Lecture one – intro to torts

Objectives:
• What’s a tort anyway?
• Types of torts
• Interests protected by Torts
• Categorising Torts
• Common features of torts & differences between torts
• Differences between Torts v crime/contract
• Background & development of tort law
• Types of tort action in Australia
• Litigation process and issues
• Functions of and Influence on Tort Law

What is a Tort?
• Torts is the area of law that sets out when individuals can be compensated for harm.’
(Bagaric et al, Torts: Compensation for Harm’)
• Not quite accurate as are other areas of law that provide compensation for
harm e.g. if suffer economically when people break a contract with you,
then sue for breach of contract. When people without contractual remedy
can be compensated for harm.
• A tort is a civil wrong which involves the infringement of an interest (right or
value) recognised by the law and gives rise to an action for damages
(compensation).
• The word tort derives from the Latin: ‘tortus’ (twisted or crooked)
• Tort law is part of the broader law on obligations
• Dominance of negligence
• Different types of tort protect different interests.
• Species, covers a lot of areas of law.

Specific torts
• Negligence
• Trespass to land
• Assault
• Battery
• Nuisance
• Defamation
• Deceit (Fraudulent Misrepresentation)
• Passing-off

Torts and protected interests/rights/values

• Negligence
 • Right to integrity of the person, bodily integrity and against physical harm as
well, includes mental harm
• Property/economic rights
• Trespass to land
• Rights and interests in land and real property
• Difference between real property and personal (phone)
• Assault
• Right to integrity of the person (primarily mental)
• Battery
• Right to integrity of the person
• Nuisance
• Rights and Interests in use and enjoyment of land
• Defamation
• Reputation
• Deceit (Fraudulent Misrepresentation)
• Interest in not being exposed to fraudulent advice/conduct
• Economic interests
• Passing-off
• Interest in business reputation/goodwill

Rights & Interests that are protected

• Not all rights or interests that a person may have are protected by the law of torts.
• Privacy? – in Australia we have limited privacy rights. Can take photos of you
and have no right of action to sue. Is a gap in the law, been looking at it since
2008
• Stress/distress/disappointment – protects against mental harm if is a
psychiatric condition
• Right not to have been born at all? Sometimes there are surprising outcomes
• G & M v Armellin [2008] ACTSC 68 (24 July 2008) – couple changed
mind about only wanting one embryo implanted. Relationship suffered
and had trouble raising two children. Awarded damages for raising
child and sending to private school, due to lack of consent to have two
embryos implanted.
• Issues about consent? Should people have to pay when they wanted to
be pregnant? – is an example of a wrongful life case, where claiming
shouldn’t have been born at all.
• Wrongful birth cases – failed sterilisation resulting in pregnancy
• Harriton v Stephens [2006] HCA 15 – while mum carrying her in
womb, contracted measles in first trimester and doctors failed to pick it
up and have the risk of congenital defects. Issue was that mum claims
of had known then wouldn’t have carried to full term. So girl born with
severe disabilities, and before woman knew that could sue, she was out
of time and so daughter brought action against doctor. Torts is about
 bringing back to position would have been in if harm had not been
suffered.
Categorising Torts

• NOMINATE TORTS – have a category assigned to them

• INNOMINATE TORTS
• Wilkinson v Downton [1897] 2 QB 57
o Joke gone wrong, informed wife that husband had accident and she suffered
shock and suffered mental harm. Brought case and was successful. There
wasn’t a name for it so it was called an innominate tort.

Intentional Unintentional Miscellaneous

• Trespass to the • Negligence • Nuisance
person
• Intentional harm to • Breach of statutory • Liability for
person duty animals
• Trespass to land
• Intentional
interference with
goods
• Defamation
• Deceit

Trespass Action on the case Statutory

• Trespass to land • Negligence • Statutory nuisance
• Trespass to goods • Defamation • Breach of statutory
duty
• Conversion • Nuisance • Serious invasions
of privacy??
• Assault
• Battery
• False imprisonment

Common features of torts

• An act or omission
• Act = a positive act
• Omission = failure to do something (often when you should have done)
• Infringement of a legally recognised interest
• Gives rise to compensation – usually damages
 • Distinction between DAMAGE (harm) and DAMAGES ($$$)
• Object of suing in tort is to get compensation for the harm/damage that has
occurred
• Other remedies are sometimes possible
• Injunction (order to stop)

The Concept of Fault

FAULT is a common feature of many, but not all, torts
FAULT can be
• Intending harm (or possibly reckless indifference)
• Knowing harm is a likely consequence of your conduct (or being reckless);
• Failing to act reasonably;
STRICT LIABILITY

Differences between Torts

• Fault/strict liability
• Historical basis of action: trespass/action on case/statute
• Intentional versus unintentional conduct
• Actionable per se/damage is the gist of the action
• Direct or indirect interference

Background & Development of torts

• First records of tort actions in early 13th Century
• Mostly protected property and person
• Trespass
• to land/chattels/person
• direct interference with a person or property
• intentional or unintentional
• actionable per se
• Features of negligence:
• The interference can be direct or indirect
• The conduct is usually negligent (careless) not wilful
• However, even wilful acts can give rise to an action in negligence ... and one
academic has described the ‘growing importance of negligence as a remedy for
conduct that is intentional rather than merely careless.’ (Peter Handford,
‘Intentional Negligence: A Contradiction in Terms?’ (2010) 32(1) Sydney Law
Review 29, 33
Negligence and wilful acts
• Wilson v Horne (1999) 8 Tas LR 363; New South Wales v Lepore (2003) 212 CLR
511, 572 (McHugh J) (cf Gummow & Hayne JJ at 602-3); Cusack v Stayt (2000)
31 MVR 517
• Do you need to plead a specific cause of action or only the facts you are relying
on?
 • Rules of the Supreme Court 1971 (WA) O 20 r8(1) requires parties to plead
‘material facts’ – therefore not strictly necessary to identify a cause of action
• Duty as a lawyer – identify possible causes of action and plead facts accordingly.

• 19th Century legislation began to influence/change the common law rules

• Legislation continues to play an important role in development of tort law
• Statutory causes of action and statutory compensation schemes

Difference between tort & crime

• Some Torts involve fault BUT need to distinguish between a TORT and a CRIME
• In some cases one set of facts can give rise to CRIMINAL and CIVIL liability
• The Costa Concordia

Difference between Tort and Contract

• Contract – voluntary obligations
• Tort – involuntary obligations
• Concurrent liability
• Astley v Austrust 197 CLR 1

BRINGING A TORT ACTION

Individual
Situation: Pizza delivery driver is injured in an accident while delivering pizza
• Type of damage/loss that may arise?
• What action can the injured party take to gain compensation?
• Court action – typically long process
• Settlement out of court
• Possible mediation
• Outcome for successful Plaintiff
• Legal fees
Compensation schemes
• Workers’ compensation – if accident occurs in course of employment
• Motor Accidents Compensation Schemes
• Criminal injuries compensation – eg if victim of crime, eg dangerous driving.

Class Actions – ‘Representative Actions

Examples:
• https://www.mauriceblackburn.com.au/bushfire-class-actions/kilmore-east-kinglake-
bushfire-class-action/
• Queensland floods
• Breast implants
• ANZ bank fees (although not torts)
Emerging class actions:
• Shareholder class actions/Investor Class Actions
• Environmental liability/climate change liability
BRINGING A REPRSENTATIVE ACTION
Representative (class) actions
• Several people suffer personal injury, loss of loved ones, property damage &
economic loss
• 1 person or several people instruct lawyers. Lawyers know that there must be many
people affected (maybe more than the ones they know about).
• Federal Court of Australia Act 1976 allows class/representative action in certain
circumstances
• A key feature is that some of the members of the class may not even know that there
is legal action proceeding.
• Lawyers try to contact the others (through advertisements etc) and those that get in
touch can either join the action or opt-out.

Lopez v Star World Enterprises Pty Ltd [1999] FCA 104; (1999) ATPR 41-678;
BC9702215
• Lopez was poisoned by food he bought at a bakery. Many others (about 800) were
also poisoned.
• Lopez brought legal proceedings in his own name and as representative of the others.
The matter settled and the defendants paid compensation of $750,000.
• The $750,000 formed a fund to be divided between those who did not opt-out.

BRINGING A CLASS ACTION

• Mass tort (America)

“Total tort costs in the US are presently thought to exceed US$200 billion annually, or
more than 2 per cent of the US’s gross domestic product – a significantly higher
percentage than in any other developed nation. Recent reports suggest that almost one-
fifth of all tort costs go to plaintiffs’ attorneys, who receive almost US$40 billion per year
in revenue (thought to be 50 per cent more than Microsoft or Intel and twice that of Coca
Cola).”

Jason Betts, ‘Are we becoming more American? Class action litigation: Australia v
the US’, Lawyers Weekly Online, http://www.lawyersweekly.com.au/articles/Are-we-
becoming-more-American-Class-action-litigation-Australia-v-the-US_z65737.htm accessed 6
January, 2008

Lawyers with Lear Jets

• John Grisham ‘The King of Torts’
• http://www.telegraph.co.uk/news/uknews/1548137/Midas-touch-of-the-no-win-no-
fee-lawyer-with-a-private-jet.html
• https://www.news.com.au/finance/work/hapless-graduates-sue-their-former-
universities-in-shockingly-high-numbers/news-
story/6f5a7be7093804775034301bacb07a23
Fee Agreements
• Percentage of compensation (‘contingency fees’)
• No win-no fee agreements
• Litigation funding
• NOTE recent (Dec 2019) decision of High Court of Australia, summarised here:
https://www.abc.net.au/news/2020-01-11/class-action-lawsuit-changes-and-what-
they-mean-for-consumers/11858928

Functions of Tort law

• Compensation (Corrective Justice)
• Deterrence
• Distributing loss
• Individual liability theory
• Enterprise liability theory
• Theory that loss should be spread as widely as possible throughout society
• Economic analysis theory
• Stanford Encyclopaedia of Philosophy- Theories of the Common Law
of Torts

Influences on Tort Law

• Who pays the compensation?
• Influence that insurance has on negligence:
• Factor influencing liability
• “The insurance industry wields a powerful influence in the politics of
negligence….” Justice Ipp, ‘The Politics, Purpose and Reform of the Law of
Negligence’ (2007) 81 ALJ 456
• Insurance Crisis – 2001/2
• High cost of premiums & collapse of some high profile insurers
• Doctors unable to obtain affordable cover
• Voluntary groups not being able to run events
• Small business suffering
• Cause?
• ‘Insurance crisis’ Review of the Law of Negligence 2002 (Ipp report)

“The award of damages for personal injury has become unaffordable and
unsustainable as the principal source of compensation for those injured through
the fault of another. It is desirable to examine a method for the reform of the
common law with the objective of limiting liability and quantum of damages
arising from personal injury and death.”
Review of the Law of Negligence Report, 2002, Pg 1
IPP REPORT RECOMMENDATIONS:
• Partial codification of law of negligence (resolving some of the uncertainties)
• Altered tests for foreseeability of risk of harm
 • Minimum threshold of damage before could sue
• Cap on awards of general damages
• No liability for rescuers and others acting in good faith
• Etc
• Civil Liability legislation
• Civil Liability Act 2002 (WA)
• All states

Influences on Tort Law (particularly negligence)

• Government
• Direct interest
• Financing public authorities
• Negligence is “capable of influencing votes and political power” (Ipp, as per
previous ref, pg 1)
• Public authorities
• Medical profession & other professions
Other influences
• Lawyers
• Judges (High Court) and judicial policy
• Victims’ associations – asbestos exposure

Access to Justice & Practical Considerations

• Access to justice
• Cost of bringing legal action
• Complexity of legal action
• Practical Considerations
• Length of time to resolve legal action
• Hidden ‘victims’ or those who are ‘shy’ of coming forward

Parties to an action in Tort

Terminology
• Tort
• Tortfeasor
• Defendant is liable in/for negligence/defamation/nuisance etc
• Defendant is guilty of negligence
• Do see this in judgements
• But it is not the preferred usage
• Plaintiff sues for negligence or brings an action for/in negligence/defamation etc

Parties to a tort action and capacity to sue

• Anyone of 18 years and over who is of sound mind can
• Sue and be sued in tort
Minors (under 18)
 • can bring actions for harm caused by another’s tort – action is brought ‘by a next
friend’ or ‘tutor’ (representative).
• can be sued if they had the ‘capacity to form any necessary intention’ (if intention is a
relevant element). Defended through a guardian ad litem or tutor (representative).
Intellectually disabled
• Can sue or be sued, as with minors, and a representative will be appointed in either
case to assist bring/defend an action
• Will disability be a defence?
• Depends
• Further reading: page 6 of Australian Torts Law.

Limitation periods
• What is a limitation period?
• Limitation Act 2005 (WA)
• Different limitation periods for different types of injury
• Generally six years from date that the cause of action accrues (usually date
that damage is suffered)
• Personal injury – accrual date is usually 3 years from P’s awareness or
clinical manifestation of damage
• BUT…different limitation periods for defamation