Torts law used to be judge made, similar to common law 20th century statues came in Workers Compensation scheme, Motor Accidents Scheme, Occupational Health and Safety (Factories Act), Dust Diseases Schemes. Drug Compensation Schemes (uk). Characteristics of torts: 1. Wrongful conduct (by way of an act or omission) 2. Infringement of a person’s rights 3. An Available action for damages LAW REFORM AFTER 2002 * RECENT push to regulate the law of negligence in relation to personal injury * INTRODUCED Civil Law (Wrongs Act 2002). Civil Liability Act 2002 (NSW) Personal Injury (Liabilities and damages) NT.
* ALL OF ABOVE ^ referred to as the Civil Liabilities Acts. INTRODUCTION TO INTENTIONAL TORTS DIRECTNESS Concept of directness is the first element that distinguishes trespass from action on the case. TRESPASS = direct act or interference. ACTION ON THE CASE: is consequential. (HUTCHINSON V MAUGHAN) – illustrates the concept of directness. WHAT TO EXTRACT FROM THE HUTCHINSON CASE * Time –so if the act of the defendant causes immediate injury to the plaintiff then the act is trespass however if some one throws a log and another person trips –on that log than it is classified as consequential and it is “case”.
(Scott v Sheperd) – the log case. * Judges ruled in Hutchins that it wasn’t trespass because the defendant’s act was consequential and not direct. It was argued by the plaintiff for action on the case under negligence and nuisance but failed. ELEMENTS FOR TRESPASS generally 1. CONDUCT: – interference must be direct (Hutchins v Maughan) onus on Plaintiff to prove direct interference. 2. FAULT – Negligence or intentional With trespass there must be an element of fault for the defendant to disprove (except highway cases). Plaintiff has to prove it.
A plaintiff may sue in trespass or case (negligence) where the injury is direct but unintentional (Williams v Milotin). The Australian case of Williams v Milotin 1957 suggests that a voluntary and negligent act is enough to satisfy the state of mind element for trespass to the person. Fault is an element for actions in trespass and actions on the case. In Australia the action for trespass is not limited to intentional interference, there can be a negligent trespass. 3. Damage Trespass: is actionable per se. This means that it is not necessary to prove loss or damage resulting from the defendants act.
Action on the case: damage is the gist of the action. Without damage the action will fail. ACTION ON THE CASE – onus of proof:- The onus of proof for all elements of an action on the case is on Plaintiff. I. e. Conduct, fault and damage. TRESPASS TO PERSON THREE TYPES, ASSAULT, BATTERY AND FALSE IMPRISONMENT. BATTERY; TRESPASS TO THE PERSON BATTERY definition: A battery occurs when the defendant directly and deliberately causes physical contact to occur to the person of the plaintiff without the plaintiff’s consent or legal justification. (Marion’s Case) The court affirmed the individuals’ right to personal inviolability.
Rixon v Star City Casino – lawful touching because it fell under the Casino Act. Elements of battery -POSITIVE ACT: – a plaintiff in any trespass action must establish that the interference complained of has occurred as a result of a positive act. Opposed to an omission (failure to act). Fagan v Metropolitan 1969 – initial act of driving on to the police office is positive, his failure to remove the car was an omission, which occurred during the positive act of driving. So basically it means its all part of the same act, one continuous positive act. – Must establish that interference complained of has occurred.
-DIRECT AND INTENTIONAL /NEGLIGENT ACT : – MUST PROVE that the act was direct. (Hutchin v Maughan). -UNLAWFUL TOUCHING: This is what distinguishes battery from assault. (Rixon v Star City). Exigencies of everyday are not classified as “battery” . (rixon v star city). For battery it must be established that; 1. There was physical contact with the plaintiff’s body 2. This interference was direct upon the defendant’s act and not consequential 3. Defendant’s act was a positive act 4. The defendant had the requisite state of mind i. e. act of interference was voluntary and intentional or voluntary and negligent.
The plaintiff bears the onus of proof for the first three requirements and the defendant for the final one. ASSAULT definition: An assault occurs when the defendant deliberately causes the plaintiff to apprehend immediate physical contact (Rixon v Star City). It is distinguished from battery because of the reasonable apprehension of imminent contact. Elements of Assault A direct threat by the defendant: – Barton v Armstrong 1969 – whether or not the apprehension is reasonable is determined objectively with regard to the circumstances which existed at the time of the alleged assault.
That causes the plaintiff to reasonably apprehend –The defendant must have the present and apparent ability of carrying out the battery. Some Imminent (impending) contact: (Zanker v Vartzokas). Intentional – Hall v Foneca – the plaintiffs shook his hand at the defendant. For Assault it must be established that ; 1. Apprehension of immediate physical contact with the body of the plaintiff 2. Plaintiff had the requisite state of mind i. e. the apprehension was reasonable 3. Defendant had the requisite state of mine i. e.
the act of interference was voluntary and intentional or voluntary and negligent. Plaintiff proves 1 & 2 and the defendant proves number 3. FALSE IMPRISONMENT definition: OCCURS when the defendant directly and intentionally (negligently) totally deprive the plaintiff of his/her liberty without lawful justification. Elements of false imprisonment: 1. Acting under direction (direct act by the defendant) – the defendant must cause the imprisonment. (Dickenson v Waters Ltd 1931) shoplifting case detained in the office waiting. 2. Total Imprisonment Balmain new ferry co v Robertson 1906.
Must be total imprisonment, there must be detention that prevents free movement in all directions, not merely obstruction of movement in a particular direction. Bird v Jones – plaintiff was walking on a bridge blocking of walkway, not total imprisonment. Symes v Mahon It is also possible that a plaintiff is totally imprisoned without physical boundaries i. e. if the plaintiff believes he/she has no choice but to accompany a person or remain where they are (coerced). 3. Without lawful justification. To establish false imprisonment it must be found that; 1. There was a total deprivation of the plaintiff’s liberty by the total restraint.
2. The defendant’s act was a positive act (however, it is uncertain if this is always required to make out a cause of action for false imprisonment). 3. The defendant had the requisite state of mind. The plaintiff bears the onus for the first two. The defendant bears the onus for the final one. Action on the case ACTION ON THE CASE definition: An action on the case occurs when an individual is injured and the interference is indirect. They provide a remedy where injury was suffered as an indirect result of the defendant’s actions and could be instituted in respect of both negligence and intentional acts.
ELEMENTS of action on the case 1. Indirect intentional infliction of personal injury: (indirect act) – for a plaintiff to successfully argue an action for indirect infliction of personal injury based upon action on the case, he/she must prove that the act, whilst indirect, was nevertheless intentional (fault) and resulted in harm. 2. Fault (intentional): intention upon the part of the defendant must be established. (Bird v Holbrook, 1828 – spring gun in garden shot plaintiff in leg. He intended to cause injury without giving notice and was found liable).
Wilkinson v Downton – practical joke where husband was said to be in an accident. Wilfully done an act calculated to cause physical harm to the plaintiff. Nationwide News v Naidu – bullying over years both within/outside the workplace. There was no finding of intentional infliction of psychiatric damage but was a consequence of the conduct and was therefore intentional. 3. Damage: Unlike an action for trespass, a plaintiff cannot recover for action on the case without proof of damage.
(TNC Channel Nine Pty Ltd v Anning, 2002 – liability can be applied to the “natural and probable consequences” test.) RULE OF THUMB: TRESPASS IS ACTIONABLE PER SE – MEANING THAT THE PLAINTIFF DOES NOT HAVE TO PROVE DAMAGE. ACTION ON THE CASE – DAMAGE IS THE GIST OF THE ACTION AND WITHOUT IT THERE IS NO CASE – SO THEREFORE THE PLAINTIFF HAS TO PROVE DAMAGE. Trespass to land definition: Trespass to land occurs when there is direct interference with property in the possession of another without his/her consent. Protects occupiers right to privacy and security this is however limited (Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd). Unlike the action for trespass to
the person, in an action for trespass to land the plaintiff must have a “title to sue”. Elements of trespass to land 1. Land: – the tort of trespass to land is concerned with direct interference with land including the soil and subsoil (Di Napoli v New Beach Apartments Pty Ltd, rock anchors intruding into the plaintiffs subsoil). It also includes fixtures where it is permanently attached to become part of the land, crops and even airspace above the land to the extent it is capable of enjoyment (Bernstein of Leigh (Baron) v Skyviews & General Ltd, photos taken for Google earth held not trespass to land).
2. Title of the plaintiff: – the plaintiff must have “possession” of the land at the time of the trespass (rather than ownership). Newington v Windeyer 1985 – defendant tried to use the Grove, held trespass. A tenant in possession under a lease can sue for trespass rather than the landlord (Hines v Hines 1999) and the tenant can sue the landlord for trespass if the landlord enters without authority (Gifford v Dent 1926 and Kelsen v Imperial Tobacco Co Ltd 1957, advertising signs projecting into tenant’s airspace).
There must be a right to exclusive possession – Georgeski v Owners Corporation Sp49833 2004, plaintiff held a crown licence to use land below the high water mark and sought an injunction but was refused as he did not have title to sue for trespass. 3. Trespassory conduct: – entry upon the land in possession of the plaintiff without the plaintiff’s consent (Kuru v State of New South Wales 2008 – Police did not leave plaintiff’s flat when dealing with a domestic violence report.
There was no justification for remaining there. ) There will be a trespass if the defendant: – Walks (drives) onto the plaintiff’s land without consent (Lincoln Hunt Australia Pty Ltd v Willesee 1986 where the defendants entered to interview the plaintiff but it was found to be trespass from the moment of entry. – Remains upon land after permission to remain, express or implied, has been withdrawn (Cowell v Rosehill Racecourse Co Ltd 1937, consent was revoked and since he did not leave he became a trespasser.
– Places or throws or leaves any object or animal upon the land (Rigby v Chief Constable of Northamptonshire 1985, where police fired gun canisters into a gun shop causing fire and was a continuing trespass until the debris was removed. – Encroachments on the plaintiff’s land. By adjoining buildings, swinging cranes, scaffolding or structures on the plaintiff’s land constitutes as trespass. ONUS OF PROOF: actionable per se even if the land isn’t harmed. Entick v Carrington (1765). Lord Camden “no man can set his foot upon his neighbours close without his leave.
If he does, he is a trespasser, though he does no damage”. Damages for trespass are recoverable for the mere touching of a plaintiff’s land, despite the fact that the land may not have been harmed in any way. REMEDIES FOR INTENTIONAL TORTS: 1. Compensatory damages – the measure of compensatory damages in a tortious action is “that sum of money which will put the party who has been injured…in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation” (Livingstone v Rawyards Coal Co 1880).
McCracken v Melbourne Storm Rugby League Football Club 2005 – 2 players tackled plaintiff causing serious injury. Trespass to the person (negligence) failed and the plaintiff could not recover for personal injury damages. CIVIL LIABILITY ACT 2002 SECTION 3B -PLAINTIFF STATED THAT THIRD AND SECOND DEFENDANT’S ACT WAS INTENTIONAL – intended to cause the plaintiff harm. Plaintiff suffered physical trauma wasn’t able to play football, temporary non serious soft tissue injury. Defendants argued that normal part of the game – within the rules Hulme: – said no it wasn’t based on video. 2.
Aggravated damages – aggravated damages are awarded for deliberate conduct of the defendant, which has resulted in an affront to the plaintiff. This award is focused upon the effect on the plaintiff of the tort and accordingly is assessed from the plaintiff’s point of view (Myer Stores v Soo 1991 the defendant claimed that the plaintiff looked like a person who stole goods and interviewed and harassed him. The damages were aggravated and the plaintiff won). – Soo got 10,000. Awarded by trial judge. Aggravated damages – compensate for injury to the plaintiff’s feelings caused by insult, humiliated and the like” and not for physical injury.
However they will not be available where the plaintiff has provoked the defendant’s tortious action. Fontin v Katapodis. 3. Exemplary damages – exemplary damages are awarded “to punish the defendant, and presumably to serve one or more of the objects of punishment – moral retribution/deterrence” (Uren v John Fairfax 1966). To justify an award of exemplary damages the defendant’s conduct must be considered to be sufficiently outrageous and “the remedy … as exceptional in the sense that it arises in cases of conscious wrongdoing in contumelious disregard of the plaintiff’s rights” (Gray v Motor Accident Commission 1998).
However an award of exemplary damages does not necessarily have to punish and deter the defendant. (Lamb v Cotogno) Defendant caused deliberate injury to the plaintiff by driving wile the plaintiff was on the bottom of the car the defendant argued that an award of exemplary damages was inappropriate because it was the insurer who would pay any award of damages and not the defendant. The High Court held that the purpose of an award of exemplary damages is not only to deter the defendant but also generally to deter conduct of the same reprehensible kind.
Fontin v katapodis high court – THAT PROVOCATION ONLY GOES TO REDUCE EXMPLARY DAMAGES IT DOES NOT REDUCE COMPENSATORY DAMAGES (as the trial judge had held) and it is not a defence. 4. Nominal damages They do not compensate the plaintiff for any damage suffered but instead merely record that there has been an infringement of the plaintiff’s rights. 5. Injunctions Quia timet injunction – an injunction granted to prevent an anticipated tort. An injunction is a court order that compels, 1. prohibitory injunction – court compels a defendant to refrain from an act. 2. Mandatory injunction – compels a defendant to do something.
Determined by the damage the plaintiff will suffer upon an act happening or not happening. Injunction is a branch of equity up to the discretion of the plaintiff. DEFENCES TO INTENTIONAL TORTS CONSENT – permission of the plaintiff for the defendant to conduct an action. Consent has been treated both as an element of the trespass action and as a defence. If it is an element the onus is on the plaintiff to disprove they consented to interference and if it is a defence the onus is on the plaintiff to prove interference but the onus is on the defendant to prove consent.
Australian authority favours placing the onus on the defendant to prove consent (defence) Sibley v Milutinovic. Consent can either be given expressly or impliedly, EXPRESS CONSENT IS GIVEN when the plaintiff gives permission for their rights personal or property, to be interfered with by the defendant. IMPLIED CONSENT: evidenced by implication through the plaintiff’s conduct ie their conduct will suggest consent. Halliday v Nevill Unsuccessful in suing the plaintiff. CONSENT in general – must be freely and validly given. Therefore consent obtained by duress or fraud would not be a defence.
Symes v Mahon. After the express and implied consent you then have to prove it was real and freely given. REAL CONSENT – refers to the individual having knowledge sufficient to enable them to understand the interference to which they are consenting Chatterton v Gerson – Bristow J;-consent is real if expressed in broad terms. FREELY GIVEN- not with duress (pressure) FRAUD VITIATES CONSENT. (R v Mobilio) –radiographer transducer into vagina- consent was valid. Provided the act is not essentially different in nature fraud cannot be established. DEFENDANT must prove consent overall.
However this does not restrict the plaintiff from bringing in further evidence against the defendant in regard to consent. CAPACITY TO CONSENT: Individual must also have legal capacity to consent. (Marion) CHILDREN and persons with a mental disability. Marion’s case – judges ruled against parents –they cannot be sterilized. Conflicting authority – Gillick v west Norfolk – The gillick test , test established in that case, reasoning in gillick case, that parental power to consent to medical treatment on behalf of a child diminishes gradually as the child’s capacities and maturity grows.
A minor is capable of giving consent. (legal age v gillick test). Power of parents v well being of child. Consent cannot be exceeded – it has limits and when limits is exceeded the consent is ineffective (Mcnamara v Duncan 1979). Conflicting authority with Hilton v Wallace 1989 two different jurisdictions. Blake v Galloway – horseplay tried to disprove consent unsuccessful. EXPRESSED CONSENT CANNOT BE EXCEEDED WALKER V BRADLEY 1993. IMPLIED MACNAMARA. NECESSITY The defence of necessity is available when a def is responding to a threat of imminent danger. 1.
NECESSITY AND PROTECTION OF PROPERTY Produman v Allen – plaintiff could not sue for trespass to goods because the def acted in reasonable belief that his actions were justified by the necessity of the situation and was intended to benefit the owner. Southwark London Borough Council v Williams – the def were not in imminent danger and were therefore unsuccessful. 2. NECESSITY AND PROTECTION OF THE PERSON IN RE F (Mental Patient Sterilization). General rule is that consent is necessary to render such treatment lawful otherwise it has to be justified on some other principle.
3. NECESSITY AND NEGLIGENCE OF THE DEFENDANT Where the defendants own actions negligently created or contributed to the necessity. Rigby v chief constable of Northamptonshire. Police fired cs gas canisters with the gun powder causing fire to plaintiff’s shop. It was not negligent –plaintiff failed. CONTRIBUTORY NEGLIGENCE If the def was able to prove that the plaintiff was contributoraily negligent then the def was absolved of liability. Even if the def had also acted tortiously. (Civil liabilities act) . Contributory negligence is a partial defence.
Horkin v North Melbourne Football Club – plaintiff asked to leave did not do so, defendants premises and forced him to leave with force and the plaintiff suffered injury. Culbability – 30% plaintiff responsible for actions. Because failed to leave when asked and was intoxicated. SELF DEFENCE Is available when the def acts to avert a threat of harm to their body where that threat has been caused by the plaintiff. Fontin v Katapodis 1962 – def argued self defence. Court held that the def actions were not reasonably necessary judge mctiernan.
It is a complete defence and will absolve the def of liability. The def needs to prove 1. There is a reasonable apprehension of physical aggression 2. That the force of the def used did not exceed what was reasonably necessary to the beat of the attack. It is a defence to an intentional tort if the defendants acts is in the defence of anoter. Pearce v Hallett. Property may be defended against intrusion or dispossession on principles which are close to those of self defence Norton v Hoare. PROVOCATION: A DEFENCE? At common law provocation is not a defence to battery and assault.
However if the plaintiff provoked the def ‘s act this will operate to decrease the award of damages to the plaintiff. Fontin v Katapodis. CIVIL LIABILITY ACT 2002 McCracken v Melbourne Storm Rugby League Football Club. IN this case there was an intention by the second and third defendants to cause injury and therefore the conduct can be regarded as criminal. Hulme J; ruled that the injury was intended , video involved. The Civil liability act imposes limits on civil liability. Section 3b however provides: (1) The provisions of this act do not apply to (or in respect of civil liability and awards of damages in those proceedings) as follows:
(a) Civil liability in respect of an intentional act that is done with intention to cause injury or death or sexual assault or other sexual misconduct – the whole act except part 7 (self defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with an intent to cause injury or death. Section 3b – relates to damages and intentional acts – it states the CLA (civil liability act) does not apply in general. CONFLICTING AUTHORITY – Wrongs and Other Acts (Public Liability Insurance forms) in Victoria was not available until after McCrakens case.
McCraken’s case happened in Victoria. Part 7 deal with SELF DEFENCE and criminals. In NSW the CLA limits the damages that can be awarded in respect of personal injury or property damage caused as a result of the self defence. CLA section 52. Section 52 preserves the basic elements of self defence requiring that a person must believe that their conduct is necessary and that their response is reasonable in the circumstances. Presidential Security Services of Australia pty ltd v Brilley 2008. If the response is reasonable and the belief exists then s 52 is a complete defence.