Torts A: Policy Notes

Introductory notes 3

Relationship with criminal law 3

Differences 3

Relationship with contract law 3

Differences 3

Should there be fault requirements in tort? 4

Reasons for change 4

Critiques of requirement of fault 4

Who should be liable for torts committed? 4

Vicarious liability 4

Joint liability 5

Should new/current types of interest be protected in tort? 5

Current protections 5

Possible protection of further/new interests? 5

Tort of invasion of privacy? 5

Protection of … 5

Should trespass be actionable per se? 5

Purpose/functions of torts law and effectiveness at achieving them 6

Compensation 6

Inequality of bargaining power 6

Inefficiency 6

Loss distribution 7

Deterrence 7

Problems with deterrence 7

Appeasement/vengeance 7

No fault compensation schemes 7

Should there be a requirement for hostility in battery? 8

Implied consent vs general exigencies of life exception to battery 8

False imprisonment and contractual cases 8

Should courts allow omissions rather than positive acts to constitute torts? 9

Should knowledge of restraint be required for a claim in FI? 9

Should negligent trespass be retained in Australia? 10

Who should bear the burden of proof of showing fault? 11

Australian position 11

English position 11

Criticisms of Australian position 11

Should the defence of necessity include mistaken belief in danger? 11

Should the defence of necessity be limited in application on policy reasons? 12

Examples where necessity accepted 12

Limitation of the defence on policy grounds 12

Should Australia abolish detinue? 13

Introductory notes

• A tort is a civil wrong, other than breach of contract, for while the court will provide a remedy for an action for damages (Prosser).

Relationship with criminal law

• Torts may overlap with criminal law (eg assault and battery)

• Individuals who have been harmed are able to sue whether or not a criminal prosecution has taken place

Differences

• Aims

  • in criminal law, the state sues to deal with matters of public concern

  • in torts law, the wronged party sues for compensation for a civil wrong (injury) done to him or her

• Investigation

  • Crime: State investigates to prove elements of the crime

  • Torts: Plaintiff must prove the elements of the tort; no state investigation

• Burden of proof

  • Crime: beyond a reasonable doubt

  • Torts: on the balance of probabilities

• Sanctions

  • Crime: imprisonment, preventative/punishment/deterrent measure

  • Torts: damages (compensatory/aggravated/exemplary), injunctions/specific performance

Relationship with contract law

• Both deal with civil wrongs

• Possible areas of overlap; there may be concurrent liability (eg where D sells fault equipment to P that injures P)

Differences

• Liability

  • Arises from the law in torts law; cannot agree/contract out of liability for a tort

  • Arises from contractually agreed terms in contract law; can contract out of liability for breach etc

• Damages

  • Different assessment

    • Torts: damages are paid to put P in the position as though the tort had not occurred

    • Contract: damages are normally paid to put P in the position as if the K had been performed correctly

Should there be fault requirements in tort?

• Torts initially were not linked to fault and if a person did an act causing harm to another he or she was strictly liable

• Change to mostly fault-based torts requiring intention or negligence occurred in the second half of the 19^th century

  • Loss to lie with plaintiff if no fault by defendant (ie innocent D + innocent P = loss lies with P)

Reasons for change

Cost

• If both P and D are innocent, there is no just reason for the cost incurred in shifting the loss from P to D (for example, court/investigation costs)

• However if P is innocent and D is not, there is a just reason to expend the cost in shifting the loss

Prevailing philosophical and political views

• Individualism: The view that a person should be only be responsible for causing harm to another if the act causing harm was done intentionally or negligently (carelessly)

Industrial revolution

• The industrial revolution came to pass, which increased the number and severity of accidents

• In order to preserve industry (or, to put it another way, to provide a ‘hidden subsidy’ to industry), the courts made it more difficult to prove torts

  • EG Readhead v Midland Railway Co: railway company not held liable for injury caused by a latent defect that ‘no human skill or care could either have prevented or detected’.

  • Note that later it was accepted that there is no ‘plain injustice’ in placing an economic incentive on those able to develop human skills to detect latent defects and the like

Critiques of requirement of fault

• Economic arguments: the full cost of an activity should be attributed to that activity (see, eg, Ryland v Fletcher and Francis v Cockrell)

• Makes it difficult for a successful action to be brought against employers

  • But remember workers’ compensation and other schemes

Who should be liable for torts committed?

Vicarious liability

One party may be held liable for a tort committed by another (for example, employer liability for the actions of employees).

Joint liability

Should new/current types of interest be protected in tort?

Torts protect specific rights and interests.

Current protections

Trespass to person

• Assault: right to psychological well-being

• Battery and action on the case (to person): right to physical well-being/bodily integrity

• False imprisonment: right to freedom of movement

Trespass to goods

• Trespass to goods: rights to undisturbed possession of goods/property

• Action on the case: rights of property ownership

Trespass to land

• Exclusive possession of land

• Protection of environment: parties can sue for environmental damage to their land in trespass

Private nuisance

• Use and enjoyment of land free from interference

Possible protection of further/new interests?

Tort of invasion of privacy?

There is currently no right to privacy to protect purely commercial interests or interests...

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