UTS LAW
70311 Torts COMPREHENSIVE NOTES (HD - 86) SPRING 2019 70311 Torts HD Notes
TABLE OF CONTENTS
Week 2: Introduction of Common Law of Tort ...... 7
Differs from other areas of law: ...... 7
Aims for the Law of Tort: ...... 7
Interests protected by Tort Law: ...... 7
Sources of Tort Law: ...... 7
Trespass Topics ...... 8
Trespass to Person: ...... 8 Week 3. Trespass of Land ...... 11
3.1.1 Terms Defined: ...... 11
3.1.2 Requirements for Trespass of Land: ...... 11
Directness ...... 12
Actionable per Se ...... 12
Title to Sue ...... 12
3.1.3. Authorised entry for strangers: ...... 13
3.1.4 Remedies for Trespass to Land ...... 14
3.2 Defences to Intentional Torts: ...... 15
3.2.1 Self-defence ...... 15
3.2 Defence of Another ...... 17
3.3 Defence of Property ...... 17
3.4 Consent ...... 18
Minors: ...... 18
3.5 Necessity ...... Error! Bookmark not defined.
3.6 The Cause of Action for Indirect Injury ...... 20 Week 4. Introduction to Negligence – Duty of Care ...... 21
4.1 NEIGHBOUR PRINCIPLE ...... 21
4.1.1 Reasonable Foreseeability ...... 22
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4.1.2 Foreseeable Plaintiff – Typical Plaintiff ...... 22
4.2 Salient Features Approach – Novel Duty ...... 24
Illegal Activity – No Duty ...... 25
4.3 Duty of Care & Role of Public Policy ...... 27
4.4 Public Policy ...... 27
4.5.1 Legal Ethics; Advocates’ Immunity ...... 28 Week 5: Negligence II – Breach of Duty of Care ...... 29
5.1. Breach of Duty ...... 29
5.1.1 Reasonable Foreseeable Risk – Common Law ...... 29
5.2 Reasonable Foreseeable Risk – Statute Law ...... 32 Week 6: Negligence – Proof of Breach and Causation ...... 37
6.1. Causation ...... 37
6.2. Two- Stage Approach: ...... 37
Common law: ...... 37
Statute law: ...... 38
6.3 Common Law: ‘But for’ Test ...... 38
Common Sense Approach: ...... 38
6.4 Common Law: Purpose Approach ...... 39
Purpose Approach ...... 39
6.5 Common Law: Intervening Causation ...... 40
Break in the Chain of Causation ...... 40
Material Cause vs. But For ...... 42
Can be a material risk but not satisfy the But For Test ...... 42
Exceptions: ...... 42
6.6. Standard of Proof ...... 43
Inferences: ...... 43
Res ispa loquitur ...... 43 Week 7 - Negligence: Remoteness of Damage ...... 44
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7.1 Remoteness in Law ...... 44
Remoteness in Statute Law ...... 44
Remoteness in Common Law: ...... 44
7.2 Kind of damage ...... 46
Psychiatric Injury Cases: ...... 47
Economic Loss Case ...... 48
7.4. The ‘Egg-shell Skull Rule’ ...... 49
The Wrongdoer takes the victim as he finds him: ...... 49
Onus of Proof for Egg-Shell Skull Rule ...... 50
Applications ...... 50
Purely Mental Harm ...... 50
Proof ...... 52
Inferences: ...... 52
7.5 Res Ipsa Loquitur ...... 53
Defendant in control of the situation ...... 53
Accident would not ordinarily happen but for negligence ...... 53 Week 8: Defences to Torts Involving Negligence ...... 55
8.1 Contributory Negligence ...... 56
Common Law: ...... 56
Statute Law: ...... 56
Partial or Total Defence: ...... 56
Reasonable Person: ...... 57
Children: ...... 57
8.2 Intoxication/Drugs ...... 57
Exception: ...... 58
Recovery of damages: ...... 58
Calculus of Negligence – Determine Contributory Negligence ...... 58
Policy and Social Utility of Plaintiff’s Act ...... 58
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P in Imminent Danger: Agony of the moment rule or sudden emergency rule ...... 59
Causation ...... 59
Cases: ...... 60 Week 9: Categories of Duty of Care ...... 61
Unborn Child ...... 61
Before Conception ...... 61
During vitro fertilization (ex utero) ...... 61
During birth (in utero)...... 62
Born Child: Wrongful life and Wrongful Birth ...... 62
Wrongful Birth ...... 63
Wrongful life: ...... 63
Atypical Plaintiff ...... 65
Product Liability; Manufacturers ...... 65
Mental Harm/Nervous Shock ...... 66
Occupiers Liability ...... 69
DOC FOR 3RD PARTY ACTS: ...... 69
Employers Duty to Employees ...... 71
Employer’s duty – Common Law ...... 71
Standard of Care ...... 71
Week 10: Pure Economic Loss; Negligent Misstatement ...... 72
Pure Economic Loss - Negligent Acts ...... 72
Pure Economic Loss - Negligently Misstatements ...... 75
2.1 Special Skill à Not a Prerequisite for DOC ...... 75
Week 11: Statutory Authorities; Omissions ...... 76
Nonfeasance and Misfeasance ...... 76
Duty of Care – Common Law ...... 76
The Road Authority: CLA ...... 82
Omissions ...... 83
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Duty to Protect ...... 83
A Duty to control others: Care and Control of others ...... 84
Good Samaritans: P8 CLA ...... 85 Week 12 – Vicarious Liability: Non-Delegable Duties ...... 86
Vicarious Liability: ...... 86
Vicarious Liability – Employer and Employee ...... 86
Vicarious Liability – Principle and Agent ...... 88
Non-Delegable Duty of Care à DOC to take REASONABLE CARE. BREACH MAY BE VICARIOUS LIABILITY (s5Q) ...... 89
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WEEK 2: INTRODUCTION OF COMMON LAW OF TORT
Torts can be defined as a civil wrong or injury (other than breach of contract) committed by one person onto another. The law will redress with damages; compensation.
DIFFERS FROM OTHER AREAS OF LAW:
• Criminal: o focuses on punishments not redress o Offences against the state; action is typically brought by the state or crown o Standard of proof: beyond reasonable doubt (Tort: balance of probabilities) • Contract: o Both are civil suits o Same standard of proof o Possible for a breach of contract to give rise to liability in tort; there may be ‘concurrent duties’.
AIMS FOR THE LAW OF TORT:
• Compensation: compensatory damages • Loss shifting: corrective justice, shifting loss from victim to wrongdoer • Loss distribution: effect of insurance • Deterrence • Punishment: in some cases, exemplary or punitive damages
INTERESTS PROTECTED BY TORT LAW:
• Personal safety and security (trespass to person, negligence) • Safety of property (trespass to goods, conversion, detinue) • Reputation (defamation) • Psychiatric/emotional damage (Wilkinson v Downton – intention to create harm; negligence) • Economic loses
SOURCES OF TORT LAW:
• Common law; precedent cases e.g. Donoghue v Stevenson • Statutes o General statutes e.g. Civil Liability Act 2002 (NSW) o Specific statutes e.g. Motor Accidents Compensations Act 1999 (NSW), Compensation to Relatives Act 1891 (NSW) o
Major Reforms to Common Law:
• What constitutes negligent conduct • Causation • Assumption of risk by plaintiffs • Liability in respect of obvious & inherent risks
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• Liability for injury during recreational activities • intoxication
TRESPASS TOPICS
TRESPASS TO PERSON:
Difference between trespass (direct) and Case/negligence (indirect):
The mere action of the interference occurring can raise trespass. This is the opposite of Case (negligence) where harm is indirectly caused, and injury must be proved.
• Reynolds and Clarke: if a log was thrown from a vehicle and it hits a person, they are able to sue based on trespass. However, if the log landed on the floor and a person tripped on it later on, this is case (negligence).
Forms of Trespass to Person:
• Battery • Assault • False Imprisonment
Hutchins v Maughan [1947] VLR 131, pp 132-134 ; Williams v Milotin (1957) 97 CLR 465 [14]-[15]
• Defendant laid poisonous baits on unfenced land, which was consumed by the complainant’s dog, whom passed away. • Complainant claimed for damages through trespass • Held: injury suffered by the complainant was consequential upon and not directly or immediately occasioned by the act of the defendant and that trespass did not lie.
BATTERY
1. For the purposes of battery, what is the act that must be intended? For an act to constitute battery, it must be a positive voluntary intentional (deliberate and negligent) act which directly cause the physical contact/interference with the plaintiff, without the consent of the plaintiff. Wilson v Pringle per Croom-Johnson LJ: It is the act and not the injury which must be intentional, an intention to injure is not essential to an action for trespass to the person, it is the mere trespass by itself which is the offence. 2. To what extent is the element of hostility relevant in an action for battery? The act does not have to be hostile, but it needs to interference with the rights of the plaintiff Hostility: Unwanted touching, touching ‘in anger’ (intentional or negligent). Collins v Wilcock [1984 1 WLR 1172 per Robert Goff LJ: Any touching of another person, however slight might amount to battery. Most of physical contacts of ordinary life are impliedly consented to by all who move in society.
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