THE LAW OF TORTSTHE LAW OF TORTSWeek 4Week 4

•DefensesDefenses•Exclusion of Intentional Torts Exclusion of Intentional Torts

from the CLAfrom the CLA•Negligence: The Duty of CareNegligence: The Duty of Care

VALID CONSENTVALID CONSENT

• To be valid, consent must be To be valid, consent must be informed and procured without informed and procured without fraud or coercion: ( fraud or coercion: ( R R vvWilliamsWilliams;);)

• To invalidate consent, fraud To invalidate consent, fraud must relate directly to the must relate directly to the agreement itself, and not to an agreement itself, and not to an incidental issue: incidental issue: ((Papadimitropoulos v R Papadimitropoulos v R (1957) (1957) 98 CLR 249; 98 CLR 249; R v LinekarR v Linekar (the (the Times, 1994)Times, 1994)

The CasesThe Cases

• R v Linekar – A prostitute had sexual intercourse with the

defendant on the understanding that he would pay her £25. He in fact never paid and never intended to pay. It was held that the fraud did not vitiate consent as to the nature or quality of the act. The defendant’s conviction for rape was quashed

• Papadimitropoulos v RPapadimitropoulos v R– Victim has sexual relations with accused in the Victim has sexual relations with accused in the

belief that they were legally married. Victims belief that they were legally married. Victims later discovers, the had not in fact been married later discovers, the had not in fact been married and that they has only completed documents and that they has only completed documents regarding the intention to marry. Held consent regarding the intention to marry. Held consent was validwas valid

CONSENT IN SPORTSCONSENT IN SPORTS

• http://www.youtube.com/http://www.youtube.com/watch?v=VgtKW5PLso4watch?v=VgtKW5PLso4

• http://www.youtube.com/http://www.youtube.com/watch?v=W-BmKXU12yEwatch?v=W-BmKXU12yE

• Alex McKinnon has been diagnosed as a Alex McKinnon has been diagnosed as a quadriplegic and warned by doctors he quadriplegic and warned by doctors he may never walk again after this tackle.may never walk again after this tackle.

Jordan McLean was suspended for seven Jordan McLean was suspended for seven weeks after being found guilty of a weeks after being found guilty of a 'dangerous throw' on Newcastle Knights 'dangerous throw' on Newcastle Knights player Alex player Alex

• In contact sports, consent is In contact sports, consent is not necessarily a defence to not necessarily a defence to foul play (foul play (McNamara v McNamara v Duncan; Hilton v WallaceDuncan; Hilton v Wallace))

• To succeed in an action for To succeed in an action for trespass in contact sports trespass in contact sports however, the P must of however, the P must of course prove the relevant course prove the relevant elements of the tort.elements of the tort.– Giumelli v JohnstonGiumelli v Johnston

SELF DEFENCE, SELF DEFENCE, DEFENCE OF OTHERSDEFENCE OF OTHERS

• A P who is attacked or threatened A P who is attacked or threatened with an attack, is allowed to use with an attack, is allowed to use reasonable forcereasonable force to defend to defend him/herselfhim/herself

• In each case, the force used must In each case, the force used must be proportional to the threat; it be proportional to the threat; it must not be excessive. (must not be excessive. (Fontin v Fontin v KatapodisKatapodis))

• D may also use reasonable force to D may also use reasonable force to defend a third party where he/she defend a third party where he/she reasonably believes that the party is reasonably believes that the party is being attacked or being threatened being attacked or being threatened

THE DEFENCE OF THE DEFENCE OF PROPERTYPROPERTY

• D may use D may use reasonable forcereasonable force to to defend his/her property if he/she defend his/her property if he/she reasonably believes that the reasonably believes that the property is under attack or property is under attack or threatenedthreatened

• What is reasonable force will What is reasonable force will depend on the facts of each depend on the facts of each case, but it is debatable whether case, but it is debatable whether reasonable force includes reasonable force includes ‘deadly force’ ‘deadly force’

Section 52 CLASection 52 CLA

• No civil liability for acts in self-defence No civil liability for acts in self-defence – (1) A person does not incur a liability to which this Part applies (1) A person does not incur a liability to which this Part applies

arising from any conduct of the person carried out in self-arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was defence, but only if the conduct to which the person was responding:responding:

– (a) was unlawful, or (a) was unlawful, or – (b) would have been unlawful if the other person carrying out (b) would have been unlawful if the other person carrying out

the conduct to which the person responds had not been suffering the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct.from a mental illness at the time of the conduct.

– (2) A person carries out conduct in self-defence if and only if the (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: person believes the conduct is necessary:

– (a) to defend himself or herself or another person, or (a) to defend himself or herself or another person, or – (b) to prevent or terminate the unlawful deprivation of his or her (b) to prevent or terminate the unlawful deprivation of his or her

liberty or the liberty of another person, orliberty or the liberty of another person, or– (c) to protect property from unlawful taking, destruction, (c) to protect property from unlawful taking, destruction,

damage or interference, or damage or interference, or – (d) to prevent criminal trespass to any land or premises or to (d) to prevent criminal trespass to any land or premises or to

remove a person committing any such criminal trespass, remove a person committing any such criminal trespass,

S52 Cont’edS52 Cont’ed

• and the conduct is a reasonable and the conduct is a reasonable response in the circumstances as he response in the circumstances as he or she perceives them.or she perceives them.

• (3) This section does not apply if the (3) This section does not apply if the person uses force that involves the person uses force that involves the intentional or reckless infliction of intentional or reckless infliction of death only:death only:

– (a) to protect property, or (a) to protect property, or – (b) to prevent criminal trespass or to remove a (b) to prevent criminal trespass or to remove a

person committing criminal trespass.person committing criminal trespass.

Section 53 CLASection 53 CLADamages limitations apply Damages limitations apply

even if self-defence not even if self-defence not reasonable responsereasonable response

• If section 52 would operate to prevent a If section 52 would operate to prevent a person incurring a liability to which this Part person incurring a liability to which this Part applies in respect of any conduct but for the applies in respect of any conduct but for the fact that the conduct was not a reasonable fact that the conduct was not a reasonable response in the circumstances as he or she response in the circumstances as he or she perceived them, a court is nevertheless not perceived them, a court is nevertheless not to award damages against the person in to award damages against the person in respect of the conduct unless the court is respect of the conduct unless the court is satisfied that:satisfied that:

• (b) in the circumstances of the case, a (b) in the circumstances of the case, a failure to award damages would be harsh failure to award damages would be harsh and unjust. and unjust.

PROVOCATIONPROVOCATION

• Provocation is not a Provocation is not a defence in tort law.defence in tort law.

• It can only be used to avoid It can only be used to avoid the award of exemplary the award of exemplary damages: damages: Fontin v Fontin v Katapodis; Downham Ballett Katapodis; Downham Ballett and Othersand Others

The Case for Allowing The Case for Allowing the Defence of the Defence of

ProvocationProvocation• The relationship between The relationship between provocation and contributory provocation and contributory negligencenegligence

• The implication of counterclaimsThe implication of counterclaims•Note possible qualifications Note possible qualifications Fontin v KatapodisFontin v Katapodis to to: : – Lane v HollowayLane v Holloway– Murphy v CulhaneMurphy v Culhane– See Blay: See Blay: ‘‘Provocation in Tort Liability: A Provocation in Tort Liability: A Time for ReassessmentTime for Reassessment’’,QUT Law ,QUT Law Journal, Journal, Vol. 4 (1988) pp. 151-159.Vol. 4 (1988) pp. 151-159.

NECESSITYNECESSITY

• The defence is allowed The defence is allowed where an act which is where an act which is otherwise a tort is done otherwise a tort is done to save life or property: to save life or property: urgent situations of urgent situations of imminent perilimminent peril

Urgent Situations of Urgent Situations of Imminent PerilImminent Peril

• The situation must pose a threat to The situation must pose a threat to life or property to warrant the act: life or property to warrant the act: Southwark London B. Council v Southwark London B. Council v WilliamsWilliams

• The defence is available in very The defence is available in very strict circumstances R v Dudley and strict circumstances R v Dudley and StephensStephens

• D’s act must be reasonably D’s act must be reasonably necessary and not just convenient necessary and not just convenient Murray v McMurchyMurray v McMurchy – In re FIn re F– Cope v SharpCope v Sharp

INSANITYINSANITY

• Insanity is not a defence as Insanity is not a defence as such to an intentional tort. such to an intentional tort.

• What is essential is whether What is essential is whether D by reason of insanity was D by reason of insanity was capable of forming the capable of forming the intent to commit the tort. intent to commit the tort. ((White v Pile; Morris v White v Pile; Morris v MarsdenMarsden))

INFANTSINFANTS

• Minority is not a defence as Minority is not a defence as such in torts. such in torts.

•What is essential is whether What is essential is whether the D understood the nature the D understood the nature of his/her conduct (of his/her conduct (Smith v Smith v Leurs; Hart v AG of Leurs; Hart v AG of TasmaniaTasmania) )

DISCIPLINEDISCIPLINE

• PARENTSPARENTS– A parent may use reasonable A parent may use reasonable and moderate force to and moderate force to discipline a child. What is discipline a child. What is reasonable will depend on the reasonable will depend on the age, mentality, and physique age, mentality, and physique of the child and on the means of the child and on the means and instrument used. (R v and instrument used. (R v Terry)Terry)

ILLEGALITY:Ex turpi ILLEGALITY:Ex turpi causa non oritur actiocausa non oritur actio

• Persons who join in Persons who join in committing an illegal act committing an illegal act have no legal rights inter se have no legal rights inter se in relation to torts arising in relation to torts arising directly from that act.directly from that act.– Hegarty v ShineHegarty v Shine– Smith v JenkinsSmith v Jenkins– Jackson v HarrisonJackson v Harrison– Gala v PrestonGala v Preston

The CLA and Intentional The CLA and Intentional TortsTorts

• S3B:(1) The provisions of this Act do not apply S3B:(1) The provisions of this Act do not apply to to or or in respect of in respect of civil liability (and awards of civil liability (and awards of damages in those proceedings) as follows:damages in those proceedings) as follows:

• (a) civil liability of a person in respect of an (a) civil liability of a person in respect of an intentional act that is done by the person with intentional act that is done by the person with intent to cause injury or death or that is sexual intent to cause injury or death or that is sexual assault or other sexual misconduct committed assault or other sexual misconduct committed by the person-the whole Act except: by the person-the whole Act except:

• ……• (ii) Part 7 (Self-defence and recovery by (ii) Part 7 (Self-defence and recovery by

criminals) in respect of civil liability in respect criminals) in respect of civil liability in respect of an intentional act that is done with intent to of an intentional act that is done with intent to cause injury or death, and cause injury or death, and

The Exclusion of The Exclusion of Intentional torts from the Intentional torts from the

CLACLA• New South Wales v IbbetNew South Wales v Ibbet: Assault and trespass to : Assault and trespass to

land: The restrictions on the award of exemplary land: The restrictions on the award of exemplary and aggravated damages under the CLA held not and aggravated damages under the CLA held not to applyto apply

• Honda v NSW [2005]: Honda v NSW [2005]: wrongful arrest, malicious wrongful arrest, malicious prosecution and false imprisonment by a police prosecution and false imprisonment by a police officer. Issue whether injury in s3B included only officer. Issue whether injury in s3B included only bodily injury. Held injury not limited to bodily injurybodily injury. Held injury not limited to bodily injury

• Zorom Enterprise v ZabowZorom Enterprise v Zabow: P suffered head injuries : P suffered head injuries as a result of an attack by a security guard as a result of an attack by a security guard employed by D. P sued D for vicarious liability. D employed by D. P sued D for vicarious liability. D argued that CLA restrictions applied because s3B argued that CLA restrictions applied because s3B only excluded only the intentional acts of the person only excluded only the intentional acts of the person who actually committed torts and not the D who was who actually committed torts and not the D who was only vicariously liable. Argument was rejected only vicariously liable. Argument was rejected

s3B: ‘In respect of ….’s3B: ‘In respect of ….’

• NSW v Bujdoso [2007]NSW v Bujdoso [2007]• P was attacked by inmates while in prison. He P was attacked by inmates while in prison. He

brought an action the D for their negligence. brought an action the D for their negligence. Since the conduct of the inmates was intentional, Since the conduct of the inmates was intentional, the issue was whether the provision of 3B applied the issue was whether the provision of 3B applied to exclude the restrictions of the CLA in the to exclude the restrictions of the CLA in the award of damages. award of damages.

• The argument centred on the phrase ‘in respect The argument centred on the phrase ‘in respect of’ P argued that in respect of was broad and of’ P argued that in respect of was broad and means that D’s liability arose in respect of the means that D’s liability arose in respect of the intentional act of the inmates and so s3B applied. intentional act of the inmates and so s3B applied. The court rejected the argument. In respect of The court rejected the argument. In respect of interpreted to refer to the person who did the interpreted to refer to the person who did the act and the person whose negligence led to the act and the person whose negligence led to the doing of the act. doing of the act.

NEGLIGENCENEGLIGENCE

INTRODUCTIONINTRODUCTION

NEGLIGENCE AND FAULT NEGLIGENCE AND FAULT IN TORTSIN TORTS

NEGLIGENCENEGLIGENCE

TRESPASSTRESPASSNEGLIGENCENEGLIGENCE

the actionthe actionCARELESSCARELESS

FAULTFAULT

INTENTIONINTENTION

Donoghue v. StevensonDonoghue v. Stevenson

• Ginger beer-decomposing snail-P has shock-Ginger beer-decomposing snail-P has shock-gastroenteritisgastroenteritis

• No privity of contract between P and D. Issue No privity of contract between P and D. Issue was whether D owed P a dutywas whether D owed P a duty

• Dicta of Lord AtkinDicta of Lord Atkin• You must take reasonable care to avoid acts You must take reasonable care to avoid acts

or omissions which you can reasonably or omissions which you can reasonably foresee would be likely to injure your foresee would be likely to injure your neighbour. Who then in law is my neighbour. Who then in law is my neighbour? The answer seems to be persons neighbour? The answer seems to be persons who are closely and directly affected by my who are closely and directly affected by my act that I ought reasonably to have them in act that I ought reasonably to have them in mind to the acts or omissionsmind to the acts or omissions

Negligence: The ElementsNegligence: The Elements

Duty of care

Breach

Damage

Negligence

NEGLIGENCENEGLIGENCE

• Grant v Australian Knitting Mills Grant v Australian Knitting Mills (1936)(1936)• The application of the rule in The application of the rule in D v SD v S

•a manufacturer of products, which he sells a manufacturer of products, which he sells in such a form as to show that he intends in such a form as to show that he intends them to reach the ultimate consumer in them to reach the ultimate consumer in the form in which they left him with no the form in which they left him with no reasonable possibility of intermediate reasonable possibility of intermediate examination, and with the knowledge that examination, and with the knowledge that the absence of the absence of reasonable care reasonable care in the in the preparation or putting up of the products preparation or putting up of the products will result in an injury to the consumerwill result in an injury to the consumer’’s s life or property, life or property, owes a dutyowes a duty to the to the consumer consumer to take that reasonable careto take that reasonable care

• whenever one person is by circumstances whenever one person is by circumstances placed in such a position with regard to placed in such a position with regard to another, that every one of ordinary sense another, that every one of ordinary sense who did think would at once recognise who did think would at once recognise that if he did not use ordinary care and that if he did not use ordinary care and skill in his own conduct with regard to skill in his own conduct with regard to those circumstances he would cause those circumstances he would cause danger or injury to the pdanger or injury to the peerson or property rson or property of the other (person) of the other (person) a duty arises to use a duty arises to use ordinary careordinary care and skill to avoid such and skill to avoid such danger.danger.

NEGLIGENCE: THE DUTY NEGLIGENCE: THE DUTY OF CAREOF CARE

Negligence: (Duty of Care)Negligence: (Duty of Care)

•The Duty of care is the obligation The Duty of care is the obligation to avoid acts or omissions which to avoid acts or omissions which are reasonably foreseeable to are reasonably foreseeable to cause damage to another.cause damage to another.

•When does one owe a duty of care?When does one owe a duty of care?– Whenever one is engaged in an act Whenever one is engaged in an act

which he or she can reasonably foresee which he or she can reasonably foresee would be likely to injure another person, would be likely to injure another person, one owes a duty of care to that other one owes a duty of care to that other personperson

General Principles: The CLAGeneral Principles: The CLA

• S 5B:(1) A person is not negligent in failing to take S 5B:(1) A person is not negligent in failing to take precautions against a risk of harm unless:precautions against a risk of harm unless:– (a) the risk was foreseeable (that is, it is a risk of which the (a) the risk was foreseeable (that is, it is a risk of which the person knewperson knew or or

ought to have known), andought to have known), and– (b) the risk was not (b) the risk was not insignificantinsignificant, and, and– (c) in the circumstances, a reasonable person in the person(c) in the circumstances, a reasonable person in the person ’’s position s position

would have taken those precautions.would have taken those precautions.

• (2) In determining whether a reasonable person would (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant is to consider the following (amongst other relevant things):things):– (a) the probability that the harm would occur if care were not taken,(a) the probability that the harm would occur if care were not taken,– (b) the likely seriousness of the harm,(b) the likely seriousness of the harm,– (c) the burden of taking precautions to avoid the risk of harm,(c) the burden of taking precautions to avoid the risk of harm,– (d) the social utility of the activity that creates the risk of harm.(d) the social utility of the activity that creates the risk of harm.

What is Reasonable What is Reasonable Foreseeability?Foreseeability?

• Reasonable foreseeability presupposes an Reasonable foreseeability presupposes an objective or a reasonable personobjective or a reasonable person’’s standards standard

• The reasonable person is an embodiment of The reasonable person is an embodiment of community values and what the community community values and what the community expects of a responsible citizenexpects of a responsible citizen

• The concept allows us to evaluate DThe concept allows us to evaluate D’’s s conduct not from his or her peculiar conduct not from his or her peculiar position, but from that of a reasonable position, but from that of a reasonable person similarly placedperson similarly placed

• Reasonable foreseeability is a question of Reasonable foreseeability is a question of law law

Reasonable Reasonable Foreseeability: Case LawForeseeability: Case Law

• Nova Mink v. Trans Canada AirlinesNova Mink v. Trans Canada Airlines [1951] [1951] (Air traffic noise causing minks to eat their (Air traffic noise causing minks to eat their young ones-No foreseeability) young ones-No foreseeability)

• United Novelty Co. v Daniels 42 So. 2nd 395 Miss 1949

• Palsgraf v. Long Island R.R. Co. (1928) Palsgraf v. Long Island R.R. Co. (1928) (Railway guards helping falling passenger-(Railway guards helping falling passenger-fireworks explosion causing injury to plaintiff.-fireworks explosion causing injury to plaintiff.-No foreseeability)No foreseeability)

• Chapman v. HearseChapman v. Hearse (1961) (Car accident-Dr. (1961) (Car accident-Dr. stops to help-gets killed by another vehicle-stops to help-gets killed by another vehicle-action against D who caused initial accident- action against D who caused initial accident- Foreseeability upheld)Foreseeability upheld)

DUTY CATEGORIES: To DUTY CATEGORIES: To whom is duty owed?whom is duty owed?

• One owes a duty to those One owes a duty to those so closely and directly so closely and directly affectedaffected by his/her conduct that she ought by his/her conduct that she ought reasonably to have them in contemplation as reasonably to have them in contemplation as being so affected when undertaking the conduct being so affected when undertaking the conduct in question.in question.

• Examples:Examples:– Consumers, users of products and structuresConsumers, users of products and structures

»Donoghue v StevensonDonoghue v Stevenson»Grant v Australian Kitting Mills Grant v Australian Kitting Mills »Bryan Bryan v v Maloney Maloney

– Road usersRoad users» Bourhill v YoungBourhill v Young

– Users and purchasers of premises etc.Users and purchasers of premises etc.»Australian Safeway Stores v ZaluznaAustralian Safeway Stores v Zaluzna

DUTY CATEGORIES: To DUTY CATEGORIES: To whom is the Duty Owed?whom is the Duty Owed?

• The unborn child:The unborn child: – There can be no justification for distinguishing between There can be no justification for distinguishing between

the rights… of a newly born infant returning home with the rights… of a newly born infant returning home with his /her mother from hospital in a bassinet hidden from his /her mother from hospital in a bassinet hidden from view on the back of a motor car being driven by his view on the back of a motor car being driven by his proud father and of a child proud father and of a child en ventre sa mere en ventre sa mere whose whose mother is being driven by her anxious husband to the mother is being driven by her anxious husband to the hospital on way to the labour ward to deliver such a hospital on way to the labour ward to deliver such a child ( Per Gillard J in child ( Per Gillard J in Watt v RamaWatt v Rama))

– Lynch v Lynch Lynch v Lynch (1991)(1991)• But see the wrongful life casesBut see the wrongful life cases

– Waller v JamesWaller v James 2002 2002– Harriton v StephensHarriton v Stephens [2002] NSWSC 461

– Edwards v BlomeleyEdwards v Blomeley 2002 2002– www.lawlink.nsw.gov.auwww.lawlink.nsw.gov.au

Unforeseeable PlaintiffsUnforeseeable Plaintiffs

• In general the duty is In general the duty is owed to only the owed to only the foreseeable plaintiff and foreseeable plaintiff and not abnormal Plaintiffs. not abnormal Plaintiffs. – Bourhill v YoungBourhill v Young [1943] AC 92 [1943] AC 92 – Levi v Colgate-Palmolive LtdLevi v Colgate-Palmolive Ltd – Haley v L.E.B.Haley v L.E.B. [1965] AC 778 [1965] AC 778