LAWS1203 Lecture Notes - Lecture 1: Private Law, Industrial Revolution, Consumer Protection
Torts lecture notes
What is 'torts law' as a part of the common law tradition?
What legal interests does it seek to protect and how?
What are its distinctive features and where does it sit in the universe of public and private / civil vs criminal law?
What are its historical origins and its evolution?
What functions does it serve in society?
What have been the main impulses for reform over time?
Thematic question running through the entire course:
How does the common law (as amended by legislation) regulate the great diversity of valued interests that human beings possess,
such as our interest in being free from uninvited interference with our bodies, reputations, goods, properties or land? How does the
law reconcile issues when interests come into conflict?
Is a legal system based on accumulated rules expounded and refined by judges and the payment of monetary compensation the
best way to allocate risk and responsibility in society, to ensure the protection of valued human interests, and to facilitate
reparation for harms?
Lecture 1
I. What is a tort (civil wrong)?
II. Thematic issues
Law of torts: avoiding unreasonable risk of harm to person or property; or avoiding an unwanted or unjustifiable interference with
someone’s person, property or legal interests
Definitional issues
• How does society, through law, deal justly and efficiently with addressing inevitable harms to private interests in a
crowded, complex, industrialized, networked world?
• How does law allocate (and limit) responsibility for harm to interests worthy of legal protection?
• How to efficiently remedy harmed interests?
• When and why should the legal burden for accounting for loss or harm shift from P to D?
o Never shift responsibility – choices and acceptance of risks of individuals
o Always shifts – always someone else responsible
o In between as above – sometimes shifts: why and when
o Balance: P’s freedom from injury / D’s freedom to act
o We need
▪ a criterion of responsibility/liability
▪ a notion of interests ‘worthy’ of protection
▪ a notion of what counts as ‘harm’
Classifying torts law:
• Common law system/parliamentary made law (statutory law)
• Private law system/judge made law (criminal law)
Possible non-contractual civil action for financial compensation (+), where D has allegedly caused a relevant impairment or harm
to P’s recognized legal interests in their body and/or reputation, land and property, etc.
Historical development
• ‘Incremental’: common law and the judiciary
o Early trespass actions: intentional, direct harm
o Later negligence actions: non-intentional (direct/indirect) harm
• ‘Social engineering’: statute law and parliaments
o 19th century: industrial revolution
o 21st century: ideological intervention
Interests protected (and not)
Interests protected
• Person, property and purse
• Evolution and responsiveness
• Integrity/use/enjoyment of:
o Person (physical, mental?)
o Reputation
o Property (land, goods)
o Financial interests?
• Overlaps (e.g. consumer protection laws)
Liability concepts
• 'Allocating but limiting liability’
• Why?
• FAULT (culpable; blameworthy) – fault-based system
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• Shift when someone can be shown to be at fault
• Criteria of responsibility of torts:
o Intention
o Negligence
• Plaintiff has onus in torts, must show on balance of probabilities
• Other liability concepts
o Duty of care
Functions of tort law
1. Justice and compensation
2. Societal peace-keeping
3. Deterrence (specific and general) (and punishment?)
4. (Form of peace keeping)
5. (Forum for resolution of past disputes which have led to injury – most cases are mediated/negotiated and don’t go to
court)
6. (Freedoms and rights against state i.e. trespass)
7. (Private law, public purpose?)
Critiques of tort law
• Shortfalls of a fault-based system
o Shift loss or distribute loss?
▪ Efficiency vs. justice?
▪ The role of liability insurance – form of loss distribution
• Ignore in course, focus only on principles of liability
o Cost, delay, uncertainty, arbitrariness
o Insurance, deterrence and incentives
o Problems with lump sum damages awards
Is tort law the most efficient way of compensating losses in society?
Reform of tort law
• Changing calculations about risk vs. social utility
• Industrial revolution: ‘road and factory’
• Ipp Report and 2002 Acts: ‘the blame society?’
o Blame and claim, too much litigation, fear of being sued
o Law of torts was too generous – made it harder to claim
o Rebalance of risk vs. responsibility
Lecture 2: Trespass I: Introduction
1. Introduction and historical overview
The trespass torts are concerned with voluntary, direct and intentional interferences with another’s person, goods or land.
• Trespass to person (battery, assault and false imprisonment)
• Trespass to land
• Trespass to goods
Trespass is the oldest cause of action in tort (dating from the 12th century). It largely performed a peacekeeping function. To bring
a case before a court, historically, must have had a writ. Two writs:
• Writ of trespass → trespass
• Writ of trespass on the case – became ‘action on the case’ → negligence
Writ of trespass concerned with:
• Direct interferences e.g. log thrown on road and hits someone as they are walking by
• Actionable per se (actionable without proof of damage) – no need to prove any losses or damages
• Onus of proof
Action on the case concerned with:
• Indirect or consequential injuries e.g. log on road and sometime later someone trips on it
• Not actionable per se – must prove that he/she suffered actual damage or losses
• Need not prove that the defendant intended to cause harm or that the defendant was negligent
Prima facie: on the face of it, at first sight
2. Common elements
Battery: a voluntary act which directly and intentionally causes contact with the body of the plaintiff, where that contact is not
‘generally acceptable in the ordinary conduct of daily life’ (Collins v Wilcock, adopted in Rixon v Star City).
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Assault: a voluntary act which directly and intentionally creates a reasonable apprehension in the plaintiff of an imminent battery.
False imprisonment: a voluntary act which directly and intentionally totally restrains the plaintiff’s liberty.
Trespass to land: the voluntary, direct and intentional interference by a defendant with land in the possession of the plaintiff.
Common elements of trespass
• Direct interference
• Voluntary
• Intentional
1. Directness:
Hutchins v Maughan [1947] VLR 131
• P brought several causes of action against D, including one in trespass. J decided trespass not direct, appeal case failed. P
dogs died due to laying of poison bait on land by D. D told P of poison, but P did not believe D. Case first heard, P only
successful in trespass, not nuisance or negligence.
Herring CJ refers to previous authority on directness:
• Scott v Shepherd (1773) 2 Wm Bl 892, 894 (Blackstone J): ‘where the injury is immediate, an action of trespass will lie;
where it is only consequential, it must be an action on the case.’
o An injury is direct only if ‘the injury … followed so immediately in point of causation upon the act of the
defendant as to be termed part of that act.’
o ‘Before he could suffer an injury, he had himself to intervene by coming to the land and bringing his dogs
thereon.’
• Leame v Bray (1803) 3 East 593, 602-3 (Le Blanc J)
o ‘[T]he distinction is well instanced by the example put of a man’s throwing a log into the highway; if at the time
of its being thrown it hit a person, it is trespass; but if after it be thrown, any person going along the road receive
an injury by falling over it as it lies there, it is case …’
Herring CJ in Hutchins:
• ‘His position is like that of the man who, going along the road upon which a log has been thrown, receives an injury by
falling over it.’
Rural Export & Trading (WA) Pty Ltd v Hahnheuser (2007) 243 ALR 356, 379 (Gray ACJ):
• ‘[T]here is no evidence that Mr Hanhheuser interfered directly with the sheep. There is an obvious distinction between
direct interference of the kind required to constitute a trespass and leaving something that sheep might or might not
choose to eat in a place where they might or might not choose to go for the purpose of eating.’ – consequential
interference
Scott v Shepard (1773) 2 Wm B1 892
• Those who threw the squib onwards acted under ‘a compulsive necessity for their own safety and self-preservation’. Tort
of Battery
Other examples (trespass to land):
• Reynolds v Clarke (1726) 1 Str 634
o Interference consequential and not direct – water leaking onto house
• Southport Corporation v Esso Petroleum Co Ltd [1954]2 QB 182
o Interference consequential and not direct – oil leak carried by tide not directly onto foreshore
2. Voluntariness
• The defendant’s act must be voluntary; minimal requirement; relevant interference must have been the result of a
voluntary act of the defendant.
• Autonomy: drunk/drugged to the extent that they cannot comprehend their actions is involuntary
• Morris v Marsden [1952] 1 All ER 925, 928 (Stable J): ‘[K]nowledge of wrongdoing is … immaterial … and where
there is the capacity to know the nature and quality of the act, that is sufficient although the mind directing the hand that
did the wrong was diseased.’ Knew what he was doing, but didn’t know that it was wrong – sufficient for the purposes of
voluntariness
• Gibbons v Pepper (1695) 1 Ld Raym 38 – examples.
• Using another person’s hand as an agent to inflict battery
3. Intention
• The intention relates to the interference
• There is no requirement that the defendant intended to cause any harm to the plaintiff
• There is no requirement that the defendant intended to act wrongfully or unlawfully
Example 1: I am out on a bushwalk and think I am walking on public land, but it turns out that it is actually private land
• This IS trespass to land
• Trespass to land: the voluntary, direct and intentional interference by a defendant with land in the possession of the
plaintiff.
Example 2: I lock up at the end of class. Unknown to me, you are still in the lecture theatre. You are now locked in the theatre
• NOT false imprisonment; no intention
Example 3: I lock up at the end of class. I know you are still in the theatre, but I (mistakenly) think I have the right to lock you in.
You are now locked in the theatre
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Document Summary
Law of torts: avoiding unreasonable risk of harm to person or property; or avoiding an unwanted or unjustifiable interference with someone"s person, property or legal interests. Classifying torts law: common law system/parliamentary made law (statutory law, private law system/judge made law (criminal law) Possible non-contractual civil action for financial compensation (+), where d has allegedly caused a relevant impairment or harm to p"s recognized legal interests in their body and/or reputation, land and property, etc. Incremental": common law and the judiciary: early trespass actions: intentional, direct harm, later negligence actions: non-intentional (direct/indirect) harm. Social engineering": statute law and parliaments: 19th century: industrial revolution, 21st century: ideological intervention. Interests protected: person, property and purse, evolution and responsiveness. Integrity/use/enjoyment of: person (physical, mental?, reputation, property (land, goods, financial interests, overlaps (e. g. consumer protection laws) "allocating but limiting liability": why, fault (culpable; blameworthy) fault-based system, shift when someone can be shown to be at fault, criteria of responsibility of torts:
