TORTS EXAM NOTES 1. TRESPASS: a. FALSE IMPRISONMENT. b. TRESPASS TO LAND. c. DEFENCES (TRESPASS) d. DAMAGES (TRESPASS) 2. NEGLIGENCE. a.

Transcription

1 TORTS EXAM NOTES 1. TRESPASS: a. FALSE IMPRISONMENT b. TRESPASS TO LAND c. DEFENCES (TRESPASS) d. DAMAGES (TRESPASS) 2. NEGLIGENCE a. DUTY OF CARE i. PURE ECONOMIC LOSS ii. PURE MENTAL HARM b. BREACH c. CAUSATION d. REMOTENESS e. DEFENCES (NEGLIGENCE) f. DAMAGES (NEGLIGENCE) 3. VICARIOUS LIABILITY

2 FALSE IMPRISONMENT The Elements f False Imprisnment: 1. A psitive vluntary act f the defendant 2. Directness 3. Fault 4. A ttal restraint f plaintiff's liberty Step 1 Definitin: A ttal restraint f the Plaintiff that is directly and intentinally r negligently brught abut by the psitive and vluntary act f the defendant. Step 2 Psitive and vluntary act Must have been PVA nt missin cnsider sctt v sheppard fr PVA and Inges v Wiley fr missin. Step 3 Directness. This is where it fllws s immediately upn the act f the defendant that it may be termed part f the act (Hutchins v Maughan). There mustn t have been an intervening cause as this wuld mean it was merely cnsequential - shw this Actively prmting detentin- liable fr FI (Cles Myer v Webster- manager fabricated stry that led plice t arrest) Myer Stres Ltd v S: The act f imprisning a persn either persnally r by an agent r being active in prmting and causing the imprisnment thereby is the prximate cause f the imprisnment Was D s actins alne sufficient t cause FI t P? Actins must be s clsely cnnected/flw immediately after D s PVA (suthprt v ess) Any intervening acts? (must ccur independently f PVA) Step 4 Fault Fault requirement in Australia

3 - Intentin r negligence - The defendant must have intended, r have been careless with regard t, the utcme f their actins nt just the actins themselves. Intentin: (Carrier v Bnham) - Actual intentin If n intentin, n trt Negligence: careless with regards t Deemed/implied: s substantially certain t ccur Burden f prf - In Australia, it is generally the case that the defendant must shw that the trespassry act was neither intentinal nr negligent (McHale v Watsn). - Hwever, with regard t highway accidents, the burden with regard t fault is n the plaintiff (Venning v Chin) Step 5 Ttal restraint: [plaintiff] must have been ttally restrained by [defendant], mre than just a partial bstructin, with a defined bundary hwever shrt a time (Bird v Jacksn) a) Nature f restraint - Physical (Mcfadzean) r psychlgical (Symes v Mahn) - If physical mve nt reasnableness f egress - If psychlgical mve nt peculiarities b) Reasnableness f egress (mcfadzean v CFMEU) Factrs t cnsider when determining whether a means f escape is reasnable: 1. Threat r danger t self 2. Threat r danger t prperty 3. Illegality 4. Distance and time

4 - If there is a reasnable means f egress, it des nt matter if the victim desn t use it, r hesitates abut accessing it. The perid f hesitatin cannt be claimed as a perid f FI Knwledge f restraint: d nt need t knw f restraint (Lampard-Trevrrw- by didn t knw he was imprisned ) Lrd Atkin: S a man might in fact be imprisned by having the key f a dr turned against him althugh he des nt knw that the key has been turned Duratin f restraint is irrelevant Peculiarities: Cntractual bligatin- can surrender liberty under cntractual agreement (Balmain Ferry- agreed he culdn t leave until he paid penny) Terms f wrk- if yu agree t be detained fr a certain time, it is nt false imprisnment (Herd v Weardale Steel Cke- descended int mine) Psychlgical- can be psychlgical restraint if there is evidence f cmplete submissin t the cntrl f the ther party (Symes v Mahn- plaintiff believed he had t g with plice fficer) Step 6 defences - Cnsent: Cnsent must be btained frm the party with legal authrity t cnsent, and must extend t the specific act in questin (Marin s) - Self defence, defence f thers, - Self defence: D believe it was necessary t d what he/she did in the circumstances (Zecevic v DPP) D must have taken reasnable steps ther than frce initially. Eg: mve away (Fntin v katapdis) - Defence f prperty? Curt less willing t find frce is justified than in cases f prtectin f peple

5 - Necessity D needs t harm plaintiff t prtect themselves, despite P being cmpletely inncent The Trespass was reasnably necessary t prtect a persn, gds r land frm imminent danger (Suthwark Lndn Brugh Cuncil v Williams) - Lawful arrest? - Children cannt cnsent/age f cnsent is variable (Marin s case) - Qute t use: This is because the fcus n this civil wrng is n the vindicatin f liberty and reparatin t the victim, rather than upn the presence r absence f mral wrngding n the part f the defendant (Kirby J in Ruddck v Taylr) TRESPASS TO LAND Step 1: define- trespass t land is cmmitted by directly and intentinally entering r remaining n, r causing sme bject t cme int cntact with land in the pssessin f anther, withut the cnsent f the persn in pssessin r ther legal justificatin r excuse Step 2: first questin t be asked is if there is land: Includes airspace, but nly t such height as is necessary fr the rdinary use and enjyment f land (Bernstein- flying phtgraphic aircraft) Includes earth beneath the land (Bcard SA- drilled fr il) Step 3: Des P have standing t sue - What kind f pssessin must P have? - Cnstructive pssessin: Newingtn v Windeyer (maintained grve adjining their prperty) Pssessed land despite n title, had standing t sue - Actual pssessin: Has exclusive pssessin because they are wner r tenant (Newingtn v Windeyer)

6 Step 4: Psitive and Vluntary act (use facts t shw) - If invluntary, nt trt - Since the respndent had gt n t the line invluntarily her presence there gave the appellant n right f actin (Gibbs J in Public transprt Cmmissin f NSW v Perry (1997)) Step 5: Interference It must be shwn that there was an interference with the land n P Slightest crssing f a bundary will suffice every invasin f private prperty, be it ever s minute, is a trespass (Lrd Camden CJ in Entick v Carringtn) A persn with permissin r a licence t be n land becmes a trespasser if the pssessr terminates the license and the entrant remains n the land beynd a reasnable time fr departure (Cwell) Cntinuing trespass still a trespass even if plaintiff cmes int pssessin f land after the initial trespass ccurs (Knskier) Step 6 - Direct It must have been direct. This is where it fllws s immediately upn the act f the defendant that it may be termed part f the act (Hutchins v Maughan). There mustn t have been an intervening cause as this wuld mean it was merely cnsequential Liable if yu intended an bject t enter n the land f smebdy else, r yu failed t exercise prper cntrl (Park J in League against cruel sprts v sctt) Step 7: FAULT - Must have intended the utcme (nt the act itself) Use facts t shw intentin Burden f prf in Aus generally D must shw that act was neither intentinal, negligent nr reckless, (McHale v Watsn)

7 Except in highway cases where the burden falls n the plaintiff (Venning v Chin) DEFENCES (TRESPASS) 1. Cnsent: A. Express and implied licence The defendant will nt be liable if they had a licence t enter r use the land A licence can be either express r implied Implied Licences: There is an implied licence t use the means f access t the entrance f a huse if: The path r driveway is left unbstructed; The entrance gate is left unlcked; and There is n indicatin that entry is frbidden: Halliday v Nevill, per majrity Will nt exist where the plaintiff has clearly indicated in advance that permissin is refused: e.g. Rinsale Pty Ltd v ABC B. Onus f prf: Onus f prf: D bears nus f prving cnsent Scpe f cnsent: Cnsent must cver the act in questin (McNamara v Duncan i.e. trespass must fall within the scpe f that cnsented t) Cnsent must be real and genuine i.e. vluntary, and nt vitiated by ther matters: Fraud P was intentinally misled as t nature and quality f the act; Duress Threat f physical frce? Disparity f pwer? Emtinal / Ecnmic duress? Cnsent nt needed where cnduct part f the exigencies (urgent need r demand) f mdern life: see Marin s Case (1992) 175 CLR 218; 106 ALR 385 C. Revcatin f Cnsent: