was no physical or psychological harm Elements: 1. An intentional voluntary act by a person 2. Which directly 3. Causes contact with the body of another The act must take place without lawful justification or consent. Direct and intentional act: It can mean offensive behavior such as spitting in someone s face (R v Cotesworth (1704), an unwelcome kiss, hitting a person with an object. May also be taking something from someone s hand (Fisher v Carrousel Motor Hotel Inc (1967) Also throwing boiling water on someone (Pursell v Horn (1838)) It must be a positive and affirmative act which introduces some form of contact which is offensive to the plaintiff outside the usual accidental contacts of daily life. Eg not brushing up against someone in a crowded place Historically, it has been seen as touching in anger or with hostility (Cole v Turner (1704)) Wilson v Pringle [1987] stated that hostility was needed in battery But Collins v Wilcock [1984] suggested that hostility meant unwanted contact this is the preferred view in Australia

8 Hostility is not necessary for battery eg Marion s Case Rixon v Star City [2001] absence of anger was not a satisfactory basis for concluding there was no battery. In this case, the court held there was no battery as the physical contact was for the purpose of engaging Mr Rixon s attention and was not excessive. (p48) It s also possible for a battery to occur when the person is unconscious eg where a surgeon operates on a wrong limb while the person is unconscious A battery cannot be an omission to act eg Innes v Wylie (1844) policeman not liable when he stood entirely passive like a door or a wall put to prevent the plaintiff from entering the room However, an omission to act can become a positive act eg Fagan [1969] resting his car on policeman s foot purposely delaying to remove the car was battery. The case also shows that battery can be inflicted through a weapon of controlled instrument (p49) Cases for battery: Scott v Shepherd (1773) 2 W B1 892: Defendant threw a lighted squib into a market place. Fell onto one man s stall who then chucked it away to avoid injury, landed on a second man s stall, he threw it away again and then it hit the plaintiff in the eye and blinded him Could held him liable for battery, said that it was a direct consequence of the plaintiff s action. issue was whether it was direct enough held it was Hutchins v Maughan [1947] VLR 131: shepherd kept sheep in field, neighbor had dogs which would come onto the property, shepherd got fed up, said he was going to poison the dogs, other guy thought wasn t real threat, put down poison bait, dogs ate it and died. Was argued that the defendant did not have a case in trespass, only in negligence and that