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Transcript of Torts
A tort is a civil wrong.
The law of torts deals with the rights and obligations that people owe to others and the infringement of these rights and responsibilities.
Doing or not doing something a reasonable person would or would not do in certain circumstances, which causes harm or loss to another person
Written or verbal statements that lower a person's reputation in the eyes of the community.
Defamatory statement must be communicated to a third party (private comments between two parties are not considered defamatory)
Key Principles of Negligence
Plaintiff must prove that:
- the person who was negligent owed a duty of care to the person injured
- the duty of care was breached
- the breach of the duty of care caused loss or damage (causation) and
- harm or loss was the result of the breach of duty of care.
DUTY OF CARE
A person owes a duty of care if:
- the risk was foreseeable (the person knew or ought to have known about the risk)
- the risk was significant or not insignificant (not far-fetched or fanciful) and
- in the circumstances, a reasonable person in the same position would have taken precautions to eliminate any risk of harm.
Exceptions to duty of care:
- when a waiver is signed (with certain reservations); e.g bungee jump and other extreme sport operators
- Good Samaritan (within competence and without pay)
- Person who donates food in good faith
- Volunteers (acting in line with organisation's guidelines)
Defences to Negligence
The defendant can claim that the plaintiff has not established the four elements of negligence. The defendant will try to prove that a duty was not owed, or a duty was not breached, that the damage or injury was too remote from the defendant’s act or omission, or that no loss or harm has been suffered. If all elements are proven, the defendant may have to rely on one of the following defences.
Assumption of risk
(volenti non fit injuria)
Where the defendant attempt to prove that the plaintiff helped to cause the harmful situation or is partly to blame for the harm done.
CASE STUDY (Oxford Insight Text)
Pedestrian partly to blame
A pedestrian who carelessly steps onto the road in front of a speeding car may sue the driver for injuries. However, the court may decide that the pedestrian was partly to blame for the incident. In Pennington v. Norris (1956) HCA 26, the High Court ruled that where a person suffers injury partly as the result of his or her own fault, the court would apportion blame and then reduce the claim for damages accordingly.
Where the defendant proves that the plaintiff was aware of an obvious risk and that he or she voluntarily chose to take the risk. For example, a person who knowingly accepts a ride with a drunken driver is accepting an obvious risk of being injured in a car accident, as it is well known that excessive alcohol consumption impairs driving ability.
Other examples: sports
Assumption of risk
Trespass to person, land, and goods
Key Principles of defamation
To prove defamation it must be shown that:
- a statement is defamatory
- the defamatory statement refers to the plaintiff
- the statement has been published (communicated to people other than the person it refers to by the defendant)
The onus is on the plaintiff to prove that his or her reputation has been damaged by the publication of such material. It is not necessary to prove that the defendant had the intention to hurt the plaintiff.
Non-profit organisations or small private companies with less than 10 employees can use the law of defamation to protect their business reputations but large companies cannot (however, they may launch an action for injurious falsehood)
Defences to Defamation
Absolute Privilege (e.g. Parliament sitting)
Publication of public documents
Fair report of proceedings of public concern. E.g. Parliamentary proceedings, public inquiries
Qualified Privilege, E.g. Statements made to police
E.g. Booksellers, libraries, and internet websites
Trespass to person
In tort, an assault occurs when the defendant's words or actions cause the plaintiff to believe that he or she is about to suffer bodily harm (no physical contact actually necessary)
The application of force to the plaintiff's body Occurs when:
- defendant causes physical contact with plaintiff
- action is direct, intentional, or negligent
- action was carried out without plaintiff's consent
Occurs when the defendant deliberately or negligently confines (imprisons) the plaintiff in such a way that there is no means of escape
Trespass to land
Plaintiff must show that:
- there has been a direct, unauthorised physical contact with the land
- the land was exclusively possessed by the plaintiff
NOTE: Plaintiff does not have to actually own the property and no damage has to have actually occurred
Trespass to goods
This trespass can take a variety of forms. The defendant may remove the goods from the plaintiff's possession or shift them to another location. These acts constitute a direct interference even though the goods may not have been damaged
Plaintiff must prove, on the balance of probabilities:
1. The existence of a nuisance that interferes with enjoyment of property
2. that the nuisance was unreasonable in the circumstances
3. Damage was caused by the nuisance
(e.g. Late-night party)
Aim is to protect the general public from unwarranted disturbances. An action for public nuisance is only available if the plaintiff can show that he or she is more affected than other members of the public
NOTE: Civil cases under the tort of public nuisance are relatively uncommon. Activities causing a public nuisance are more likely to be proceeded against as a criminal prosecution (resulting in fine)