Transcript Document

LAW OF TORTS
Essentials of Tort Law
Tort Law Origins
Historically dealt with "duty" owed to everyone you haven't agreed
with in advance
"Tort" = “Wrong”
The law of negligence
Personal injury
Property damage
Not for economic losses
WHAT IS A TORT?
• A tort is a civil wrong
• That (wrong) is based a breach of a
duty imposed by law
• Which (breach) gives rise to a
(personal) civil right of action for
for a remedy not exclusive to
another area of law
Tort Law Operation
Must take reasonable care to avoid acts or omissions that you can
reasonably foresee would be likely to injure your neighbour
“Negligence is the omission to do something which a
reasonable man, guided upon those considerations which
ordinarily regulate the conduct of human affairs, would do, or
doing something which a prudent and reasonable man would
not do.”
Reasonable Care -- The "reasonable man" test
“The reasonable man is a mythical creature of the law whose conduct is the
standard by which the Courts measure the conduct of all other persons and find
it to be proper or improper in particular circumstances as they may exist from
time to time. He is not an extraordinary or unusual creature; he is not
superhuman; he is not required to display the highest skill of which anyone is
capable; his is not a genius who can perform uncommon feats, nor is he
possessed of unusual powers of foresight. He is a person of normal intelligence
who makes prudence a guide to his conduct. He does nothing that a prudent
man would not do and does not omit to do anything that a prudent man would
do. His conduct is guided by considerations which ordinarily regulate the
conduct of human affairs. His conduct is the standard ‘adopted in the
community by persons of ordinary intelligence and prudence’.”
The "Reasonable Engineer or Geoscientist"
“How do you test whether this act or failure is negligent? In an ordinary case it is
generally said, that you judge that by the action of the man in the street. He is the
ordinary man. In one case it has been said that you judge it by the conduct of the
man on the top of a Clapham omnibus. He is the ordinary man. But where you
get a situation which involves the use of some special skill or competence, then
the test whether there has been negligence or not is not the test of the man on the
top of a Clapham omnibus, because he has not got this special skill. The test is
the standard of the ordinary skilled man exercising and professing to have that
special skill. A man need not possess the highest expert skill at the risk of being
found negligent. It is well established law that it is sufficient if he exercises the
ordinary skill of an ordinary competent man exercising that particular art.”
Application of Tort Law to Commercial Transactions
Historically, liability had to follow contractual chain
Manufacturer
↓
Distributor
↓
Consumer
Who is my "neighbour" and what is "foreseeable"?
• There must be a "sufficiently close relationship between
the parties" (proximity) to "justify imposition of a duty" and
• There must be no "policy considerations" to prevent the
imposition of liability
Very complicated to determine, but the number of people to whom
a duty is owed is probably expanding
THE DIFFERENCE BETWEEN
A TORT AND A CRIME
• A crime is public /community wrong that
gives rise to sanctions usually designated in
a specified code. A tort is a civil ‘private’
wrong.
• Action in criminal law is usually brought by
the state or the Crown. Tort actions are
usually brought by the victims of the tort.
• The principal objective in criminal law is
punishment. In torts, it is compensation
THE DIFFERENCE BETWEEN
A TORT AND A CRIME
•
Differences in Procedure:
–
Standard of Proof
Criminal law: beyond reasonable
doubt
• Torts: on the balance of probabilities
•
THE AIMS OF TORT LAW
• Loss distribution/adjustment: shifting losses
from victims to perpetrators
• Compensation: Through the award of
(pecuniary) damages
–The object of compensation is to
place the victim in the position he/she
was before the tort was committed.
• Punishment: through exemplary or punitive
damages. This is a secondary aim.
INTERESTS PROTECTED IN
TORT LAW
• Personal security
– Trespass
– Negligence
• Reputation
– Defamation
• Property
– Trespass
– Conversion
• Economic and financial interests
INTENTIONAL TORTS
•
INTENATIONAL TORTS
Trespass
Conversion
Detinue
WHAT IS TRESPASS?
• Intentional or negligent act of D
which directly causes an injury to the P
or his /her property without lawful
justification
• The Elements of Trespass:
– fault: intentional or negligent act
- injury must be direct
– injury* may be to the P or to his/her property
- No lawful justification
*INJURY IN TRESPASS
• Injury = a breach of right, not
necessarily actual damage
• Trespass requires only proof of injury
not actual damage
THE GENERAL ELEMENTS
OF TRESPASS
Intentional/
negligent act
+
Direct interference
with person or property
+
Absence of lawful
justification
+
“x” element
=
A specific
form of trespass
SPECIFIC FORMS OF
TRESPASS
TRESPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT
PROPERTY
BATTERY
• The intentional or negligent act of
D which directly causes a physical
interference with the body of P
without lawful justification
• The distinguishing element:
physical interference with P’s body
THE INTENTIONAL ACT
IN BATTERY
• No liability without intention
• The intentional act = basic willful
act + the consequences.
CAPACITY TO FORM THE
INTENT
• D is deemed capable of forming intent
if he/she understands the nature of
(‘intended’) his/her act
• -Infants
–Lunatics
–Morris v Marsden
–Hart v A. G. of Tasmania ( infant cutting
another infant with razor blade)
THE ACT MUST CAUSE
PHYSICAL INTERFERENCE
• The essence of the tort is the protection of the
person of P. D’s act short of physical contact is
therefore not a battery
• The least touching of another could be
battery
– Cole v Turner (dicta per Holt CJ)
• ‘The fundamental principle, plain and
incontestable, is that every person’s body is
inviolate’ ( per Goff LJ, Collins v Wilcock)
The Nature of the Physical
Interference
• Rixon v Star City Casino (D places hand on P’s
shoulder to attract his attention; no battery)
• Collins v Wilcock (Police officer holds D’s arm with a
view to restraining her when D declines to answer questions and begins
to walk away; battery)
• Platt v Nutt
THE INJURY MUST BE
CAUSED DIRECTLY
• Injury should be the immediate:
– Scott v Shepherd ( Lit squib/fireworks
in market place)
– Hutchins v Maughan (poisoned bait
left for dog)
– Southport v Esso Petroleum(Spilt oil
on P’s beach)
THE ACT MUST BE
WITHOUT LAWFUL
JUSTIFICATION
• Consent is Lawful justification
• Consent must be freely given by the P if P is
able to understand the nature of the act
• Lawful justification includes the lawful act
of law enforcement officers
–Wilson v. Marshall (D accused of assaulting
police officer, held officer’s conduct not lawful)
TRESPASS:ASSAULT
•
The intentional/negligent act or
threat of D which directly places P
in reasonable apprehension of an
imminent physical interference
with his or her person or of
someone under his or her control
THE ELEMENTS OF ASSAULT
• There must be a direct threat:
–Hall v Fonceca
(Threat by P who shook hand in front of
D’s face in an argument)
• 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
THE ELEMENTS OF ASSAULT
• The apprehension must be reasonable; the
test is objective
• The interference must be imminent
–
–
–
–
Rozsa v Samuels
Police v Greaves
Hall v Fonceca
Zanker v Vartzokas (P jumps out of a moving van to escape
from D’s unwanted lift)
THE GENERAL ELEMENTS
OF TRESPASS
Intentional/
negligent act
+
Direct interference
+
Absence of lawful
justification
+
“x” element
=
A specific
form of trespass
SPECIFIC FORMS OF
TRESPASS
TRESPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT
PROPERTY
FALSE
IMPRISONMENT
• The intentional or negligent act of
D which directly causes the total
restraint of P and thereby confines
him/her to a delimited area without
lawful justification
• The essential distinctive element is
the total restraint
THE ELEMENTS OF
THE TORT
• It requires all the basic elements of
trespass:
– Intentional/negligent act
– Directness
– absence of lawful
justification/consent , and
• total restraint
RESTRAINT IN FALSE
IMPRISONMENT
• The restraint must be total
– Bird v Jones (passage over bridge)
– The Balmain New Ferry Co v Robertson
• Total restraint implies the absence of a
reasonable means of escape
– Burton v Davies (D refuses to allow P out of car)
• Restraint may be total where D subjects P to
his/her authority with no option to leave
– Symes v Mahon (police officer arrests P by mistake)
– Myer Stores v Soo
FORMS OF FALSE
IMPRISONMENT
• See the following Cases:
– Cowell v. Corrective Services
Commissioner 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) 18 NSWLR 620.
VOLUNTARY CASES
• In general, there is no FI where one
voluntarily submits to a form of restraint
– Herd v Weardale (D refuses to allow P out of mine
shaft)
– Robinson v The Balmain New Ferry Co. (D
refuses to allow P to leave unless P pays fare)
– Lippl v Haines
• Where there is no volition for restraint, the
confinement may be FI (Bahner v Marwest
Hotels Co.)
WORDS AND FALSE
IMPRISONMENT
• In general, words can constitute FI
see Balkin & Davis pp. 55 to 56:
“restraint… even by mere threat of force
which intimidates a person into compliance
without any laying on of hands” may be
false imprisonment
- Symes v Mahon
KNOWLEDGE IN FALSE
IMPRISONMENT
• The knowledge of the P at the
moment of restraint is not
essential.
– Meering v Graham White Aviation
– Murray v Ministry of Defense
WHO IS LIABLE? THE
AGGRIEVED CITIZEN OR THE
POLICE OFFICER?
• In each case, the issue is whether the
police in making the arrest acted
independently or as the agent of the
citizen who promoted and caused the
arrest
–Dickenson v Waters Ltd
–Bahner v Marwest Hotels Co
THE ‘MENTALLY ILL’ AND
FALSE IMPRISONMENT
 In Common Law, the lawfulness of an act of detention of a person
must depend on "overriding necessity for the protection of himself
and others’ per Harvey J in In re Hawke (1923) 40 WN (NSW)
58
 The situation under statute:
 Watson v Marshall and Cade (1971) 124 CLR 621
 The Vic Mental Health Act 1959:Any person may be admitted
into and detained in a psychiatric hospital upon the production of
 (a) a request under the hand of some person in the prescribed form;
 (b) a statement of the prescribed particulars; and
 (c) a recommendation in the prescribed form of a medical practitioner based
upon a personal examination of such person made not more than seven clear
days before the admission of such person.
DAMAGES
False imprisonment is actionable per se
The failure to prove any actual financial loss
does not mean that the plaintiff should recover
nothing. The damages are at large. An
interference with personal liberty even for a
short period is not a trivial wrong. The injury to
the plaintiff's dignity and to his feelings can be
taken into account in assessing damages
(Watson v Marshall and Cade )
OTHER FORMS OF
TRESPASS
TRESPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT
PROPERTY
TRESPASS TO
PROPERTY
TRESPASS TO PROPERTY
LAND
GOODS/CHATTELS
TRESPASS TO LAND
• The intentional or
negligent act of D which
directly interferes with
the plaintiff’s exclusive
possession of land
THE NATURE OF THE
TORT
•
Land includes the actual soil/dirt, the
structures/plants on it and the airspace
above it
• Cujus est solum ejus est usque ad coelum
et inferos
–Bernstein of Leigh v Skyways & General
Ltd
–Kelson v Imperial Tobacco
STATUTORY EASEMENTS
• Conveyancing Act 1919 s 88K (NSW)
– 1. The Court may make an order imposing an
easement over land if the easement is reasonably
necessary for the effective use or development of other
land that will have the benefit of the easement.
– 2. Such an order may be made only if the Court is
satisfied that:
• (a) use of the land having the benefit of the easement will not be
inconsistent with the public interest, and
• (b) the owner of the land to be burdened by the easement and each
other person having an estate or interest in that land …can be
adequately compensated for any loss or other disadvantage that will
arise from imposition of the easement
• all reasonable attempts have been made by the applicant for the order
to obtain the easement or an easement having the same effect but
have been unsuccessful
RESTRICTIONS ON
STATUTORY EASEMENTS
• ‘Property rights are valuable rights and the court should
not lightly interfere with [such] property rights… [the
section] does not exist for people build right up to the
boundary of their property [or] build without adequate
access and then expect others to make their land available
for access’ per Young J Hanny v Lewis (1999) NSW Conv.
R 55-879 at 56-875
• ‘Developers have a responsibility to act reasonably as do
the proprietors of adjoining land and the developers should
not just proceed as if they would automatically get what
they seek without negotiations’ (per Windeyer J Goodwin
v Yee Holdings Pty Ltd (1997) 8 BPR)
The Issue of Compensation
• 88K (2) Such an order may be made only if the Court is
satisfied that: the owner of the land to be burdened by the
easement and each other person having an estate or interest in
that land …can be adequately compensated for any loss or
other disadvantage that will arise from imposition of the
easement
• Adequate compensation: (Wengarin Pty Ltd v Byron Shire
Council [1999] NSWSC 485)
–
–
–
–
the diminished market value of the servient land
associated costs that would be caused to the owner
loss of amenities such as peace and quite
where assessment proves difficult, the court may assess compensation
on a percentage of the profits that would be made from the use of the
easement
Neighbouring land Access
and Utility Service Orders
• The Access to Neighbouring Land Act 2000 ss11
and 13
– (1) A Local Court may make a neighbouring land access /utility service
access order if it is satisfied that access to land is required for the
purpose of carrying out work on or in connection with a utility service
situated on the land and it is satisfied that it is appropriate to make the
order in the circumstances of the case
– (2) The Court must not make a utility service access order unless it
is satisfied:
– (a) that the applicant has made a reasonable effort to reach agreement
with every person whose consent to access is required as to the access
and carrying out of the work, and
– (b) if the requirement to give notice has not been waived, that the
applicant has given notice of the application in accordance with [the
Act]
The Nature of D’s Act: A
General Note
• ...[E]very invasion of private property, be it
ever so minute, is a trespass. No man can
set his foot upon my ground without my
license, but he is liable to an action, though
the damage be nothing.... If he admits the
fact, he is bound to show by way of
justification, that some positive law has
empowered or excused him ( Entick v
Carrington (1765) 16 St Tr 1029, 1066)
THE NATURE OF D’S
ACT
• The act must constitute some
physical interference which
disturbs P’s exclusive
possession of the land
–Victoria Racing Co. v Taylor
–Barthust City Council v Saban
–Lincoln Hunt v Willesse
THE NATURE OF THE
PLAINTIFF’S INTEREST IN THE
LAND
• P must have exclusive
possession of the land at the
time of the interference
exclusion of all others
THE NATURE OF EXCLUSIVE
POSSESSION
• Exclusive possession is distinct from
ownership.
• Ownership refers to title in the land.
Exclusive possession refers to physical
holding of the land
• Possession may be immediate or
constructive
• The nature of possession depends on the
material possessed
EXCLUSIVE POSSESSION: COOWNERS
• In general, a co-owner cannot be
liable in trespass in respect of the
land he/she owns; but this is
debatable where the ’trespassing’
co-owner is not in possession.
(Greig v Greig)
• A co-possessor can maintain an
action against a trespasser (Coles
Smith v Smith and Ors)¯
THE POSITION OF LICENSEES
• A licensee is one who has the
permission of P to enter or use land
(belonging to P)
• A licensee is a party not in
possession, and can therefore not
sue in trespass
• A licensee for value however may
be entitled to sue(E.R. Investments v
Hugh)
THE TRESPASSORY ACT
• Preventing P’s access Waters v
Maynard)
• The continuation of the initial
trespassory act is a continuing
trespass
• Where D enters land for purposes
different from that for which P gave
a license, D’s conduct may
constitute trespass ab initio (Barker
v R)
THE POSITION OF
POLICE OFFICERS
• Unless authorized by law, police
officers have no special right of
entry into any premises without
consent of P ( Halliday v Neville)
• A police officer charged with the
duty of serving a summons must
obtain the consent of the party in
possession (Plenty v. Dillion )
Police Officers; The Common
Law Position
• The poorest man may in his cottage bid
defiance to all forces of the Crown. It
may be frail- its roof may shake- the
wind may blow through it- the rain may
enter- but the King of England cannot
enter- all his force dares not cross the
threshold of the ruined tenement. So be
it- unless he has justification by law’.
Southam v Smout [1964] 1QB 308, 320.
REMEDIES
•
•
•
•
•
•
•
Ejectment
Recovery of Possession
Award of damages
Injunction
Parramatta CC v Lutz
Campbelltown CC v Mackay
XL Petroleum (NSW) v Caltex Oil
TRESPASS TO
PROPERTY
TRESPASS TO PROPERTY
LAND
GOODS/CHATTELS
TRESPASS TO
GOODS/CHATTEL
• The intentional/negligent act of D
which directly interferes with the
plaintiff’s possession of a chattel
without lawful justification
• The P must have actual or
constructive possession at the time
of interference.
DAMAGES
• It may not be actionable per se
(Everitt v Martin)
CONVERSION
• The act of D in relation to
another’s chattel which
constitutes an unjustifiable
denial of his/her title
CONVERSION: Who
Can Sue?
• Owners
• Those in possession or entitled to
immediate possession
– Bailees*/ Bailors*
– Mortgagors*/Mortgagees*(Citicorp
Australia v B.S. Stillwell)
–Finders (Parker v British Airways;
Armory v Delmirie)
ACTS OF CONVERSION
•
•
•
•
•
•
•
Mere asportation is no conversion
– Fouldes v Willoughby
The D’s conduct must constitute an unjustifiable denial of P’s rights
to the property
– Howard E Perry v British Railways Board [1980]
Finders of lost property
– Parker v British Airways [1982]
The position of the auctioneer
– Willis v British Car Auctions [1978]
Destruction of the chattel is conversion
– Atkinson v Richardson
Taking possession
Withholding possession
– Clayton v Le Roy [1911]
ACTS OF CONVERSION
• Misdelivery ( Ashby v Tolhurst
(1937 2KB); Sydney City Council
v West)
• Unauthorized dispositions in any
manner that interferes with P’s title
constitutes conversion ( Penfolds
Wines v Elliott)
DETINUE
•
Detinue: The wrongful refusal to
tender goods upon demand by P
who is entitled to possession It
requires a demand coupled with
subsequent refusal (General and
Finance Facilities v Cooks Cars
(Romford)
DAMAGES IN CONVERSION AND
DETINUE
• In conversion, damages usually take the form of
pecuniary compensation
• In detinue, the court may in appropriate circumstances
order the return of the chattel
• Damages in conversion are calculated as at the time of
conversion; in detinue it is as at the time of judgment
– The Medianal
– Butler v The Egg and Pulp Marketing Board
– The Winkfield
– General and Finance Facilities v Cooks Cars
(Romford)
THE LAW OF TORTS
Action on the Case for
Indirect Injuries
INDIRECT INTENTIONAL
INJURIES
•
ACTION ON THE CASE FOR
PHYSICAL INJURIES OR NERVOUS
SHOCK
• ACTION ON THE CASE REFERS TO
ACTIONS BASED ON INJURIES THAT
ARE CAUSED INDIRECTLY OR
CONSEQUENTIALLY
INDIRECT INTENTIONAL
INJURIES: CASE LAW
• Bird v Holbrook (trap set in
garden)
–D is liable in an action on the
case for damages for intentional
acts which are meant to cause
damage to P and which in fact
cause damage (to P)
THE INTENTIONAL
ACT
• The intentional may be deliberate
and preconceived(Bird v Holbrook )
• It may also be inferred or implied;
the test for the inference is objective
Wilkinson v Downton [1897]
• Janvier v Sweeney [1919]
•
Action on the Case for Indirect
Intentional Harm: Elements
• D is liable in an action on the case for
damages for intentional acts which are meant
to cause damage to P and which in fact cause
damage to P
• The elements of this tort:
– The act must be intentional
– It must be one calculated to cause harm/damage
– It must in fact cause harm/actual damage
• Where D intends no harm from his act but the
harm caused is one that is reasonably
foreseeable, D’s intention to cause the
resulting harm can be imputed/implied
THE SCOPE OF THE
RULE
• The rule does not cover ‘pure’
mental stress or mere fright
• The act must be reasonably
capable of causing mental
distress to a normal* person:
– Bunyan v Jordan (1937)
– Stevenson v Basham [1922]
ONUS OF PROOF
•
In Common Law, he who asserts proves
• Traditionally, in trespass D was required to disprove fault
once P proved injury. Depending on whether the injury
occurred on or off the highway ( McHale v Watson; Venning v
Chin)
• The current Australian position is contentious but seems to
support the view that in off highway cases D is required to
prove all the elements of the tort once P proves injury
– Hackshaw v Shaw
– Platt v Nutt
– See Blay; ‘Onus of Proof of Consent in an Action for Trespass to
the Person’ Vol. 61 ALJ (1987) 25
– But see McHugh J in See Secretary DHCS v JWB and SMB
(Marion’s Case) 1992 175 CLR 218
THE LAW OF TORTS
Defences to Intentional
Torts
INTRODUCTION: The
Concept of Defence
• Broader Concept: The content of
the Statement of Defence- The
response to the P’s Statement of
Claim-The basis for non-liability
• Statement of Defence may contain:
Denial
– Objection to a point of law
– Confession and avoidance:
–
MISTAKE
• An intentional conduct done under a
misapprehension
• Mistake is thus not the same as
inevitable accident
• Mistake is generally not a defence in
tort law ( Rendell v Associated Finance
Ltd, Symes v Mahon)
•
CONSENT
• In a strict sense, consent is not a
defence as such because in trespass,
the absence of consent is an element
of the tort
– See: Blay; ‘Onus of Proof of Consent in an Action
for Trespass to the Person’ Vol. 61 ALJ (1987)
25
– But McHugh J in See Secretary DHCS v JWB
and SMB (Marion’s Case) 1992 175 CLR 218
VALID CONSENT
• To be valid, consent must be
informed and procured without
fraud or coercion: ( R v Williams;)
• To invalidate consent, fraud must
relate directly to the agreement
itself, and not to an incidental issue:
(Papadimitropoulos v R (1957) 98
CLR 249)
CONSENT IN SPORTS
• In contact sports, consent is not
necessarily a defence to foul play
(McNamara v Duncan; Hilton v
Wallace)
• To succeed in an action for trespass in
contact sports however, the P must of
course prove the relevant elements of
the tort.
–Giumelli v Johnston
THE BURDEN OF
PROOF
•
Since the absence of consent
is a definitional element in
trespass, it is for the P to
prove absence of consent and
not for the D to prove
consent
STATUTORY PROVISIONS
ON CONSENT
• Minors (Property and
Contracts) Act 1970 (NSW) ss
14, 49
• Children & Young Persons
(Care and Protection Act) 1998
(NSW) ss 174, 175
SELF DEFENCE,
DEFENCE OF OTHERS
• A P who is attacked or threatened with an
attack, is allowed to use reasonable force to
defend him/herself
• In each case, the force used must be
proportional to the threat; it must not be
excessive. (Fontin v Katapodis)
• D may also use reasonable force to defend a
third party where he/she reasonably believes
that the party is being attacked or being
threatened
THE DEFENCE OF
PROPERTY
• D may use reasonable force to defend
his/her property if he/she reasonably
believes that the property is under attack or
threatened
• What is reasonable force will depend on
the facts of each case, but it is debatable
whether reasonable force includes ‘deadly
force’
PROVOCATION
• Provocation is not a defence in tort
law.
• It can only be used to avoid the
award of exemplary damages:
Fontin v Katapodis; Downham v
Bellette (1986) Aust Torts Reports
80-038
The Case for Allowing the
Defence of Provocation
• The relationship between provocation and
contributory negligence
• The implication of counterclaims
• Note possible qualifications Fontin v
Katapodis to:
– Lane v Holloway
– Murphy v Culhane
– See Blay: ‘Provocation in Tort Liability: A Time for
Reassessment’,QUT Law Journal, Vol. 4 (1988) pp.
151-159.
NECESSITY
• The defence is allowed where
an act which is otherwise a tort
is done to save life or property:
urgent situations of imminent
peril
Urgent Situations of Imminent
Peril
• The situation must pose a threat to life
or property to warrant the act: Southwark
London B. Council v Williams
• The defence is available in very strict
circumstances R v Dudley and Stephens
• D’s act must be reasonably necessary
and not just convenient Murray v McMurchy
– In re F
– Cope v Sharp
INSANITY
• Insanity is not a defence as such to
an intentional tort.
• What is essential is whether D by
reason of insanity was capable of
forming the intent to commit the
tort. (White v Pile; Morris v
Marsden)
INFANTS
• Minority is not a defence as such
in torts.
• What is essential is whether the D
understood the nature of his/her
conduct (Smith v Leurs; Hart v AG
of Tasmania)
DISCIPLINE
• PARENTS
–
A parent may use reasonable
and moderate force to
discipline a child. What is
reasonable will depend on the
age, mentality, and physique of
the child and on the means and
instrument used. (R v Terry)
ILLEGALITY:Ex turpi causa
non oritur actio
• Persons who join in committing an
illegal act have no legal rights inter se
in relation to torts arising directly from
that act.
– Hegarty v Shine
– Smith v Jenkins
– Jackson v Harrison
– Gala v Preston
TRESPASS & CLA 2002
• s.3B(1)(a) Civil Liability Act (“CLA”) i.e. CLA does not
apply to “intentional torts”, except Part 7 of the Act.
• s.52 (2) CLA subjective/objective test i.e. subjective
("…believes…" & "…perceives…")/ objective ("…reasonable response…")
test.
• s.53(1)(a) & (b) CLA i.e. “and” = two limb test; "exceptional"
and "harsh and unjust“ are not defined in the Act so s.34 of the
Interpretation Act 1987.
• s.54(1) & (2) CLA i.e. "Serious offence" and "offence" are
criminal terms so reference should be made to the criminal law to
confirm whether P's actions are covered by the provisions.