TOPIC 1 â Overview.
TOPIC 1 – Overview. -
Do we have a legally protected right to privacy in Australia? o No. To the extent we do have privacy is often because of other torts such as trespass to land. But we do not have privacy as a standalone right.
Miscellaneous torts Malicious prosecution o Where someone commences criminal proceedings without proper recourse Private nuisance o Where there is an undue interference with your use and enjoyment of land. Misfeasance in public office o Going beyond your scope in public office and damaging someone Breach of statutory duty The overlap between criminal law and torts: - A lot of conduct which constitutes a crime will also constitutes a torts. If someone is touch, killed or raped all those types of conduct equal criminal offences but also equal torts- either battery or assault. - Criminal: punishing the wrong doers. The harshest punishment being imprisonment. Fines, bond. - Torts: compensation from the wrong doer, in the form of damages. The difference between torts and contract: - Contract is a legally binding agreement between two parties, where both parties agree to do something, involving money or something which equal financial return. If this promise is broken, compensation can be awarded for the price of the promise. - 2 main differences between contract and torts: A) In order to get compensation under a contract, firstly you need the other party to breach the contract. B) You can only get compensation to a party to the contract. Unless an agreement is actually formed, no compensation will be awarded. A pre-existing legally binding agreement is needed. Contacting law is limited in regards to awarding compensation. This differs to torts as under tort law principle, you do NOT need a pre-existing agreement with the breach - Damages calculation: A) Contract: had the contract been performed, the V would have got x amount of money, thus that is how much they will be awarded. B) Torts: how much money is would take to put the innocent person back in the same position they would be in had the breach had not occurred. The rational/justification of torts law: - Torts law is ultimately a mechanism for getting money (is compensation) to people who
have suffered harm. -
-
How do we measure benevolence? Closeness of the relationship between the V and the people who offer help. It is rare for members of the general public to offer help to people they do not know. As a community, we seem to be subjective in terms of benevolence, eg: the desire to help others does not always extend to the sick but rather the misfortunate (eg bushfire victims). There is a theory that the world would be a better place if the difference between the people that had money and did not have money was minimized. Is this desire strong enough to undermine tort law?
-
-
-
Our market economy is driven my merit and achievement NOT needs. Often the person being sued is the insurance company. The court tries to find the economically weaker person to be compensated. Punishment: we need a system where people who commit wrong toward other people are punished form the acts they commit. A wrongful act should be met by some sort of hardship. If the wrong doer has no money it is an ineffective means. Deterrence: if individuals know that certain behaviour may make them liable for hundreds, thousands or millions of dollars, they will be less likely to commit such acts. If there is no prospect that people might have to pay for these things, there would be more socially disruptive behaviours, which would be damaging to the community. Responsibility: Natural connection that people should repair the damage which they cause. People should not look to others to repair the harm which they sustained as a result of their own conduct. Engage in risky behaviour, and harm results they should wear the consequences. Rights are often contrasted with responsibilities. We have the responsibility to not do things, rather than to do things. We have no positive responsibilities (ie to act). Generally we live in an individualistic society.
Tortuous areas not considered in length in this course Transport injuries - We have a NO FAULT benefits compensation scheme for those inured on the roads- whether or not they are motorists, pedestrians or cyclists. Means we can recover damages for our loss or harm even if we cant
show it was the other persons fault, even if it was your fault.
-
The person who is at fault (can be single vehicle collisions) does not pay, it’s the GOVERNMENT and the TAC that pays. Only applies in relation to personal injuries and in some circumstances mental injuries. Not property damage – so if you bingle your car, you have to pay for this yourself. Vic
Workplace injuries - Another no fault compensation scheme - Operates across Australia. An injury that occurs in the workplace will be compensated whereas the identical injury at home will attract no compensation… even if the employer’s contribution was nil. The employers are required to take out insurance policies and these policies protect their employees. BOTH OF THESE ONLY APPLY IN RELATION TO PERSONAL INJURIES AND IN SOME CIRCUMSTANCES MENTAL INJURIES – NOT PROPERTY DAMAGE. UNLESS THE INJURY IS REALLY SERIOUS (CLASSIFIED AS A SERIOUS INJURY), GENERALLY WILL NOT GET COMPENSATION FOR PAIN AND SUFFERING. -
-
Guaranteed payment, hence large areas of litigation on these issues, as opposed to other areas of tort, because the claims are made against employers or insurers who are more likely to have money as opposed to other individuals in society. No win = no fee policy is common for firms in these areas. Why? Because there is a higher guarantee of a win compared with other areas of law.
Criminal injuries compensation. - Need to show the individual suffered some sort of personal injury as a result of a criminal act via the fault of another. - Is amount available to peeps is capped at far lower thresholds as it is for TAC and WORKCOVER claims etc Existing compensation schemes - All Australians are qualified for minimum entitlements if they cant work and this is often a consequence of being injured - Minimum Welfare payments. Social welfare payments provide people with payments on a weekly pasis etc for those who are unable to work. Such as sickness allowance, disability pension. This is not directed to compensate people. - Also free medical care, Medicare card with bulk billing. - In circumstances were peeps are significantly debilitated for their harm at least they will get minimum payment etc, and free medical care. This almost makes up for the lack of a universal compensation scheme.
TOPIC 2 – (Intentional Torts) - Trespass to person. There is significant OVERLAP between negligence and the following torts
Contact = think BATTERY Threat = think ASSAULT Confinement = think FALSE IMPRISONMENT Quite often battery and assault go together
-
Trespass is a generic term encompassing all wrongful direct and intentional interferences with persons, land and good. Trespass to person is in three categories – battery, assault and false imprisonment. In practice, trespass to person has been limited to intentional acts – it has never been limited by the HC. The onus is on the defendant to establish the absence of fault; the defendant must establish that the act was neither intentional nor negligent; McHale v Watson. The torts of battery, assault and false imprisonment are actionable per se. This means that a cause of action accrues even though the plaintiff has not suffered any damages from the commission of the tort. A trespass act is a prima facie wrongful act. Once the plaintiff proves a direct and positive act of interference the onus shifts on the defendant to prove that it was not intended or negligent.
BATTERY General info
-
-
-
The tort of battery will be committed where the defendant directly and either intentionally or negligently causes some physical contact with the person of the plaintiff without the plaintiff’s consent.
It is important to note that the action need not hurt the P, just that it had occurred - comp damages not awarded. Courts have remained pragmatic in their approach to battery, and will ignore the ‘every person’s body is inviolate’ rule if the touching is such that ordinary life necessitates. Rixon v Star City – Appellant had been excluded from entering the casino, and was approached and asked to go into an interview room. When approached, a casino employee touched the appellant on the shoulder to request his presence. Court held that the touching on the shoulder was not a battery, as it was performed without anger or malice and was a contact which was necessary for everyday life and the running of the casino. Rationale is to protect an individual’s bodily integrity. This right is one of the most important rights in order to ensure human flourishing = interpreted BROADLY
Elements -
1. Intentional or Reckless The act of contact must be intentional or reckless. NEGLIGENCE ISSUE LATER An act will be intentional if it is a deliberate, wilful act, that is to say, if the defendant ‘meant to do it’.
-
The defendant need not intend to cause injury to the victim – it is enough that they intended to commit the relevant ACT, therefore the tort relates to the commission of act, NOT the effect; Sibley v Milutinovic. o Thus, where D throws a punch at B and accidently hits C, there will be
-
Motive is NOT an element of battery, nor does the plaintiff have to prove that the contact was made in anger, hostility or malice. These elements WILL however be relevant to the quantum of damages and whether or not aggravated damages are applicable. With the exception of motor vehicle accidents, the onus on the issue of fault rests with the D, who must prove an absence of intention: McHale v Watson. o However, in the case of car accidents, the onus remains with the P. D also liable for acts not actually intended, but which were the ‘natural consequence’ or ‘substantially certain to occur’ from the act (recklessness) - Bunyan v Jordan (1937)
battery.
-
-
NEGLIGENCE IN RELATION TO THIS ELEMENT - It is unclear whether a NEGLIGENT act is sufficient to satisfy the first element of battery - McHale v Watson (1964 HCA) –negligence is enough to satisfy the element -
“because its contestable, negligence may be enough” “unclear whether or not negligence is enough to satisfy the requirement, conflicting authorities, as relation to all the decided cases on the issue, this topic or argument has never been the central issue of the case, has never been part of the ratio, and so as lawyer and a communities we are left unclear what the current state of the la is in regards to negligence satisfying the first element of battery”
To go further, need to give reasons for preferring one side of the argument to the other - FAVOUR OF IT SATISFYING – the tort of battery aims to protect bodily integrity, it is a fundamental right, vitally important to human flourishing, so it should be interpreted broadly… so it should include cases of carelessness. - AGAINST IT SATISFYING – a fundamental and defining aspect of these torts is that they deal with deliberate infringements of important human interests and so therefore, carelessness doesn’t suffice. And to the extent that we want to have a system where people can be compensated for the acts of others, we do – such as the tort of negligence. - Go FURTHER – “the reason this matter has not been litigated intensely is that there is a tendency to go into too many details of a legal argument, in pragmatic terms, the line between an intentional reckless act and a careless act on the other is really fine, really small. Detailed discussion of where the boundaries lie often becomes irrelevant in the pragmatic legal setting, because the fact finder, either the jury or the judge, won’t take the guidance between those acts and as a matter of proof, a defendant that commits a negligent act will quite often find it difficult to convince the fact finder that he or she wasn’t at least reckless”
-
2. Application of force Force simply means contact. In terms of the type of contact it is ANY type of contact, the slightest degree of contact or touching is sufficient; Collins v Wilcocks (1984 UK
decision)
-
-
Contact does NOT need to be hostile or aggressive. Battery is not committed if the defendant merely engages in passive conduct, emissive conduct, or just defaults; Platt v Nutt. As an example, a defendant who allows something propelled by another to hit the plaintiff, or who does not stop it, is not guilty of battery; Innes v Wylie. o There must be some positive or affirmative action on behalf of the defendant for battery to occur. Since physical contact is necessary, mere intrusion or invasion of privacy, e.g. by photographing the plaintiff against his will, is not battery; Murray v Minister of Defence The plaintiff does not need to know of the contact at the time it occurs for it to be actionable– i.e. they are sleeping and someone taps them, cutes their hair, kisses them.
-
3. Which is direct The act must be a direct one and not consequential – it requires a linear and uninterrupted transfer of force from the plaintiff to the defendant - it is not enough that the act ‘causes’ the contact. The injury will be direct when it ‘follows so immediately upon the act of the defendant that it may be termed part of that act’; Salmond & Heuston on the Law or
Torts
-
To be direct, the contact must be a continuation from the D’s act; Scott v Shepherd Scott v Shepherd – The D threw a lighted squib onto W’s market stall. W acted to prevent injury to himself and threw the squib onto R’s stall. R subsequently threw the squib (again out of fear of injury) to another part of the market, where it hit the plaintiff in the face, blinding him in the eye. The court held that there was a battery by the D, on the basis that the defendant had directly caused the injury to the plaintiff, whereas W and R had acted, not as free agents, but under ‘compulsive
-
Contact with something CONNECTED with the plaintiff is sufficient for battery when two requirements are satisfied;
necessity for their own safety and self-preservation’.
-
Damages for Battery Battery is actionable per se, and thus the plaintiff need NOT prove that any damage has in fact been suffered; Battiato v Lagana. Once the tort has been proven, consequential loss in respect of goods, as well as for the personal damage sustained, can be recovered; Glover v London and South Western Ry Co. The court can award additional damages on account of insult or injury to feelings for a battery which has also caused physical harm; Loudon v Ryder. It is unnecessary for the plaintiff to have been aware of the battery at the time of contact. This is due to the fact that lack of knowledge on the half of the plaintiff does not negate the fact that a battery took place and that the defendant’s act was intentional. Canterbury Bankstown Rugby League Football Club Ltd v Rogers; Bugden v Rogers: Plaintiff received aggravated damages and exemplary damages due to the fact that Rogers’ battery was a preplanned and humiliating tactic and, moreover, that it took place in public in front of many people who had a high regard for Rogers’ ability as a sportsman. 1. The defendant causes contact with something which is sufficiently identified with, is near or attached to, P. For example, the defendant snatches something from the plaintiff’s hand, such as a book or a plate. 2. This touching has an element of adversity. For this, the touching has to be in one of the following categories (which can easily overlap): a) It involves FORCE, e.g. the defendant forcibly takes a package from under the plaintiff’s arm. b) It is done in a RUDE or INSOLENT MANNER, e.g. it has some element of insult. Defensive consent - However, the courts recognise that everyday life necessitates certain contacts, and thus not all unwanted contacts are tortuous acts; Rixon v Star City. The test is whether the conduct went beyond the ‘generally acceptable standard of conduct’ of everyday life (such as in crowded places); Collins v Wilcock 4. To another person
SAMPLE TEMPLATE PRIVATE NUISANCE
Aims to protect a person’s interest in their land holdings, by protecting from interferences resulting in material harm to the plaintiff’s land or preventing the plaintiff from using or enjoying his land: Hargrave v Goldman [1963] HCA
[NOT Actionable per se = requires actual harm or interference] [P must establish each and all elements on the balance of probabilities]
THE ELEMENTS OF PRIVATE NUISANCE ARE AN ACT WHICH; 1.
Is reasonably foreseeable The interference need only be reasonably foreseeable: Cambridge Water Co v Eastern Countries Leather PLC [1994]. Objective standard ? There is no need that the activity be performed with the intention to inconvenience the plaintiff. Once this is satisfied it is no defence to state the defendant attempted to prevent or minimise the interference –BROADER than negigence It is sufficient if the defendant adopts or continues the nuisance, they need not create or cause it:
Hargrave v Goldman HCA The defendant’s motive should be irrelevant, but a malicious motive may make it easier to establish the tort: Hollywood Silver Fox Farm Ltd v Emmett
2.
Directly or indirectly causes
3.
Material harm or an unreasonable interference with the plaintiff’s use or enjoyment of land in the circumstances MATERIAL HARM
Actual damage to the land or a dwelling on the land. Damage cannot be trivial: St Helen’s Smelting Co v Tipping (1865), where damage to plants from copper smelting fumes constituted private nuisance.
UNREASONABLE INTERFERENCE An intangible interference, such as a smell or noise. ? Is a matter of degree – depends on how unreasonable the interference is: St Helen’s Smelting Co v
Tipping
The test for reasonableness of use of land is ‘good neighbourliness’ - Neighbours must allow the other to use their property in a reasonable way and there must be a measure of give and take, live and let live: Kenaway v Thompson o DURATION (dog all night; Andrea v Selfridge Ltd), o TIMING (construction in evening; Andrea v Selfridge Ltd),
o
o
INTENSITY (A light installed a porch near the plaintiff’s property is permissible, but not floodlights in order to play tennis Abbott v Arcus; Midwood & Co Ltd v Manchester Corporation), LOCAILITY (relatively high degree of noise and other activity is permitted in industrial and commercial zones, but this does not mean that any degree of activity is tolerable: Bathurst
City Council v Saban (No2)) o
UTILITY (Neighbours are expected to tolerate the screams of a crying baby more than the screeches of a pet bird: Southwark London Borough Council v Tanner and Ors)
OBJECTIVE: an unusually sensitive P cannot recover: McKinnon Industries v Walker o If established, P can recover for all loss, including for sensitive activities by the P(eg growing orchards): McKinnon
Does not cover interferences stemming from the presence of a dwelling on adjoining land. The focus of the tort is on things emanating from another’s land. Thus, views or natural light are not protected:
Hunter v Canary Wharf
4.
Can protect the moral standards of landowners – running a brothel in residential areas can constitute a private nuisance because this is a ‘sensible interference with the confort and convenient enjoyment of one’s residence’: Thompson Schwab v Costaki
Where the plaintiff had a proprietary interests in the land Only individuals proprietary interests are protected. Lesser interests than proprietary interests generally do not give grounds to sue, eg licencees: Hunter v
Cnaary Wharf
People who merely reside at a premises cannot sue in private nuisance, even if their amenity is disrupted by the activity: Oldham v Lawson (No 1)
?
A licence to be on land may provide sufficient standing to sue for private nuisance where it relates to an income earning activity: Animal Liberation v Gasser (circus peeps!)
Do we have a legally protected right to privacy in Australia? o No. To the extent we do have privacy is often because of other torts such as trespass to land. But we do not have privacy as a standalone right.
Miscellaneous torts Malicious prosecution o Where someone commences criminal proceedings without proper recourse Private nuisance o Where there is an undue interference with your use and enjoyment of land. Misfeasance in public office o Going beyond your scope in public office and damaging someone Breach of statutory duty The overlap between criminal law and torts: - A lot of conduct which constitutes a crime will also constitutes a torts. If someone is touch, killed or raped all those types of conduct equal criminal offences but also equal torts- either battery or assault. - Criminal: punishing the wrong doers. The harshest punishment being imprisonment. Fines, bond. - Torts: compensation from the wrong doer, in the form of damages. The difference between torts and contract: - Contract is a legally binding agreement between two parties, where both parties agree to do something, involving money or something which equal financial return. If this promise is broken, compensation can be awarded for the price of the promise. - 2 main differences between contract and torts: A) In order to get compensation under a contract, firstly you need the other party to breach the contract. B) You can only get compensation to a party to the contract. Unless an agreement is actually formed, no compensation will be awarded. A pre-existing legally binding agreement is needed. Contacting law is limited in regards to awarding compensation. This differs to torts as under tort law principle, you do NOT need a pre-existing agreement with the breach - Damages calculation: A) Contract: had the contract been performed, the V would have got x amount of money, thus that is how much they will be awarded. B) Torts: how much money is would take to put the innocent person back in the same position they would be in had the breach had not occurred. The rational/justification of torts law: - Torts law is ultimately a mechanism for getting money (is compensation) to people who
have suffered harm. -
-
How do we measure benevolence? Closeness of the relationship between the V and the people who offer help. It is rare for members of the general public to offer help to people they do not know. As a community, we seem to be subjective in terms of benevolence, eg: the desire to help others does not always extend to the sick but rather the misfortunate (eg bushfire victims). There is a theory that the world would be a better place if the difference between the people that had money and did not have money was minimized. Is this desire strong enough to undermine tort law?
-
-
-
Our market economy is driven my merit and achievement NOT needs. Often the person being sued is the insurance company. The court tries to find the economically weaker person to be compensated. Punishment: we need a system where people who commit wrong toward other people are punished form the acts they commit. A wrongful act should be met by some sort of hardship. If the wrong doer has no money it is an ineffective means. Deterrence: if individuals know that certain behaviour may make them liable for hundreds, thousands or millions of dollars, they will be less likely to commit such acts. If there is no prospect that people might have to pay for these things, there would be more socially disruptive behaviours, which would be damaging to the community. Responsibility: Natural connection that people should repair the damage which they cause. People should not look to others to repair the harm which they sustained as a result of their own conduct. Engage in risky behaviour, and harm results they should wear the consequences. Rights are often contrasted with responsibilities. We have the responsibility to not do things, rather than to do things. We have no positive responsibilities (ie to act). Generally we live in an individualistic society.
Tortuous areas not considered in length in this course Transport injuries - We have a NO FAULT benefits compensation scheme for those inured on the roads- whether or not they are motorists, pedestrians or cyclists. Means we can recover damages for our loss or harm even if we cant
show it was the other persons fault, even if it was your fault.
-
The person who is at fault (can be single vehicle collisions) does not pay, it’s the GOVERNMENT and the TAC that pays. Only applies in relation to personal injuries and in some circumstances mental injuries. Not property damage – so if you bingle your car, you have to pay for this yourself. Vic
Workplace injuries - Another no fault compensation scheme - Operates across Australia. An injury that occurs in the workplace will be compensated whereas the identical injury at home will attract no compensation… even if the employer’s contribution was nil. The employers are required to take out insurance policies and these policies protect their employees. BOTH OF THESE ONLY APPLY IN RELATION TO PERSONAL INJURIES AND IN SOME CIRCUMSTANCES MENTAL INJURIES – NOT PROPERTY DAMAGE. UNLESS THE INJURY IS REALLY SERIOUS (CLASSIFIED AS A SERIOUS INJURY), GENERALLY WILL NOT GET COMPENSATION FOR PAIN AND SUFFERING. -
-
Guaranteed payment, hence large areas of litigation on these issues, as opposed to other areas of tort, because the claims are made against employers or insurers who are more likely to have money as opposed to other individuals in society. No win = no fee policy is common for firms in these areas. Why? Because there is a higher guarantee of a win compared with other areas of law.
Criminal injuries compensation. - Need to show the individual suffered some sort of personal injury as a result of a criminal act via the fault of another. - Is amount available to peeps is capped at far lower thresholds as it is for TAC and WORKCOVER claims etc Existing compensation schemes - All Australians are qualified for minimum entitlements if they cant work and this is often a consequence of being injured - Minimum Welfare payments. Social welfare payments provide people with payments on a weekly pasis etc for those who are unable to work. Such as sickness allowance, disability pension. This is not directed to compensate people. - Also free medical care, Medicare card with bulk billing. - In circumstances were peeps are significantly debilitated for their harm at least they will get minimum payment etc, and free medical care. This almost makes up for the lack of a universal compensation scheme.
TOPIC 2 – (Intentional Torts) - Trespass to person. There is significant OVERLAP between negligence and the following torts
Contact = think BATTERY Threat = think ASSAULT Confinement = think FALSE IMPRISONMENT Quite often battery and assault go together
-
Trespass is a generic term encompassing all wrongful direct and intentional interferences with persons, land and good. Trespass to person is in three categories – battery, assault and false imprisonment. In practice, trespass to person has been limited to intentional acts – it has never been limited by the HC. The onus is on the defendant to establish the absence of fault; the defendant must establish that the act was neither intentional nor negligent; McHale v Watson. The torts of battery, assault and false imprisonment are actionable per se. This means that a cause of action accrues even though the plaintiff has not suffered any damages from the commission of the tort. A trespass act is a prima facie wrongful act. Once the plaintiff proves a direct and positive act of interference the onus shifts on the defendant to prove that it was not intended or negligent.
BATTERY General info
-
-
-
The tort of battery will be committed where the defendant directly and either intentionally or negligently causes some physical contact with the person of the plaintiff without the plaintiff’s consent.
It is important to note that the action need not hurt the P, just that it had occurred - comp damages not awarded. Courts have remained pragmatic in their approach to battery, and will ignore the ‘every person’s body is inviolate’ rule if the touching is such that ordinary life necessitates. Rixon v Star City – Appellant had been excluded from entering the casino, and was approached and asked to go into an interview room. When approached, a casino employee touched the appellant on the shoulder to request his presence. Court held that the touching on the shoulder was not a battery, as it was performed without anger or malice and was a contact which was necessary for everyday life and the running of the casino. Rationale is to protect an individual’s bodily integrity. This right is one of the most important rights in order to ensure human flourishing = interpreted BROADLY
Elements -
1. Intentional or Reckless The act of contact must be intentional or reckless. NEGLIGENCE ISSUE LATER An act will be intentional if it is a deliberate, wilful act, that is to say, if the defendant ‘meant to do it’.
-
The defendant need not intend to cause injury to the victim – it is enough that they intended to commit the relevant ACT, therefore the tort relates to the commission of act, NOT the effect; Sibley v Milutinovic. o Thus, where D throws a punch at B and accidently hits C, there will be
-
Motive is NOT an element of battery, nor does the plaintiff have to prove that the contact was made in anger, hostility or malice. These elements WILL however be relevant to the quantum of damages and whether or not aggravated damages are applicable. With the exception of motor vehicle accidents, the onus on the issue of fault rests with the D, who must prove an absence of intention: McHale v Watson. o However, in the case of car accidents, the onus remains with the P. D also liable for acts not actually intended, but which were the ‘natural consequence’ or ‘substantially certain to occur’ from the act (recklessness) - Bunyan v Jordan (1937)
battery.
-
-
NEGLIGENCE IN RELATION TO THIS ELEMENT - It is unclear whether a NEGLIGENT act is sufficient to satisfy the first element of battery - McHale v Watson (1964 HCA) –negligence is enough to satisfy the element -
“because its contestable, negligence may be enough” “unclear whether or not negligence is enough to satisfy the requirement, conflicting authorities, as relation to all the decided cases on the issue, this topic or argument has never been the central issue of the case, has never been part of the ratio, and so as lawyer and a communities we are left unclear what the current state of the la is in regards to negligence satisfying the first element of battery”
To go further, need to give reasons for preferring one side of the argument to the other - FAVOUR OF IT SATISFYING – the tort of battery aims to protect bodily integrity, it is a fundamental right, vitally important to human flourishing, so it should be interpreted broadly… so it should include cases of carelessness. - AGAINST IT SATISFYING – a fundamental and defining aspect of these torts is that they deal with deliberate infringements of important human interests and so therefore, carelessness doesn’t suffice. And to the extent that we want to have a system where people can be compensated for the acts of others, we do – such as the tort of negligence. - Go FURTHER – “the reason this matter has not been litigated intensely is that there is a tendency to go into too many details of a legal argument, in pragmatic terms, the line between an intentional reckless act and a careless act on the other is really fine, really small. Detailed discussion of where the boundaries lie often becomes irrelevant in the pragmatic legal setting, because the fact finder, either the jury or the judge, won’t take the guidance between those acts and as a matter of proof, a defendant that commits a negligent act will quite often find it difficult to convince the fact finder that he or she wasn’t at least reckless”
-
2. Application of force Force simply means contact. In terms of the type of contact it is ANY type of contact, the slightest degree of contact or touching is sufficient; Collins v Wilcocks (1984 UK
decision)
-
-
Contact does NOT need to be hostile or aggressive. Battery is not committed if the defendant merely engages in passive conduct, emissive conduct, or just defaults; Platt v Nutt. As an example, a defendant who allows something propelled by another to hit the plaintiff, or who does not stop it, is not guilty of battery; Innes v Wylie. o There must be some positive or affirmative action on behalf of the defendant for battery to occur. Since physical contact is necessary, mere intrusion or invasion of privacy, e.g. by photographing the plaintiff against his will, is not battery; Murray v Minister of Defence The plaintiff does not need to know of the contact at the time it occurs for it to be actionable– i.e. they are sleeping and someone taps them, cutes their hair, kisses them.
-
3. Which is direct The act must be a direct one and not consequential – it requires a linear and uninterrupted transfer of force from the plaintiff to the defendant - it is not enough that the act ‘causes’ the contact. The injury will be direct when it ‘follows so immediately upon the act of the defendant that it may be termed part of that act’; Salmond & Heuston on the Law or
Torts
-
To be direct, the contact must be a continuation from the D’s act; Scott v Shepherd Scott v Shepherd – The D threw a lighted squib onto W’s market stall. W acted to prevent injury to himself and threw the squib onto R’s stall. R subsequently threw the squib (again out of fear of injury) to another part of the market, where it hit the plaintiff in the face, blinding him in the eye. The court held that there was a battery by the D, on the basis that the defendant had directly caused the injury to the plaintiff, whereas W and R had acted, not as free agents, but under ‘compulsive
-
Contact with something CONNECTED with the plaintiff is sufficient for battery when two requirements are satisfied;
necessity for their own safety and self-preservation’.
-
Damages for Battery Battery is actionable per se, and thus the plaintiff need NOT prove that any damage has in fact been suffered; Battiato v Lagana. Once the tort has been proven, consequential loss in respect of goods, as well as for the personal damage sustained, can be recovered; Glover v London and South Western Ry Co. The court can award additional damages on account of insult or injury to feelings for a battery which has also caused physical harm; Loudon v Ryder. It is unnecessary for the plaintiff to have been aware of the battery at the time of contact. This is due to the fact that lack of knowledge on the half of the plaintiff does not negate the fact that a battery took place and that the defendant’s act was intentional. Canterbury Bankstown Rugby League Football Club Ltd v Rogers; Bugden v Rogers: Plaintiff received aggravated damages and exemplary damages due to the fact that Rogers’ battery was a preplanned and humiliating tactic and, moreover, that it took place in public in front of many people who had a high regard for Rogers’ ability as a sportsman. 1. The defendant causes contact with something which is sufficiently identified with, is near or attached to, P. For example, the defendant snatches something from the plaintiff’s hand, such as a book or a plate. 2. This touching has an element of adversity. For this, the touching has to be in one of the following categories (which can easily overlap): a) It involves FORCE, e.g. the defendant forcibly takes a package from under the plaintiff’s arm. b) It is done in a RUDE or INSOLENT MANNER, e.g. it has some element of insult. Defensive consent - However, the courts recognise that everyday life necessitates certain contacts, and thus not all unwanted contacts are tortuous acts; Rixon v Star City. The test is whether the conduct went beyond the ‘generally acceptable standard of conduct’ of everyday life (such as in crowded places); Collins v Wilcock 4. To another person
SAMPLE TEMPLATE PRIVATE NUISANCE
Aims to protect a person’s interest in their land holdings, by protecting from interferences resulting in material harm to the plaintiff’s land or preventing the plaintiff from using or enjoying his land: Hargrave v Goldman [1963] HCA
[NOT Actionable per se = requires actual harm or interference] [P must establish each and all elements on the balance of probabilities]
THE ELEMENTS OF PRIVATE NUISANCE ARE AN ACT WHICH; 1.
Is reasonably foreseeable The interference need only be reasonably foreseeable: Cambridge Water Co v Eastern Countries Leather PLC [1994]. Objective standard ? There is no need that the activity be performed with the intention to inconvenience the plaintiff. Once this is satisfied it is no defence to state the defendant attempted to prevent or minimise the interference –BROADER than negigence It is sufficient if the defendant adopts or continues the nuisance, they need not create or cause it:
Hargrave v Goldman HCA The defendant’s motive should be irrelevant, but a malicious motive may make it easier to establish the tort: Hollywood Silver Fox Farm Ltd v Emmett
2.
Directly or indirectly causes
3.
Material harm or an unreasonable interference with the plaintiff’s use or enjoyment of land in the circumstances MATERIAL HARM
Actual damage to the land or a dwelling on the land. Damage cannot be trivial: St Helen’s Smelting Co v Tipping (1865), where damage to plants from copper smelting fumes constituted private nuisance.
UNREASONABLE INTERFERENCE An intangible interference, such as a smell or noise. ? Is a matter of degree – depends on how unreasonable the interference is: St Helen’s Smelting Co v
Tipping
The test for reasonableness of use of land is ‘good neighbourliness’ - Neighbours must allow the other to use their property in a reasonable way and there must be a measure of give and take, live and let live: Kenaway v Thompson o DURATION (dog all night; Andrea v Selfridge Ltd), o TIMING (construction in evening; Andrea v Selfridge Ltd),
o
o
INTENSITY (A light installed a porch near the plaintiff’s property is permissible, but not floodlights in order to play tennis Abbott v Arcus; Midwood & Co Ltd v Manchester Corporation), LOCAILITY (relatively high degree of noise and other activity is permitted in industrial and commercial zones, but this does not mean that any degree of activity is tolerable: Bathurst
City Council v Saban (No2)) o
UTILITY (Neighbours are expected to tolerate the screams of a crying baby more than the screeches of a pet bird: Southwark London Borough Council v Tanner and Ors)
OBJECTIVE: an unusually sensitive P cannot recover: McKinnon Industries v Walker o If established, P can recover for all loss, including for sensitive activities by the P(eg growing orchards): McKinnon
Does not cover interferences stemming from the presence of a dwelling on adjoining land. The focus of the tort is on things emanating from another’s land. Thus, views or natural light are not protected:
Hunter v Canary Wharf
4.
Can protect the moral standards of landowners – running a brothel in residential areas can constitute a private nuisance because this is a ‘sensible interference with the confort and convenient enjoyment of one’s residence’: Thompson Schwab v Costaki
Where the plaintiff had a proprietary interests in the land Only individuals proprietary interests are protected. Lesser interests than proprietary interests generally do not give grounds to sue, eg licencees: Hunter v
Cnaary Wharf
People who merely reside at a premises cannot sue in private nuisance, even if their amenity is disrupted by the activity: Oldham v Lawson (No 1)
?
A licence to be on land may provide sufficient standing to sue for private nuisance where it relates to an income earning activity: Animal Liberation v Gasser (circus peeps!)
