THE LAW OF TORTS

1. THE LAW OF TORTS Week 4 Defenses Exclusion of Intentional Torts from the CLA Negligence: The Duty of Care

2. VALID CONSENT • To be valid, consent must be informed and procured without fraud or coercion: ( R vWilliams;) • To invalidate consent, fraud must relate directly to the agreement itself, and not to an incidental issue: (Papadimitropoulos v R (1957) 98 CLR 249; R v Linekar (the Times, 1994)

3. The Cases • R v Linekar • A prostitute had sexual intercourse with the defendant on the understanding that he would pay her £25. He in fact never paid and never intended to pay. It was held that the fraud did not vitiate consent as to the nature or quality of the act. The defendant’s conviction for rape was quashed • Papadimitropoulos v R • Victim has sexual relations with accused in the belief that they were legally married. Victims later discovers, the had not in fact been married and that they has only completed documents regarding the intention to marry. Held consent was valid

4. CONSENT IN SPORTS • http://www.youtube.com/watch?v=VgtKW5PLso4 • http://www.youtube.com/watch?v=W-BmKXU12yE • Alex McKinnon has been diagnosed as a quadriplegic and warned by doctors he may never walk again after this tackle.Jordan McLean was suspended for seven weeks after being found guilty of a 'dangerous throw' on Newcastle Knights player Alex

5. In contact sports, consent is not necessarily a defence to foul play (McNamara v Duncan; Hilton v Wallace) • To succeed in an action for trespass in contact sports however, the P must of course prove the relevant elements of the tort. • Giumelli v Johnston

6. SELF DEFENCE, DEFENCE OF OTHERS • A P who is attacked or threatened with an attack, is allowed to use reasonable force to defend him/herself • In each case, the force used must be proportional to the threat; it must not be excessive. (Fontin v Katapodis) • D may also use reasonable force to defend a third party where he/she reasonably believes that the party is being attacked or being threatened

7. THE DEFENCE OF PROPERTY • D may use reasonable forceto defend his/her property if he/she reasonably believes that the property is under attack or threatened • What is reasonable force will depend on the facts of each case, but it is debatable whether reasonable force includes ‘deadly force’

8. Section 52 CLA • No civil liability for acts in self-defence • (1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding: • (a) was unlawful, or • (b) would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct. • (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: • (a) to defend himself or herself or another person, or • (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or • (c) to protect property from unlawful taking, destruction, damage or interference, or • (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

9. S52 Cont’ed • and the conduct is a reasonable response in the circumstances as he or she perceives them. • (3) This section does not apply if the person uses force that involves the intentional or reckless infliction of death only: • (a) to protect property, or • (b) to prevent criminal trespass or to remove a person committing criminal trespass.

10. Section 53 CLADamages limitations apply even if self-defence not reasonable response • If section 52 would operate to prevent a person incurring a liability to which this Part applies in respect of any conduct but for the fact that the conduct was not a reasonable response in the circumstances as he or she perceived them, a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that: • (b) in the circumstances of the case, a failure to award damages would be harsh and unjust.

11. PROVOCATION • Provocation is not a defence in tort law. • It can only be used to avoid the award of exemplary damages: Fontin v Katapodis; Downham Ballett and Others

12. The Case for Allowing the Defence of Provocation • The relationship between provocation and contributory negligence • The implication of counterclaims • Note possible qualifications Fontin v Katapodis to: • Lane v Holloway • Murphy v Culhane • See Blay: ‘Provocation in Tort Liability: A Time for Reassessment’,QUT Law Journal, Vol. 4 (1988) pp. 151-159.

13. NECESSITY • The defence is allowed where an act which is otherwise a tort is done to save life or property: urgent situations of imminent peril

14. Urgent Situations of Imminent Peril • The situation must pose a threat to life or property to warrant the act: Southwark London B. Council v Williams • The defence is available in very strict circumstances R v Dudley and Stephens • D’s act must be reasonably necessary and not just convenient Murray v McMurchy • In re F • Cope v Sharp

15. INSANITY • Insanity is not a defence as such to an intentional tort. • What is essential is whether D by reason of insanity was capable of forming the intent to commit the tort. (White v Pile; Morris v Marsden)

16. INFANTS • Minority is not a defence as such in torts. • What is essential is whether the D understood the nature of his/her conduct (Smith v Leurs; Hart v AG of Tasmania)

17. DISCIPLINE • PARENTS • A parent may use reasonable and moderate force to discipline a child. What is reasonable will depend on the age, mentality, and physique of the child and on the means and instrument used. (R v Terry)

18. ILLEGALITY:Ex turpi causa non oritur actio • Persons who join in committing an illegal act have no legal rights inter se in relation to torts arising directly from that act. • Hegarty v Shine • Smith v Jenkins • Jackson v Harrison • Gala v Preston

19. The CLA and Intentional Torts • S3B:(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: • (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person-the whole Act except: • … • (ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and

20. The Exclusion of Intentional torts from the CLA • New South Wales v Ibbet: Assault and trespass to land: The restrictions on the award of exemplary and aggravated damages under the CLA held not to apply • Honda v NSW [2005]: wrongful arrest, malicious prosecution and false imprisonment by a police officer. Issue whether injury in s3B included only bodily injury. Held injury not limited to bodily injury • Zorom Enterprise v Zabow: P suffered head injuries as a result of an attack by a security guard employed by D. P sued D for vicarious liability. D argued that CLA restrictions applied because s3B only excluded only the intentional acts of the person who actually committed torts and not the D who was only vicariously liable. Argument was rejected

21. s3B: ‘In respect of ….’ • NSW v Bujdoso [2007] • P was attacked by inmates while in prison. He brought an action the D for their negligence. Since the conduct of the inmates was intentional, the issue was whether the provision of 3B applied to exclude the restrictions of the CLA in the award of damages. • The argument centred on the phrase ‘in respect of’ P argued that in respect of was broad and means that D’s liability arose in respect of the intentional act of the inmates and so s3B applied. The court rejected the argument. In respect of interpreted to refer to the person who did the act and the person whose negligence led to the doing of the act.

22. NEGLIGENCE INTRODUCTION

23. NEGLIGENCE AND FAULT IN TORTS FAULT NEGLIGENCE INTENTION TRESPASS NEGLIGENCE the action CARELESS

24. Donoghue v. Stevenson • Ginger beer-decomposing snail-P has shock-gastroenteritis • No privity of contract between P and D. Issue was whether D owed P a duty • Dicta of Lord Atkin • You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are closely and directly affected by my act that I ought reasonably to have them in mind to the acts or omissions

25. Negligence: The Elements Duty of care Negligence Breach Damage

26. NEGLIGENCE • Grant v Australian Knitting Mills (1936) • The application of the rule in D v S • a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care

27. NEGLIGENCE: THE DUTY OF CARE • whenever one person is by circumstances placed in such a position with regard to another, that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other (person) a duty arises to use ordinary care and skill to avoid such danger.

28. Negligence: (Duty of Care) • The Duty of care is the obligation to avoid acts or omissions which are reasonably foreseeable to cause damage to another. • When does one owe a duty of care? • Whenever one is engaged in an act which he or she can reasonably foresee would be likely to injure another person, one owes a duty of care to that other person

29. General Principles: The CLA • S 5B:(1) A person is not negligent in failing to take precautions against a risk of harm unless: • (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and • (b) the risk was not insignificant, and • (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions. • (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): • (a) the probability that the harm would occur if care were not taken, • (b) the likely seriousness of the harm, • (c) the burden of taking precautions to avoid the risk of harm, • (d) the social utility of the activity that creates the risk of harm.

30. What is Reasonable Foreseeability? • Reasonable foreseeability presupposes an objective or a reasonable person’s standard • The reasonable person is an embodiment of community values and what the community expects of a responsible citizen • The concept allows us to evaluate D’s conduct not from his or her peculiar position, but from that of a reasonable person similarly placed • Reasonable foreseeability is a question of law

31. Reasonable Foreseeability: Case Law • Nova Mink v. Trans Canada Airlines [1951] (Air traffic noise causing minks to eat their young ones-No foreseeability) • United Novelty Co. v Daniels 42 So. 2nd 395 Miss 1949 • Palsgraf v. Long Island R.R. Co. (1928) (Railway guards helping falling passenger-fireworks explosion causing injury to plaintiff.-No foreseeability) • Chapman v. Hearse (1961) (Car accident-Dr. stops to help-gets killed by another vehicle-action against D who caused initial accident- Foreseeability upheld)

32. DUTY CATEGORIES: To whom is duty owed? • One owes a duty to those so closely and directly affected by his/her conduct that she ought reasonably to have them in contemplation as being so affected when undertaking the conduct in question. • Examples: • Consumers, users of products and structures • Donoghue v Stevenson • Grant v Australian Kitting Mills • Bryan v Maloney • Road users • Bourhill v Young • Users and purchasers of premises etc. • Australian Safeway Stores v Zaluzna

33. DUTY CATEGORIES: To whom is the Duty Owed? • The unborn child: • There can be no justification for distinguishing between the rights… of a newly born infant returning home with his /her mother from hospital in a bassinet hidden from view on the back of a motor car being driven by his proud father and of a child en ventre sa mere whose mother is being driven by her anxious husband to the hospital on way to the labour ward to deliver such a child ( Per Gillard J in Watt v Rama) • Lynch v Lynch (1991) • But see the wrongful life cases • Waller v James 2002 • Harriton v Stephens[2002] NSWSC 461 • Edwards v Blomeley 2002 • www.lawlink.nsw.gov.au

34. Unforeseeable Plaintiffs • In general the duty is owed to only the foreseeable plaintiff and not abnormal Plaintiffs. • Bourhill v Young [1943] AC 92 • Levi v Colgate-Palmolive Ltd • Haley v L.E.B. [1965] AC 778