LAW203 Torts Week 1 Law and Theory CH 1 + 2

LAW203 Torts Week 1 Law and Theory CH 1 + 2 Tort Law Categories Intentional/Trespass Torts Trespass to Person (Assault, Battery & False Imprisonment) Trespass to Land Trespass to Goods (including Conversion & Detinue which are considered alternative legal actions to Trespass to Goods but fall into this ambit) (Note that these types of tort, despite the name of the cluster, are not all intentional, however, they are all (i) direct, (ii) they all involve fault (intentional or negligent) and (iii) do not need to cause harm) (they also each have their own separate elements) (here we are looking at the common law in particular as intentional harm is excluded under s 3B of the Civil Liability Act 2002 (NSW)) Actions on a Case Wilkinson v Downton (Indirect, Intentional Infliction of Emotional Distress) Negligence Nuisance (This is a grouping of torts that involve having to prove harm, however, if the tort is a nominate or named tort, the name is used to refer to it, e.g. negligence or nuisance) (this area of tort is governed by the Civil Liability Act 2002 (NSW) and the common law both streams of law inform each other, legislation does not replace common law) Relevant Law Most torts were originally made by judges; however, over time, statute has developed to also encompass much of the area of torts. Civil Liability Act 2002 (NSW). Limitation Act 1969 (NSW). See Civil Liability Act 2002 (NSW) s 3B. On excluded liability and thematic statute law. Dust Diseases Tribunal Act 1989 Motor Accidents Act 1988 Transport Administration Act 1988 Workers Compensation Act 1999 Defining Characteristics of a Tort Civil wrong Breach of duty imposed by law Civil right of action (non-exclusive) Tort v Crime

Tort & Crime (Similarities) Legal concepts, e.g. trespass and assault are both crimes and actionable torts Fines for criminal offences have the same function as punitive/exemplary damages in tort s 3C may exclude some civil liability issues. Compensation for injuries from crimes (Criminal Injuries Compensation Act, 1967 (NSW)) Illegality under the Civil Liability Act 2002 (NSW) The increasing frequency with which civil penalty provisions are enacted, the provisions made for criminal injuries compensation, the provisions now made in some jurisdictions for the judge at a criminal trial to order restitution or compensation to a person suffering loss or damage (including pain and suffering) as a result of an offence all deny the existence of any "sharp cleavage" between the criminal and the civil law. (Gray v Motor Accident Commission [1980] HCA 70 (Gleeson CJ, McHugh, Gummow and Hayne JJ)) Exemplary & Aggravated Damages Aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably serve one or more of the objects of punishment moral retribution or deterrence. Uren v John Fairfax & Sons Pty Ltd (Windeyer J) Tort v Contract

Tort & Contract (Similarities) Both legal duties, but you cannot negotiate your way out of a duty of care Both tort and breach of contract give rise to civil suits A breach of contract may also be a tort: e.g. employer s failure to provide safe working conditions Interests Protected Personal including: Trespass, Negligence, False Imprisonment & Nervous Shock Property including: Trespass, Conversion & Detinue Economic and Financial Interests Objectives of Tort Law 1. Compensation 2. Deterrence 3. Safety Standards 4. Punishment The role of tort law The law of torts concerns obligations of persons living in a crowded society to respect the safety, property and personality of their neighbour, both as a prior matter (matter of cause and effect) and duty to compensate for wrongfully caused harm, ex post (ter the fact). (1) Compensatory Function to be compensation for people who are injured by a wrong. For example, damages may be awarded where a person has been injured by negligence of another. The injury might be to their person or to their property. Damages are awarded on the basis that the person should be put back into the position they would have been in had the accident not occurred. Lim Pog Choo v Camden and Islington Health Area Authority Knowledge of future being denied to mankind, so much of the award is to be attributed to future loss and suffering in many cases the major part of the award will almost surely be wrong. There really only one certainty: the future will prove the award either too high or too low. Theoretical approaches Deterrent function, law and economics and insurance Deterrence theory argues that if the wrongdoer is punished or made to pay for an accident, they will try to avoid such accidents in the future. For example, argument might be made that employers who have to pay compensation to an employee which is hurt at work will create systems to ensue accident does not happen again fear or prosecution strong in criminal law but weaker in tort The economic analysis in many cases is the concept of transactions costs. Transactions costs are costs associated with any transaction. They may include court costs, lawyer s fees, time taken and monetary costs. The Coase theorem, is stated the assignment of legal rights and liabilities has no implications for economic efficiency as long as the parties involved in a particular dispute can bargain costless that is to say, with zero transaction costs, to resolve that dispute. Concerns not only what legal rights are but their rights cost. Insurance is all about people paying premiums and this fund is used to pay the cost of injury of a particular person who was injured by the insured. This can be seen as loss spreading. By spreading the loss, it also spreads the risk. The impact of insurance on negligence law may be seen as an example of loss spreading. It can be argued that it prevents deterrence because the person at fault does not pay for their wrong merely pays their premium. Corrective justice and civil recourse theory

The view that negligence law is in some sense about moral rights is one of the dominant theories in law today. Corrective justice is a collective name of a number of theories and suggests moral rights on basis of negligence and trespass. Civil recourse theory focuses on the sense of being wronged. It recognises when people are wronged their natural response is to seek retribution or vengeance. It asks why society would be interested in creating a mechanism for allowing people to fight each other rather then simply leaving them to it. Society has an interest in maintaining civil society by allowing people a mechanism of civil justice. Dominant Theory in Tort Distributive Justice Distribution of loss & risk in society Loss shifting & spreading Insurance Torts and Human Rights Australia is the only western country that does not have a national Bill of Rights in some form that protects its citizens. Outside of Act and Vic rights are only protected by the common law. Torts are a vehicle of common law which is supposed to protect the integrity of the person, economic integrity and their reputation. Trespass v Actions in case When P suffers damage of interference a decision must be made regarding what type of action or actions will be instituted to seek compensation. Actions in case are a very important category outside that of intentional torts. Negligence is an action on the case so are nuisance, misfeasance in public office and deceit. Intentional torts possible actions include: trespass to the person (battery, assault and false imprisonment) trespass to land trespass to chattels or goods conversion dentine action on the case for intentional torts (Wilkinson v Downtown) The elements that make trespass and case distinct actions include: (1) Directness Trespass requires a direct act or interference whereas, if the act or interference is consequential (indirect) the appropriate form is action on case. Hutchins v Maughan [1947] Supreme Court of Victoria P knowingly took dogs onto a property baited previously by D. P s dogs ate baits and soon died. When the harm follows so immediately upon the defendant that it is really a part of the act (Herring CJ) then it is immediate. If there is a time lapse, such that the harm is merely consequential, it is not a direct act.

Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182 (CA) 195-6 Denning LJ (2) Fault Oil discharged by D s tanker stranded in an estuary and carried by the tide onto P s foreshore property. Did not constitute trespass as the oil was carried by the tide, and thus it was a consequential act, not a direct one. For P to be successful in action for trespass, the P was only required to prove contact of trespassory nature occurred. It was sufficient for P to allege D shot the plaintiff. It was up to D to disprove fault. Action on case, P has to prove D was at fault. Trespass D is not at fault, P has no claim Stanley v Powell [1891] Defendant shot at a pheasant and the bullet richoeted off a tree wounding P, D was not liable. Jury found that D neither intended to shoot P nor was D negligent. In trespass D needs to only intend the interference. There is no need to result in harm and no requirement that a duty was owed by D to P Negligent trespass v negligence If a driver negligently and in doing so hits the plaintiff, a pedestrian, is the action instituted by P in negligence or negligent trespass or can action be brought in both? Williams v Milotin (1957) CLR 465 (Dixon CJ, McTiernan, Williams, Webb and Kitto JJ) High Court of Australia. P was struck while riding his bicycle in the street by a motor truck which was driven by D in a negligent manner Facts: Plaintiff was struck while riding his bicycle in the street by a motor truck which was driven by Defendant in a negligent manner. When you speak of a cause of action you mean the essential ingredients in the title to the right which it is proposed to enforce. The essential ingredients in an action for negligence for personal injuries include the special or particular damage it is the gist of the action and the want of due care. Trespass to the person included neither. (p 33-34). United Kingdom Position Letang v Cooper [1965] 1 QB 232 (Lord Denning) The distinction between trespass and case is obsolete Instead of dividing actions for personal injuries into trespass (direct damage) or case (consequential damage), we divide the causes of action now according as the defendant did the injury intentionally or unintentionally [where unintentional] his only cause of action is in negligence NB This is the law in UK not in Australia reconsider this position when we come to negligent trespass Fowler v Lanning [1959] 1 QB 426 Trespass does not lie if the injury although direct was caused unintentionally and without negligence Fault = intent or negligence NB Intention re act not consequences

Distinction Action on a Case (Indirect) Action on a Case: Indirect intentional infliction of personal injury Wilkinson v Downton [1897] 2 QB 57 (Queen s Bench) (SVW p 61) Plaintiff (Mrs. W) told by Defendant that H seriously injured practical joke travel expenses - serious and permanent physical consequences threatening her reason Defendant has willfully done an act calculated to cause physical harm to Plaintiff and has in fact thereby caused physical harm That proposition, without more, appears to me to state a good cause of action Not trespass indirect (speech) Wilkinson v Downton Carrier v Bonham [2002] 1 Qd R 474 (C/A Qld) - discussed in Nationwide News v Naidu and notes SVW p 65 Facts: Mentally ill patient B escaped from Qld state hospital - attempted suicide by jumping in front of bus driver C emotional injury & adjustment disorder unable to work economic loss sued B & state - W v D Held (at trial): B liable for intentional act calculated to cause Pl s harm W v D o State not vicariously liable (3) Damage Trespass is actionable without proof of damage whereas P in instituting an action for case must be able to establish that he or she has sustained damage. High Court explained this in Plenty v Dillon (1991) police officers whilst seeking to serve a summons remained upon the land after permission to be om land had been revoked although no damage to land substantial damages should be awarded Action also serves purpose of vindicating the P s right to the exclusive use and occupation of their land if common law does not uphold the rights of individuals by granting effective remedies, they invited anarchy, for nothing breeds social disorder as quickly as sense on injustice (4) Onus of proof In trespass, general rule is that D has to onus of proving fault in action for trespass (as opposed to actions on the case. The rational may be rights-based nature of the tort. An exception is where harm resulted out of the use of the highway when P had to prove that D was at fault. (Venning v Chin)