CASE SUMMARIES. Airedale NHS Trust v Bland

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1 CASE SUMMARIES Case name Airedale NHS Trust v Bland Akiba v Commonwealth Aldridge v Booth Barton v Armstrong Blake v Galloway Bropho v Western Australia Bulsey v Queensland CBA v Amadio Chatterson v Gerson CIC Insurance Ltd v Bankstown Football Club Cowell v Corrective Service Commission Derrick v Cheung Donoghue v Stevenson Dugan v Mirror Newspapers Ltd Ratio decidendi/significance Necessity where persons are unable to consent is a valid defence to intentional torts. Native title should be defined a singular right, not an atomised bundle of rights and should be regulated rather than extinguished where possible. Consent must be freely given. Threats made over the telephone can still constitute assault and can place the plaintiff in fear of imminent harm. It is not required for assault that the harm will be feared to occur immediately after the assault is carried out. Assault can occur where the plaintiff is given an alternative to suffering physical harm. Touching between the plaintiff and defendant is not required for battery: direct physical contact includes situations such as thrown objects by the defendant. In situations where the plaintiff has consented to conduct which would otherwise be tortious, implied consent may be used as a defence by the plaintiff. Statutory interpretation should be approached by placing added emphasis on legislative purpose. Restraints which the law imposes on police powers must be scrutinised minutely to defend the protection of personal liberty. In cases of trespass to the person, the onus of proof of legality of actions falls upon the defendant. False imprisonment can occur even in the absence of total restriction of liberty. Trial judge advantage is less significant where a serious delay occurs between evidence and judgment being given, especially if judgment is entered with no reasons. Not properly considering the possibility of special disadvantage of other parties in a transaction is unconscionable conduct. Consent must be real (the plaintiff must understand what it signifies) Statutory interpretation considers context in the first instance, and uses context in its widest sense to include existing law and the mischief rule. If a legally imprisoned person becomes imprisoned for longer than sentenced due to an administrative error, false imprisonment occurs. Harm caused by a driver due to unforeseeable events (situationally dependent) does not demonstrate a lack of reasonable care, and hence is not negligence. Manufacturers of products which are sold in a form such that they are intended to reach the consumer without the possibility of intermediate examination, with the knowledge that an absence of reasonable care would result in an injury to the consumer, owe a duty to the consumer to take said reasonable care. The repeal of legislative materials does not have the retrospective effect of removing existing past effects of those materials (such as felony attaint). The mere fact that areas of the law are unjust does not mean that they can be changed by the courts. 1

2 CASES (LEGAL REASONING) Barton v Armstrong Material facts: Barton was coerced by Armstrong into signing a contract through threats of violence and murder, mostly made over telephone. Barton sued Armstrong for assault. Legal issues: Do threats made without possibility of imminent action upon those threats constitute assault? Must the reasonable fear of imminent harm or direct offensive contact required for assault refer to harm occurring immediately after the assault? Can assault occur where the plaintiff has an option to avoid the causation of harm? Judgment: Threats made without possibility of imminent action still constitute assault if they instil in the mind of the plaintiff a fear of imminent harm or direct physical contact. If the actions occurring put a reasonable person in fear or apprehension of physical violence, it does not matter when the person believes that the physical violence may occur, only that it may. Even if the plaintiff has an option to avoid the causation of harm, they may entertain a reasonable fear of imminent harm or direct physical contact, constituting assault. Material facts: CBA v Amadio The Amadio family signed a mortgage for CBA to secure loans for their son. The Amadios spoke very limited English and did not understand the exact terms of the mortgage. An officer from the bank met with them in a situation where this should have been clear to him, but allowed the mortgage to be signed anyway. When CBA attempted to seize the house, the Amadios challenged the validity of the mortgage, claiming that it was procured as a result of unconscionable dealing. Legal issues: Should the bank or its employees have been aware that the Amadios were specially disadvantaged due to their limited English skills? Does unconscionable conduct occur when a bank signs a contract with a family whom it should be aware is specially disadvantaged? Judgment: If a member in a transaction has reason to believe that the other member in the transaction occupies a situation of special disadvantage, then to take unfair advantage of their superior position by entering into the transaction is unconscionable. I this ase the a k s ep ese tati e, M Vi go, should ha e ee a a e that the A adio fa il were specially disadvantaged by their lack of understanding of English, and hence entering into a transaction of them was unconscionable behaviour on the part of the bank. 5

3 INTENTIONAL TORTS QUESTION Structure: List the plaintiffs and defendants, and the torts in which they can sue. For each pairing and tort, use a different paragraph. Explain the material facts required for the tort, and whether they have been satisfied by the situation. Include relevant caveats and clarifications to the material facts required, as well as general requirements for intentional torts. Cite authority for material facts, caveats and clarifications. Determine whether the material facts have been satisfied. Determine whether the torts were intentional, reckless, or negligent. Describe possible defences, which are viable, and how likely they are to succeed. Cite authority on how defences could be applied. Comment on the likelihood of success of a claim. ASSAULT Assault arises when a defendant creates a reasonable apprehension in the plaintiff of imminent harm or direct offensive contact. BATTERY Battery arises when there is a voluntary application of direct force by a defendant to a plaintiff without the plaintiff s o se t. It is ge e all u de stood that ph si al o ta t hi h o u s as pa t of everyday life does not constitute battery. FALSE IMPRISONMENT False imprisonment arises when the movement of a person is restrained unlawfully with no reasonable means of escape. Force or absolute inhibition of movement are not required. NEGLIGENCE Negligence arises when the defendant breaches a duty of care held towards the plaintiff, causing them harm. Three elements are required to prove negligence: proof of the existence of a duty of care, proof of a breach of the duty of care, and proof of harm as a result of the breach For trespasses to the person: A direct action or interference is required. The onus lies upon the defendant to disprove fault. No proof of damage is required (as rights are being violated). For negligence: The action or inference involved need not be direct. The onus lies upon the plaintiff to prove fault. Proof of damage by the plaintiff is required

4 S 316 Crimes Act 1900 (NSW) reads: STATUTORY INTERPRETATION QUESTION (1) If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years. (2) A person who solicits, accepts or agrees to accept any benefit for himself or herself or any other person in consideration for doing anything that would be an offence under subsection (1) is liable to imprisonment for 5 years. (3) It is not an offence against subsection (2) merely to solicit, accept or agree to accept the making good of loss or injury caused by an offence or the making of reasonable compensation for that loss or injury. (4) A prosecution for an offence against subsection (1) is not to be commenced against a person without the approval of the Attorney General if the knowledge or belief that an offence has been committed was formed or the information referred to in the subsection was obtained by the person in the course of practising or following a profession, calling or vocation prescribed by the regulations for the purposes of this subsection. (5) The regulations may prescribe a profession, calling or vocation as referred to in subsection (4). Of note: Professionals/callings/vocations prescribed in the regulations are: (a) a legal practitioner, (b) a medical practitioner, (c) a psychologist, (d) a nurse, (e) a social worker, including: (i) a support worker for victims of crime, and (ii) a counsellor who treats persons for emotional or psychological conditions suffered by them, (f) a member of the clergy of any church or religious denomination, (g) a researcher for professional or academic purposes, (h) if the serious indictable offence referred to in section 316 (1) of the Act is an offence under section 60E of the Act, a school teacher, including a principal of a school, (i) an arbitrator, (j) a mediator. 14

5 LEGAL RESEARCH QUESTIONS Citations: Type of material Citation style Citation example Acts Name of Act Year (Jurisdiction). Civil Liability Act 2002 (NSW) s 5B(1)(a). Bills Name of Bill Year (Jurisdiction). Civil Liability (Offender Damages) Bill 2007 (NSW). Cases (reported) Cases (mediumneutral) Books Edited books Chapters in edited books Journal articles Names of parties (Year) Volume no. Law report series abbreviation Page case starts, Pinpoint reference. Names of parties [Year] Judgment number (Date of judgment). Authors in order given, Title of book (Publisher, Edition if not first, Place of publication, Year) Pinpoint reference. Editors (eds), Title of book (publisher, place of publication, year) pinpoint reference. Autho, Chapte Title i Edito s ed, Title of book (publisher, place of publication, year) starting page, pinpoint reference. Autho, Title of a ti le Yea Volu e Name of journal Starting page, pinpoint reference. Spencer v Commonwealth (2010) 241 CLR 118, 120. Bulsey v Queensland [2015] QCA 187 (6 October 2015). Michael Brogan and David Spence, Becoming a Lawyer (Oxford University Press, 3 rd ed, Melbourne, 2014) 24. Sean Brenna and Leon Terrill (eds), Native Title (Federation Press, Sydney, 2015) 55. Clai e You g, Pu li Ta es i Susan Boyd (ed), Challenging the Divide (University of Toronto Press, Toronto, 1997) 111, 120. Da id Ash, Judg e t o judge e t UNSW Law Journal 921,

6 DOCTRINE OF PRECEDENT (ESSAY QUESTIONS) A case is followed when there is no reasonable distinction between the material facts of the precedential case and the current case, and the precedential case is considered legally binding. A case is applied when there is a reasonable distinction between the material facts of the precedential case and the current case, but the distinction is not regarded as one which should be acted on. The precedential case is considered legally binding. A case is distinguished when the distinction between the material facts is significant enough that the cases are not considered alike, and the precedential case is not considered legally binding. A case is considered when the distinction is significant enough that the case is not applied, but where the case is still relevant, or when the case is very similar but is not a superior court, and is not legally binding. Farah v Say-Dee set out the follo i g p i iples: se iousl o side ed di ta of the ajo it of the High Court is to be treated as binding by lower courts; intermediate courts are bound by the decisions of intermediate appellate courts in other jurisdictions unless the earlier decision is plainly wrong. Otherwise, precedent of courts in other jurisdictions is generally considered merely persuasive. The ratio decidendi of a case is the basis for the particular finding in a case e.g. the ratio decidendi of Bulse is that u de s of the PP A, offi e s a esti g ithout a a a t ust hold the required reasonable suspicion that the arrested pe so is guilt is o itti g a i di ta le offe e. Notes about ratio are that the ratio must be specific to the case, but is a legal principle that is applied, not the exact circumstances of the case. The ratio decidendi of a case with multiple judgments based on different reasoning is the narrowest proposition on which the majority of judges agree. Obiter dicta of a case is legal principles stated by the judges which are not absolutely required for the findings in the case obiter in the Bulsey judgment include the principle of legality as applying to s of the PP A, as ell as the dela i the judg e t as it applied to the se o d appella t s evidence. Stare decisis (to stand by what has been decided and not to disturb settled points), or the doctrine of precedent, argues that litigation should be determined according to legal precedent. The justifications for the doctrine of precedent are that like cases should be treated alike, and that it promotes certainty in the law and predictability. 21

7 AUSTRALIAN LEGAL HISTORY (ESSAY QUESTIONS) - The legal ramifications of settling Australia are that the British were entitled under international law to bring their own laws into force without consideration of the indigenous laws. If Australia was instead conquered, then native Aboriginal laws would still apply, as well as laws issued under the royal prerogative. - This is important, because it means the British were technically settling Australia, not conquering it, and hence could bring their own laws into force without consideration of the indigenous peoples. If they had conquered Australia instead, then the royal prerogative applied, but otherwise the Aboriginal legal system would have continued to apply. - It was not until Coe v Commonwealth (1979) that the fact that Australia was conquered was recognised (in dissent), though the majority stated that the consideration of Australia as a settled colony was fundamental to the Australian legal system. - Finally, in 1992, Mabo v Queensland (No 2) struck down the doctrine of terra nullius and recognised native title in Australia for the first time. Mabo conceived native title as a distinct property right. - Since Mabo, there have been inconsistent approaches towards native title by the courts, but recent decisions of the High Court indicate an approach that raises the threshold for the extinguishment of native title. - In Western Australia v Ward (2002), native title was no longer defined as a property right, but as a bundle of individual rights, each of which could be individually extinguished. This lowered the threshold for extinguishment of native title, as it could be extinguished gradually through partial extinguishments. - In Akiba v Commonwealth (2013), the High Court made the following decisions: native title should be determined as a single property right, not a bundle of rights; where possible, native title should be suspended by statute, not extinguished; and commercial rights should be interpreted as compatible with native title where possible. - In Karpany v Dietman (2013), the High Court decided that native title should be regulated, rather than extinguished, by statute wherever possible. - In Western Australia v Brown (2014), the High Court decided that, as in Akiba v Commonwealth, where native title could not coexist with statutory rights, it should be suspended, not extinguished, and when the statutory rights expire or use of the land ceases, native title will resume. - In Queensland v Congoo (2015), the High Court decided that statutory interpretation should begin with a presumption against extinguishment, and that even expansive and ongoing statutory rights that include the prohibition of exercise of native title would impair, not extinguish, native title. General mistreatment of Aboriginals: - During the 1900s a mass of state and Commonwealth legislation was drafted to regulate Aboriginals, eroding many common law rights including the right to sit on a jury and the right to vote, and occasioning the removal of children from their parents. An example of this is the Aborigines Act 1911 (SA) allowing the Aborigines Protection Board to exempt persons from A o igi e status, easo of ha a te a d sta da d of i tellige e a d de elop e t, a d the ould ease to e a A o igi e fo the pu poses of said A t. - Historical restrictions upon Aboriginals voting in Australia include: no right of suffrage for Aboriginals in Queensland; no right of suffrage for people living on charity, including Aboriginals living on reserves, in New South Wales; no right of suffrage for Aboriginals in Western Australia unless they were made a citizen by the Natives (Citizenship Rights) Act 1893 (WA) or had served 27

8 EVOLUTION OF THE RULE OF LAW (ESSAY QUESTIONS) - Began with the Magna Carta in 1215, which emphasised the idea of equality of all men under the la, a d that o f ee a shall e seized o i p iso ed e ept the la ful judg e t of his e uals o the la of the la d. - In the 14 th century, the writ of habeas corpus, a writ to secure the presence in court of a defendant to determine whether the cause of their detention is legal, was brought into use. - In the 15 th and 16 th century, torture was legally abolished, and admissions in court derived from torture were deemed invalid. - In 1628, the Petition of Right was written, limiting royal power over Parliament and entrenching the p i iple of o ta atio ithout ep ese tatio. - In 1689, the Bill of Right established constitutional monarchy, limited the power of the Crown, and gave independent power to Parliament. - In 1789, the US Constitution established limits to the power of Britain over the colonies, and the French Declaration limited the power of the French monarchy. - Di e s th century definition of the rule of law included three concepts: due process and the abolition of arbitrary punishment; universality and equality under the law; and a Constitution defined by accrued judicial decisions. - In 1948, the Universal Declaration of Human Rights was adopted, restricting the laws of countries around the world without legally binding them. In 1949, the Geneva Convention expanded on the state of international law for humanitarian treatment in war. - A o e e e t defi itio of the ule of la is Ta a aha s 1997 research paper, defining the rule of law under the following concepts: the government is bound by law and cannot act illegally or pass unconstitutional laws; all must adhere to the law and that it must affect everyone equally and through due process; laws should not be made in a way that they cannot be followed; laws should not be interpreted outside of their reasonable limits. - In 1998, the Rome Statute, establishing the International Criminal Court, was adopted. - A very recent definition of the rule of la is Wald o s esea h pape, defi i g the ule of law much more narrowly, in that it requires: impartial courts; legally trained officials; a right to representation by counsel; a right to be present during the legal proceedings; a right to crossexamination; a right to assurance of legally gathered evidence; a right to present evidence on o e s o ehalf; a ight to ake legal a gu e ts; a ight to hea easo s f o the ou t o its decision; and a right of appeal. - In 2011, Lord Bingham stated a similar list of prerequisites to Waldron in the more specific situation of a criminal trial. 31

9 EQUITY (ESSAY QUESTIONS) Equity arose to ameliorate the harshness of the common law, originally in the English Court of Chancery. Equity exists nowadays to deal with unconscionable or unconscientious conduct. Equity works with the common law to enforce matters such as equitable interests in property (such as trusts). Equity also includes doctrines which can be brought to bear on common law matters (such as property and contracts). Equity also recognises and enforces fiduciary relationships (relationships where the fiduciary in the position of trust is obliged to act entirely in the interests of the other party). The two basic obligations of a fiduciary are the no-conflict rule and the no-profit rule. The first means that the fiduciary must not place themselves in a situation where their position as a fiduciary is conflicted with other interests. The second means that the fiduciary may not profit from their unique position, except when explicitly allowed to by the other party. Fiduciaries include trustees, guardians, solicitors and clients, and company directors. Where an equitable right is infringed or where a common law remedy is inadequate, equitable remedies will be granted. Equitable remedies include injunctions, which are orders to do or refrain from doing a particular action, an account of profits, which is a recovery of profits the trustee has wrongly gained, specific performance, which are orders to proceed with a contract in a certain way, or equitable compensation. Exclusive jurisdiction efe s to e uit s a ilit to a a d e uita le e edies fo pu el e uita le causes of action. Concurrent jurisdiction refers to matters where equitable remedies can be provided for equitable or common law causes of action. Auxiliary jurisdiction also refers to equity supporting common law remedies, but arises during pendency of proceedings. Examples of the types of unconscionable or unconscientious conduct that equity protects against are: - The exploitation of vulnerability or weakness - The abuse of positions of trust or confidence - The insistence upon rights in circumstances which make such insistence harsh or oppressive - The inequitable denial of obligations - The unjust retention of property The requirements for a plea of unconscionability are: - There needs to be a special disadvantage on the part of the plaintiff which the defendant knows about - There needs to be an abuse of the disadvantage by the defendant Equity is intimately related to the common law, not absolutely separate. It is not a self-sufficient system it relies on the common law, and supplements it, rather than being a parallel body of law. Equity arose from the use, a precursor to the modern trust. The use was a situation that arose because women were incapable of holding legal title however, legal title could instead be transferred to a third party, with the requirement that it was for the use of the woman. An example of this is: A father wishes for his daughter to gain the benefits of owning a property. 33

10 ENGLISH LEGAL HISTORY (ESSAY QUESTIONS) The power of the king During the English Civil War, there was dispute over whether legal power was held by Parliament, the King, or the common law. Questions arose as to whether the King could control the judges and to whether the King could control Parliament. The royal argument arose from the theory of the divine right of kings, derived from the natural law theory that law is based on reason and on the will of the sovereign. This view was espoused by King James I and his Attorney-General, Sir Francis Bacon. The common lawyers disputed this view, led by Sir Edward Coke, a lawyer and judge who held many important legal positions during his life including Chief Justice of two different courts and Speaker of the House of Commons. Coke held that the ultimate right of interpreting laws did not lie with the king, but instead with the o o la e s. Coke s a tio s e e s pto ati of fundamental ideological differences et ee hi a d the ki g. Coke s ideolog as that the ki g as a constitutional monarch rather than an absolute ruler. The belief of many lawyers (including Coke) at this stage was that the English common law was a perfect legal system, but could only be interpreted in courts through artificial reasoning as learned by experienced lawyers, not merely by normal reasoning. Coke was heavily influenced by Sir John Fortescue (who in turn was influenced by the natural law theories of Thomas Aquinas). Fortescue believed that English customary law had developed to protect citizens, and that Parliament represented the non-a solute po e of the o a h. Coke s conception of natural la as the la of atu e is that hi h God at the ti e of eatio of the atu e of a i fused i to his hea t, fo his p ese atio a d di e tio. Coke argued that the King was not capable of interpreting laws or judging cases. In the 17 th century, Parliament rose to unprecedented power. However, lawyers argued that the common law fettered not only the King but also Parliament (though Parliament could amend the common law by statute). The argument of judicial supremacy was unsuccessful, and Parliament became the ultimate authority in interpretation of laws. The royal prerogative remained in existence in the 17 th century, but it was decided that the determination of conditions allowing the exercise of the prerogative were questions of law. The evolution of the common law in the 17 th century was seen as a maintenance of individual rights. I the House of Co o s issued the Petitio of ight, hi h de la ed i te alia that o a he eafte e o pelled to ake o ield a ta ithout o o o se t Act of parliament, a d that o e e alled to ake a s e o e i g the sa e o fo efusal the eof. Charles I, after a coup, escape from captivity, and an attempt to forge an alliance with Scotland, was tried by a High Court of Justice, found guilty of treason, and executed. From England was ruled by Parliament alone, headed by Oliver Cromwell (the Interregnum, the only period in English history with a written constitution). In 1660, Charles II issued the Declaration of Breda, promising amnesty for crimes committed and maintenance of property rights obtained during the Interregnum, and was subsequently invited to take the throne. His successor, James II, was Catholic. When his wife, Queen Mary, gave birth to a son, the Assembly of Peers invited William of Orange (the husband of Ja es s daughter Mary) to assume the throne to 35