Law of Torts

What is Tort?
• “A tort is a civil wrong for which the remedy is
an action for unliquidated damages and which
is not exclusively the breach of a contract, or
the breach of a trust, or the breach of other
merely equitable obligation”- Salmond
• The word tort is derived from the Latin word
‘tortum’ which means twisted or crooked or
wrong.
 Tortuous Liability
• As the word tort evolved, a practise began in the courts of
the common law, of distinguishing between actions in
‘contract’ for breaches of contract and actions for other
wrongs, and of using the word ‘tort’ as a compendious title
for the latter class of actions.
• Since then it was usual to speak of ‘actions in contract’ and
‘action in tort’.
• So a tort came, in law to refer to that particular class of
wrongs for which an action in tort was recognized by the
courts of common law as a remedy and to lose the generic
sense of wrong which it may have helped in popular use.
 MAIN AREAS FOR STUDY
• Negligence
• Occupiers’ liability
• Torts relating to land
• Torts involving animals
• Employers’ liability
• Product liability
• Privacy
• Defamation
• Remedies
• Defences in tort
• Criticisms and reforms
 What is negligence?
• More than just careless conduct
• The negligence claim properly connotes the
complex concepts of duty, breach and
damage.
 THE LEGAL FRAMEWORK
CLAIMANT MUST PROVE:
• Duty of care owed to him or her by the
defendant
• Breach of that duty by the defendant
• Damage caused by that breach of duty
- causation (cause in fact)
- remoteness of damage
 First established as a separate tort
Donoghue v Stevenson 1932.
Facts of the case
Ratio decidendi
Obiter Dicta
Policy
Importance of doctrine of judicial precedent
 First established as a separate tort
Donoghue v Stevenson 1932.
Facts of the case: Bottle of ginger beer bought from
retailer. Bottle containing dead snail. Purchaser
poisoned by drinking contents. Liability of
manufacturer to consumer.
Ratio decidendi
Obiter Dicta (said by the way)
Policy
Importance of doctrine of judicial precedent
 Ratio of Donoghue v Stevenson
At least 4 possible interpretations
• Manufacturer owed a duty of care to claimant
• Manufacturers generally owe a duty of care to
consumers of their products
• A negligence claim can be brought irrespective
of the absence of a contract
• The neighbour principle should be used to
determine the existence of a duty of care
 DUTY OF CARE
“Who then in law is my neighbour? Persons
so closely and directly affected by my acts or
omissions that I ought reasonably to have
them in contemplation as being so affected
when directing my mind to the acts or
omissions that are called in question”.
Lord Atkin
 Later extensions include:
• Other products beside food
• Teachers and pupils
• Motorists and other road users
• Doctors and patients
• Employers and employees
• Occupiers and people entering land
TORTS RELATING TO LAND
 ANCIENT ACTIONS TO PROTECT LAND

• Trespass
• Nuisance – public and private
• The Rule in Rylands v Fletcher
• Liability for fire.
 TRESPASS TO LAND
Two types
• Common law – the oldest
• Statutory – more recent –several forms –
some are criminal offences such as aggravated
trespass, trespass on railway property etc.
 COMMON LAW
Trespass consists of entering directly upon land in the
possession of another person, or remaining on land in
the possession of another person, or placing or
projecting any object on land in the possession of
another person – in each case without lawful
justification.
Trespass is actionable per se – no need to prove damage
 NUISANCE
Two types – public and private
“Public nuisance is an act which materially
affects a class of her majesty’s subjects” and it
is also a crime.”

Includes highway nuisance – now covered by

statute
 PRIVATE NUISANCE
• A tort – not a crime
• Complements trespass
• “Consists of unlawful, continuous and indirect
interference with the use or enjoyment of
land or some right over or in connection with
it. Proof of damage is usually required.”
 RULE IN RYLANDS V FLETCHER
• The df were owners of a mill. In order to supply it with water they
constructed a reservoir upon nearby land.  The Pl was working certain coal
mines, under lands, close to but not adjoining the premises on which the
reservoir was constructed.  The Df employed an engineer and contractors or
plan and build the reservoir.  The contractors, in excavating for the bed of
the reservoir, came upon five long ago abandoned vertical shafts.  B/c they
were filled with soil neither the contractors nor the Dfs suspected that they
were abandoned mine shafts.  The reservoir was completed and partly
filled.  Within days one of the shafts gave way and burst, letting water flow
into the pl’s workings, flooding their mine.
• “The person who brings onto his land and collects and keeps there something
likely to do mischief if it escapes must keep it in at his peril and if he does not do
so, he is liable for all the damage which is the natural consequence of its escape”.
• Use of land must be non-natural.
• A lost opportunity to develop the law?
TRESPASS TO THE PERSON

A brief summary
 Three torts
• Assault
• Battery
• False imprisonment
• Defamation
 Assault
• Putting a person in fear of an immediate
battery
• Must be proved that it was reasonable for
the claimant to expect an immediate battery.
 Battery
• Battery is application of direct physical force
to the claimant.
• The intention which is required in battery is
not the intention to hurt the claimant, but
the intention to apply physical force. The tort
thus protects the claimant’s dignity as well
as bodily integrity
 Examples of battery
• Unwanted hair-dye
• Smacking and punching
• Medical treatment without consent

BUT
Lawful justification will be a defence
 False Imprisonment
‘The unlawful imposition of restraint on
another’s freedom of movement’.
- Restraint must be ‘total’
- Knowledge of the restraint at the time is not
necessary
- Many claims involve police or store
detectives
 What is defamatory?
• “A defamatory statement may be defined as one
which tends to lower a person in the estimation of
his fellow men by making them think the less of him.
Frequently, it takes the form of an imputation
calculated to bring the plaintiff ‘into hatred,
contempt or ridicule’ (Parke’s B definition in Parmiter v Coupland
(1840) 6 M&W 105, 108), whether by direct statement, irony,
caricature or any other means; but it is not necessary
that the words have the tendency to excite feelings
of disapprobation, provided they cause him to be
shunned and avoided by his fellows.” J.G. Fleming
 Slander and Libel
• Slander – A defamatory statement in oral or
transient form actionable upon proof of
damage.
• Libel – A defamatory statement in written
form or other permanent form actionable per
se.
 Who May Be Defamed?
• Living persons – the dead cannot be defamed no
matter how distressing to the relatives and friends.

• Corporations – although in NSW, only if the

corporation employs fewer than 10 persons at the
time of publication of the matter, and the
corporation has no subsidiaries (within the meaning
of the Corporations Act 2001of the Commonwealth)
at that time [see Section 20 Defamation Act 1974].

• Local Government Body, Professional Association and

Trade Union
Trespass to goods
 Definition
‘Direct, immediate interference with personal
property belonging to another person’.
This tort provides protection for the person
entitled to immediate possession of the
chattels in question, and in that and other
ways it resembles trespass to land.
 Conversion
• An intentional tort that may be committed in a wide
variety of ways.
• Actionable by the person entitled to possession of
the goods.
• The law allows claims by a person who had a right to
immediate possession as well as to a person who
enjoyed actual possession at the time the tort was
committed.
• The claimant must prove that he had possession of
the goods or the right to immediate possession of
them at the time of the wrongful act.
 Some examples of conversion

• Contradicting the title of the true owner

• Detaining goods belonging to the claimant
without permission after a demand for the
goods which has been refused.
• Destruction of goods belonging to the
claimant
• Selling goods without the claimant’s
permission.
Defences
 General tort defences
• Contributory negligence
• Volenti non fit injuria (consent)
• Ex turpi causa (illegality)
• Inevitable accident
• Self defence
• Limitations
• Note special defences applicable to individual
torts
 Contributory Negligence: The nature of the
P’s conduct

• To plead the defence D bears the onus of proof and

must prove the requisite standard of care that has
been breached by P.
• It would seem that courts apply the standard
leniently to P, and whether P’s action by reason of
D’s negligent conduct constitutes an unreasonable
risk to him/herself will depend on the
circumstances of each case
 The Substance of Apportionment Legislation

• Where any person suffers damage as the result

partly of his/her own fault and partly of the fault of
any other persons, a claim in respect of that
damage shall not be defeated by reason of the fault
of the person suffering the damage, but the
damages recoverable in respect thereof shall be
reduced to such extent as the court thinks just and
equitable having regard to the claimant’s share in
the responsibility for the damage (Law Reform
(Miscellaneous) Act 1965 (NSW) s10