#6994 - Policy - Torts A

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

• 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).

• 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

• 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

• 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)

• 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

• 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)

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

• 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

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

Torts protect specific rights and interests.

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

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

Tort law gives paramount importance to bodily integrity and the liberty of the individual, and to the undisturbed possession of land and goods.

• Yes: Even if no harm, nominal damages may be awarded for ‘the insults which may arise from interference with the person and the injury to his feelings, that is, the indignity, mental suffering, disgrace and humiliation that may be caused’ (Fogg v McKnight [1968] NZLR 330,331). Basic rights should be protected.

  • Could argue this should include emotional distress

• Battery protects the right to physical integrity and the law should not draw distinctions between degree of force applied (Collins v Wilcock)

• No: it is arguable that some damage should be caused in other than false imprisonment and assault. This is because of the large amounts of time and of money that may be expended in pursuing a claim.

Large companies, such as insurance companies, may have more bargaining power than an individual. A person who may bring an action in tort once and who may be concerned about legal costs is less likely to succeed.

• This may occur when insurance companies try to recoup expenses paid out to an injured person (eg whose motor vehicle was hit) and then pursue D for damages by stepping into the injured person’s shoes (subrogation). An insurance company will be more likely to succeed than the defendant due to resources.

There may also be unequal bargaining power in that plaintiffs may feel pressured to settle a claim. The majority of civil cases settle before going to court, and there is concern that plaintiffs may settle for payments lower than what they would receive on proceeding with their claims.

The cost of litigating a tort claim is excessive.

UK statistics:

• The Royal Commission on Civil Liability and Compensation for Personal Injury (the Pearson Commission) (1978) found that it cost 85p in litigation for every 1.00 recovered in damages.

• Lord Woolf’s Access to Justice Report (1996) put the figure at 1.00 recovered for every 1.35 spent in litigation.

These figures, though not Australian, indicate that the cost of litigation is steadily increasing and the trend will be likely to discourage those who wish to enforce rights on a smaller scale. It also places strain on the resources of the court system.

• Low cost specialist tort tribunals (similar to the Small Claims Tribunal but on a larger scale)

This aim considers the way that burdens of loss are distributed.

• Should the loss lie with P or be transferred to D?

  • Fault: should the loss only be transferred to D when D is at fault?

• Loss spreading: should the loss be spread throughout the community through no-fault compensation schemes? These schemes make the burden on P smaller.

The theory of deterrence, associated with economic theories of torts law, is based on the premises that torts law can provide an incentive for more economically efficient behaviour.

Individuals or companies who have insurance to cover themselves against the risk of having to pay compensation for a tort are less likely to take great efforts to avoid committing...