Tort Law

Question 1

Tort law

Answer 1

Tort law provides recourse/remedy for wrong done to the plantiff or the plaintiff’s property.

Tort law is mostly common law.

Question 2

Tort damages

Answer 2

Monetary damages that compensate

Question 3

Intentional and unintentional tort

Answer 3

Tort law imposes a duty on persons and business agents not to intentionally or negligently injure others in society.

Question 4

Assault

Answer 4

Threat of immediate harm or offensive contact; or action that arouses apprehension of imminent harm to a reasonable person.

Actual physical contact is unnecessary.

Question 5

Battery

Answer 5

The actual wrong act of physically harming someone.

Unauthorized and harmful or offensive physical contact with another person.

Direct physical contact is unnecessary eg. Throwing rock

May or may not accompany assault.

Question 6

False imprisonment

Answer 6

Total restraint on the plantiff. Without lawful justification. Depriving plantiff of liberty with no reasonable way to escape.

Need not have physical effect upon plantiff.

Question 7

Balmain New Ferry Co Ltd v Robertson
False imprisonment

Answer 7

The ferry operated a service between Balmain and Sydney. Entry to the ferry was operated by inserting a penny in a slot in the machine. There was a sign stating ‘a fare of one penny must be paid before entering or leaving the wharf’. Robertson paid his penny to gain admission and finding out that he had just missed the ferry, he attempted to leave without paying another penny. He was stopped and forced to pay the attendants.
Held: there was no false imprisonment as Robertson had not been totally restrained. There was nothing stopping Roberson from getting on the next ferry and traveling to the other side of the harbour and getting of there.

Question 8

Defamation

Answer 8

The publication of a statement which affects a person’s reputation in that it tends to lower him in the estimation of right-thinking members of the society generally, by making them shun or avoid him.

Question 9

Defamation of character
Defamation covers:

Answer 9

1. Slander- temporary or non permanent form eg. Speech or gesture.
2. Libel- defamation in a permanent form eg. Film, newspaper, book etc.

Question 10

Defamation - defences

Answer 10

1. Justification
2. Fair comment- must be matter of public interest, expression of opinion and not an assertion of fact, comment must be fair and not malicious.
3. Privilege- statements in parliament and judicial proceedings.

Question 11

Trespass to land

Answer 11

An individual or the object of an individual enters the land of another. Without a lawful excuse or permission. No intent or harm is required. No signs are required.

Question 12

Negligence

Answer 12

The breach of a legal duty to take care which results in damage, undesired by the defendant, to the plantiff.

Unintentional wrongful act.

Question 13

Ingredients of negligence

Answer 13

1. Duty to take care
2. Breach of that duty
3. Consequential damage

Question 14

Duty of care

Answer 14

The test for the existence is the ‘neighbour’ principle.

” You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

Neighbour: Person whom I can reasonably foresee will be affected by my acts/omissions.

Question 15

Donoghue v Stevenson
‘neighbour’ principle

Answer 15

Mrs Donoghue suffered a personal injury as a result to consuming a decomposed snail infected bottle of ginger beer. She commenced a claim against the manufacturer.
Held: Her claim was successful. This case established the modern law of negligence and established the neighbour test.

Question 16

Breach of duty

Answer 16

Test to decide whether there had been a breach of duty- a ‘resonable man’ test.

If a defendant falls below the standard of care which a prudent and reasonable man would take, then there is a breach of duty.

Reasonable man- ordinary man who is not expected to have any particular skill.

Question 17

Bolton v Stone
Magnitude of the risk

Answer 17

Plantiff hit by cricket ball. Cricket field has a 17-foot gap between the ground and the 7 foot fence.
Held: Defendant not liable as magnitude of risk is low. A reasonable cricket club would have not behaved any differently in terms of the fence. There is no breach of duty.

Question 18

Paris v Stepney Borough Council
Seriousness of the injury that is risked

Answer 18

Employer did no provide goggle to employee when he was working in a garage so he was blinded in one eye by a piece of metal.
Held: Employer liable. Breach of duty.

Question 19

Latimer v AEC Ltd
Practicality of precaution

Answer 19

Defendant mopped up the slippery floor, put out warning signs and placed sawdust on the floor to make the area as safe as possible for the workers. Complainant was working on nightshift after flooding and he fell on his back which lead to barrel crushing his ankle.
Held: Defendant was not liable as he had taken precautions. No breach of duty. Reasonable person would do the same.

Question 20

2 elements to consequential damage

Answer 20

1. Causation- the plaintiff’s damage must have been caused by the defendant’s breach of duty.

‘But for’ test- whether the breach of duty was the primary cause of damage.

2. Remoteness- the damage must not be too remote from the negligence of the defendant.

Test- consequences are too remote is a reasonable man would not have foreseen them.

Question 21

The Wagon Mound case

Answer 21

The defendant’s ship, the Wagon Mound was re-fuelling another ship and negligently spilt oil into the water. No effort was made to clean it up and it quickly spread to the claimant’s wharf. Welding was taking place on the wharf and sparks caused debris underneath the wharf to ignite which then caused the oil to ignite, causing damage.
Held: The court held that although it was foreseeable that the oil may foul the wharf, it was unforeseeable that the oil would catch fire and burn the wharf. Therefore, damages were too remote and not awarded for damage.

Question 22

Defences

Answer 22

Defense 1: Contributory negligence- plantiff’s negligence contributed to own injury. Partial defense.

Defense 2: Consent- plantiff’s full assumption of risk. Full defense.