The Nature of Law What is Law? o Law can be defined as: A set of rules Made by the state, and Enforceable by prosecution or litigation o What is the purpose of the law? Resolves disputes Maintains social order Preserves and enforces community values Protects the disadvantaged Regulates the economy Prevents the misuse of power Why does the law change? o The law chances regularly because of Political Change The need to fix problems with the law Changing community values Pressure from lobby groups Changing Technology Law and Justice o Justice can be understood as fairness such as fair compensation or punishment, a fair decision or a fair distribution of resources. o The notion of fairness has influenced the development of business law in many wats
Law and Ethics o A legal choice is one that complies with the law; an ethical choice is one that is recognised as good and right. o Law and Ethics generally correspond, but: A decision that is legal may not be ethical A decision that is ethical may not be legal Law and Politics o While the law is more than merely politics, the law is shaped and influenced by power and politics o Legislation is made by politicians to implement government policies and achieve political objectives The Australian Legal System Civil Law Systems o Civil Law legal systems are the most common type of legal system. Examples include, France, Germany, Russia, China, Japan, Thailand and Korea o The Primary source of law is legislation in the forms of codes, statues and constitutions. Case Law is generally not recorded and is not recognised as a source of law. Common Law Systems o Common law legal systems are based on the British legal system. Examples include the UK, Australia, USA, Canada and NZ o The 2 main sources of the law are The Parliament which makes legislation The courts which make case law o The judiciary is much more powerful and influential in common law countries than in civil law countries Australia is a liberal representative democracy utilizing the Westminster system of government o Democracy o Representative democracy o Compulsory voting o Liberal democracy o Limited constitutionally protected rights Australia is a common law legal system The Australian governmental system is a constitutional monarchy Australia is a federation There is a clear separation of powers in Australia
Legislative Power Legislative power is the power to make law, and in Australia is exercised by the Federal Parliament and the various State and Territory parliaments Lecture Week 2 What is Tort Law? A Tort is a civil wrong, other than a breach of contract, for which the courts provide a remedy typically in the form of an action for damages Tort law seeks to provide reimbursement to members of society who suffers losses because of the dangerous, unreasonable or non-consensual conduct of others The various types of torts are broadly divided into 2 categories: o Intentional Torts o Negligence Intentional Torts Criminal vs Civil Liability o What if you deliberately cause harm to another person? o If your conduct causes harm to another person and that conduct is not justified or excused by law, there will be legal consequences o The consequences may be criminal and/or civil. We will focus upon the civil consequences of causing harm: the person harmed (the plaintiff) sues the person who caused the harm (the defendant) Trespass Trespass is direct and intentional interference with the person or property of the plaintiff The trespass may be o To land o To goods o To the person Actionable per se no need to prove damages Trespass to land o A person commits the tort of trespass to land if they interfere with another person s exclusive possession of land Kelsen v Imperial Tobacco Co Ltd [1957] 2 QB 334 o Tenants have the right to sue o There are implied rights to enter land
Trespass to goods o A person commits the tort of trespass to goods, if they interfere with another person s possession of goods o Conversion and detinue are related torts Trespass to person o Battery A person omits the tort of battery if they cause some sort of physical interference with the body of another person Rixon v Star City Ltd [2001] NSWCA 265 o Assault A person commits the tort of assault if they cause another person to develop an apprehension of imminent physical contact o False Imprisonment A person commits the tort of the false imprisonment if they cause another person to be totally restrained Defences o Accident o Consent o Necessity o Self-defence o Defence of property Nuisance o Private Nuisance A person commits the tort of private nuisance if they indirectly interfere with another person s use and enjoyment of private land o Public Nuisance A person commits the tort of public nuisance if they indirectly interfere with another person s use and enjoyment of public land (e.g. a street of a park) o Silservice v Supreme Bread Pty Ltd (1949) 50 SR (NSW) 207 o Compare with trespass: One is direct and the other indirect o Defences Consent Statutory Authority Contributory negligence Defamation o A person commits the tort of defamation if they publish to a third party, in spoken or written form, a statement about another person that would damage the reputation of the other person o The other person must show that The statement about them was defamatory The statement identified them The statement was published by a third party o Defences Include Justification (truth) Absolute privilege Qualified privilege
Honest opinion Innocent dissemination Deceit o A person commits the tort of deceit if They make a statement of fact to another person knowing that is it false They make the statement with the intention that it be relied upon by the other person The other person relies upon the statement The person suffers harm as a result of relying upon the statement Passing off o A person commits the tort of passing off They make a misrepresentation (expressly or by implication) that their goods or services are connected with another person s goods or services Is made in the course of trade Is intended to deceive potential purchasers Consequences o Damages Compensation, nominal damages, aggravated damages, exemplary damages o Injunction Mandatory, Interim, Preliminary o Statutory remedies o Statute of limitations Negligence o A person commits the tort of negligence They owe the other person a duty of care They breech the duty of care Their breech causes the other person to suffer reasonably foreseeable harm o Most common tort Negligence is by far the most common tort. Most acts that cause harm to other people are the result of carelessness rather than intent Since the civil liability reforms following the insurance crisis the law of negligence is now a combination of case law and statutory rules o Element One: Duty of Care In most cases the establishment of the existence of a duty of care will be relatively straightforward. Provided that the relationship between the parties falls within the established categories of duty of care Novel Categories If the relationship does not fall within one of the established categories, the plaintiff must establish that 2 tests are satisfied First, it must be shown that at the time of the incident it was reasonably foreseeable that the defendants conduct could cause harm to someone in the plaintiffs position Second, the plaintiff must show that the salient features of the case are consistent with the existence of the duty of care. This means that the court will consider the relationship
between the parties and other features of the case and then compare those features with the features of other cases where a duty of care has been found to exist Element two: Breach of the duty of care o To establish a breach of duty it must be shown that the defendant failed to do what a reasonable person would have done in the same circumstances o The court will take into account The probability of harm The likely seriousness of the harm The burden of taking precautions o The standard of care may be reduced because the defendant is a minor. Generally, inexperience will not reduce the duty owed o A person holding themselves out as an expert or professional or having some special skill may owe a higher standard of care o There is generally no duty to act in the absence of a previous relationship Element Three: Harm caused by the breach