1.2 Davenportparker - Chap28

CHAPTER 28 Law of Torts
2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2nd ed 2015
Object of lecture
By the end of this lecture you will be able to:
explain the distinction between tort & criminal law, & tort & contract law;
identify and explain the elements that make up the tort of negligence
explain the torts of deceit; defamation; interfering with business interests;
list the different forms of trespass and explain each;
distinguish between, and explain, public and private nuisance;
list and explain the torts of strict liability;
explain vicarious liability and its relationship to negligence;

Introduction
What is a tort?
A tort is a civil wrong other than a claim for breach of contract.
It refers to a type of conduct with an individuals:
person;
property; or
economic interests
which gives rise to a civil cause of action separate from

contract law and aims to put the injured party as near as possible in
the position they would have been had the wrong not been
committed

Distinguishing Tort from Criminal Law
Tort law Criminal law
Standard of proof Plaintiff must prove case on balance Onus on Crown to prove case
of probabilities beyond reasonable doubt
Sanctions and Concerned with compensation Punishes wrongdoer

remedies
Action commenced Plaintiff brings action into own name Crown brings action in name of
by State
Role of the Crown Crown has no authority A wrongdoer can be pardoned
Consent Plaintiff can consent to defendants Consent is irrelevant

actions

Tort of Negligence
Negligence is carelessness by one party which has led to an
injury or loss to another party who was owed a duty of care
An action can be brought in negligence for:

Negligent actions
Negligent omissions
Negligent Statements
Negligence is:
the omission to do something which a reasonable person would
do, or doing something which a reasonable person would not
do.

Negligence
Flow Chart
Does D owe P a duty of care? No No action lies
Yes
Has D breached their duty of care? No No action lies
Yes
Did Ds breach cause Ps loss? No No action lies
Yes
Is Ps damage or loss too remote? No D may be liable in negligence
Yes Does D have a defence?
D is not liable in negligence No
Consider Ps remedies

Negligence
What P has to Establish
Under both common law and the civil liability reforms, the defendant
(D) will only be liable if the plaintiff (P) can prove that:
D owed them a duty of care;
D was in breach of the duty of care;
Ds breach of duty was the cause of Ps loss and;
the damage suffered by P was not too remote

Step 1: Does D owe a duty of care to P?
Determined by relationship between D and P.
To determine whether a duty of care exists, the courts today

look first to circumstances and factors such as
Foreseeability
Vulnerability
Reliance
Control

Common Categories
Doctor and patient
Duty to warn patient of the inherent risks in proposed
procedures
School authority and students

School authorities are under a duty to take reasonable care
of students while they are under the schools control
Local councils & statutory authorities

Entrusted with statutory powers to protect public safety

Step 2: Has D breached his duty of care?
First, determine what is the standard of care required of D?
What standard of care would the be expected of the
reasonable person of a person in a similar position
.eg skills and expertise, age
Determined by reference to factors such as:
probability of risk or injury,
seriousness of consequences,
burden of taking precautions
Second, did Ds act or omission of fall below the standard of

care?

Step 3: Has P suffered damage due to breach?
The plaintiff must suffer some loss or damage which
was caused by the defendants breach of duty.
The plaintiff must show some link between the
damage suffered and the defendants conduct.
Two factors for consideration are:
that the loss or damage was directly caused by
the defendants breach causation;
but for test often used
that the loss was not too remote from the breach
- remoteness.

Step 4: Is the damage too remote
Reasonable Foreseeability of damage?
No liability if the damage suffered is too remote and is
not reasonable foreseeable.
Tame v New South Wales (2002)
Facts: P was involved in traffic accident and police
report incorrectly stated that P was under influence
of alcohol which was over limit so P got refused his
insurance claim. later P suffered from mental
illness: No reasonable foreseeability of the damage

Donoghue v Stevenson [1932]
Facts: Mrs Donoghue went to a cafe with a friend. The friend brought
her a bottle of ginger beer and an ice cream. The ginger beer came
in an opaque bottle so that the contents could not be seen. Mrs
Donoghue poured half the contents of the bottle over her ice cream
and also drank some from the bottle. After eating part of the ice
cream, she then poured the remaining contents of the bottle over
the ice cream and a decomposed snail emerged from the bottle. Mrs
Donoghue suffered personal injury as a result. She commenced a
claim against the manufacturer of the ginger beer.
Held: Her claim was successful. This case established the modern law
of negligence and established the neighbour test.
the neighbour principle
so closely and directly affected by what you do that you ought to
have them in contemplation as being affected

Negligence
Duty of Care
D will only be liable for a negligent failure to act if they were under a
positive duty to act where reliance or dependence by P on D is a
key factor, eg:
Horne v Queensland (1995): students were told they could make their
own way to tennis courts for sport and that walking or riding a bike
were okay. P borrowed a bike that was too big and had defective
brakes. She was injured when she fell and was hit by a truck Did
school owe a reasonable duty of care ?

Negligence
Public Authorities and Omissions
At common law
At common law, a public authority owes a duty of care to warn
persons of foreseeable risks if the danger is hidden or unnatural:
Romeo v Conservation Commission of the Northern Territory (1998): R and
her friends, who had spent the evening drinking, were visiting a Reserve.
Around midnight, she crossed over a low fence erected to stop people going
near the edge of the cliff, through some vegetation and fell over the edge. R
sued the authorities for negligence.

Negligence
Categories of Negligence
Negligent misstatements,
loss resulting from professional negligence,
Defective product,
Failure to warn
pure economic loss case - plaintiff suffers financial loss rather than
personal injury or physical damage.

Negligence
Negligent Misstatements contd
At common law contd
The appropriate test for determining the existence of a duty of care in the
making of statements or the giving of advice is whether a special
relationship exists between the parties, such that:
there is an identified assumption of responsibility by D; and
reasonable reliance by P
San Sebastian Pty Ltd v Minister Administering Environmental Planning and
Assessment (1986): the Planning Authority and the Sydney City Council
published a redevelopment plan encouraging private developers to buy land
sites and redevelop them. On the faith of the plans, P bought land for
redevelopment and when the plan was abandoned P suffered financial loss. P
argued that the Ds had falsely represented that the plan was feasible- No
liability as plans were not final
Note s 18 of the ACL regarding misleading statements

Negligence
Liability of Auditors
At common law
In the case of auditors, mere foreseeability of Ps reliance on the
accounts is not enough for the duty on the part of the defendant
auditor to arise
A duty will not be imposed on the maker of a statement where it is
used for a different purpose:
Esanda Finance Corporation Limited v Peat Marwick Hungerfords
(Reg) (1997): Esanda lent money to a company, relying on
accounts prepared by PMH which overstated the companys loans.
It subsequently defaulted on the loan and Esanda suffered a loss
on the loan. Esanda then sought to recover those losses from the
auditors- No special r/ship between parties

Negligence
Breach of the Duty of Care
Stage 1 - was the risk of injury to P reasonably No D has not breached their
foreseeable? duty of care - action fails
Yes
Stage 2 - how would a reasonable person No D has not breached their
responded to the foreseeable risk? duty of care - action fails (consider
probability of risk, gravity
of harm, cost of eliminating risk,
utility of Ds conduct)
Yes
D has breached their
duty of care to P

Negligence
Breach of the Duty of Care contd
At common law, the relevant factors, which are weighed against
each other, include:
D may be justified in disregarding a foreseeable risk of injury if the
probability of risk of injury is so small that a reasonable person would
have disregarded it
the greater the risk or the gravity of the harm, the greater the precautions
that must be taken :
Bolton v Stone [1951]: the appellant was hit by a cricket ball while walking
past the respondents ground. The ball had travelled 85 metres before
hitting him. Balls had only been hit over the fence 12 times in the last 30
years during matches, and members could not recall a similar incident
ever happening; - Not Liable

Negligence
Breach of the Duty of Care contd
Common law
the burden of eliminating the risk where reference is to a reasonable person
with adequate resources, not the defendants actual resources:
Woods v Multi-Sport Holding Pty Ltd (2002): P, an indoor cricketer, was
injured while playing indoor cricket at Ds premises. The question arose
as to whether D was negligent in not providing a helmet in circumstances
where such headgear had yet to be designed and the rules of the game
did not allow for its use; - Obvious Risk

Negligence
Causation
Civil liability reforms
A decision that a breach of duty on the part of the defendant caused
particular harm comprises two elements:
factual causation that is, if the defendant had acted carefully, would the
plaintiff have suffered this particular loss. Did the defendant cause the
harm?; and
scope of liability should the defendant be held responsible for the
harm?
In deciding the scope of liability, the court has to consider amongst
other things whether or not, and why, responsibility for the harm should
be imposed on D
In deciding liability for breach, P must establish on the balance of
probabilities any fact relevant to the issue of causation
Negligence
Defences
Common law
Contributory negligence:
Under the civil liability reforms (except Cth, NT), where a court thinks it
just and equitable it can reduce a plaintiffs claim by 100%, thereby
defeating the plaintiffs claim ;
must be pleaded by D and is concerned with Ps failure to take
precautions for their own safety;
the onus of proof rests on D
Voluntary assumption of risk (obvious risks):

must be raised by D and is a complete defence;
D must show P knew of & fully appreciated the risk & voluntarily accepted
it;
often raised in sporting cases

What will P recover?

Deceit
To succeed in an action for deceit, P must show:
D makes a false representation (not necessarily directly to P)
the representation is made knowingly or recklessly;
the representation is made with the intention that P should act in
reliance on the representation; and
P suffers actual damage as a result of acting on the representation
In the ACT the Civil Law (Wrongs) Act 2002 partly codifies the
common law in relation to non-fraudulent misrepresentations:
the misrepresentation was a material inducement to a person to enter
into a contract or to transfer property to the person who made the
representation and the person who made the misrepresentation
received material advantage because of it

Trespass
Trespass provides a remedy for direct interference with Ps

person, land or goods
The interference may be intentional or negligent, the onus being

on D to prove the absence of intention or negligence on their part
P does not have to prove any actual damage

Trespass
Trespass
Trespass to Trespass to Trespass to Conversion Detinue Economic

The person land Goods torts
Assault Battery False Intimidation Interference Conspiracy

imprisonment With contract

27
Trespass to the person
Battery
Battery:
intentional direct contact or application of force (a question of fact) to the
body of P
P did not consent;
no damage needs to be shown to P;
defences include:
consent, eg as part of everyday life or in a bodily contact sport but not if the
injury occurs outside the rules of the game;
no intention to deliver a blow or discharge a missile:
Hogan v Gill (1992): a 6 year-old boy playing Cowboys and Indians with
his 4-year-old friend found his fathers gun. The gun was loaded and when
he pulled the trigger to simulate the firing of a gun, he shot his friend

Trespass to the person
Assault and False Imprisonment
Assault:
an intentional act by D which causes P to reasonably believe they
are in imminent danger of harmful or offensive contact:
actions in battery and assault often co-exist
False imprisonment: Total restraint, Intentional/Negligent, No

consent, NO lawful jurisdiction for such restraint
D intentionally and directly places a total restraint upon the liberty of
P:
Balmain New Ferry Co v Robertson (1906): entrance to a ferry was
through turnstiles. Above them was a sign stating that a fare had to
be paid on entering or leaving the wharf. R paid to gain admission
but as he had just missed the ferry, he attempted to leave without
paying. He was stopped and forced to pay by the attendants

Trespass to Land
Trespass to land is an interference with Ps possession of land
To succeed in such an action, no damage need be proved, but P must

show:
direct physical interference with their lawful possession of land, including the
area above or beneath the land;
that they did not consent, have withdrawn consent or consented for a
particular purpose but entry was for a different purpose:
that they are in possession of land at the time of interference
Rinsale Pty Ltd v Australian Broadcasting Commission (1993): a TV
program had sought permission to interview a director of the plaintiff
company and been refused. Subsequently, the programs reporter and
camera crew went on to Ps land
There is no need for D to have intended to invade Ps land or even to

have physically entered Ps land

Trespass to Chattels
Trespass to chattels occurs where D directly interferes with the
possession of Ps goods
Interference may be removal or destruction of, or damage to, the

goods
Only the person who was in possession of, and had physical
control over, the goods at the time of interference can bring an
action
There is no need to prove damage

Conversion
Conversion is the intentional exercise of control over another

persons goods amounting to a denial of the latters rights to the
goods. Absolute ownership is not required
To succeed in an action for conversion, P must show:

D exercises control over the Ps goods;
this amounts to a denial of Ps right to the goods;
Ds exercise of control consists of an intentional act
For examples, a person taking and selling or modifying goods which belong to another (he is thus
depriving him from his right to possess the goods).
Theft is conversion.
Damages are recoverable for the full value of the chattel at the
date of conversion, with exemplary damages available in cases of
flagrant (obvious/open) breach
Detinue
Detinue is the wrongful detention of another persons goods

detinue is simply conversion but where the owner asked for
the chattel back.
To succeed in an action for detinue, P must show:

D has wrongfully detained Ps goods;
they have demanded the return of the goods;
D has unconditionally and unequivocally failed to comply
In an action for detinue, the court may order that the goods be
returned, or damages for the full value of the goods at the date of
judgment and any consequential loss suffered

Interfering with a Business
Passing Off
Passing off is the selling of goods and services, where that

business passes itself off as somehow connected with, or selling
goods or services that actually belong to, another business
This is a form of misrepresentation that involves unlawful
interference with anothers business interests in a way that can
adversely affect the original businesss goodwill or business
reputation

Procuring Breach of Contract
The tort of procuring a breach of contract occurs where a plaintiff can

demonstrate that the defendant, or another person or group,
induced a party to a contract to breach their obligations under that
agreement.
The plaintiff must show that:
there was a valid contract on foot;
the defendant was aware of the existence of the contract;
the defendant intended to cause the breach that resulted from their actions;
the interference was wrong and unlawful;
a breach of contract did result from the defendants interference (there must
be a contract to breach); and
the plaintiff suffered damage as a result of the breach

Intimidation and Conspiracy
The tort of intimidation arises where the plaintiff is coerced by threats of
violence or unlawful acts through which they suffer some loss.
Conspiracy (can be a tort or a crime) is the unlawful combination of 2 or more

persons to act contrary to law, to do something wrongful or harmful towards
another person, or to carry out some object that while not unlawful, is done
by unlawful means, this might include measures to beat competitors.
It must be demonstrated that:
there is an unlawful combination of two or more persons;
the predominant purpose is to injure the plaintiffs interests;
the combination must cause damage;
the actions involved have no lawful basis; and
if conspiracy can be demonstrated this may be grounds for damages for
losses including exemplary damages, or an injunction to stop it from
continuing
Nuisance
The tort of nuisance allows an action to be brought against a

person responsible for a harmful or annoying activity or condition
Public nuisance is the interference with a public or common

right, ie an act or omission which materially affects the reasonable
comfort and convenience of life of a class of people
Private nuisance involves an indirect interference by D of Ps

use or enjoyment of their land

Private Nuisance
To succeed in an action for private nuisance, P must show:

an interference with a personal right in the use and enjoyment of land;
a substantial and unreasonable interference that is greater than they
should be expected to bear in the circumstances taking into account the
gravity, locality and duration of the interference, and the justifiability of the
conduct:
Wherry v K B Hutcherson Pty Ltd (1986): P, a solicitor, had been unable to
carry on normal business because of the use of jackhammers on an
adjoining construction site during business hours - Sound level was above
typical max sound level. Court held unreasonable interference and grant injunction as P cant
reasonably undertake his work
they have the legal right to actual possession of the land;
D created the interference, or occupies the land from which the nuisance
emanates, or uses the thing that creates the nuisance

Torts of Strict Liability
Torts of strict liability are torts where liability is imposed on a

person even if that person is not at fault and are now
governed by ordinary rules of negligence
Reasonable mistake was not recognized as a defense at common

law for eg: Escape of dangerous things from premises of
defendant

Vicarious Liability
Common law
A duty imposed by law whereby principal is liable for acts of his agents
A person (including a company) may be vicariously liable (ie responsible)

for a wrong-doers actions, where a particular relationship exists between
the parties, eg employer-employee, principal and agent
An employer is vicariously liable for an employee's acts or omissions

committed in the course of their employment:
Deatons Pty Ltd v Flew [1949]: D operated a hotel. F, a customer at
the hotel, acted offensively to one of Ds employees, a barmaid, who
asked him to go away. An argument developed and the barmaid threw a
glass of beer and then the glass into Fs face

Defamation
Defamation can be defined (at both common law and statute)
as a false statement about a person which is likely to damage
their reputation in the community
It comprises two torts although in most Australian states the

distinction has been abolished:
libel: defamation in a permanent form, eg film, book, letter, and is
actionable per se (without proof of damage) with damage to
reputation being presumed; and
slander: defamation in a temporary or non-permanent form, eg

speech or a gesture, with the onus on P to prove actual loss if they
are to recover damages

Defamation Elements to Establish
Only the living (including a trading corporation) can bring a

defamation action
To succeed in an action in defamation, P must show:

D has made a defamatory statement, ie a statement that is likely to
injure a persons reputation, profession or trade, or induce others to
shun, ridicule or despite the person;
the statement is understood to refer to P although P need not be
specifically named the statement must be such that a reasonable
person would have thought that the statement was about P;
the statement was communicated to a third person;
D does not have a valid defence

Defences to a Claim in Tort
There are some defences to torts to be found in both common law

and legislation, for instance:
if a party consented to the risk of injury;

contributory negligence;
conducting an illegal act;
unavoidable accident which no one is particularly at fault;
necessity: possibly having to restrain a person in their own interests;
self-defence or defence of property or others: where some force was
used which was proportional to a perceived threat; and
acts by a statutory authority: an authority may trespass on property in
order to carry out its statutory duties and functions.

Example Questions
Question 28.11 from the text:
Olivia is a keen gardener. She is particularly proud of the large apricot

tree in her back yard, the branches of which overhang her barbeque
area and provide her with shade. Olivia awakes one morning, however,
to discover that her new neighbours have lopped off almost half the
branches of her apricot tree, hoping to get more light in their main
bedroom.
Olivia is furious and seeks your legal advice.

Example Questions
Questions to consider when answering Question 28.11:

Is the damage to person or to property?
In light of the harm suffered by P, what is the most appropriate action?
Trespass to land?
Can Olivia show a direct interference with her lawful possession of land?
Does there have to be an entry on to her land for a trespass to arise?
Did she consent to the lopping of the tree?
Do the neighbours have any defences available to them for their actions?


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CHAPTER 28 Law of Torts

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

which gives rise to a civil cause of action separate from

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Sanctions and Concerned with compensation Punishes wrongdoer

Role of the Crown Crown has no authority A wrongdoer can be pardoned

Consent Plaintiff can consent to defendants Consent is irrelevant

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An action can be brought in negligence for:

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Does D owe P a duty of care? No No action lies

Has D breached their duty of care? No No action lies

Did Ds breach cause Ps loss? No No action lies

Is Ps damage or loss too remote? No D may be liable in negligence

Yes Does D have a defence?

D is not liable in negligence No

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Determined by relationship between D and P.

To determine whether a duty of care exists, the courts today

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School authority and students

Local councils & statutory authorities

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Second, did Ds act or omission of fall below the standard of

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loss resulting from professional negligence,

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Voluntary assumption of risk (obvious risks):

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Trespass provides a remedy for direct interference with Ps

The interference may be intentional or negligent, the onus being

P does not have to prove any actual damage

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Trespass to Trespass to Trespass to Conversion Detinue Economic

Assault Battery False Intimidation Interference Conspiracy

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False imprisonment: Total restraint, Intentional/Negligent, No

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To succeed in such an action, no damage need be proved, but P must

There is no need for D to have intended to invade Ps land or even to

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Interference may be removal or destruction of, or damage to, the

There is no need to prove damage

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Conversion is the intentional exercise of control over another

To succeed in an action for conversion, P must show:

Detinue is the wrongful detention of another persons goods

To succeed in an action for detinue, P must show: