LAWS206 TORTS Semester Georgia Gamble

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1 LAWS206 TORTS Semester Georgia Gamble 1. Week One The Nature of Tort Law 1.1 What is a tort? Rules and principles of tort law are relevant to a wide range of common phenomena as diverse as industrial disputes, libellous newspaper articles, road accidents, noisy neighbours, dangerous pharmaceutical drugs, vicious dogs, and so on. The law of torts is part of private law, of which other parts of the law are property and the law of contract Private law regulates relations and interactions between citizen and citizen. What we call 'torts' defamation, deceit, trespass, nuisance and so on are the modern counterparts of old causes of action 1.2 Relationship between tort law and other legal categories Some scholars now think about tort law as part of a larger 'law of obligations' that also includes contract law, the law of restitution and parts of the law of trusts TORT LAW AND CRIMINAL LAW Criminal law is usually left to state prosecuting authorities (although, in many cases, prosecution by a private citizen is not ruled out) whereas tort claims are normally made by the victim of the tort. There are some cases in which the A-G may bring an action to restrain a public nuisance or breach of a statutory duty Tort law is primarily concerned with compensation, whereas criminal law is primarily concerned with punishment and deterrence. - this is an over simplification An award of monetary compensation may have a deterrent effect, and deterrence of tortious conduct is usually seen as (at least) a subsidiary function of tort law Also, tort law sometimes requires a tortfeasor to pay damages representing some gain or benefit derived from committing the tort even though this gain does not represent a loss to the tort victim and the damages cannot be said to be compensatory. Such awards of 'restitutionary damages' can be seen as designed (in part) to deter tortious conduct. Furthermore, in certain cases a tort victim can be awarded what are called 'exemplary' (or 'vindictive' 'penal' or 'punitive') damages. The explicit aim of such damages is to punish and deter the defendant and other would-be tortfeasors. The court may award damages - over and above those required to compensate the plaintiff for the injury suffered by him if it forms the opinion that the defendant's conduct in committing the wrong was so reprehensible as to require that he should not only compensate the plaintiff for what he has suffered but should be punished for what he has done in order to discourage him and others from acting in such a fashion TORT LAW AND CONTRACT LAW This relationship is very complex The interaction is considered at various points. One of the functions of a contract is to enable parties to undertake binding obligations (or 'duties') to one another; and many torts consist of breach of duty. Indeed (as we have noted), some people now think of contract law and tort law as part of 'the law of obligations' Contractual obligations can be distinguished from tortious obligations in various ways many contractual obligations are 'productive' in the sense that they are obligations to produce advantageous outcomes, whereas tort law is predominately 'protective' in the sense that the obligations it imposes are usually obligations to prevent or not to cause disadvantages outcomes. A person will normally be under a contractual obligation to do X only if they have received some form of payment in return for doing it (technical term for such payment is consideration). By contrast, a person may be under a tortious obligation to do Y (or sometimes, an obligation to do X) even if they have received to payment. Most contractual obligations are owed to identified and specified individuals who have

2 had dealings with the person subject to the obligation before the obligation arises; where tortious obligations may arise between 'strangers' by which is meant persons who are unknown or unidentified to each othe, or have had no dealings with each other before the tort occurs. The content of a contractual obligation is often defined quite specifically and in some detail so that it is possible to know, in advance of performance, what will count as compliance with the contract, and when and how breaches of it might occur. By contrast, many tortious obligations are abstract and general in the sense that it is sense that it is difficult to specify in advance the conduct that they proscribe and the circumstances in which proscribe conduct may occur. The typical justification for imposing a contractual obligation is the fact that the person subject to the obligation has done some 'voluntary' act such as making a promise, giving an undertaking, executing a deed, signing a document containing promissory statements or undertakings, boarding a bus, borrowing money, taking goods from the shelf at the supermarket. By contrast, although a few tortious obligations result from such conduct (eg. A tortious obligation to do X may result from the giving of an undertaking to do X), the typical justification for tortious obligations is not that the person obliged has voluntarily engaged in some course of conduct (such as driving a car, or pursuing some profession), but that in so doing they have acted in a way that law considers unacceptable and have damaged, or interfered with, or failed to protect some protected interest of another TORT LAW AND THE LAW OF RESTITUTION The law of restitution deals with obligations resting on one person (A) to pay over benefits received 'at the expense of' another person (B). The benefit may have been received from B as, for example, where A has 'converted' B's goods and is obliged to restore to B the goods or (more usually) their value. Alternatively, the benefit may have come from a third party as, for example, where A 'passes off' goods as being those of B and is obliged to pay B damages representing the profits made as a result of the passing off TORT LAW AND THE LAW OF TRUSTS A trust is an arrangement under which one person (the 'trustee') has an obligation to hold, manage or use property for the benefit of another person (the 'beneficiary') Certain varieties of breach of trust bear great similarity to certain heads of tort liability; and the distinction between a tort and a breach of trust is largely the result of historical development of the english court system rather than rational development of substantive legal principles. Complex relationships TORT LAW AND PROPERTY LAW Tort law plays a central role in protecting property rights and interests through common law causes of action such as trespass to land and conversion, and statutory intellectual property torts such as infringement of copyright Tort law rests on two quite distinct juridicial foundations: one supporting protection of property rights (through 'interest based' torts) and the other supporting protection from the infliction of harm (through 'conduct based) torts). Tort of negligence is major vehicle of the latter function of tort law. Demonstrated by the fact that damage, not interference with rights, is 'the gist of an action in negligence' 1.3 Standards of liability in tort law Every tort involves conduct of one person that interferes with the interest of another person. Conduct will amount to a tort only if it contravenes the standard of conduct relevant to that tort What the standards of conduct required by tort law? First, it is sometimes said that tort liability is never 'absolute' this indicates that there are no cases in which the mere fact that A interfered with some interest of B or inflicted legally recognised harm on B attracts tort liability. Either B will have to establish that the interfering conduct was of certain sort or quality, or there will be, in principle at least, some justification, excuse or defence that A may be able to please. - the phrase also indicates that there can be no tort liability for 'involuntary conduct' Very often tort liability will not be imposed unless the plaintiff can prove that the

3 defendant was at fault. Liability without proof of fault is usually called 'strict liability' Strict liability for the infliction of physical injury or damage is rare in the common law of torts One very important and extreme instance of strict tortious liability in the shape of vicarious liability: in certain circumstances, A can be held liable for the torts committed by B simply because B is A's employee or agent or independent contractor, and despite the fact that injury or damage caused by B's tort may not have been the result of any fault on the part of A. 'fault' for the purposes of the law of tort is either 'intentional' conduct or 'negligent' conduct Sometimes a person will be liable in tort only if their conduct was intentional or negligent. In a colloquial sense, 'negligence' means 'carelessness'; but in more technical sense it means something like 'failure to take reasonable precautions to avoid foreseeable and significant risks of injury'. Negligent conduct forms the basis of the tort of negligence, but it also figures in many other torts that contain a requirement of fault. Negligence is not a state of mind. Rather, it is a failure to measure up to a particular standard of conduct; and the standard of conduct is not normally measured according to the abilities of the individual agent but according to an 'objective' standard of reasonable conduct. This means that a person may be held to have acted negligently even though, in the circumstances they faced at the time they acted, they could not have done otherwise. The definition of fault in tort law allows a person to be held liable for doing that which they could not have avoided doing because of ignorance, lack of resources, inexperience or lack of skill. It is often said that the objective test turns negligence into a form of strict liability, but this is misleading. What the objective test of negligence entails is that person should have behaved differently, regardless of whether or not they could have behaved differently. By contrast, the whole point of strict liability is that it may be imposed regardless of whether the person subject to it should have behaved differently. 1.4 Sources of Australian Tort Law The foundational concepts of tort law are found in judge-made or 'common law' rules and principles. Under the doctrine of precedent, lower courts in any particular jurisdiction are, as a general rule, under an obligation to follow relevant decisions of higher courts in that jurisdiction, but not their own decisions or decisions of courts at the same level in the judicial hierarchy. Australian courts in all jurisdictions are also bound by decisions of the High Court of Australia. Tort law is primarily state law, not federal law. Unlike the US Supreme Court, the High Court is the ultimate, general court of appeal on issues of state law as well as federal law. On this basis the court has held that there is a single Australian common law and not a common law for each of jurisdictions that constitute the federation. As a result, state trial courts and courts of appeal are bound by decisions of courts of appeal in other states not only on issues concerning the interpretation of federal legislation but also on issues concerning the interpretation of nationally uniform legislation and issues of the common law 'unless they are convinced the decision is plainly wrong' Where a court is under no obligation to follow a particular decision, it is free to consider and apply that decision provided does not conflict with any decision the court is bound to follow. Style adopted by judges of higher Australian courts in writing their judgements often involves extensive and detailed consideration of relevant decision of relevant decisions of courts in other Australian jurisdictions and in foreign common law jurisdictions. Because Australian law is ultimately derived from the English law, decisions of English courts were historically more likely to be referred to in Australian judgements Historically, tort law was predominately the product of judicial as opposed to legislative lawmaking 2. Week Two Trespass to The Person Torts 2.1 Interference with the person HISTORICAL BACKGROUND AND RELATIONSHIP WITH NEGLIGENCE

4 Torts of battery, assault, and false imprisonment are known collectively as 'trespass to the person' torts The tort of battery provides protection from unwanted physical conduct; the tort of assault provides protection from threats of physical contact; and the tort of false imprisonment provides protection from total restraints of liberty. The fundamental interests in physical and mental integrity have received protection through these torts since the early history of the common law, but to understand how the existing law protects these interests, some knowledge of how that law came about is necessary. 2.2 Trespass to the person The intentional tort of trespass to the person, as we have said, consists of three nominate torts: battery, assault and false imprisonment Before considering these, a number of general points applicable to all torts must be considered DAMAGE Trespass to the person torts are actionable per se; that is, it is not necessary to prove any action damage. The interests protected are considered of sufficient importance to receive protection irrespective if whether D happens to cause damage while committing them. But if the defendant has actually suffered damage, the plaintiff is also able to sue for that damage OVERLAP WITH CRIMINAL PROCEEDINGS As conduct that constitutes assault, battery and false imprisonment may also be criminal, a question tht has arisen is whether the plaintiff can bring a civil action in tort before criminal proceedings have been commenced or concluded against the defendant At one stage it was thought that if the defendant's conduct constituted a felony, any ivil action for damages should be suspended. Although the rule was accepted in Australia, it never applied to crimes other than felonies; and as the distinction between felonies and misdemeanours has been abolished, there is nothing left on which the rule can operate A number of jurisdictions have formally abolished the rule and in the remainder the better view is that the rule has been superseded, albeit that there is an inherent power to order a stay of the civil proceedings where the conduct of those proceedings may interfere with the fail trial of the criminal proceedings 2.3 Battery A battery is a voluntary and positive act, done with the intention of causing contact with another, that directly causes that contact Some debate over whether the absence of consent is an element of the cause of action that must be established by P, or whether the presence of consent is a defence that must be pleaded and proved by the defendant View taken is that it is a defence The elements: a). Voluntary act b). Intention to cause harm or offensive contact or imminent apprehension there of c). Actual harmful or offensive contact directly or indirectly occurs DIRECT CONTACT The first requirement of the tort of battery is that the contact must be a direct result of D's conduct The notion of directness requires there to be a close connection between the act of the defendant and the interference (the contact with P) Hence being hit by something thrown at you is 'direct' even though there may be some gap between the act of throwing and the contact In some cases an act that sets in motion an unbroken series of continuing consequences, the last of which ultimately causes contact with the plaintiff, will be sufficiently 'direct' for the purposes of trespass. A well- known example is Scott v Shepherd, where the defendant threw a lighted firework onto a stall in a market, whereupon it went through the hands of several stall holders. Each threw it away in an attempt to get rid of it before it struck P and exploded, injuring one of P's eyes. The D was held liable in trespass (battery) to P and the injury was held to be from a direct act by D. The

5 immediate acts of intervention by the stall holders were not regarded as breaking the chain of directness as they were acting under a compulsive necessity for their own safety and preservation rather than as free agents. The requirement of 'direct contact' a hangover from the forms of action operates to limit the circumstances in which intentional conduct can give rise to liability For example a woman of 83 is about to get off a bus at a bus-stop when D, another passenger behind her on the platform, intentionally presses the bell so the bus starts to move, causing her to fall on the road. Has there been a direct contact for battery? Or say a 15-year-old boy places sulphuric acid in a hand dryer, which later causes injury to another student when he uses it. Has there been a direct contact resulting from that act? Whether directness is a satisfactory way of limiting actions in battery has been questioned, and there have been suggestions that it should be abolished. If this was to occur, however, it would end all debate on whether there is a tort of negligent trespass: if directness is not required for such a tort it appears to mirror negligence and there would be no justification for any differences between the actions (such as burden of proof) INTENTIONAL CONTACT As discussed above, intention plays an important role in the modern law of torts. In the context of trespass to person we have argued that only intentional interferences are actionable. But what do we mean by intention? If a tort is said to be intentional, some element of the tort must be intended. But what is it that must be intended? First, all that may be required is that the conduct of the defendant is intentional. This would mean simply that the defendant's conduct needed to be voluntary. Generally this is not sufficient. This leads to a second possibility, much closer to the truth: that any 'intentional' tort, D must have not simply acted voluntarily (though this is always required), but must have intended particular consequences of the conduct, which the law regards as tortious. What consequences are regarded as tortious depends entirely on the individual tort. In the tort of deceit, for example, the consequence that must be intended is that the P be deceived by a false statement D has made. In the tort procuring a breach of contract, it is the breach of contract that must be intended. In still other torts, such as the tort of conspiracy to injure a person's economic interests by unlawful means, or intimidation, the consequence that must be intended is that the P suffer harm as a result of D's actions. In the tort of battery all that is required is that D acted voluntarily and intended the consequence of contact with P. Although the contact must be intended as the contact is the gist of the wrong of battery D need not know that the contact is unlawful or intend to cause P any harm of damage as a result of the contact. In addition to knowing what must be intended, it also must be known what it means to 'intend' What is required to prove that D 'intended' a consequence, varies from tort to tort In the tort of battery, D intends contact with P if D acts with a purpose of causing contact with P. In many situations, the connection between the act and the consequence will be so obvious that there will be no doubt that the consequence of contact was D's it can accurately be said that D's act need only be voluntary for the intention requirement in battery to be satisfied, because the necessary intention as to contact flows from the act itself. A prerequisite to liability in battery, then, is that D acted voluntarily. A D may not have the capacity to act voluntarily at all due to permanent or temporary factors. Though an impaired or clouded consciousness will, it seems, suffice, acts done in a state of automatism are regarded as 'involuntary'. Hence a person with serious mental disability, or because of her age, may not be able to act voluntarily, but more temporary factors can have the same effect. Thus, if a sleepwalker stepped on your face while you were laying on the ground, there would be no liability in battery as there would not be a voluntary act. But an act also may not be voluntary if it is done against the defendant's will, so that if A take's B's hand and forcibly strikes C with it, B is not liable because B has done no voluntary act. A more difficult situation arises when although D's act is voluntary the consequences of the act are unintended by D because D acted under a misapprehension. If D pulls the trigger of a gun to

6 simulate firing the gun, which, unknown to D, has a bullet hidden from sight in the firing chamber, D will not be liable in battery if the bullet hits P. Although the act was voluntary, D did not intend the consequence of contact to follow from the act. Note that this situation is different from that in Scott v Shepherd. In that case D intended to throw a lighted firework and the question was what consequences were intended to follow from that act. But a person who pulls the trigger of a gun thinking that it is unloaded does not voluntarily fire the fun in the first place, so the consequences of the voluntary act of firing the gun are not are not intended. What if D voluntarily acts in such a way that the contact with P is not an immediate consequence of D's act, so it cannot be considered as part and parcel of the act itself? Such a scenario raises issues for both directness and intention. Again, in Scott v Shepherd, where it was held that D's conduct was a direct cause of the interference. But could it also be said that the contact with P was the intended result of D's voluntary act of throwing a firework? Whether it is or not depended on the probability or likelihood that the contact with P would follow as a result of D's act. A person is generally taken to have intended the consequences of an act which are substantially certain to follow from it. For the defendant to have intended the interference the intervening acts of the stallholders, it must have been substantially certain to follow from his act of throwing a lighted firework into the crowd. This is a plausible conclusion: a person who is thrown a lighted firework is almost certainly going to attempt to dispose of it. As a general rule, then, actions in battery will lie if plaintiffs can establish that contact with their person was substantially certain to follow from the acts of the defendant. The question is one of likelihood: for example, in the well known case of Bolton v Stone, if Miss Stone, who was struck by a cricket ball hit out of the defendant's cricket ground by a visiting batsman, had brought action in battery against the batsman that had hit the ball, she would not have succeeded, because although there was 'a conceivable possibility that someone would be hit' it was a bare possibility and not a substantial certainty. Can intention be established merely by showing that the contact was substantially certain to occur? One possible difficulty with holding that intention is satisfied if contact was, objectively, substantially certain to follow from D's act, is that we can end up saying that D intended something to which she is in fact never turned her mind to at all. To say that someone intends something that they have never thought about deprives the word 'intention' of any meaningful content. In other words the notion of an objectively implied intention is really a fiction. But in truth this may be only a theoretical problem. If A aims an arrow at B from 10 metres, shoots, and hits B, we would think that A intended the consequence of contact with B. In the vast majority of these situations, this is because we believe that A's purpose in acting was to cause contact with B, and even if A says this was not her purpose we simply to do believe her. In other words, the mere fact that A says she did not intend the contact does not mean we have to believe her. A person's state of mind is proved by evidence, and what a person says about her state of mind is only one factor to consider. If after looking at all the evidence we did think that A dud subjectively intend the contact, then this fits with our view of the meaning of intention. But at least, in theory, we must recognise that this is possible (although very unlikely) that D did not think about the possibility of contact (and we believe D) even though the contact was substantially certain to follow as a result of D's act. In this case, if we want to impose liability in battery, we must admit that we are doing so in the absence of any intention to cause contact. Where the contact results in injury to P, we may not have to do this, as an action in negligence may lie. Unlike battery, negligence would only require that a reasonable person ought to have foreseen the possibility of contact. But if there is no injury then battery remains the only option as it is actionable without proof of damage. Can recklessness as to possible contact with P as a result of D's act be sufficient to establish that contact was intended? Judicial authority on whether recklessness can satisfy any intention requirement in