Causing harm Criminal liability Tortious liability Contractual liability ...
Chapter 4
Causing harm Criminal liability
If someone has done something that causes harm to another person, and the harmful act is criminal, they will incur criminal liability
Tortious liability
Tort – a civil wrong: an act that causes harm to another person and gives the other person the right to commence litigation to recover compensation or some other civil remedy
Contractual liability
A contract is a legally enforceable agreement If a person who engages in harmful conduct has a contractual relationship with the victim of the harm, then the harmful conduct may give rise to contractual liability
Statutory liability
A harmful act may contravene one or more statutes, giving rise to statutory liability
Vicarious liability
Vicarious liability - In some circumstances a person will be held liable for harm caused by another CASE: Century Insurance Co Ltd v Northern Ireland Road Transport Board (1942) o Employers are liable for the conduct of employees while carrying out authorised tasks CASE: Deatons Pty Ltd v Flew (1949) o Employers are only liable for employee conduct within the scope of their employment CASE: Hollis v Vabu Pty Ltd (2001) o Employer is not vicariously liable for the conduct of an independent contractor
Deliberately causing harm to person or property Criminal liability
Some (but not all) forms of harmful conduct will give rise to criminal liability
Criminal offences
Criminal offences include: o Offences against the person, such as murder, manslaughter, assault, sexual offences and kidnapping o Offences against property, such as stealing, robbery, burglary, forgery and corporate crime o Offences against public order public order, such as treason and sedition o Offences against administration of the law and public authority, such as perjury and destroying evidence
An indictable offence is a serious criminal offence such as murder, manslaughter, rape or robbery A summary offence is a less serious criminal offence such as common assault, a traffic offence, or being drunk and disorderly
Criminal guilt
A person cannot be found guilty of a crime unless two things can be established o A wrongful act (actus reus) o A guilty mind, that is, intention, foresight, knowledge or awareness (mens rea)
Criminal defences
Self defence Insanity Diminished responsibility – shown that at the relevant time the defendant suffered from an abnormality of mind that impaired their understanding of right and wrong, their perception of events, or their capacity to control their actions Duress Automatism – the defendant was not in conscious control of their actions, they will be entitled to an acquittal Infancy – a child under 7 is incapable of criminal intent Necessity – the criminal act was necessary to avert a serious consequence
The tort of trespass
The tort of trespass if they intentionally or negligently interfere directly with the person or property of the plaintiff CASE: Stanley v Powell (1891) o Trespass must be either intentional or negligent
Trespass to land
Trespass to land occurs if the defendant intentionally or negligently interferes directly with land in the rightful possession of the plaintiff without the plaintiff’s consent or other excuse CASE: Cowell v Rosehill Racecourse Co Ltd (1937) o Refusing to leave the premises after a reasonable time of being asked to do so CASE: Bathurst City Council v Saban (1985) o Leaving rubbish or other objects on the property CASE: Kelsen v Imperial Tobacco Co (1957) o Sign was projected into airspace of another property, this was considered trespass to land CASE: Gifford v Dent (1926) o A tenant of land has the right to sue for trespass o Including the right to sue the landlord for entering the building without permission CASE: Halliday v Nevill (1984) o There is no indication that visitors are forbidden entry No sign Gate unlocked Path or driveway is unblocked
o It can be used by members of the public to communicate with or make a delivery to the person in the building Trespass to goods
Three torts relating to interference with goods are: o Trespass to goods o Conversion o Detinue Trespass to goods is direct and intentional or negligent interference by the defendant with goods in the possession of the plaintiff without their consent Conversion is intentional interference with the goods of the plaintiff in a way that is inconsistent with their ownership or rightful possession of the goods Detinue – a tort committed when one person wrongfully detains the goods of another CASE: Penfolds Wines Pty Ltd v Elliot (1946) o Taking something from someone without permission o Handles/uses something in Simon’s possession without permission o Uses goods in an unauthorised way is conversion CASE: Hollins v Fowler (1974-75) o Destroying an item you have borrowed with permission is conversion CASE: Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) o Refusing to return an item after borrowing with permission is conversion CASE: Perpetural Trustees Ad National Executors of Tasmania Ltd v Perkins (1989) o After borrowing an item with permission, selling the item without the owners consent is conversion
Causing harm Criminal liability
If someone has done something that causes harm to another person, and the harmful act is criminal, they will incur criminal liability
Tortious liability
Tort – a civil wrong: an act that causes harm to another person and gives the other person the right to commence litigation to recover compensation or some other civil remedy
Contractual liability
A contract is a legally enforceable agreement If a person who engages in harmful conduct has a contractual relationship with the victim of the harm, then the harmful conduct may give rise to contractual liability
Statutory liability
A harmful act may contravene one or more statutes, giving rise to statutory liability
Vicarious liability
Vicarious liability - In some circumstances a person will be held liable for harm caused by another CASE: Century Insurance Co Ltd v Northern Ireland Road Transport Board (1942) o Employers are liable for the conduct of employees while carrying out authorised tasks CASE: Deatons Pty Ltd v Flew (1949) o Employers are only liable for employee conduct within the scope of their employment CASE: Hollis v Vabu Pty Ltd (2001) o Employer is not vicariously liable for the conduct of an independent contractor
Deliberately causing harm to person or property Criminal liability
Some (but not all) forms of harmful conduct will give rise to criminal liability
Criminal offences
Criminal offences include: o Offences against the person, such as murder, manslaughter, assault, sexual offences and kidnapping o Offences against property, such as stealing, robbery, burglary, forgery and corporate crime o Offences against public order public order, such as treason and sedition o Offences against administration of the law and public authority, such as perjury and destroying evidence
An indictable offence is a serious criminal offence such as murder, manslaughter, rape or robbery A summary offence is a less serious criminal offence such as common assault, a traffic offence, or being drunk and disorderly
Criminal guilt
A person cannot be found guilty of a crime unless two things can be established o A wrongful act (actus reus) o A guilty mind, that is, intention, foresight, knowledge or awareness (mens rea)
Criminal defences
Self defence Insanity Diminished responsibility – shown that at the relevant time the defendant suffered from an abnormality of mind that impaired their understanding of right and wrong, their perception of events, or their capacity to control their actions Duress Automatism – the defendant was not in conscious control of their actions, they will be entitled to an acquittal Infancy – a child under 7 is incapable of criminal intent Necessity – the criminal act was necessary to avert a serious consequence
The tort of trespass
The tort of trespass if they intentionally or negligently interfere directly with the person or property of the plaintiff CASE: Stanley v Powell (1891) o Trespass must be either intentional or negligent
Trespass to land
Trespass to land occurs if the defendant intentionally or negligently interferes directly with land in the rightful possession of the plaintiff without the plaintiff’s consent or other excuse CASE: Cowell v Rosehill Racecourse Co Ltd (1937) o Refusing to leave the premises after a reasonable time of being asked to do so CASE: Bathurst City Council v Saban (1985) o Leaving rubbish or other objects on the property CASE: Kelsen v Imperial Tobacco Co (1957) o Sign was projected into airspace of another property, this was considered trespass to land CASE: Gifford v Dent (1926) o A tenant of land has the right to sue for trespass o Including the right to sue the landlord for entering the building without permission CASE: Halliday v Nevill (1984) o There is no indication that visitors are forbidden entry No sign Gate unlocked Path or driveway is unblocked
o It can be used by members of the public to communicate with or make a delivery to the person in the building Trespass to goods
Three torts relating to interference with goods are: o Trespass to goods o Conversion o Detinue Trespass to goods is direct and intentional or negligent interference by the defendant with goods in the possession of the plaintiff without their consent Conversion is intentional interference with the goods of the plaintiff in a way that is inconsistent with their ownership or rightful possession of the goods Detinue – a tort committed when one person wrongfully detains the goods of another CASE: Penfolds Wines Pty Ltd v Elliot (1946) o Taking something from someone without permission o Handles/uses something in Simon’s possession without permission o Uses goods in an unauthorised way is conversion CASE: Hollins v Fowler (1974-75) o Destroying an item you have borrowed with permission is conversion CASE: Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) o Refusing to return an item after borrowing with permission is conversion CASE: Perpetural Trustees Ad National Executors of Tasmania Ltd v Perkins (1989) o After borrowing an item with permission, selling the item without the owners consent is conversion
