THE LAW OF TORTSTHE LAW OF TORTS

INTRODUCTIONINTRODUCTION

INTENTIONAL TORTS: TRESPASSINTENTIONAL TORTS: TRESPASS

WHAT IS A TORT?WHAT IS A TORT?

•A tort is a A tort is a civilcivil wrong wrong•That (wrong) is based a That (wrong) is based a breach of a duty breach of a duty imposed by imposed by lawlaw

•Which (breach) gives rise to a Which (breach) gives rise to a (personal) civil right of action (personal) civil right of action for for for a remedy not for a remedy not exclusiveexclusive to another area of to another area of lawlaw

Discussion/QuestionDiscussion/Question

•Tort and CrimeTort and Crime–How does a tort How does a tort differ from differ from CrimeCrime??

THE THE DIFFERENCE DIFFERENCE BETWEEN A TORT AND A BETWEEN A TORT AND A

CRIMECRIME•A crime is A crime is public /communitypublic /community wrong that wrong that

gives rise to sanctions usually gives rise to sanctions usually designated in a specified code. A tort is a designated in a specified code. A tort is a civil ‘private’ wrong.civil ‘private’ wrong.

•Action in criminal law is Action in criminal law is usually brought usually brought by the state or the Crownby the state or the Crown. Tort actions . Tort actions are usually brought by the victims of the are usually brought by the victims of the tort.tort.

• The principal objective in criminal law The principal objective in criminal law is is punishmentpunishment. In torts, it is. In torts, it is compensationcompensation

THE THE DIFFERENCE DIFFERENCE BETWEEN A TORT AND A BETWEEN A TORT AND A

CRIMECRIME• Differences in Procedure:Differences in Procedure:

– Standard of ProofStandard of Proof» Criminal law: beyond Criminal law: beyond reasonable doubtreasonable doubt»Torts: on the balance of Torts: on the balance of probabilitiesprobabilities

QuestionQuestion

•Are there any Are there any similarities similarities between a between a tort and a crime?tort and a crime?

SIMILARITIES BETWEEN SIMILARITIES BETWEEN TORTS AND CRIMETORTS AND CRIME

•They both arise from wrongs They both arise from wrongs imposed by lawimposed by law

•Certain crimes are also actionable Certain crimes are also actionable torts; eg trespass: assaulttorts; eg trespass: assault

• In some cases the damages in torts In some cases the damages in torts may be punitivemay be punitive

• In some instances criminal law may In some instances criminal law may award compensation under award compensation under criminal injuries compensation criminal injuries compensation legislation.legislation.

TORT and CRIMETORT and CRIME

• The "roots of tort and crime" are "greatly The "roots of tort and crime" are "greatly intermingled". And it is not only the roots of intermingled". And it is not only the roots of tort and crime that are intermingled. The tort and crime that are intermingled. The increasing frequency with which civil penalty increasing frequency with which civil penalty provisions are enacted, the provisions made provisions are enacted, the provisions made for criminal injuries compensation, the for criminal injuries compensation, the provisions now made in some jurisdictions for provisions now made in some jurisdictions for the judge at a criminal trial to order restitution the judge at a criminal trial to order restitution or compensation to a person suffering loss or or compensation to a person suffering loss or damage (including pain and suffering) as a damage (including pain and suffering) as a result of an offence all deny the existence of result of an offence all deny the existence of any "sharp cleavage" between the criminal and any "sharp cleavage" between the criminal and the civil law. ( Per the civil law. ( Per GLEESON CJ, McHUGH, GUMMOW GLEESON CJ, McHUGH, GUMMOW AND HAYNE JJ. In AND HAYNE JJ. In Gray v Motor Accident CommissionGray v Motor Accident Commission ) )

TORTS DISTINGUISHED FROM TORTS DISTINGUISHED FROM BREACH OF CONTRACTBREACH OF CONTRACT

•A breach of contract arises A breach of contract arises from promises made by the from promises made by the parties themselves.parties themselves.

SIMILARITIES BETWEEN TORT SIMILARITIES BETWEEN TORT AND CONTRACTAND CONTRACT

•Both tort and breach of Both tort and breach of contract give rise to civil contract give rise to civil suitssuits

•In some instances, a breach In some instances, a breach of contract may also be a of contract may also be a tort: eg an employer’s tort: eg an employer’s failure to provide safe failure to provide safe working conditionsworking conditions

QuestionsQuestions

•What are the What are the objectives of tort objectives of tort law?law?

THE OBJECTIVES OF TORT THE OBJECTIVES OF TORT LAWLAW

•Loss distribution/adjustment: shifting Loss distribution/adjustment: shifting losses from victims to perpetratorslosses from victims to perpetrators

•Compensation: Through the award of Compensation: Through the award of (pecuniary) damages(pecuniary) damages–The object of compensation is to place The object of compensation is to place the victim in the position he/she was the victim in the position he/she was before the tort was committedbefore the tort was committed..

•Punishment: through exemplary or Punishment: through exemplary or punitive damages. This is a secondary punitive damages. This is a secondary aim.aim.

QuestionQuestion

•What What interests interests are are protected by the Law of protected by the Law of TortsTorts, and how are these , and how are these interests protected?interests protected?

INTERESTS PROTECTED IN INTERESTS PROTECTED IN TORT LAWTORT LAW

• Personal securityPersonal security–TrespassTrespass–NegligenceNegligence

• ReputationReputation–DefamationDefamation

• PropertyProperty–TrespassTrespass–ConversionConversion

• Economic and financial interestsEconomic and financial interests

SOURCES OF TORT LAWSOURCES OF TORT LAW

•Common Law:Common Law:– The development of torts by precedent The development of torts by precedent

through the courtsthrough the courts»Donoghue v StevensonDonoghue v Stevenson

•Statute:Statute:– Thematic statutes: eg Motor Accidents Thematic statutes: eg Motor Accidents

legislationlegislation»Motor Accidents Compensation Act 1999Motor Accidents Compensation Act 1999

– General statutes: eg Civil Liability legislationGeneral statutes: eg Civil Liability legislation»The Civil Liability Act (NSW) 2002The Civil Liability Act (NSW) 2002

LIABILITY IN TORT LAWLIABILITY IN TORT LAW

• Liability = responsibilityLiability = responsibility• Liability may be based on Liability may be based on faultfault or it may or it may

be be strictstrict• Fault liability: the failure to live up to a Fault liability: the failure to live up to a

standard through an act or omission .standard through an act or omission .• Types of fault liability:Types of fault liability:

NEGLIGENCE INTENTION

FAULT LIABILITY

Intention in TortsIntention in Torts

•Deliberate or wilful conductDeliberate or wilful conduct• ‘‘Constructive’ intent: where Constructive’ intent: where

the consequences of an act the consequences of an act are substantially certain: the are substantially certain: the consequences are intendedconsequences are intended

•Where conduct is recklessWhere conduct is reckless•Transferred intent: where D Transferred intent: where D

intends to hit ‘B’ but misses intends to hit ‘B’ but misses and hits ‘P’and hits ‘P’

Negligence in TortsNegligence in Torts

•When D is When D is carelesscareless in in his/her conducthis/her conduct

•When D fails to take When D fails to take reasonable carereasonable care to avoid to avoid a a reasonably foreseeable reasonably foreseeable injuryinjury to another. to another.

STRICT LIABILITYSTRICT LIABILITY

•No No faultfault is required for is required for strict liabilitystrict liability

ACTIONS IN TORT LAWACTIONS IN TORT LAW

• TrespassTrespass–Directly caused injuriesDirectly caused injuries–Requires no proof of Requires no proof of damagedamage

•Action on the Action on the Case/NegligenceCase/Negligence–Indirect injuriesIndirect injuries–Requires proof of damageRequires proof of damage

THE DOMAIN OF TORTSTHE DOMAIN OF TORTS

Trespass Negligence

NuisanceDefencesFinancial

lossConversion Defamatio

nBreach of statutory duty

Particular Duty Areas

Concurrent liability

Product liability

Liability of public authorities

Vicarious liability

INTENTIONAL TORTSINTENTIONAL TORTS

INTENATIONAL TORTS

Trespass Conversion Detinue

WHAT IS TRESPASS?WHAT IS TRESPASS?

• Intentional Intentional act of D which act of D which directlydirectly causes an injury to causes an injury to the the P or his /her propertyP or his /her property without lawful justificationwithout lawful justification

•The Elements of Trespass:The Elements of Trespass:– fault: fault: intentional intentional actact– injuryinjury* must be caused * must be caused directlydirectly– injury* may be to the P or to his/her injury* may be to the P or to his/her

propertyproperty– No No lawful justificationlawful justification

THE GENERAL ELEMENTS THE GENERAL ELEMENTS OF TRESPASSOF TRESPASS

Intentionalact

“x” element

Direct interference with person or property

Absence of lawfuljustification+ +

+=

A specificform of trespass

SPECIFIC FORMS OF SPECIFIC FORMS OF TRESPASSTRESPASS

TRESPASSTRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT

BATTERYBATTERY

• TheThe intentional act intentional act of D of D which which directlydirectly causes a causes a physical interferencephysical interference with with the body of P the body of P without lawful without lawful justificationjustification

•The distinguishing element: The distinguishing element: physical interference physical interference with with P’s bodyP’s body

THE INTENTIONAL ACT IN THE INTENTIONAL ACT IN BATTERYBATTERY

• No liability without No liability without intentionintention

• The intentional act = basic The intentional act = basic willful act + the willful act + the consequences.consequences.

CAPACITY TO FORM THE CAPACITY TO FORM THE INTENTINTENT

• D is deemed capable of D is deemed capable of forming intent if he/she forming intent if he/she understands the nature of understands the nature of (‘intended’) his/her act(‘intended’) his/her act

• -Infants-Infants»Hart v A. G. of TasmaniaHart v A. G. of Tasmania ( infant cutting another ( infant cutting another infant with razor blade)infant with razor blade)

– LunaticsLunatics»Morris v MasdenMorris v Masden

THE ACT MUST CAUSE THE ACT MUST CAUSE PHYSICAL INTERFERENCEPHYSICAL INTERFERENCE

• The essence of the tort is the protection The essence of the tort is the protection of the person of P. D’s act short of of the person of P. D’s act short of physical contact is therefore not a batteryphysical contact is therefore not a battery

•The least touching of another could The least touching of another could be batterybe battery–Cole Cole vv Turner Turner (dicta per Holt CJ)(dicta per Holt CJ)

• ‘‘The fundamental principle, plain The fundamental principle, plain and incontestable, is that every and incontestable, is that every person’s body is inviolate’ ( per Goff person’s body is inviolate’ ( per Goff LJ, LJ, Collins v Wilcock)Collins v Wilcock)

The Nature of the The Nature of the Physical InterferencePhysical Interference

•Rixon v Star City Casino Rixon v Star City Casino (D (D places hand on P’s shoulder to places hand on P’s shoulder to attract his attention; no battery)attract his attention; no battery)

• Collins v Wilcock (Collins v Wilcock (Police officer holds Police officer holds D’s arm with a view to restraining D’s arm with a view to restraining her when D declines to answer her when D declines to answer questions and begins to walk away; questions and begins to walk away; battery)battery)

SHOULD THE PHYSICAL SHOULD THE PHYSICAL INTERFERENCE BE HOSTILE?INTERFERENCE BE HOSTILE?

•Hostility may establish a Hostility may establish a presumption of battery; butpresumption of battery; but

•Hostility is not material to Hostility is not material to proving batteryproving battery

•The issue may revolve on The issue may revolve on how one defines ‘hostility’how one defines ‘hostility’

THE INJURY MUST BE THE INJURY MUST BE CAUSED DIRECTLYCAUSED DIRECTLY

• Injury should be the immediateInjury should be the immediate The Case Law:The Case Law:–Scott Scott v v Shepherd Shepherd ( Lit ( Lit

squib/fireworks in market place)squib/fireworks in market place)

–Hutchins Hutchins vv Maughan Maughan( poisoned ( poisoned bait left for dog)bait left for dog)

–Southport Southport vv Esso Esso PetroleumPetroleum(Spilt oil on P’s beach)(Spilt oil on P’s beach)

THE ACT MUST BE THE ACT MUST BE WITHOUT LAWFUL WITHOUT LAWFUL

JUSTIFICATIONJUSTIFICATION• Consent is Lawful justificationConsent is Lawful justification• Consent must be freely given by Consent must be freely given by

the P if P is able to understand the P if P is able to understand the nature of the actthe nature of the act– Allen v New Mount Sinai HospitalAllen v New Mount Sinai Hospital

• Lawful justification includes the Lawful justification includes the lawful act of law enforcement lawful act of law enforcement officersofficers

TRESPASS:ASSAULTTRESPASS:ASSAULT

• The The intentional act or intentional act or threatthreat of D which of D which directlydirectly places P in places P in reasonable reasonable apprehension of an apprehension of an imminent physical imminent physical interferenceinterference with his or with his or her person or of someone her person or of someone under his or her control under his or her control

THE ELEMENTS OF THE ELEMENTS OF ASSAULTASSAULT

• There must be a direct threat:There must be a direct threat:–Hall v Fonceca (Hall v Fonceca (Threat by P who shook Threat by P who shook hand in front of D’s face in an argument)hand in front of D’s face in an argument)

–Rozsa v Samuels Rozsa v Samuels ( threat to cut P into bits)( threat to cut P into bits)• In general, In general, mere wordsmere words are not actionable are not actionable

–BBarton arton v v Armstrong Armstrong

• In general, conditional threats are not In general, conditional threats are not actionableactionable– Tuberville Tuberville v v SavageSavage– Police Police v v Greaves Greaves – Rozsa v SamuelsRozsa v Samuels

• The apprehension must be The apprehension must be reasonable; the test is objectivereasonable; the test is objective

• The interference must be The interference must be imminent Policeimminent Police vv Greaves Greaves–Rozsa v SamuelsRozsa v Samuels–Barton Barton v v Armstrong Armstrong –Hall v FoncecaHall v Fonceca

Zanker v Vartzokas (Zanker v Vartzokas (P jumps out of a P jumps out of a moving van to escape from D’s moving van to escape from D’s unwanted lift)unwanted lift)

THE ELEMENTS OF ASSAULTTHE ELEMENTS OF ASSAULT

THE GENERAL ELEMENTS THE GENERAL ELEMENTS OF TRESPASSOF TRESPASS

Intentional act

“x” element

Direct interference Absence of lawfuljustification+ +

+=

A specificform of trespass

SPECIFIC FORMS OF SPECIFIC FORMS OF TRESPASSTRESPASS

TRESPASSTRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT

FALSE FALSE IMPRISONMENTIMPRISONMENT

• The The intentionalintentional actact of D of D which which directly directly causes the causes the total restraint total restraint of P and of P and thereby confines him/her to thereby confines him/her to a delimited area a delimited area without without lawful justificationlawful justification

• The essential distinctive The essential distinctive element is the element is the total restrainttotal restraint

THE ELEMENTS OF THE ELEMENTS OF THE TORT THE TORT

• It requires all the basic It requires all the basic elements of trespass:elements of trespass:– Intentional actIntentional act–DirectnessDirectness

–absence of lawful absence of lawful justification/consent justification/consent , , andand

• total restrainttotal restraint

RESTRAINT IN FALSE RESTRAINT IN FALSE IMPRISONMENTIMPRISONMENT

• The restraint must be The restraint must be totaltotal– Bird Bird v v Jones Jones (passage over bridge(passage over bridge))

– The Balmain New Ferry Co v RobertsonThe Balmain New Ferry Co v Robertson

• Total restraint implies the absence of a Total restraint implies the absence of a reasonable means of escapereasonable means of escape– Burton Burton v v Davies Davies (D refuses to allow P out of car)(D refuses to allow P out of car)

• Restraint may be total where D subjects P to Restraint may be total where D subjects P to his/her authority with no option to leavehis/her authority with no option to leave– Symes Symes v v Mahon Mahon (police officer arrests P by (police officer arrests P by

mistake)mistake)– Myer Stores Myer Stores v v SooSoo

FORMS OF FALSE FORMS OF FALSE IMPRISONMENTIMPRISONMENT

• See the following Cases: See the following Cases: –Cowell v. Corrective Services Cowell v. Corrective Services Commissioner of NSWCommissioner of NSW (1988) (1988) Aust. Torts Reporter ¶81-197.Aust. Torts Reporter ¶81-197.

–Louis v. The Commonwealth of Louis v. The Commonwealth of Australia Australia 87 FLR 277. 87 FLR 277.

–Lippl v. Haines & Another Lippl v. Haines & Another (1989) Aust. Torts Reporter ¶80-(1989) Aust. Torts Reporter ¶80-302; (1989) 18 NSWLR 620.302; (1989) 18 NSWLR 620.

–Dickenson WatersDickenson Waters

VOLUNTARY CASESVOLUNTARY CASES

• In general, there is no FI where one In general, there is no FI where one voluntarily submits to a form of voluntarily submits to a form of restraintrestraint– HerdHerd v v Werdale Werdale (D refuses to allow P out (D refuses to allow P out

of mine shaft)of mine shaft)– Robison Robison v v The Balmain New Ferry Co. The Balmain New Ferry Co. (D (D

refuses to allow P to leave unless P pays refuses to allow P to leave unless P pays fare)fare)

– Lippl Lippl v v HainesHaines

• Where there is no volition for Where there is no volition for restraint, the confinement may be FI restraint, the confinement may be FI ((Bahner Bahner v v Marwest Hotels Co.)Marwest Hotels Co.)

WORDS AND FALSE WORDS AND FALSE IMPRISONMENTIMPRISONMENT

• In general, words can In general, words can constitute FIconstitute FI

KNOWLEDGE IN KNOWLEDGE IN FALSE FALSE

IMPRISONMENTIMPRISONMENT•The knowledge of the P at The knowledge of the P at

the moment of restraint is the moment of restraint is not essential.not essential.– Merring Merring v v Graham White AviationGraham White Aviation– Murray Murray v v Ministry of DefenseMinistry of Defense

THE BURDEN OF PROOF IN THE BURDEN OF PROOF IN TRESPASSTRESPASS

•The traditional position in The traditional position in Common Law: Common Law: – The D bears the burden of disproving The D bears the burden of disproving

faultfault

•The Highway exceptionThe Highway exception– Off highway: D disproves faultOff highway: D disproves fault– In highway trespass: P proves faultIn highway trespass: P proves fault