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 majestys 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 pls 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 (Parkes 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 Ps 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 Ps action by reason of Ds 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