LAWS1113 Lecture 1

What is a Tort? And the Aim of Tort Law (Bleh.)

What is a Tort?

“Civil Wrong” by one entity/individual against another entity/individual. Generally focused on compensatory damages rather than sanctions, aimed at restoration to the ‘pre-wronged” condition, generally through a financial exchange. Precise definition functionally impossible, given breadth of nature of torts. Ultimately a function of the society in which it exists (has changed significantly over the past 800 years)

What is a “Direct” act?

Deliberate, conscious action
No harm need be intended
Ignorance not a defence

Kinds of Torts

+++Negligence

  • Unreasonable conduct breaching the duty of care
  • Can only result in compensation to make good/undo the loss suffered as a result of the unreasonable conduct.
  • Requires proof of damages as a result of the behaviour

Nuisance

  • Unreasonable interference with the use and enjoyment of your land
  • Fault is not required, provides compensation and/or injunction to cease the interference
  • no actual damages required

Trespass (Land)

  • Unlawful interference with others right of possession of land
  • “Direct” interference required
  • Provides compensatory damages, and can result in a “mandatory injunction” to evict people trespassing
  • No act damage to the land is required

Battery

  • “Direct” act with contacts with another persons body without their consent or lawful excuse
  • Results in compensatory damages
  • No proof of damage required (contact need not have actually damaged the plaintiff, only taken place)

Assault

  • Any act with “Directly” causes the plaintiff reasonably to apprehend an immediate battery
  • Protects both the physical security, but also the mental sense of safety/security
  • Results in compensatory damages
  • No actual damage (or battery) need have taken place

False Imprisonment

  • Any act with “Directly” deprives a person of their liberty without lawful justification
  • Protects personal freedom
  • Requires a complete loss of liberty (eg. No exits/escape options)
  • Provides compensatory damages, can provide injunction for release

Defamation

  • Any statement that tends to lower another person in the estimation of right thinking society
  • Can be actioned even if statement is true, but if truth can be proven, can be used as defence
  • Strict standard of liability – no intention to defame is required
  • Results in compensatory damages, injunction on future use of statement by that individual – cannot get injunction on a statement that hasn’t been published yet, even if inevitable

Torts Overlap with:

Criminal Law (acts can be both civil torts and criminal acts, eg. Assault and battery)
Contract Law (serves similar purposes, but contract law requires legally binding contract entered into voluntarily, tort law applies to all people you interact with)
Property Law (serves similar purposes, but property law applies to objects/land/property, tort law applies to physical/psychological wellbeing and reputation)

Goals of Tort Law

Appeasement

  • Historically provided a legal alternative to duelling and family feuds
  • Not really relevant in modern tort law – purpose better served by criminal prosecution

Retributive Justice/Revenge

  • Not really relevant, as tort law aims to achieve equality. Better served by criminal prosecution
  • Can be completely negated if insurance absorbs the loss of the defendant

Ethical Justice – Guilty party making wrongs right

  • Valid in cases where the guilty party can afford to pay the settlement
  • Can be completely negated if insurance absorbs the loss of the defendant

Deterrence

  • Only relevant for those torts that are deliberate, or where negligent behaviour can be corrected

Compensation

  • Probably the primary goal, but not executed very well, as wronged party needs to prove that the wrong-doer was in violation of a tort to receive compensation

Economic

  • “Greatest wealth creation for society”
  • Allocates value for all wrongs, assumes logical people will take steps to prevent them from occurring if wrongs cost more than prevention
  • Can result in unethical behaviour as human life/suffering is allocation dollar value