Tor Ture Law Complete Notes - Tort Law

Week 1 – The Role and Function of Tort Law 2

WEEK 1 – PRIVATE NUISANCE 4

WEEK 2 – NELGIGENCE 7

WEEK 3 – DUTY OF CARE: MENTAL INJURY 9

WEEK 4 – OCCUPIERS LIABILITY 14

WEEK 4 – PUBLIC AUTHORITIES 16

WEEK 5 – BREACH OF DUTY 19

WEEK 5 – BREACH OF DUTY 22

WEEK 7 – CAUSATION 25

WEEK 7 – CAUSATION 2 28

WEEK 8 – DEFENCES 30

WEEK 8 – DEFENSES 30

WEEK 9 – CONCURRENT LIABILITY: VICARIOUS LIABILIABY & NON-DELIGABLE DUTY 32

WEEK 9 – DAMAGES 37

WEEK 10 & 11 – THEORETICAL TORTS 40

LAWS1061 – Torts

• What is tort law?

  • Concerns the obligations of persons living in a crowded society to respect the safety, property and personality of their neighbours

  • As an a priori matter cause and effect

  • As a duty of compensate for wrongfully caused harm ex post after the fact

• Common law and statute

  • “crisis”

    • Caused by an ever-increasing level of litigation producing ever increasing damages awards

    • Created by an extremely litigious society bend on not taking responsibility for an individuals own actions

  • Aims of Australian tort reform process

    • To reduce litigation

    • Reduce compensation payable to insurers and to make insurance affordable

  • Civil Liability Act 2002 (NSW)

    • Impacts multiple torts in different ways

    • Based on and modifies the common law, but does not replace it

    • Definition of trespass, nuisance, negligence and breach of statutory duty are important

• The role of tort law

  • Compensatory function

    • To compensate people injured for a wrong

    • Sometimes compensation is not enough to cover all the damages EG quadriplegic

    • Problematic

      • Other ways of spreading both the risk of harm and the liability to pay would be more effective

• Basis of liability

• Theoretical approaches to tort law

  • Deterrent function, law and economics, and insurance

    • If the wrongdoer is punished or made to pay for an accident he or she will try to avoid such accidents in the future

    • The fear of criminal prosecution is more likely

    • Guido Calabresi and Richard Posner – the goal of accident law should be to reduce the costs of accidents

    • For many years though tort law ignored the existence of insurance

    • Insurance prevents the deterrent function of tort law from operating by preventing the damages flowing from the wrong doer

  • Corrective justice and civil resource theory

    • Moral rights

    • Weinrib – responsibility: when is a person who causes harm responsible to compensate for the harm caused?

    • Focused on individuals and their obligations

    • Civil recourse theory focuses on the sense of being wronged and that when people are wronged their natural instinct is to seek vengeance

  • Distributive justice and risk allocation

    • A way of distributing goods, risk and looses

    • Also distributing risk EG benefits of vaccines

    • Compensation is for the purpose of placing the plaintiff back into the position they were before the wrong was done

  • Feminist theory of tort law

    • From whose point of view has the law been made?

    • Does the law perpetuate patriarchy or male domination

    • Concerned with the valuing of women’s work for damage purposes

    • And rationality as men are considered more rational then women so it would not be out of character for them to be subject to injury

• HOT COFFEE DOCUMENTRY

  • Liebeck v McDonalds 1992

  • An elderly women was severely burnt after spilling coffee on herself sitting in the passenger seat of a stopped car

  • Stella Liebeck went into shock and went to hospital

  • $10,000 medical bills with 16% of her body burnt and some were 3^rd degree

  • Unreasonably hot and therefore unreasonably dangerous

  • The media coverage changed the premise and facts of the story creating Liebeck to look like the villain

  • $2.9million in compensation reduced to less than $500,000 after media

• Need tort reform

  • Explosion of litigation producing unreasonably large damages awards

  • Curb frivolous suits filed by litigious plaintiffs with minor injuries who believe that they deserve large damages awards

  • Ensure that people take personal responsibility for their action

• What is it?

  • Arose out of the action on the case

  • Protects a person’s right to use and enjoyment of their land

  • In order to establish an action of private nuisance the plaintiff must establish they have a title to sue, the defendant had requisite knowledge of the nuisance, the nuisance was substantial or unreasonable

• Title to sue

  • Only the person with rights in or over the property has standing to sue

  • The individual must:

    • Be the owner or tenant of the property

      • Unless has a reversionary interest in the land

    • Be in actual possession of the property

    • Has the right to exclusive possession

• Interests protected

  • The interests protected by nuisance include those to do with the land itself

• Interference with enjoyment of the land

  • Can be tangible or intangible

  • Tangible include:

    • Indirect physical injury to the land

  • Intangible include:

    • Sensible personal discomfort

• Protection of certain rights relating to land

  • Interference with rights including easements and support of land

    • Interference with the right to support of the land in its natural state so that if the defendant excavates in such a way that the neighbors land collapses, is a common law nuisance

• Interests not protected

  • Certain invasions do not qualify as private nuisance

    • No right to natural light

    • Or to view from his property

    • Others being able to see into a building does not constitute

• Unreasonable interference

  • There must be give and take between a defendant’s right to use property and the plaintiffs right to enjoy their property

  • The court must seek to balance the competing interests of both parties

• Assessment of the defendants activity

  • The defendants actions and utility or usefulness of the defendants conduct are considerations in assessing the give and take

• Who can be sued

  • Proof of fault is required to be sued

  • The creator of nuisance:

    • The occupier of land is not always liable for the nuisance

    • The creator of nuisance is strictly liable for the nuisance they create

  • Authorizing the nuisance:

    • If an occupier permits others to undertake activities that constitute a nuisance then the occupier is also liable for the nuisance created by the individual

  • Continuing or adopting the nuisance

    • A defendant who does not create the nuisance but continues it can also be liable

• Defenses:

  • Conduct or consent

    • No nuisance is plaintiff expressly consents

    • Toleration is not implied consent

    • Sturgess v Bridgman

    • No defense to nuisance that activity benefits the public (york bros v Cmmr Main Roads)

  • Statutory authorization

    • Legislation supports in clear language

• Remedies

  • Damages:

    • Test of remoteness

      • Same as applied to cases of negligence

      • Only liable for the damages that are foreseeable

    • Assessment of damages

      • Dependent on the type of damages

      • Awarded as compensation

      • Assessed for both past and future damages

  • Injunction

    • Interlocutory injunction

      • Prior to trial

      • To restrain continuing nuisance until the matter is finally determined

      • Awarded where there is a “serious question to be tried”

    • Permanent injunction

      • At the trial

      • Court must be satisfied that a nuisance exists and that the nuisance is a substantial interference and that the nuisance is likely to recur

      • This type of injunction will not be granted unless the nuisance is imminent or highly likely to occur and damages would not suffice

  • Abatement or self help

    • Removal of the offending interferences

    • Is only reasonable if there are strong reasons and notice of entry is required unless it is a situation of imminent danger to life

• Elements of private nuisance

  • Title to sue

    • Owner or tenant

    • Occupier with exclusive possession (Hunter v Canary Wharf)

    • Immediate family members who do not have exclusive possession will not have standing (Oldham v Lawson)

  • Substantial or unreasonable interference

    • Reasonableness includes locality of nuisance and utility of defendant behavior

    • Modern society must make some allowance for the actions of neighbours (Kennaway v Thompson)

  • Does the damage cause a “sensible personal discomfort” (St Helens Smelting v Tipping)

    • Assessing unreasonableness:

      • Standard is of ordinary person

      • No relief if abnormally sensitive

      • Nature of interference

      • Duration of interference

      • Frequency of interference

      • Extent of interference

      • Time of interference

      • Locality of interference

      • Utility of defendants behavior

      • Defendants motivation and any steps taken by defendant to minimize interference

  • Defendant must have requisite knowledge

    • Defendant continues or adopts the nuisance (Stockwell v State of Vic)

    • Measured or duty of care

      • Duty of care of occupiers to remove or reduce hazards to their neighbours

    • The person who authorized the nuisance

    • The defendant should know about the nuisance because the plaintiff has told/complained in the past

• Interests protected

  • Enjoyment of the land (St Helens Smelting v Tipping)

  • Support of land (Dalton v Angus)

  • Right to enter and leave their land (Dollar Sweets v FCAA)

  • Presence of sex workers (Thompson Schwabs v Costaki)

• Interests not protected

  • Not right to natural light (Tapling v Jones)

  • No right to view from property (Kent v Johnson)

  • Unhindered tv reception (Hunter v Canary Wharf)

  • Seeing into another property

• Donoghue v Stevenson

  • Appellant sought to recover damages from the respondent for injury’s she suffered as a result of consuming parts of the contents of a bottle of ginger beer which contained the decomposed remains of a snail

  • Respondent: manufacturer of aerated waters

  • The bottle was a dark opaque

  • The appellant had...