Torts A - Amazon S3 · Introduction to Torts and Fault INTRODUCTION TO TORTS What is a tort? • A ‘tort’ is a civil wrong other than breach of contract that the law will redress
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Week 1
Introduction to Torts and Fault
INTRODUCTION TO TORTS
What is a tort?
• A ‘tort’ is a civil wrong other than breach of contract that the law will
redress in the form of an action for damages.
Concurrent liability
• Where the same action can have a claim in tort and contract, P has the
right to determine which cause of action to bring. This is because
compensation is calculated differently. However this is controversial
where there is a contract between the parties.
o Critics argue that P should be able to use tort law to bypass terms
of contract. This creates controversy and affects the decisions of
judges – they may limit the tort liability to D where it clashes with
the contractual relationship of the parties.
Standards of liability
• Fault based liability.
o Intentional fault – D intended to cause the consequence/knows the
consequence was substantially certain. Intention is very narrow.
o Recklessness in fault – D knew consequences that might follow but
did it anyway. This is very broad.
o Negligent fault – Carelessness in falling short of the standard of a
reasonable person’s care.
• Strict liability – fault by D not required as long as he is vicariously liable.
• Joint and several tort feasors – two or more people are found liable for the
same tort.
Common Remedies in Tort
• Damages
o Compensatory – return P to position they were in before tort
committed.
o Exemplary – punish D for moral retribution or to deter D/others.
This is often awarded where there is a guilty conscience and D has
acted recklessly in their disregard to P.
o Nominal – generally awarded when no physical or actual arm
because tort is actionable per se.
• Injunction
• Declarations
Aims of Tort law
• Corrective Justice – correct the wrongs committed by D in order to ensure
the position of justice is restored between the parties. On this view, losses
are repaired through damages. This fits well with battery and assault.
However, in strict liability torts, where D is not at fault, in what sense did
they wrong P and are therefore required to give compensation? This is an
argument of why fault is required.
• Economic efficiency – this approach is all about allocation of losses.
Advocates focus that torts are designed so losses are allocated in an
efficient manner. Eg. if workplace injury, employers should be liable
because employer is better placed to spread losses through insurance.
• Deterrence – assault and battery developed to assist the criminal law. The
more torts you commit, the more it will cost you.
• Compensation – in modern society, accidents are inevitable. The purpose
of tort law is to compensate for these losses. This model has difficulty in
explaining fault – there is no connection between what a party deserves
and the culpable mind of D. Theorists seek to downplay fault greatly.
Problems in compensating accident victims
• Difficulties in satisfying legal requirements – not all torts (defamation)
aim to compensate.
• D may not be able to afford paying compensation.
• There are high administrative costs.
FAULT IN TORTS
What counts as intention?
• There is no requirement that D intended to cause injury, only contact.
o Thus if you hit the wrong target, that does not negate intention.
• In Australia, D must intend their action to cause interference. In UK, it is
enough that the circumstances were substantially certain to result from
D’s act. This is an objective test. The UK approach is not sufficient in
Victoria. There is no clear case outlining the test for fault.
• Recklessness may also satisfy the fault requirement.
English View
Letang v Cooper [1965] QB
F: P, Letang, was sunbaking in car park of hotel. D ran over her legs. Limitation
period for bringing action in negligence expired (3 years), so she sued for battery
(6 years). D argued battery not available as he did not intended to run over her
legs and battery should only apply to intentional acts, not negligent ones.
I: Could P use battery to claim damages? [NO]
H (Denning LJ): Instead of dividing actions for personal injuries based on direct
or consequential damage, they are divided according to whether D acted
intentionally or not. If intentional it is the tort of assault and battery. If negligent
and causing damage, it is the tort of negligence. Denning referred to Fowler
saying ‘I fully agree but would go one step further: when injury is not intentional
but negligent, the only cause of action is negligence, not trespass. Court worried
that if battery can be committed negligently, Ps could claim for negligent battery
in circumstances where negligence would not allow them. Denning wanted to
avoid this conflict in the law, evident in his decision. As the statutory limitation
period on negligence had expired, P lost her claim. Therefore, no such cause of
action as negligent trespass.
Principle
• Where D acts intentionally, can sue for trespass to person.
• Where D acts negligently, must sue in negligence.
Policy
• Neither Fowler or Letang have been challenged in England.
League Against Cruel Sports v Scott [1986] QB
F: P owned land and used it as sanctuary for wild animals. A local hunt came onto
land. P sued hunt master for trespass to land after dogs came onto land chasing a
fox. D said there was no substantial damage so negligent trespass was not
available. P sued in trespass to land.
I: Can you be liable for negligent trespass without any damage? [YES]
H (Park J): Ignored decision in Letang and allowed action for negligent trespass
to land without substantial damage. He held that the master of a hunt is liable in
trespass if he either intended hounds to enter P’s land or negligently failed to
prevent them from entering. As no substantial damage was alleged, P could have
sued in negligent trespass. Nominal damages were awarded. Court said
‘whatever the motive with which the league bought these plots of land it is
entitled to enjoy them without trespass by hounds’.
Principle
• Trespass is available whether D acts intentionally or negligently.
Australian View
Williams v Milotin (1957) HCA
F: P was a cyclist who was injured when D’s truck hit him. P waited four years
before bringing action against D and argued that collision was due to D’s
negligence. D argued action was barred by statutory action limitations.
I: Can P sue in both battery and negligence where act was committed
unintentionally? [YES]
H: D did not intend to strike P. If he did, trespass would apply but not otherwise.
If the action was indirect, only answer would be in case. In the absence of
intention, a violation occurring in course of traffic in a thoroughfare is not
actionable as trespass. However, as P is claiming D acted negligently rather than
intentionally, P had access to claims both battery and negligence. As battery
limitation expired, only negligence was available. There is no clear test for
committing battery negligently. The essential ingredients in an action of
negligence for personal injuries include the special or particular damage – it is
the gist of the action – and the want of due care. Trespass to person includes
neither. But it does include direction violation of the protection which the law
throws around the person… it happens in this case that the actual facts will or
may fulfil requirements of each cause of action. But that does not mean that only
‘one’ cause of action is vested in P.
Principle
• If D acted negligently, P can sue in trespass or negligence.
Policy
• Stanley Yeo: Courts aim to restrict the circumstances to which P will
succeed in a negligence claim, hence the duty of care requirement.
However, it is unlikely that courts want to restrict battery – more
concerned to broaden scope to protect people’s bodily integrity. The law
is unclear on this matter. It would be most surprising if this case was still
the law today as it is not unusual for P to suffer injuries as a consequence
of a wide range of conduct by D which may include the intentional
application of physical force – Evans J in Wilson v Horne.
Advantages of Negligent Trespass
• Burden of proof for fault is on D (except highway cases).
• Negligent trespass is actionable per se.
• There may be no need to prove duty of care was owed by D to P (Williams
v Milotin).
• Legislative restrictions on damages don’t apply – s 28C Wrongs Act.
Is negligent trespass still needed?
• Yes
o Addresses conduct that is ‘wrong’.
o Will cover situations that negligence fails to capture:
▪ Sometimes careless trespasses should be actionable per se.
▪ Where there is no duty of care.
▪ Where there may be challenges proving fault.
• No
o Creates inconsistencies and incongruence within tort.
o A wrong without neither damage or intent should not be
compensable.
Burden of proof in fault
• In Australia, burden with regard to fault generally on D (McHale v
Watson) except in highway cases where onus is on P (Venning).
• In UK, burden with regard to fault is always on P (Fowler).
English View
Fowler v Lanning [1959] QB
F: P’s statement of claim merely alleged that at some time, D shot P. D alleged the
statement of claim is bad in law and discloses no cause of action against him on
the ground that P does not allege that the shooting was either intentional or
negligent. TJ was told P’s injuries were sustained at a shooting party and that it
was suggested that the shooting was intentional.
I: Who had the onus on proving negligence? [PLAINTIFF]
H (Diplock J): Diplock considered that the reported cases on the onus of proof on
the issue of negligence in a trespass action were inconclusive. Concluded that
onus of proving negligence, where trespass was unintentional, rested on P,
whether action was framed in trespass or negligence. Without an allegation on
D’s negligence/trespass, P’s statement that ‘D shot P’ disclosed no cause of
action. It offends the underlying purpose of the modern system of pleading that
P, by calling his grievance ‘trespass to the person” instead of ‘’negligence”, should
force D to come to trial blindfold. Therefore, statement of claim struck out.
Principle
• Burden of proof always on P whether act is intentional or not.
Australian View
McHale v Watson (1964) HCA
F: A 12 year old boy was throwing darts at a wooden post. He missed and hit the
eye of a nine year old girl. P sued boy and parents in trespass and in negligence.
I: Who has the burden of establishing the missile was thrown with intent or so
negligently to hit the girl? [DEFENDANT]
H (Windeyer J): Cited Fowler indicating ‘their judgments support the proposition
that in an action for trespass to the person, based upon a battery by a blow from
a missile, P must prove that act of D in delivering the blow was intentional or
negligent. I do not think this is so. Court referred to Weaver v Ward (1616) where
court said ‘no man shall be excused of a trespass except it be adjudged utterly
without his fault’. Here, ‘utterly without his fault’ does not mean an absence of all
ground for blame and censure of any kind, but an absence of such negligence as
constitutes fault in law. Therefore, Windeyer accepted proposition that D was
liable for throwing the dart unless the court was satisfied on the balance of
probabilities that he did not intend it to hit her and that he was not negligent in
throwing it when he did.
Principle
• Burden of proof concerning fault is generally on D.
Stingel v Clark (2006) HCA
F: P alleged she was assaulted and raped in 1971 by D and that as a result she
suffered injury – post-traumatic stress disorder of delayed onset. In 2002, P
brought action in damages for trespass to person, arguing that it was not until
2000 that she became aware of connection between injury and rape. In order to
avoid being statute barred, she had to show that the relevant legislation that
required ‘breach of duty’ covered intentional trespass and whether P’s injury fell
within the compass of the statutory phrase, ‘damages in respect of personal
injuries consisting of a disease or disorder contracted’.
I: Was P’s claim barred? [NO]
H: Court endorsed judgment in McHale. Words ‘breach of duty’ capable of
including intentional trespass. In present context, to hold otherwise would result
in anomalies because it attributes to parliament an intention to draw a
distinction which defeats, rather than advances, the purpose of the legislation.
Court approved Letang.
D (Kirby J with Gummow J agreeing): ‘Breach of duty’ is a notion alien to
trespass. The words are of negligence. That is the context in which the Act was
introduced. The phrase should be given its ordinary legal meaning which is not
engaged by intentional torts. Negligent trespass with the person coexists with
tort of negligence and has not superseded it in Australia.
Highway Cases
• Highway cases include:
o Collisions between vehicles.
o Collisions between a vehicle and a pedestrian on the highway.
o Damage to property adjoining a highway caused by a vehicle
running off the highway.
o Contact between goods being carried out of a property adjacent to
a highway and a vehicle or person using the highway.
Venning v Chin (1974) SASR
I: Whether P injured in a highway collision could cast onus of proof on issue of
negligence onto D by suing in trespass? [NO]
H (Bray CJ): Affirmed Williams v Milotin saying trespass was still available for
injuries caused by negligence. Dismissed Letang saying ‘I do not think that the
courts have power to legislate so as to deprive Ps of a remedy which they have
enjoyed for over a century’. Followed McHale that for trespass, onus generally on
D to disprove negligence, but that highway cases are an exception to this rule
and that onus is on P to prove either intention or negligence on D’s part.
H (Gibbs J): On appeal in HCA, Gibbs said ‘on appeal before us, counsel for D did
not argue the question whether a person injured in a running-down accident on
the highway may, by suing in trespass, succeed in recovering damages without
proving that D was guilty of negligence or intentional wrongdoing. It is therefore
unnecessary to consider that question. However, if you go out onto the road you
implicitly accept that an accident may occur – some are unavoidable and you
don't accept that someone is going to intentionally or negligently run into you.
This explains why burden is on P. However, not everyone consents to be on the
road – for example, a toddler passenger. Bray CJ admits this is an issue and while
highway cases are treated differently, this is the position in Australia.
Policy
• Theoretical basis for the exception is uncertain. In Nickells v Melbourne
Corporation (1938) CLR, Dixon J said it had been ‘justified and explained
that those who go upon a highway or occupy land adjoining it must be
taken to assume the risk of such injuries by others as are incidental to the
ordinary exercise of the right of user, not the risk of negligence’. This is an
imperfect explanation. Doubt still persists about onus of proof on issue of
fault in non-highway trespass cases. In the absence of a rule, look at the
original rationale behind the exception – there are inherent risks
associated with mass movement of people and goods on highway. By
choosing to use or live hear highway, one impliedly accepts these risks.
• R. J. Bailey argues there is no justification for the continued existence of
two distinct causes of action in the area of personal injuries directly
caused by negligence. Main reason for this is that they are protecting the
one interest – right not to be injured by negligence of others – and this
single interest ought not to be accorded different degrees of protection by
different torts. The result of Venning is that those who cannot prove fault
get no help from common law. Is this acceptable in the field of personal
injuries? Once inevitability of accidents is accepted, it is unjust to make
recovery of compensation depend on proof of fault. Liability on road
should be stricter than accidents on private land due to existence of
insurance. Therefore, since loss is spread over community in this way by
way of premiums charged, the cost involved in a stricter liability would be
easily borne. P who has been injured in a car accident is jut as needing in
compensation if there was no fault of D as if there was. Therefore, burden
should be on D.
Future Directions?
Platt v Nutt (1988) NSW
F: P was D’s mother in law. When daughter and granddaughter finally left the
house, D made a parting remark and slammed the front door. P thrust her arm
out. Her hand went through the glass panel on the door as it was closing. She was
injured. She sued for battery.
I: Had P satisfied the burden of proof? [NO]
H: TJ had conflated issues of causation and negligence. TJ’s findings that he could
not determine whether P’s thrusting of her arm was a reflex or independent act
meant that P had failed to prove that D had caused injury. Hence action should
fail as action was not direct enough. It is unnecessary to determine who had the
burden of proof concerning fault.
D (Kirby P): If instinctive was the act, it would be direct and thus trespass. D had
failed to discharge burden of proving an absence of negligence and gave
judgment for P. Kirby argued Fowler and Letang should be adopted – P should
bear onus in all cases that the injury was caused either by intent or negligence by
D. The difference in the law on the burden of proof in highway and other cases of
trespass is simply unprincipled. Whenever there is an inconsistency, the way to
solve it is by putting the burden on P. Therefore, a more coherent approach is
that those who assert must prove (citing Blacker v Waters). Kirby found TJ
should have found P had acted involuntarily. D ought to have foreseen that risk
hence P had proved a case of negligent trespass. Therefore, Fowler > McHale.
Principle
• Burden concerning fault should be on P in all cases (minority).
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Week 2
Common Elements of Trespass, Battery and Assault
COMMON ELEMENTS OF TRESPASS
Aims of trespass
• Paramount value is given to bodily integrity and bodily liberty and
undisturbed possession of land and goods.
• Trespass provides a means of bringing issues of civil liberties to court.
Common Elements
• Actionable per se
o No need to show damage. Negligence is the opposite. Trespass is
like this because physical integrity is of such importance that it is
seemed to be worthy of protection without damage. Even though
no substantial harm, in an appropriate case compensatory
damages can take account of the circumstances such as the
‘insult… and injury to his feelings, that is, the indignity, disgrace
and humiliation that may be caused’ (McGregor J in Fogg v
McKnight [1968]).
• D’s act must be voluntary and positive
o D must consciously bring about the bodily movements resulting in
the contact, and not merely a reflexive action. It must not be
passive but active.
• Fault
o D must have intended to cause the consequence/knows the
consequence was substantially certain of his act. It can be done
intentionally (narrow) or recklessly (broad). No liability unless
fault is made out.
▪ Both features of fault are (1) a conscious purpose, and (2)
to achieve a legally proscribed result. It is absence of (1)
that makes it reckless. It is also the absence of (1) that
distinguishes negligence from intention with negligence
denoting the failure to take reasonable care (Stanley Yeo
‘Comparing the Fault Elements of Trespass, Action on the
Case and Negligence’ (2001) 5 Southern Cross LR 142).
• Directness
o The interference with P must follow directly from D’s act.
Immediacy of contact may prove directness. While obvious cases
pose no problem, marginal cases like Hutchins v Maughan show
that it sets crude and arbitrary limits on the availability of the
action.
o Question to ask is: was D’s act sufficient on it own to bring about:
▪ Contact with P’s person? (Battery)
▪ An apprehension in the mind of P of imminent physical
contact? (Assault)
▪ Total restraint of P? (False Imprisonment)
o Injury is direct when it follows so immediately upon the act of D
that it may be termed part of that act; it is consequential when by
reason of an intervening cause, it is not regarded as part of D’s act
but a consequence of it (Salmond on Torts 7th ed, 1928, pg. 230).
DIRECT INTERFERENCE
Animal Actions
Hutchins v Maughan [1947] VLR
F: P was droving ewes. D warned about poison baits laid on land. P went on land
anyway. His sheep dogs died of baits. P complained in negligence. Nuisance or
trespass. TJ gave judgment for trespass claim and awarded P damages for loss of
dogs. D claimed on appeal that P’s cause of action sounded only in case and not
trespass, and that P having failed his nuisance and negligence claims is now
without remedy. D argued injury suffered was not occasioned by but was merely
consequential upon D’s act of laying the baits and thus was not trespass.
I: Was laying of baits a direct act? [NO]
Were actions of P alone enough to produce the contact or were other actions
necessary after D had acted? [P’S ACTIONS ARE ENOUGH]
H (Herring CJ): Emphasised need to decide each case on its own facts. Concluded
baits were laid by D before P took dogs onto land and there is a possibility they
may have been there before P arrived in the vicinity. If P had chosen not to come
onto the land, there would be no injury from D’s act. The doing of the act,
therefore, of itself did no mischief. Before P could suffer an injury, he himself had
to intervene by coming to the land and bringing his dogs therein. Therefore
injury was consequential and not directly or immediately occasioned by D’s act.
It is the act of the owner bringing the dogs onto the land that made it indirect,
not the fact that the dogs went and ate the meat. P was warned of the baits in
advance and court analogised to Leame v Bray where man going along a road
trips over a log. If D throws the log and it immediately hits P, then trespass.
However, if P comes along later on, it is indirect and no trespass. Therefore, to
constitute trespass, injury is said to be direct when it follows so immediately
upon the act of D that it may be deemed part of the act and not a consequence of
it. It is consequential when by some reason of an intervening cause, it is regarded
not as part of D’s act, but merely as a consequence of it.
Principle
• Only direct actions can constitute trespass. If consequential, look to action
on the case.
Human Actions
Scott v Shepherd (1773) UK
F: D threw a lighted squib into a crowded market house. It fell on a gingerbread
stall. To prevent injury to himself and the stall, Willis threw the squib away. It fell
on Ryal’s stall and he instantly threw it again. It struck P in the eye and blew up.
P sued D who first threw the squib in trespass.
I: Should Ryal/Willis be held liable? [NO]
H (DeGrey CJ): Directness was made out and D fully liable because the
intermediaries were not free agents, but were acting under a compulsive
necessity for their own safety and self-preservation. Agreed with Blackstone J
about his principles, but not his application of them. Held the real question does
not turn on the lawfulness or unlawfulness of the original act; for the actions of
trespass will lie for legal acts when they become trespasses by accident. They
may also not lie for the consequences even of illegal acts such as casting a log
onto the highway. Rather, the true question is whether the injury was direct and
immediate act of D. Any innocent person removing the danger from himself to
another is justifiable; the blame lights on the first thrower. Therefore, the new
direction and new force flow out of the first force and are not a new trespass.
Directness is defined broadly here: setting in motion a chain of continuous
consequences with no independent or intervening cause.
H (Nares J): Citing Reynolds v Clark, if the act in the first instance is unlawful,
trespass will lie. It is not necessary to maintain trespass that D should personally
touch P. D is the person who gave the mischievous faculty to the squib. That
faculty remained in it until the explosion. No new power of mischief was
communicated to it by Willis or Ryal. Therefore D liable.
D (Blackstone J): Where the injury is immediate, action of trespass will lie; where
it is only consequential, it must be an action on the case. In strictness of law,
trespass would lie against Ryal. Both he and Willis have exceeded the bounds of
self-defence and not used sufficient circumspection in removing the danger from
themselves. Both were free agents and in giving the squib a new force and
direction, they are liable. Analogised to a football kicking in a street between a
hundred people then one smashes a window. Is the original kicker to blame?
Surely only against the law man who gave it that mischievous direction. Acts in
self-preservation don't count as intervening causes. Intention was established
here as it was substantially certain that throwing an explosive would cause
injury.
Principle
• To pass on liability for an action of trespass, last person must be a free
agent.
• There need not be physical contact between P and D – can be an
instrument (Nares J).
• Whoever first creates the mischievous faculty is to be liable.
Natural Forces
Southport Corporation v Esso Petroleum [1954] QB
F: Oil tanker owned by D was stranded in river estuary and to prevent her
breaking her back, master jettisoned 400 tonnes of oil which tide carried to
foreshore, occasioning damage. Foreshore owners, P, brought action on trespass
to land, nuisance and negligence, alleging that the stranding was caused by faulty
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