lecommittee topic 1-introduction intentional torts 2009 (2)

8/13/2019 LECommittee Topic 1-Introduction Intentional Torts 2009 (2)

1/48

THE LAW OF TORTS

INTRODUCTION

INTENTIONAL TORTS: TRESPASS


2/48

TEXT BOOKS

Stewart & Stuhmcke,Australian Tort Law

*Blay, Torts in a Nutshell LBC 2006

Luntz and Hambly Torts Cases and CommentaryRev. Ed. Butterworths

Sappideen et al Torts Cases Commentary LBC

Balkin and Davies, The Law of Torts

Gibson et al Tort Lawin Principle LBC 20098


3/48


4/48

Discussion/Question

Tort and Crime

How does a tort differfrom Crime?


5/48

THE DIFFERENCE BETWEEN ATORT AND A CRIME

A crime is public /community wrong thatgives rise to sanctions usually designated in

a specified code. A tort is a civil privatewrong.

Action in criminal law is usually brought bythe state or the Crown. Tort actions areusually brought by the victims of the tort.

The principal objective in criminal law ispunishment. In torts, it is compensation


6/48

THE DIFFERENCE BETWEEN ATORT AND A CRIME

Differences in Procedure:

Standard of Proof Criminal law: beyond reasonable

doubt

Torts: on the balance of probabilities


7/48

Question

Are there any similaritiesbetween a tort and a crime?


8/48

SIMILARITIES BETWEENTORTS AND CRIME

They both arise from wrongs imposed bylaw

Certain crimes are also actionable torts; egtrespass: assault

In some cases the damages in torts may be

punitiveIn some instances criminal law may award

compensation under criminal injuriescompensation legislation.


9/48

TORTS DISTINGUISHED FROM

BREACH OF CONTRACTA breach of contract arises from

promises made by the parties

themselves.


10/48

SIMILARITIES BETWEEN TORTAND CONTRACT

Both tort and breach of contractgive rise to civil suits

In some instances, a breach ofcontract may also be a tort: egan employers failure to providesafe working conditions


11/48

Questions

What are the objectives of

tort law?


12/48

THE OBJECTIVES OF TORTLAW

Loss distribution/adjustment: shiftinglosses from victims to perpetrators

Compensation: Through the award of(pecuniary) damages

The object of compensation is to place thevictim in the position he/she was before

the tort was committed.

Punishment: through exemplary or punitivedamages. This is a secondary aim.


13/48

Question

What interests are protected bythe Law of Torts, and how are

these interests protected?


14/48

INTERESTS PROTECTED INTORT LAW

Personal security

Trespass

Negligence

Reputation

Defamation

Property

Trespass

Conversion

Economic and financial interests


15/48

SOURCES OF TORT LAW

Common Law: The development of torts by precedent through the

courts

Donoghue v Stevenson

Statute: Thematic statutes: eg Motor Accidents legislation

Motor Accidents Compensation Act 1999

General statutes: eg Civil Liability legislation

The Civil Liability Act (NSW) 2002


16/48


17/48

Intention in Torts

Deliberate or wilful conduct

Constructive intent: where the

consequences of an act aresubstantially certain: theconsequences are intended

Where conduct is reckless

Transferred intent: where Dintends to hit B but misses andhits P


18/48

Negligence in Torts

When D is careless in his/herconduct

When D fails to take reasonablecareto avoid a reasonablyforeseeable injuryto another.


19/48

STRICT LIABILITY

No faultis required for strictliability


20/48

ACTIONS IN TORT LAW

Trespass

Directly caused injuries

Requires no proof of damage

Action on the Case/Negligence

Indirect injuries

Requires proof of damage


21/48

THE DOMAIN OF TORTS

TrespassNegligence

Nuisance

DefencesFinancial loss

Conversion Defamation

Breach of statutory duty

Particular Duty Areas

Concurrent liability

Product liability

Liability of public authorities

Vicarious liability

Intentional torts


22/48

INTENTIONAL TORTS

INTENATIONAL TORTS

Trespass Conversion/Detinue Defamation


23/48

INTENTIONAL TORTS

INTENATIONAL TORTS

Trespass Conversion/Detinue Defamation


24/48

WHAT IS TRESPASS?

Intentional act of D whichdirectly causes an injury to the P orhis /her property without lawfuljustificationThe Elements of Trespass:

fault: intentional act

injury* must be caused directly injury* may be to the P or to his/her property

No lawful justification


25/48

THE GENERAL ELEMENTS OFTRESPASS

Intentionalact

Specific elementThe nature of the interference

PhysicalThreats

Imprisonment

property

Direct interferencewith person or property

Absence of lawfuljustification+ +

+

=A specific

form of trespass


26/48

SPECIFIC FORMS OFTRESPASS

TRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT


27/48

BATTERY

The intentional act of D whichdirectly causes aphysical

interferencewith the body of Pwithout lawful justification

The distinguishing element:physical interference with Ps body


28/48

THE INTENTIONAL ACT INBATTERY

No liability without intention

The intentional act = basic willful

act + the consequences.


29/48

CAPACITY TO FORM THEINTENT

D is deemed capable of formingintent if he/she understands thenature of (intended) his/her act

-InfantsHart v A. G. of Tasmania( infant

cutting another infant with razor

blade)Lunatics

Morris v Masden


30/48

THE ACT MUST CAUSEPHYSICAL INTERFERENCE

The essence of the tort is the protection of theperson of P. Ds act short of physical contact istherefore not a battery

The least touching of another could bebattery

Cole vTurner (dicta per Holt CJ)

The fundamental principle, plain andincontestable, is that every persons body isinviolate ( per Goff LJ, Collins v Wilcock)


31/48

The Nature of the PhysicalInterference

Rixon v Star City Casino (D places hand

on Ps shoulder to attract his attention;no battery)Collins v Wilcock (Police officer holds Ds

arm with a view to restraining her when Ddeclines to answer questions and begins towalk away; battery)


32/48

SHOULD THE PHYSICALINTERFERENCE BE HOSTILE?

Hostility may establish apresumption of battery; but

Hostility is not material to provingbattery

The issue may revolve on how one

defines hostility


33/48

THE INJURY MUST BECAUSED DIRECTLY

Injury should be the immediateTheCase Law:Scott v Shepherd ( Lit squib/fireworks in

market place)

Hutchins vMaughan( poisoned bait leftfor dog)

Southport vEsso Petroleum(Spilt oil onPs beach)


34/48

THE ACT MUST BE WITHOUTLAWFUL JUSTIFICATION

Consent is Lawful justification

Consent must be freely given by the P if

P is able to understand the nature of theact

Allen v New Mount Sinai Hospital

Lawful justification includes the lawful

act of law enforcement officers


35/48

Battery, Consent and Sports

http://www.youtube.com/watch?v=YerDjw3Lo8A
http://www.youtube.com/watch?v=YerDjw3Lo8Ahttp://www.youtube.com/watch?v=YerDjw3Lo8Ahttp://www.youtube.com/watch?v=YerDjw3Lo8Ahttp://www.youtube.com/watch?v=YerDjw3Lo8A


36/48

TRESPASS:ASSAULT

The intentional act or threat ofD which directly places P in

reasonable apprehension of animminent physical interferencewith his or her person or of

someone under his or hercontrol


37/48

THE ELEMENTS OFASSAULT

There must be a direct threat:

Hall v Fonceca (Threat by P who shook hand in

front of Ds face in an argument)Rozsa v Samuels ( threat to cut P into bits)

In general, mere words are not actionable

Barton v Armstrong

In general, conditional threats are not actionable

Tuberville v Savage

Police v Greaves

Rozsa v Samuels


38/48

The apprehension must be reasonable;the test is objective

The interference must be imminentPolicevGreavesRozsa v Samuels

Barton vArmstrongHall v Fonceca

Zanker v Vartzokas (P jumps out of a movingvan to escape from Ds unwanted lift)

THE ELEMENTS OF ASSAULT


39/48

THE GENERAL ELEMENTS OFTRESPASS

Intentional

act

Specific elementThe nature of the interference

PhysicalThreats

Imprisonment

property

Direct interferencewith person or property

Absence of lawfuljustification+ +

+

=A specific

form of trespass


40/48

SPECIFIC FORMS OFTRESPASS

TRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT


41/48

FALSE IMPRISONMENT

The intentionalactof D whichdirectly causes the total restraint

of P and thereby confines him/herto a delimited area without lawfuljustification

The essential distinctive elementis the total restraint


42/48

THE ELEMENTS OF THETORT

It requires all the basic elements oftrespass:

Intentional actDirectness

absence of lawful justification/consent

, and total restraint


43/48

RESTRAINT IN FALSEIMPRISONMENT

The restraint must be total

Bird vJones (passage over bridge)

The Balmain New Ferry Co v Robertson

Total restraint implies the absence of areasonable means of escape

Burton vDavies (D refuses to allow P out of car)

Restraint may be total where D subjects P tohis/her authority with no option to leave

Symes vMahon (police officer arrests P by mistake)

Myer Stores v Soo


44/48

FORMS OF FALSE IMPRISONMENT

See the following Cases:

Cowell v. Corrective ServicesCommissioner of NSW(1988) Aust. Torts

Reporter 81-197.Louis v. The Commonwealth of Australia

87 FLR 277.

Lippl v. Haines & Another (1989) Aust.

Torts Reporter 80-302; (1989) 18NSWLR 620.

Dickenson Waters


45/48

VOLUNTARY CASES

In general, there is no FI where onevoluntarily submits to a form of restraint

HerdvWerdale (D refuses to allow P out of mine

shaft)Robison v The Balmain New Ferry Co. (D refuses

to allow P to leave unless P pays fare)

Lippl vHaines

Where there is no volition for restraint, theconfinement may be FI (Bahner vMarwest HotelsCo.)


46/48

WORDS AND FALSEIMPRISONMENT

In general, words can constitute FI


47/48

KNOWLEDGE IN FALSEIMPRISONMENT

The knowledge of the P at themoment of restraint is not essential.

Merring v Graham White AviationMurray vMinistry of Defense


48/48

THE BURDEN OF PROOF INTRESPASS

The traditional position in CommonLaw:

The D bears the burden of disproving faultThe Highway exception

Off highway: D disproves fault

In highway trespass: P proves fault

lecommittee topic 1-introduction intentional torts 2009 (2)

Documents