Torts: Exam Notes LAW5003 Trimester 1, 2016

Transcription

1 Torts: Exam Notes LAW5003 Trimester 1, of 58

2 Trespass to the Person 4 Battery 4 Assault 6 False Imprisonment 8 Defences 10 Consent 10 Self-defence, defence of another or defence to property 11 Necessity 12 Lawful Authority 13 Remedies 14 Trespass to Land 15 Private Nuisance 18 Remedies 20 Negligence 21 Element 1: Duty of Care 22 Reasonable Foreseeability Test 23 Salient Features 24 Duty of Care (Pure Economic Loss) 26 PEL: Reasonable Foreseeability 27 PEL: Relevant Salient Features 28 Duty of Care (Mental Harm) 30 Mental Harm: Reasonable Foreseeability 31 Mental Harm: Salient Features 32 Limitations on Damages for Consequential Mental Harm 33 Element 2: Breach of Duty 34 Step 1: Define standard of care of a reasonable person 35 Step 2: Risk of harm must be foreseeable and not insignificant 36 Step 3: Calculus of Negligence 37 Element 3: Causation 40 Factual Liability: But For 41 Scope of Liability 41 Novus Actus Interveniens 42 Element 4: Remoteness 43 Step 1: Categorisation of kind of harm/damage 44 Step 2-1: Reasonable Foreseeability in Remoteness 45 Step 2-2: Thin Skull Rule 45 2 of 58

3 Element 5: Defences 46 Contributory Negligence 47 Voluntary Assumption of Risk 49 Illegality 51 Good Samaritans 52 Volunteers 52 Limitations of Actions 52 Damages/Remedies 53 Types of damages 54 Thresholds and Caps 55 Concurrent Liability 55 Vicarious Liability 56 Question 1: Employee or Independent Contractor? 57 Question 2: Course of Employment? 58 3 of 58

4 Trespass to the Person Three trespass to the person torts 1. Battery 2. Assault 3. False imprisonment Battery A voluntary and positive act of the defendant which directly and intentionally or negligently results in contact with the plaintiff s person without lawful excuse. Elements 1. D s act is actionable per se 1.1. D s act need not be have caused harm or damage to P 2. D s act to P must have been voluntary and positive 2.1. Must be consciously willing (Innes v Wylie) and voluntary (Gibbons v Pepper) 2.2. Not enough if the act was passive or an omission (Innes v Wylie) 3. D must have physically interfered with P 3.1. Includes any touching of another person however slight (Goff in Collins v Wilcock) 3.2. Can still be satisfied if a tool or object is used (Scott v Shepherd) 3.3. D s act need not be have caused damage or harm ( actionable per se ) 3.4. D s act need not be hostile, but the least touching of another in anger is battery (Holt CJ in Cole v Turner) Need not have not knowledge of contact (In Re F) 3.6. Exception: Exigencies of life: Most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. (Goff in Collins v Wilcock; Rixon v Star City) 4. D s contact with P must have been a direct result of D s act (Scott v Shepherd) 4.1. Interference is direct when it follows so immediately upon defendant s act that may be termed part of that act (Herring CJ quoting Salmond in Hutchins v Maughan) 4 of 58

5 Trespass to Land Trespass to Land A voluntary and positive act of the defendant that directly and intentionally (or it seems negligently) physically interferes with land in the plaintiff s possession. Includes entering, directly placing or leaving object upon, or remaining upon (Konskier v Goodman) land. Elements 1. D s act is actionable per se 1.1. Trespass to land is actionable per se, as such P does not need to show damage and need only show that D physically interfered with P s exclusive possession of land 1.2. Protected interest is a right to exclusive possession of land 2. D s act is voluntary and positive 2.1. Must be positive (PTC NSW v Perry) and voluntary (Scott v Shephard) 2.2. Not enough if the act was passive or an omission (Innes v Wylie battery, analogy) 3. P must have standing to sue 3.1. P must have exclusive possession of the land at the time of interference (i.e. right to use or hold the land to the exclusion of all others) (Newington v Windeyer) 3.2. Determined on the basis of factual possession NOT legal ownership That is, P must be entitled to exclusive possession and be in actual or constructive possession of the land (Newington v Windeyer) 3.3. Tenants who acquire exclusive possession under lease can bring action (even against the owner) 3.4. Exception: licensees guests at hotels etc, since a mere license to be on land will not confer on that person a right to exclusive possession of the land (Oldham v Lawson) 4. D must have interfered with P s land 4.1. Land is defined as: The surface, including fixtures attached to it (houses, fence, trees etc) Below the surface of land (see LPJ Investments v Howard Chia Investments) Includes airspace above your head to such heights as it necessary for ordinary use and enjoyment of your land and the structures on it (Bernstein v Skyviews & General Ltd) Relevant test is not whether the incursion actually did interfere, it is that it may interfere with the ordinary user of land (LPJ Investments) 15 of 58

6 Negligence: Duty of Care Element 1: Duty of Care P must show that D owed P a duty of care D must have breached that duty of care There must be causation between D s breach and P s injury P must have suffered recognised harm and is not too remote D must have had no legal defence Not a question of fact, but a question of law. Plaintiff must prove either: That there is settled law which determines an existence of a Duty of Care That it was reasonably foreseeable that the possibility of careless conduct of any kind on the part of D may result in damage of some kind to P (Heaven v Pender; Donoghue; Chapman) Established as duty of care (settled law): Road Users: Broadhil v Young Driver passenger: Chapman v Hearse Doctor patient: Rogers v Whitaker; F v R Employer employee: Smith v Charles Baker Co. Occupier invitee: Heaven v Pender Manufacturer consumer: Donoghue v Stevenson Negligent mistreatment people being advised School authorities students Local councils persons requiring rezoning information Dog owners people who may be bitten Must satisfy reasonable foreseeability test (page 23) If satisfied, must look to salient features (page 24) Established as NO duty of care (settled) Barrister/solicitor client, for work done in court/out of court and connected to case): D Orta-Ekenaike v Vic Legal Aid Parents children: Robertson v Swincer Owe a DoC for any positive acts they perform NOT a failure to take action to protect children where no positive act No duty of care, cannot establish negligence 22 of 58

7 Factual Liability: But For Negligence: Causation Scope of Liability Factual Liability: But For Test (s 51(1)(a), March v Stramare) But for D s act, would P not have suffered the harm anyway? eg. Plaintiff must argue that but for D s act, he would not have suffered his harm (Barnett) Note: D s negligent act does not have to have been the only cause of injury, but a cause (March) Positive result P would not have suffered the harm s 51(1)(a) is satisfied and there is factual causation Negative result P would have suffered the harm regardless s 51(1)(a) is not satisfied and is no factual causation Check for False Positive (Strong v Woolworths) Check for False Negative (Strong v Woolworths): s 51(1)(b): Scope of Liability s 51(1)(b): P must show that it is appropriate for the scope of D s liability to extend to the harm caused s 51(3): Court can consider (if necessary) what the plaintiff subjectively would have done should D not have been careless (Chappel v Hart) s 51(4): Whether and Why test : The court may make value judgements and use common sense when deciding D s scope of liability (March v Stamare) If still positive/no reason to override s 51(2): Whether and Why test : The court may make value judgements and use common sense when deciding D s scope of liability (March v Stamare) (Will likely apply where there are multiple sufficient causations (March)) If overridden by common sense or value judgement (and overriding negative of but for test) Novus Actus Interveniens See below 41 of 58

8 Vicarious Liability Vicarious Liability Generally, a person is only liable for the torts which they have committed, and not for another person s wrong. However, the law recognises that one party could be found liable for the tortious act of another. Employers Employers can be liable for torts committed by their employees in the course of their employment (but not independent contractors) (Hollis v Vabu) Question 1 Is the tortfeasor an employee or independent contractor? Independent contractor Employer not liable Employee Question 2 Was the tort committed in the course of employment? No Employer not liable Yes Employer liable under vicarious liability 56 of 58