Law of Torts II (LAW 1007)

Transcription

1 Law f Trts II (LAW 1007) Cncurrent Trtfeasers and Prprtinate Liability Intrductin Smetimes there will be mre than ne defendant liable fr the lss suffered by the plaintiff This fllws the precedent in causatin March v Stramare (1991) Nt a matter f determining the cause, but whether defendant actin amunted t a cause. Several Liability: arises when tw peple cause the same damage t a plaintiff but in different ways Jint Liability: arises when the defendant is acting in an agent/principal relatinship and they are jintly liable i.e. emplyee/emplyer except in the case f vicarius liability The questin is what is the extent f the defendants relative liability? Basic Rule: the plaintiff can nt recver mre than their ttal lss they cannt receive a windfall gain A plaintiff s claim is classified and different principles apply accrding t the type f harm suffered 1) Persnal Injury/Pure Mental Harm! Resulting in ecnmic lss (earnings and expenses) and nn-pecuniary lss 2) Pure Ecnmic/Prperty Lss There are tw types f liability defending n type f harm suffered: 1) Slidary Liability Curt hlds that each defendant is 100% liable fr the lss plaintiff chses whm t sue Generally the ne with the mst mney and insurance Cntributin Prceedings: One defendant sues the ther defendant in a separate actin t determine the share that each must pay a claim fr cntributin r an indemnity If ne defendant can nt affrd t pay his/her share then the ther defendant must make up the shrtfall Defendants incur the risk f cmpensating plaintiff in full Slidary Liability is limited t persnal injury claims under s6 Law Refrm (Cntributry Negligence and Apprtinment f Liability) Act 2001 (SA) (LRA) The LRA ablished the cmmn law n cntributin rule Slidary Liability is a applied at brad discretin and amunt ruled n what is just and equitable 2) Prprtinate Liability Curt hlds each defendant liable fr a % f the plaintiff s lss If ne defendant can nt pay the plaintiff incurs the lss Plaintiff incurs the risk f nn recvery due t defendant s inability t pay All defendant s must be identified fr a ttal 100% liability Defendants prprtins remain the same even if a third party is liable and hence plaintiff wuld nt receive 100% Prprtinate Liability exists in cases f prperty damage & pure ecnmic lss under s3(2) and applied fllwing s8&9 LRA It is applied at brad discretin t assign the prprtin f wrngders respnsibility as is just and equitable under s8(2) LRA Prprtinate Liability is mre expensive as mre defendant s but safer than slidary liability as mre likely t get smething back as prprtinate Distinctin between Slidary and Prprtinate Liability 1

2 Whether the plaintiff is a party t the actin which apprtins respnsibility between defendants Makes a big difference in terms f wh wears the risk f an inslvent defendant Judgment nly binding n parties t the actin The New Legislative Prvisins fr Slidary and Prprtinate Liability (LRA) applies t A liability in damages that arises under the law f trts; A liability in damages fr breach f a cntractual duty f care; A liability in damages that arises under statute LRA s 4(1) Cntributry Negligence A duty wed by plaintiff t take reasnable care f themselves Requirements: The plaintiff breached the duty they wed t themselves t take reasnable care; AND The plaintiff breach causally cntributed t their injuries/harm = Reductin in damages awarded t the p n the basis f what is just and equitable Legislatin: s7(1) LRA NB: sme prvisins in the Civil Liability Act 1936 (SA), s50 NB: See ntes frm Law f Trts I fr further detail and when t apply cntributry negligence Trt f Defamatin 2

3 Intrductin Defamatin is the law aimed at prtecting persnal reputatin and invlves striking a balance between this persnal right and the public interest f freedm f speech Defamatin ccurs when ne persn cmmunicates t anther material which adversely affects the reputatin f a third persn, r causes them t be shunned r avided in circumstances where there is n prper defence The key t defamatin is the effect n the plaintiff s reputatin Under s6 Defamatin Act 2005 (SA), the abve cmmn law f defamatin stands Lange v ABC (1997) 189 CLR 520 This case shws the High Curt s supprt f the fundamental right f freedm f cmmunicatin n matters f gvernment and plitics and hence supprts the law f defamatin as lng as it is cnsistent with cnstitutinal law Objectives f the Defamatin Act 2005 (SA) Enact prvisins t prmte unifrm laws f defamatin in Australia Ensure that the law f defamatin des nt place unreasnable limits n freedm f expressin and, in particular, n the publicatin and discussin f matters f public interest and imprtance Prvide effective and fair remedies fr persns whse reputatins are harmed Speedy and nn-litigius methds f reslving disputes abut the publicatin f defamatry matter Parties in a Defamatin Actin Wh can be a Plaintiff? Any living persn! Ceases upn the death f the plaintiff Calwell v Ipec Australia Ltd (1976)! Relatives and friends f the deceased can nly sue if the statement primarily cncerning the dead persn invlves a slur n them Krahe v TCN Channel Nine Pty Ltd (1986) N express mentin but implies as had persnal implicatins n the family! Defamatin Act 2005 (SA) s10 n cause f actin fr defamatin f, r against, deceased persns Any legal persnality! Defamatin Act 2005 (SA) s9 a crpratin can nly sue if: It has less than 10 emplyees; r Is a nt-fr-prfit rganizatin Wh may be liable? Every persn wh cntributes t the publicatin f defamatry material, regardless f the precise degree f invlvement, r authrises it, is liable Webb v Blch (1928) Urbanchich v Drummyne Municipal Cuncil (1991)! Psters n bus stp fault f authrity as they were tld they were there but did nt mve them, despite the fact that they did nt put them up The defence f inncent disseminatin helps limit liability under s30 Defamatin Act 2005 Elements f a Defamatin Actin Material is published 3

4 Published material was defamatry The plaintiff was identifiable as the persn defamed NB: the falsity f the statement is nt an element f the cause f actin! simply indicates the absence f the cmplete defence f truth NB: their desn t have t be an intent t defame 1) Is the Material Published? Refer t s40 Defamatin Act Prf f Publicatin Defamatry material must be published in the sense that it is cmmunicated by wrds, cnduct r ther means t at least ne persn ther than the plaintiff Any type f published material cunts facebk, cartns, misprints in articles, psters etc. Any tne can be defamatry serius, cmic, mistake etc. s7 Defamatin Act distinctin between libel and slander is ablished Wild-Blundell v Stephens [1920] publicatin must be reasnably frseen Defamatin n the Internet Dw Jnes & Cmpany Ltd v Gutnick (2002)! Material Facts: Gutnick (Australian Businessman) was defamed but U.S. publishers Respndent wanted t trial in Aust, Appellant wanted t trial in U.S. as their defamatin laws are very weak due t the bill f rights! Central issue: Are current defamatin laws apprpriate in the cntext f the internet? In which jurisdictin shuld the trial ccur?! Appellant prpsed the designatin f a single place f publicatin which was where a publisher maintained its servers! Curt ruled trial shuld be held where the defamatry material is accessible t third parties this gives uncertainty but is fair unlike defendant s argument! Curts acknwledged that the internet is a special case hwever brad may be the reach f any particular means f cmmunicatin, thse wh make infrmatin accessible by a particular methd d s knwing f the reach that their infrmatin may have Gleesn CJ, Gummw and Hayne JJ This issue is cvered under s11 DA 2005 (SA)! The chice f law fr defamatin prceedings is t be held in the jurisdictin f clsest cnnectin t the harm under s11(2) DA! The clsest cnnectin t the harm is determined under s11(3) which lists factrs the curt may take int accunt 2) Is the Published Material Defamatry? must have a negative impact n plaintiff s reputatin What cnstitutes Defamatry Material: 4

5 Tendency t lwer the plaintiff in the estimatin f thers! making them think less f her r him and will nly d s if it is disparaging! Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) Statement abut the plaintiff which wuld tend t make them be shunned r avided Likely t expse the plaintiff t hatred, cntempt r ridicule Statement must be interpreted as defaming as a whle Charlestn v News Grup [1995] Types f Defamatry Material: Lwering estimatin:! A ftballer had s allwed his cnditin t degenerate that he was a hpeless player Byd v Mirrr Newspapers Ltd [1980]! A ftballer had deliberately permitted a nude pht t be taken f him and published in a magazine Ettinghausen v Australian Cnslidated Press Ltd (1991)! A cmpany was unable t meet its financial bligatins Stubbs v Russell [1913] Shun r avid:! Persn was insane Mrgan v Lingen (1863)! A wman was raped Yussupff v Metr-Gldwyn-Mayer Pictures Ltd (1934)! Has a cntagius disease Henry v TVW Enterprise [1990] Ridicule, Hatred r cntempt:! A ftballer was s fat as t appear ridiculus n the field Byd v Mirrr Newspapers Ltd [1980]! Phtgraph f a man was used in an advertisement and was distrted and caricaturised him! defamatin as was publicly ridiculed Dunlp Rubber Cmpany v Dunlp [1921] What is nt sufficient: Merely hurt feelings r invasin f privacy Byd v Mirrr Newspapers Ltd [1980] Wrds spken by way f vulgar abuse r vituperatin and which are understd as such Wds v Bransn (1952)! As the plaintiff receives sympathy frm public Cntext is imprtant Charlestn v Newsgrup Newspapers Ltd [1995]! Nt defamatry as article was defending plaintiff, despite defaming them! Criticised in: Chakravarti v Advertiser Newspapers Ltd (1998) Kirby J Dissented as first glance lked defaming and this is hw peple think Favell v Queensland Newspapers Pty Ltd (2005)! Stry cmpnents are inncent but verall intentin f stry was defaming Hw des Defamatin arise? Natural and Ordinary Meaning! The imputatin arises frm the natural and rdinary meaning! Chakravarti v Advertiser Newspapers (1998) The recipient has been variusly described as reasnable reader, rightthinking [member] f sciety, rdinary man, nt avid fr scandal! Reader s Digest Services Pty Ltd v Lamb (1982) Imputatins are adjudged by references t the rdinary, reasnable, fair minded members f sciety! Farquhar v Bttm [1980] Must be guided by the test f reasnableness! must reject any strained, frced r utterly unreasnable interpretatin NB: the rdinary reasnable reader f a newspaper article is understandably prne t engage in a certain amunt f lse thinking False Innuend 5