"likely to have that effect" instead of "intended to have that effect": Carrier v Bonham

Transcription

1 Irregardless of the person s acknowledgement of the false imprisonment or the person s physical ability to exercise the freedom of movement: State of SA v Lampard-Trevorrow A person may consent to a restraint on liberty: Balmain New Ferry Co. v Robertson Action on the case for wilful injury: Elements on the case for wilful injury There must be an intentional act, and the act itself may be deliberate and preconceived: Bird v Holbrook A person who wilfully does an act calculated to cause physical harm to the plaintiff, including psychiatric injury, is liable to the plaintiff in damages for the harm inflicted. Here the harm is the one that is reasonably foreseeable: Wilkinson v Downton; and Calculated means objectively Carrier v Bonham "likely to have that effect" instead of "intended to have that effect": Does in fact inflict either indirect or consequential harm to the plaintiff: Wilkinson v Downton However, the act must be reasonably capable of causing mental distress to a person with ordinary sensibility: Bunyan v Jordan Law Reform (Miscellaneous Provisions) Act 1944, s 3(1), s 4(1)(5) Damages Aggravated damage is awarded from the point of view of the plaintiff, while in case of exemplary damages, the focus is on the conduct of the defendant: State of NSW v Ibbett Aggravated damages may be awarded as a compensation for conduct which causes emotional hurt, insult and humiliation to the plaintiff: Henry v Thompson Humiliation, injured feelings and affront to dignity may be a natural and probable consequence after the conviction of trespass to land: TCN Channel Nine v Anning The nature of exemplary damages is punitive. It will be awarded for the conscious wrongdoing for the wrongdoer, and it will not be awarded where the act was done negligently, or where the criminal offender has been sentenced to a substantial criminal imprisonment : Gray v Motor Accident Commission Aggravated damages and exemplary damages can be awarded concurrently: State of NSW v Ibbett In a proceeding against two or more joint tortfeasors where all the tortfeasor are liable for compensatory damages, exemplary damage may be awarded against one (or more) but not necessarily all the tortfeasor: XL Petroleum (NSW) v Caltex Oil (Australia) The action in trespass to land serves to vindicate an occupier s right to exclusive use and occupation, therefore, not need for the plaintiff to prove damage: Plenty v Dillon As to the damage to the property, the plaintiff may require reinstatement of the property instead of compensation for loss, if the requirement is reasonable for the difference in price: Parramatte City Council v Lutz Trespass to land Elements of trespass to land the defendant directly entered into land, i.e., the defendant must commit an affirmative act of trespass intentional or negligent: Williams v Holland voluntarily enter onto land within the plaintiff's exclusive possession: Plenty v Dillon without the consent of the plaintiff other other lawful justification: Halliday v Nevill A person who lawfully enters another s land may become a trespasser if he or she voluntarily exceeds his or her invitation on to the land: Public Transport Commission v Perry The owner of the land may revoke the licence for entering their land at any time: Halliday v Nevill Torts General Only person with actual possession of the land can sue another for trespass: Newington v Windeyer An owner out of possession may bring an action on the case in respect of damages to the owner s reversionary interest if damage could be proved: Rodrigues v Ufton 2

2 Fault: In modern tort law, whatever the position may have been in medieval times, fault (intent or negligence) is an essential ingredient. The fault-based nature of tort liability requiring intent or negligence on the part of the defendant. Exceptions: (strict liability) Private nuisance Vicarious liability Statute of aircraft operator for damage to person or property Damage by Aircraft Act 1999 (Cth) Civil Liability Act 2002 (NSW) (s 72 73) 1. The defendant s horses, driven by his servant, became uncontrollable. 2. The defendant, sitting beside his servant was asked not to interfere with the driving. 3. The horses knocked down and injured the plaintiff when they turned to a corner. 4. The plaintiff sued the defendant in negligence and in trespass. 1. The plaintiff alleged that the defendant had shot and wounded him during a military training exercise. Holmes v Mather (1875) No fault, no trespass. If the act that does an injury is an act of direct force vi et armis, trespass is the proper remedy (if there is any remedy) where the act is wrongful, either as being wilful or as being the result of negligence. Where the act is not wrongful for either of these reason, no action is maintainable, though trespass would be the proper form of action if it were wrongful Weaver v Ward (1616) There is no liability in trespass where the trespassory act was committed without fault by the defendant No man shall be excused of a trespass except it may be judged utterly without his fault. As if a man by force take my hand and strike you or if here the defendant had said, that the plaintiff can cross his piece when it was discharging, or had set forth the case with the circumstances, so as it had appeared to the Court that it had been inevitable, and that the defendant had committed no negligence to give occasion to the hut. Defendant is liable. 1. The respondent sustained a serious head injury when he was hit behind the left ear by a golf ball driven by the appellant. 2. Sued in negligence, whether the respondent ought to have been foreseeable to the appellant? Ollier v Magnetic Island Country Club [2004] Liability requires the plaintiff to prove a negligent act (or lack of duty of care/an omission) on the part of the defendant which was a cause of the plaintiff's injury Vicarious Liability Strict liability: not dependent on any personal fault on the part of the employer Generally, an employer is liable for the torts of an employee committed in the course of employment. Determining whether an act was committed in the course of employment is not always easy. Even prohibited act may still be judged to be in the course of employment so as to render the employer liable (although the seriousness of the misconduct may disentitle the employee to be indemnified by the employer for any liability to the injured party). Nevertheless, an employer is not generally liable for a tort committed by an independent contractor However, determining whether a person is employed as an independent contractor or as an employee is not always straightforward. A number of facts are relevant. "Joint and several liability": when more than one person is liable to the plaintiff for the same damage The plaintiff may recover 100% of his/her loss (but not more) from any of the parties, in one or more actions. In this situation, the defendant may seek a contribution from each other. Liability for intentionally caused property damage or economic loss is still joint and several. 4

3 1. Some baits were laid by the defendant along the creek. 2. The plaintiff too dogs down along the creek and the dogs picked up baits and died. Hutchins v Maughan [1947] In applying the settled distinction between trespass and case, an interference with the plaintiff will be direct when it follows so immediately in terms of causation upon the defendant's act as to be part of that act Now the baits were laid by the defendant before the complainant took his dogs on to the land in question. They may even have been laid before he arrived in the vicinity. And had he not chosen to come into the vicinity and bring his dogs with him he would have suffered no injury from the defendant s act. Nor indeed would he have done so, had he not taken his dos on to the land where the baits were laid. The doing of the act therefore of itself did him no mischief. Before he could suffer an injury, he had himself to intervene by coming to the land and bring his dog thereon. Trespass & Case 1. The horse and the cart of the plaintiff were struck with great violence by the gig and the horse of the defendant, which led to great hurt to the plaintiff s son and the daughter. 2. The defendant appealed by alleging that the case was not an action on the case, instead, was only an action of trespass. 1. The plaintiff claimed to recover damages from personal injuries caused directly by the defendant in negligence. 2. The only way for the plaintiff to succeed is if the action could be successfully brought on the case due to the statutory limitation on trespass. Williams v Holland (1833) Where the plaintiff is injured by the defendant's direct (or immediate) act, the plaintiff may elect to bring an action on the case (rather than trespass) provided that the defendant's act is negligent. However, where the defendant's act is both direct and intentional, the only cause of action available to the plaintiff is trespass. Williams v Milotin (1957) The principle in Williams v Holland is part of Australian law. Onus of proof Non-highway cases: In an action of trespass, the plaintiff must prove a trespassory act attributable to the defendant. In an action on the case, the onus is on the plaintiff to prove the defendant's fault. Then, the onus is on the defendant to prove, on the balance of probabilities, that the trespassory act occurred without the defendant's fault: McHale v Watson; Holmes v Mather 1. The plaintiff was injured by a door which was slammed shut by the defendant in circumstances where she would not have been injured unless she put out her hand to impede the passage of the closing door. 2. In an action on trespass to the person, the plaintiff must prove on the balance of probabilities that the injuries were the direct result of the act or force of the defendant. 1. The plaintiff suffered personal injuries when she was struck by a car while crossing a public road. Platt v Nutt (1988) Onus of proof of the trespassory act is an issue distinct from onus of proof of fault. The plaintiff in trespass must prove that the defendant committed the trespassory act of which the plaintiff complains. In highway cases: Plaintiff bears onus of proof of fault, either to prove negligence or intention. Venning v Chin (1974) As a general rule, in trespass the onus is on the defendant to disprove fault. However, in trespass for injury caused in a highway accident, the onus is on the plaintiff to prove fault on the part of the defendant. Trespass to Person Battery The tort of battery is the defendant's direct application of force to the plaintiff's body without consent or other lawful justification. Battery is an intentional form of trespass to the person. 6

4 1. In an acrimonious equity suit, the plaintiff alleged that he had executed a certain deed under the duress of the defendant and thus claimed damages for assault. 2. The defendant appealed on the grounds that the so-alleged duress was only those words spoken over the phone, which could not constitute assault according to the definition of assault. 1. The defendant threatened and attempted to assault the plaintiff at a parish meeting in which the plaintiff was acting as chairman. 2. There were six or seven persons between the defendant and the plaintiff. 3. The defendant, in the course of some angry discussion, was very vociferous and interrupted the meeting. 4. The defendant said that he would rather put the chairman out of the chair, and immediately advanced with his fist clenched toward the chairman. 5. But the defendant was stopped by the church warden, who sat next but one to the chairman, at a time when he was not near enough or any blow he might have meditated to have reached the chairman. 6. Witnesses said that it seemed to them that he was advancing with an intention to strike the chairman. 1. The plaintiff engaged in offensive and highly confrontational behaviour towards two officers employed by the defendant in the railway station. 2. The plaintiff began running after he spat in the face of one of the officers. 3. The officers pursued the plaintiff. 4. Later, the plaintiff fell and fractured his right wrist before physically being restrained. 5. The plaintiff sought damages for assault and battery. 6. It was contended that the reason for the plaintiff to run was that he expected and feared the officers would bash him as retaliation for the act of spitting. force. In this context, "immediate" does not necessarily mean "instantaneous" but includes "a relatively short period of time". Words on the phone may constitute assault Barton v Armstrong [1969] Words spoken over the telephone may constitute assault where those words cause the listener to apprehend the immediate application of unlawful force Subject intention on the part of the defendant & Objectively reasonable apprehension of the threat Stephens v Myers (1830) Where the defendant threatens the plaintiff with immediate violence and, at the time of the threat, possesses the means or apparent means of carrying it out, this will constitute assault even although the defendant is restrained before he or she has an opportunity to carry out the threat. ACN v Chetcuti (2008) Where the mental element in assault is an intention on the part of the defendant to cause the plaintiff to apprehend the immediate application of unlawful force, the requisite intention is subjective, not objective. Further, the plaintiffs's apprehension of the imminent application of unlawful force must be a reasonable one Brady v Schatzel In order to prove a case of assault by the presenting of a firearm by one person at another it is not material that the person at whom the weapon is presented should be put in fear. An apprehension or expectation of assault is sufficient. Turberville v Savage "If it were not assize-time, I would not take such language from you." When the condition clearly nullifies the threat, there is no assault. Damages (Assault & Battery) CIVIL LIABILITY ACT 2002 Torts General 3B Civil liability excluded from Act The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person-the whole Act except: MOTOR ACCIDENT COMPENSATION ACT 1999 (NSW) s 144 A court cannot award exemplary or punitive damages to a person in respect of a motor accident. 1. A young man was seriously injured by a driver of a motor car. 2. The wrongdoer was convicted of causing grievous bodily harm with intent to the appellant and was sentenced to seven years imprisonment. 3. The appellant commenced an action against the respondent claiming damages for personal injury, however, no exemplary damages were awarded. 4. Appellant appealed. Exemplary damages will only be awarded when there is a conscious wrongdoing by the wrongdoer Gray v Motor Accident Commission (1998) Exemplary damages are not to be awarded where the tortfeasor has been convicted of a criminal offense and sentenced to "substantial punishment" in respect of the conduct constituting the tort. Exemplary damage would not properly be awarded in a case of alleged negligence in which there was no conscious wrongdoing by the defendant. Ordinarily, then, questions of exemplary damages will not arise in most negligence cases by the motor accident or other kinds of case. But there can be case, framed in negligence, in which the defendant can be shown to have acted consciously in contumelious disregard of the right of the plaintiff or persons in the position of the plaintiff. 8

5 1. The plaintiff recovered damages against the three defendants, who were police officers had acted in conscious and contumelious disregard for the plaintiff s rights and in a high handed fashion with malice. 2. For example, one of them had jumped up and down the head and shoulders of the plaintiff, and another had urinated on his stomach. 1. Two plain-clothes police officers entered a house late one night without lawful justification. 2. They only suspected that the respondent s son was in driving offence. 3. One sought to arrest the son, pointing a gun at him and then at the respondent. 4. Later, the respondent claimed damages for trespass. 5. The were awarded the general damages, aggravated damages as well as the exemplary damages. 1. The plaintiff attempted to pass through the appropriate part of the bridge and was asked to go other way. 1. The plaintiff was awarded $60 for damages in an action for false imprisonment. 2. The plaintiff was asked to go with a police constable who showed a warrant to the plaintiff as a justifiable arrest. 3. Though there was no restraint of his person, there was some coercion of his will. 4. During the whole trip, the plaintiff bought the ticket by himself and was allowed to go back to take her wife twice, all the behaviour of the constable expressed his intention to deprive the plaintiff's liberty, i.e.,requiring the plaintiff to enter the train. 5. Besides, the only object of his visit to Adelaide was to take the plaintiff to the watch-house to have the matter cleared up. 1. At around 11:35 P.M., the plaintiff was offered a second bottle of wine when he was having dinner with two friends in the Marwest Hotel. H 2. owever, according to the provisional law, the entire contents of the second bottle of wine should be consumed before twelve midnight. 3. The plaintiff refused to pay for the second bottle because it had not been touched and it was impossible for them to drink a whole bottle of wine within ten minutes without getting drunk. 4. Because the plaintiff refused to pay the money for that bottle, one security officer of the Hotel blocked one of the exits to prevent the customer out. 5. In addition, two police officers subsequently arrived at the hotel and one of them, placed the plaintiff under arrest for refusing to pay for the second bottle of wine. 1. The plaintiff bought a ferry ticket from the defendant s company to take its service. 2. For late, the plaintiff decided to leave without taking the ferry. 3. It was a policy drafted by the ferry company that each customer should pay one penny before they leave the entrance. 4. The plaintiff refused to pay and it took him more than 20 minutes to get out due to the prevention of the employee of the defendant. 1. The respondent was fostered without the acknowledgement to his natural parents by the State. 2. While under foster care, the respondent was given the same freedom of movement as other children of the same age. 3. Ten years later he was returned by the Aggravated damages are awarded when defendant acts consciously and contumelious in disregard for the plaintiff's rights Henry v Thompson [1989] Aggravated damages may be awarded as a compensation for conduct which causes emotional hurt, insult and humiliation to the plaintiff. No "double punishment" for concurrent awards of the aggravated/exemplary damages State of NSW v Ibbett (2006) Aggravated damages and exemplary damages can be awarded concurrently and it is not a "double punishment". In terms of aggravated damages the assessment is made from the point of view of the plaintiff and in respect of exemplary damages the focus is on the conduct of the defendant. Fontin v Katapodis False Imprisonment The tort of false imprisonment comprises a direct and total deprivation of the plaintiff's liberty without lawful justification. Burton v Davies If I lock a person in a room with a window from which he may jump to the ground at the risk of life or limb, I cannot be heard to say that he was not imprisoned because he was free to leap from the window. Bird v Jones (1845) False imprisonment is a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience it may bring on him. Symes v Mahon [1922] False imprisonment does not require the application of physical force by the defendant to the plaintiff. It is sufficient if the plaintiff has submitted completely to the control of the defendant. Bahner v Marwest Hotels (1969) A person cannot be restrained arbitrarily without a lawful justification. Consensual (voluntary) deprivation of liberty Balmain New Ferry Co. v Robertson (1906) There is no false imprisonment where a person has consented to a restraint on liberty. Query whether the occupier of land may impose a condition, such as the payment of a sum of money, for allowing a person on the land to leave. Awareness of deprivation of liberty Torts General State of SA v Lampard-Trevorrow (2010) The plaintiff's awareness of deprivation of liberty is not an element of the tort of false imprisonment. However, the care and protection given by the carer of a child is not a deprivation of the child's liberty in the sense required to constitute false imprisonment. 9

6 The harm which is said in fact to have ensured is not a consequence which might reasonably have been anticipated or foreseen. In this case, Latham CJ listed three grounds for the plaintiff's claim: 1. A man is injured by another's act although the cause of the action is independent of any intention to injure the victim and of any negligence and of any special relationship between the victim and the wrongdoer ---> No such principle is known to law. 2. Tort complain. Compared with Wilkinson v Downton, where the threats addressed to a person which were calculated to cause injury, which were uttered with the knowledge that they were likely to cause such injury, and which actually caused such injury, then it is actionable. However, no case has gone so far as to suggest that a man owes a duty to the person who merely happens to overhear statements that are not addressed to him. 3. Duty of care. The duty of care is to take reasonable care in all the circumstance of the case, and, in defining the extent of the duty, it is necessary to consider what results may reasonably be expected to follow from the act in question in a particular case. If the plaintiff was "peculiarly susceptible" to nervous shock, the defendant was aware that was the case. In the case of ordinary persons, if a man said to them that he was going to shoot somebody and they then heard a shot or even saw the speaker shoot himself or someone else, they would be disturbed or upset in varying degrees, but they would not suffer from illness producing a nervous breakdown. Such a consequence is not within the scope of reasonable anticipation. 1. The plaintiff claimed against the defendant on account of the latter s employee s humiliating and harassing treatment to the plaintiff when the plaintiff worked under the contract between his employer and the defendant to provide security services at the defendant s premise. Applies to psychiatric injury caused by intentional tort. Nationwide News Pty Ltd v Naidu (2007) The Wilkinson v Downton line of authority provides a basis of claim where harassment, racial vilification and personal abuse cause psychiatric injury. Statutory provision on psychiatric injury to relatives of victims of intentional wrongs CIVIL LIABILITY ACT 2002 SCHEDULE 1 Savings and transitional provisions Clause 11 Law Reform (Miscellaneous Provisions) Act 1944 Part 3 of the Law Reform (Miscellaneous Provisions) Act 1944 continues to apply despite its repeal to and in respect of civil liability that is excluded from the operation of Part 3 of this Act by section 3B. LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1944 (NSW) 1. s 3(1) entitles a claim for psychiatric injury caused by wilful intent. 2. s 4(1) further requires either the person killed, injured or put in peril should be a parent or the spouse of the plaintiff, or other member of the family of the plaintiff within the plaintiff s sight or hearing when he was killed, injured or put in peril. 3. According to s 4(5), definition. 4. s 4(1) satisfied or not. Part 3 Injury arising from mental or nervous shock 3(1) In an action for injury to the person caused after the commencement of this Act, the plaintiff shall not be debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock. 4(1) The ability of any person in respect of injury caused after the commencement of this Act by an act, neglect or default by which any other person is killed, injured or put in peril, shall extend to include liability for injury arising wholly or in part from mental or nervous shock sustained by - (a) a parent or the spouse of the person so killed, injured or put in peril; or (b) any other members of the family of the person so killed, injured or put in peril where such person was killed, injured or put in peril within the sight or hearing of such member of the family. 4(5) In this section - "Member of the family" means the spouse, parent, child, brother, sister, half-brother or half-sister of the person in relation to whom the expression is used. "Parent" includes father, mother, grandfather, grandmother, stepfather, stepmother and any person standing in loco parentis to another. 11

7 [104] What is a natural and probable consequence arising from a trespass to land must depend on all the circumstances of a case. It is essentially a question of fact. 1. Pursuant to an approval given by a judge for the use of a listening device in connection with a criminal investigation, police officers entered, without any other authorisation or the knowledge or consent of the occupier, to install a listening device to record Mr Coco s private conversation. 2. The retrieved evidence of the conversation were extremely crucial to the successful conviction of Mr. Coco s bribe behaviour. 3. Statutory requires the installation of the device should be authorised in writing by the Commissioner of Police or other designated officers, judge is not the one who can authorise the use of the device. 4. Judgement for Coco, conviction dismissed. 1. The plaintiff owned and occupied all the land adjoining the eastern and southern boundaries of the Grove, a rectangular area. 2. For many years, the respondents had used the area, to the exclusion of others, as a common garden. 3. The defendant owned two blocks of land adjoining the western boundary of the Grove. 4. In 1979, the defendant replaced the fence which ran along the western boundary of the Grove with one two gates giving access from her land to the Grave. 1. The plaintiff was the owner of property comprising a dwelling house and back yard which was in the possession and occupation of her tenants. 2. The defendant, who was the owner of adjoining property, entered the plaintiff s property, destroyed a part of the existing fence and erected a new fence which excluded the plaintiff from enjoyment of a disputed strip of land. [107] Humiliation, injured feelings and affront to dignity may be a natural and probable consequence of intrusion by the media on private property. Such damage is compensable as aggravated damages. Such damage is different in kind to mental trauma. In my opinion, mental trauma --- or indeed any form of personal injury --- does not flow "naturally" and "probably" from a trespass to land committed in the way the appellant acted, in all of the circumstances of this case. [166] As a matter of principle, exemplary damages should be awarded as a discrete amount in order to mark the court's disapproval of the defendant's conduct and to deter the defendant and other from acting in that way. Coco v The Queen (1994) Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language A statutory may confer a right upon a person to enter onto another person's land but it must do so by either express provision or necessary implication. Title to sue What is possession? Newington v Windeyer (1985) Actual possession, not ownership as such, confers title to sue in trespass and the plaintiff must prove actual possession of the land at the date of the trespass. Possession is a question of fact. Rodrigues v Ufton (1894) The occupier is the only person with title to sue for trespass. However, an owner out of possession may bring an action on the case in respect of damage to the owner's reversionary interest. The defendant's mistake as to his or her entitlement to possession of the land is no defence to an action in trespass. This reflects one of the origins of trespass, namely the orderly settlement of disputes as to title to land. An action on the case could not be maintained by a reversioner unless there was an injury to the reversion. If there was such an injury, it appears to be conceded that an action on the case would lie --- but not an action of trespass....and if such an allegation must be inserted a count, it is material, and must be proved. Aerial Trespass cuius est solum eius est usque ad coelum et ad inferos The person in possession of land also in possession of the airspace above it to a height necessary for the actual or potential ordinary use or enjoyment of the land and structures on it. Overflight by aircraft s 72 of the Civil Liability Act 2002 (NSW) No action lies in respect of trespass or nuisance by reason only of the flight (or the ordinary incidents of the flight) of an aircraft over any property at a height above the ground that is reasonable (having regard to wind, weather and all the circumstances of the case) so long as the Air Navigation Regulations are complied with. 1. For personal interest, the defendant erected scaffolding along 16 metres of the boundary between his own property and the one belonging to the plaintiff (the owner and the tenant of the premise) without the plaintiff s consent. Intrusion by structures LJP investments v Howard Chia Investments (1989) Trespass may be committed by an interference to airspace above the occupier's land. 13

8 Damage by Aircraft Strict and unlimited liability on the part of aircraft operators When do I apply each Act? If it is an international flight or an interstate flight or flight to, from or within a territory ---> Cth Act If the aircraft is a Cth aircraft or owned by a foreign corporation or trading or financial corporation ---> Cth Act If the aircraft takes off or lands at a place acquired by the Cth for public purposes (eg. most international airports) ---> Cth Act If non of the above apply then generally ---> NSW Act (CPA) DAMAGE BY AIRCRAFT ACT 1999 (Cth) 3. Object of Act The main object of this Act is to facilitate the recovery of damages for certain injury, loss, damage or destruction caused by aircraft, or by people, animals or things that are dropped, or that fall, from aircraft that are in flight. 8. Act binds the Crown 9 Application of Act (1) This Act extends to each external Territory. (2) This Act does not apply in relation to a Defence Force aircraft. (3) This Act applies to acts, omissions, matters and things within Australian territory. (4) Subject to subsection (2), this Act applies in relation to the following: (a) Commonwealth aircraft; (b) aircraft owned by a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution); (c) aircraft (including foreign aircraft) engaged in: (i) international air navigation; or (ii)air navigation in relation to trade and commerce with other countries and among the States; or (iii)air navigation conducted by a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution); or (iv)air navigation to or from, or within, the Territories; or (v)landing at, or taking off from, a place acquired by the Commonwealth for public purposes. 10 Liability for injury, loss etc. (1) This section applies if a person or property on, in or under land or water suffers personal injury, loss of life, material loss, damage or destruction caused by: (a) an impact with an aircraft that is in flight, or that was in flight immediately before the impact happened; or (b) an impact with part of an aircraft that was damaged or destroyed while in flight; or (c) an impact with a person, animal or thing that dropped or fell from an aircraft in flight; or (d) something that is a result of an impact of a kind mentioned in paragraph (a), (b) or (c). (1A) However, this section does not apply in relation to a person who suffers mental injury caused by a thing covered by paragraph (1)(a), (b), (c) or (d) unless the person, or property owned by the person, suffers other personal injury, material loss, damage or destruction caused by such a thing. 14

9 (2) If this section applies, the following people are jointly and severally liable in respect of the injury, loss, damage or destruction: (a) the operator of the aircraft immediately before the impact happened; (b) the owner of the aircraft immediately before the impact happened; (c) if the operator of the aircraft immediately before the impact happened was authorised to use the aircraft but did not have the exclusive right to use it for a period of more than 14 consecutive days the person who so authorised the use of the aircraft; (d) if the operator of the aircraft immediately before the impact happened was using the aircraft without the authority of the person entitled to control its navigation the person entitled to control the navigation of the aircraft. (2A) Subsection (2) does not apply to a person if, immediately before the impact happened: (a) the person was the owner of the aircraft; and (b) the person did not have an active role in the operation of the aircraft; and (c) either: (i) there was a lease or other arrangement in force (whether or not with the owner) under which another person had the exclusive right to use the aircraft; or (ii)another person had the exclusive right to use the aircraft and there was an agreement in force under which the owner provided financial accommodation in connection with the aircraft. (3) Paragraph (2)(d) does not apply if the person entitled to control the navigation of the aircraft had taken all reasonable steps to prevent the unauthorised use of the aircraft. (4) If: (a) an injury, loss, damage or destruction of the kind mentioned in subsection (1) is a result of a collision or interference between 2 or more aircraft in flight; or (b) 2 or more aircraft jointly cause any such injury, loss, damage or destruction; this section applies in relation to each of the aircraft. Strict Liability 11 Recovery of damages without proof of intention, negligence etc. Damages in respect of an injury, loss, damage or destruction of the kind to which section 10 applies are recoverable in an action in a court of competent jurisdiction in Australian territory against all or any of the persons who are jointly and severally liable under that section in respect of the injury, loss, damage or destruction without proof of intention, negligence or other cause of action, as if the injury, loss, damage or destruction had been caused by the wilful act, negligence or default of the defendant or defendants. CIVIL LIABILITY ACT 2002 (NSW) Strict Liability Owner is entitled to be indemnified if no fault. 73 Surface damage by aircraft or articles falling from aircraft (1) Where material loss or damage is caused to any person or property on land or water by, or by a person in, or 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 are recoverable 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 of the aircraft. (2) However, where the material loss or damage is caused in circumstances in which: (a) damages are recoverable in respect of that loss or damage by virtue only of subsection (1), and (b) a legal liability is created in some person other than the owner to pay damages in respect of that loss or damage, the owner is entitled to be indemnified by that other person against any claim in respect of that loss or damage. (3) Where the aircraft concerned has been bona fide demised, let or hired out for a period exceeding 14 days to any other person by the owner of the aircraft, and no pilot, commander, navigator or operative member of the crew of the aircraft is in the employment of the owner, references in this section to the owner are to be read as references to the person to whom the aircraft has been so demised, let or hired out. 15