Published on 18/05/2007

Introduction to Torts

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 a remedy not exclusive to another area of law

The Aims of Tort Law

To provide compensation to P for the damage they suffered as a result of the tort; in some cases to provide additional damages as a punishment to deter future potential offenders.

• Loss distribution: 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.

Sources of Tort Law

Common Law – Developed through courts – Donoghue and Stevenson

Statute Law – Thematic Statutes – Motor Accidents Compensation Act 1999 (NSW)
Workers Compensation Act 1987 (NSW)
Victims Support and Rehabilitation Act 1996 (NSW)

- Generic Statutes – The Civil Liability Act (NSW) 2002

Statute law is more effective for law reform

Interests Protected in Tort Law

• Personal security
–      Trespass
–    Negligence

• Reputation
–      Defamation

• Property
–      Trespass
–      Conversion

• Economic and financial interests

Difference between a Tort and a Breach of Contract

Murphy J, in the Supreme Court of Victoria, said:

“Torts, or wrongs, are breaches of a duty owed generally to one’s fellow subjects, the duty being imposed by law and not as a consequence of duties fixed by the parties themselves”.

LAW OF TORTS	CONTRACT LAW
Duties owed to whole world	Duties owed to contracting parties
Duties imposed by law	Duties determined by parties
Elements of tort law must be proven - conduct crucial	Breach of terms of contract – conduct of parties not crucial
Unliquidated damages	Liquidated damages

Similarities between a Tort and a Breach of Contract

• The aims of the law of torts and contract law are similar.
• Both torts and breach of contract give rise to civil suits.

Difference between a Tort and Criminal Law

• The incidence of liability varies depending on whether the wrongdoer is sued in tort or prosecuted for a crime.

*LAW OF TORTS*	*CRIMINAL LAW*
Civil “private” wrong	Criminal “public/community” wrong gives rise to sanctions usually designated in a specific code
Objective - compensation	Objective - punishment
Brought by victim of the tort	Brought by the Crown
Balance of probabilities	Beyond reasonable doubt
Protect the individual	Protect the public at large – punish those who act contrary to its dictates

Intentional Torts

Trespass to PERSON

• Assault
• Battery
• False Imprisonment

Trespass to PROPERTY

• Land
• Chattels/Goods

What is Tresspass? These are the three common elements:

• Intentional/negligent act of D
• Directly causes injury
• Without lawful justification

+ THE “X” FACTOR = SPECIFIC FORM OF TRESPASS

Injury in Tresspas

• Injury = a breach of right, not necessarily actual damage
• Trespass requires only proof of injury not actual damage

Battery

The intentional or negligent act of D which directly causes a physical interference with the body of P without lawful justification

Elements of Battery

Intentional act in battery

• Without intention there is no liability
• The intentional act = basic willful act + the consequences.

Capacity to form the intent

Defendant is deemed capable of forming intent if he/she understands the nature of (‘intended’) his/her act.
• Infants - Hart v A. G. of Tasmania (infant cutting another infant with razor blade)
• Lunatics - Morris v Marsden [1952] 1 All ER 925

The act must cause physical interference

The essence of the tort is the protection of the person of the Plaintiff. Defendant’s act short of physical contact is therefore not a battery. Hostility in the act is not essential.
• The least touching of another could be battery - Cole v Turner (1704) dicta per Holt CJ
• ‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate’ (per Goff LJ, Collins v Wilcock [1984])

The nature of physical interference

• Rixon v Star City Casino [2001] NSWCA 265 (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 (1988) - P failed to prove that her injury was a direct result of D’s actions

The injury must be caused directly

Injury should be immediate:

• Scott v Shepherd (1773) - Lit squib/fireworks in market place
• Hutchins v Maughan [1947] - poisoned bait left for dog
• Southport Corporation v Esso Petroleum Co Ltd [1954] - 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 Marshal [1982] - D accused of assaulting police officer, held officer’s conduct not lawful

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 without lawful justification.

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 [1969]

In general, conditional threats are not actionable

– Tuberville v Savage (1669)
– Police v Greaves [1964]
– Rozsa v Samuels

The apprehension must be reasonable; the test is objective

The interference must be imminent

– Rozsa v Samuels
– Police v Greaves
– Hall v Fonceca1983]
– Zanker v Vartzokas (1988) - P jumps out of a moving van to escape from D’s unwanted lift

False Imprisonment

The intentional/negligent act of D which directly causes the total restraint of P and thereby confines him/her to a delimited area without lawful justification.

Elements of False Imprisonment

• Must be intentional
• Fault or malice is irrelevant.
• The imprisonment must amount to a total restraint of the liberty of the person; Bird v Jones (1845) - passage over bridge; Robinson v The Balmain New Ferry Co [1910] - D refuses to allow P to leave unless P pats fare

• Partial restraints may be the subject of an action on the case, on proof of damage: Wright v Wilson (1699).
• Restraint may be total where D subjects P to his/her authority with no option to leave; Symes v Mahon [1992]; Myer Stores v Soo [1991]
• There is no false imprisonment where one voluntarily submits to a form of restraint –The Balmain Ferry Co v Robertson (1906) - D voluntarily submits to restraint by refusing to pay the required fare
• Where there is no volition for restraint, the confinement may be false imprisonment – Bahner v Marwest Hotels Co Ltd (1970)

• A precise place of imprisonment is not important. The area of confinement must have a boundary and the boundary must be fixed by the defendant.
• If a person can only escape confinement at the risk of personal injury or if it is otherwise unreasonable to attempt escape, it constitutes the tort of false imprisonment; Burton v Davies [1953] - D refuses to allow P out of the car. If a means of escape exists but this is not apparent, the means will not be regarded as reasonable and an action for false imprisonment may lie; Attorney-General v Niania [1994] (HC).

• The barriers need not be physical. Supreme Court of SA in Symes v Mahon [1992] made the point that, in cases of false imprisonment, where there has been no application of physical force to the person alleging the imprisonment, there must be evidence of complete submission by that person to the control of the other party. Words can constitute false imprisonment.

• No minimum time limit is specified for the success of the action.

• An imprisonment which begins lawfully may later become a false imprisonment even though there is no further act on the part of the defendant. In Cowell v Corrective Services Commission of New South Wales (1988) the defendant was held liable for false imprisonment by keeping a prisoner in custody beyond the date upon which he was entitled to be released as a result of remissions which he had earned.
• Knowledge of confinement is not essential; Meering v Grahame-White Aviation Co Ltd (1919); Murray v Ministry of Defense [1987]
• 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 (1931); Bahner v Marwest Hotels Co Ltd (1970)

• False imprisonment is actionable per se