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Policy Notes

Law Notes > Torts A Notes

This is an extract of our Policy document, which we sell as part of our Torts A Notes collection written by the top tier of Monash University students.

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Torts A: Policy Notes

Introductory notesA 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 lawTorts 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 1


Aims o

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 o

Crime: State investigates to prove elements of the crime


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

Burden of proof o

Crime: beyond a reasonable doubt


Torts: on the balance of probabilities

Sanctions o

Crime: imprisonment, preventative/punishment/deterrent measure


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

Relationship with contract lawBoth deal with civil wrongsPossible areas of overlap; there may be concurrent liability (eg where D sells fault equipment to P that injures P)


Liability o

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 o

Different assessmentTorts: damages are paid to put P in the position as though the tort had not occurredContract: damages are normally paid to put P in the position as if the K had been performed correctly

2 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 liableChange to mostly fault-based torts requiring intention or negligence occurred in the second half of the 19th century o

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

Reasons for change CostIf 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 viewsIndividualism: 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 revolutionThe industrial revolution came to pass, which increased the number and severity of accidentsIn 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 o

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 faultEconomic 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 o

But remember workers' compensation and other schemes

Who should be liable for torts committed?

3 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 personAssault: right to psychological well-beingBattery and action on the case (to person): right to physical well-being/bodily integrityFalse imprisonment: right to freedom of movement

Trespass to goodsTrespass to goods: rights to undisturbed possession of goods/propertyAction on the case: rights of property ownership

Trespass to landExclusive possession of landProtection of environment: parties can sue for environmental damage to their land in trespass

Private nuisanceUse 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 that are not 'inherently private' (Australian Broadcasting Corporation v Lenah Game Meats). Policy reasons for introduction of this tort:Increased media and internet access can result in private material being broadcast and resulting in great harm to industry or individuals

Protection of ...


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