Torts Law (Deliberately Causing Harm)

Question 1

What is criminal liability?

Answer 1

If someone has done something that causes harm to another person, and the harmful act is a crime, they will incur criminal liability.

Question 2

What is a crime?

Answer 2

A harmful act that will lead to prosecution by the state and eventually punishment of the offender.

Question 3

What is tortious liability?

Answer 3

A tort is a civil wrong, meaning it is an act that causes harm to another person and gives that person the right to commence litigation to recover compensation or some other civil remedy.

Question 4

What is contractual liability?

Answer 4

If a person who engages in harmful conduct has a contractual relationship with the victim, then harmful conduct may give rise to contractual liability.

Question 5

What is statutory liability?

Answer 5

A harmful act may contravene one or more statutes.

Question 6

What types of harmful conduct does statute law prohibit?

Answer 6

• Misleading and deceiving customers.
• Breaching copyright.
• Breaching a duty to avoid insolvent trading.

Question 7

What is vicarious liability?

Answer 7

Circumstances when a person will be held liable for harm caused by another. Usually arises when an employee is undertaking authorised work in an unauthorised manner and the employer will still be held vicariously liable for their actions.

Question 8

What is a summary offence in terms of criminal liability?

Answer 8

A less serious criminal offence such as:
- Common assault.
- A traffic offence.
- Being drunk and disorderly.

Question 9

What are the two requirements for a person to be found guilty of a crime?

Answer 9

1. Wrongful act.
2. A guilty mind (intention, foresight, knowledge or awareness).

Question 10

What are the seven defences of criminal liability?

Answer 10

1. Self-defence (use of force in self-defence or defence of another person or property).
2. Insanity (defendant had some form of mental illness).
3. Diminished responsibility (defendant suffered from abnormality of mind that impaired their understanding of right and wrong).
4. Duress (defendant’s will was overpowered by compulsion or will of another).
5. Automatism (defendant was not in conscious control of their actions).
6. Infancy (children under 14 are incapable of criminal intention).
7. Necessity (criminal act was necessary to avert a serious consequence).

Question 11

What is tort of trespass (land)?

Answer 11

The defendant intentionally or negligently interferes with land in the rightful possession of the plaintiff without the plaintiff’s consent or a lawfully justified excuse.

Question 12

What is tort of trespass to goods?

Answer 12

Direct and intentional or negligent interference by the defendant with goods in the possession of the plaintiff without their consent.

Question 13

What is tort of conversion?

Answer 13

Occurs when the defendant wrongfully takes goods belonging to the plaintiff with the intention of keeping them or does something to those goods without the plaintiff’s permission.

Question 14

What is tort of detinue?

Answer 14

The defendant has possession of the plaintiff’s goods but unreasonably refuses to return them when the plaintiff demands they return them.

Question 15

What is tort of battery?

Answer 15

Intentional or negligent conduct that directly causes contact with the body of the plaintiff without their consent or lawful justification. (Includes punching, pushing, stabbing and shooting).

Question 16

What is tort of assault?

Answer 16

A threat that causes the plaintiff to anticipate direct, imminent and harmful or offensive contact. No physical touch needs to occur for the tort of assault to be committed.

Question 17

What is tort of false imprisonment?

Answer 17

The total deprivation of the plaintiff’s freedom of movement without consent or lawful justification.

Question 18

What are the five defences to the tort of trespass to person?

Answer 18

1. Accident (the interference was neither intentional or negligent).
2. Consent (the plaintiff has either expressed or implied consent to the trespass).
3. Necessity (the trespass was necessary to protect life, land or goods from imminent and real harm).
4. Self-defence (the trespass was necessary to protect the defendant or another).
5. Defence of property (the trespass was necessary to protect the defendant’s land or goods from imminent harm by the plaintiff).

Question 19

What is tort of private nuisance?

Answer 19

An act by the defendant that indirectly interferes with the plaintiff’s use and enjoyment of private land.

Question 20

What is tort of public nuisance?

Answer 20

An act that indirectly interferes with the plaintiff’s use and enjoyment of public land such as a street or park.

Question 21

What are the three defences to the tort of nuisance?

Answer 21

1. Consent by the plaintiff (plaintiff consented to the nuisance either expressly or by implication.)
2. Statutory authority (legislation exists that permits the defendant to engage in the harmful conduct).
3. Contributory negligence (the harm suffered by the plaintiff was at least partially the result of the plaintiff’s own carelessness).

Question 22

What is tort of defamation?

Answer 22

The publication by the defendant to a third party, in spoken or written form, of a statement about the plaintiff that would damage their reputation.

Question 23

What are the two forms of defamation?

Answer 23

1. Libel (defamation in a permanent form, such as in writing or on film).
2. Slander (defamation in a transient form such as spoken).

Question 24

What are the three requirements needed to bring action against the defendant in the tort of defamation?

Answer 24

1. Defendant’s statements about the plaintiff was defamatory.
2. Defendant’s statement identified the plaintiff.
3. Defendant’s statement was published to a third party.

Question 25

What are the nine defences to the tort of defamation?

Answer 25

1. Justification (the statement is true). 2. Contextual truth (the statement carried one or more other meanings that are true). 3. Absolute privilege (the statement was made during parliamentary or judicial proceedings). 4. Publication of public documents (defamatory material was contained in a public document). 5. Fair reporting of matters of public concern. 6. Qualified privilege (the statement was not motivated by malice). 7. Triviality (the circumstances of the publication were such that the plaintiff was unlikely to suffer any harm). 8. Honest opinion (fair comment, either an opinion or true). 9. Innocent dissemination (did not know the material they published or distributed was defamatory).