Torts

Question	Answer
Definition of torts?	Act or omission that infringes a right
Torts Law?	Enables a person who has been privately wronged by another to seek compensation or remedy, through the court system
Tort action (4)	• A private cause of action • Designed to provide a remedy for a civil wrong • Usually located within an existing category of action • Based upon the common law supplemented by legislation
Forms of action in torts? (2)	– Trespass – Case
Law of torts protects recognised interests	– Person – Chattels – Land – Reputation
What is the exception?	Direct + unintentional + damage → Plaintiff can sue in trespass AND case
TRESPASS: Type of interference	Direct Interference is immediate result of defendant’s act
TRESPASS: Fault	Act must be intentional or careless
TRESPASS: Damage	Damage: Actionable per se / Plaintiff does not have prove damage/loss to succeed
TRESPASS: Onus of Proof	Onus of Proof: Non-highway • Plaintiff prove direct interference, then defendant disprove fault Highway • Onus on plaintiff throughoutFault: Act must be intentional or careless
TRESPASS: Damage	Damage: Actionable per se / Plaintiff does not have prove damage/loss to succeed
ACTION ON THE CASE: Type of Interference:	Indirect • Consequential interference
ACTION ON THE CASE: Fault	No fault eg, in negligence, fault refers to failing to achieve a legal standard
ACTION ON THE CASE: Damage	Plaintiff must prove loss/damage to succeed
ACTION ON THE CASE: Onus of Proof	Onus on plaintiff throughout • no distinction between highway and non-highway
Types of trespass to person?	– Battery – Assault – False imprisonment
Battery	A person who strikes, touches or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent… is said to assault that other person….
Legislation for battery?	Criminal Code s 245
Elements of battery?	1. Direct or indirect application of force to the plaintiff’s person 2. Without the plaintiff’s consent 3. Defendant at fault
Direct or Indirect Application of Force	• Physical contact with plaintiff – Carter v Walker • Need not be person to person – Spitting in someone’s face = direct application of force • R v Cotesworth • Cannot be passive • Innes v Wylie
Object of battery?	to protect persons from unwanted or offensive contact
Is hostility required? (+authority)	– Hostility not required • Re F (Mental Patient: Sterilisation)
Exception of battery	– Exception - Bodily contact as an incidence of every day life • *Rixon v Star City Pty Ltd
Defences for battery	Consent to application of force --> no action – Consent may be a defence to trespass actions – Criminal Code s 245 refers to lack of consent as an element – Consent may be express or implied • Implied by the circumstances, eg participation in sport: McNamara v Duncan – Can be invalidated if fraud or duress or lack of capacit
Fault	• Must be voluntary • Intentional or negligent – *McHale v Watson • Need not intend to cause harm or injury
Is knowledge of the interference needed?	Knowledge of the interference is not necessary on part of the plaintiff or the defendant – Law v Visser
What is an assault?	Any act of the defendant which directly and either intentionally or negligently causes the plaintiff immediately to apprehend a contact with his or her person.
Elements of assault?	– Threat of imminent harm – Reasonable belief / apprehension that defendant has ability to carry out the threat – Defendant at fault
A threat of imminent direct contact	–Words alone can amount to an assault • Barton v Armstrong; Slaveski v Victoria –Imminent – can be some delay but not a threat to harm at some distant time in the future • R v Gabriel
Apprehension/Reasonable belief in the defendant’s ability to carry out the threat	• Plaintiff must be aware of the threat – R v Phillips • Plaintiff need not be afraid • Brady v Schatzel • Must have either the actual ability or the apparent present ability to carry out the threat – Brady v Schatzel • A conditional threat can be an assault – eg, ‘If you come one step closer I will shoot’ • Police v Greaves
Fault	Defendant must have intended to create the apprehension of harm in the plaintiff’s mind – Need not prove intention to carry out the threat – May recklessly cause apprehension
False Imprisonment	Voluntary act of the defendant subjects the plaintiff to total deprivation of freedom of movement without lawful justification. – Period of imprisonment irrelevant: • Roddan v Corrections Corp of Australia Pty Ltd • Plaintiff need not be aware of imprisonment – R v Awang
Elements of False Imprisonment?	– Direct interference with the plaintiff’s liberty – Restraint in all directions – Defendant at fault
Direct interference with liberty	• Immediate result of defendant’s act is restraint of plaintiff’s liberty • “Defendant must be active in promoting or causing the imprisonment” – *Myer Stores v Soo • If restraint is result of defendant acting upon the information of another, may be indirect
Total restraint	• Must be restraint in all directions – Bird v Jones • No reasonable means of escape – Burton v Davies – McFadzean v Construction, Forestry, Mining and Energy Union • Need not be physical – *Myer Stores v Soo
Fault	• Intentional or negligent
Lawful Authority?	• Imprisonment must be against the plaintiff’s will (ie no consent) – Right of release may be governed by contract • Balmain New Ferry Co v Robertson

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	Created by Ramisa Raya about 8 years ago