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Lecture 3

LWB147 Lecture Notes - Week 3.docx

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Department
Law
Course
JSB171
Professor
Unknown
Semester
Spring

Description
LWB147 Week Three Lecture Notes Introduction and Trespass to Person Lecture Outline  Brief introduction to Torts  Classification of Torts  Specifically looking at Trespass and Actions on the Case  Characteristics of all Trespass Actions  Trespass to the Person o Battery o Assault o False Imprisonment (next week) What is torts law? “It is an area of the law which enables a person who has been privately wronged by another to seek compensation or some other remedy, through the court system.”  The word ‘tort’ derived from old French word meaning a wrong.  An act or omission that infringes a right.  It is different to other areas of law: o Cf. criminal law  Criminal law aims to exact a penalty on a person who has done wrong with the purpose of protecting society as a whole; in contrast, torts law aims to compensate the particular victim of a wrongdoing. o Cf. contract law  Contract law focuses on the rights and obligations as agreed between parties; on the other hand, torts law imposes an expectation of conduct on people to begin with. Remedies in Torts Common Law Damages  Nominal – damages are awarded when the plaintiff has proven their action but have no suffered any loss as a result of the defendant’s interference. Common in trespass where no loss suffered.  Compensatory – monetary compensation for a loss as a result of the interference of the defendant.  Aggravated – awarded where the plaintiff has been humiliated in some way, common in defamation cases.  Contemptuous – where the matter is so trivial, that the court is contemptuous of the plaintiff and believes they are pursuing the case because they have a right to, and not for any good reason. A waste of court’s time. Very small damages awarded.  Exemplary (or Punitive) – damages to punish the wrongdoer and to send the message that the behaviour is unacceptable (deterrent). Equitable Remedies o Injunction – a court order that either requires a person to do something or to stop doing something. Relevant to trespass to land (e.g. overhanging object over house, court order prevents object from continuing to overhang). Legislation and Torts Law  While torts law is common law, there may be cases in which the wrongs encountered have no remedy provided in torts law.  In this case, the torts law must be supplemented by legislation. o Civil Liability Act 2003 (Qld) o Law Reform Act 1995 (Qld) o Workers’ Compensation and Rehabilitation Act 2003 (Qld) Therefore, a tort action is…  A private cause of action  Designed to provide a remedy for a civil wrong  Usually located within an existing category of action  Based upon the common law and supplemented by legislation Classification of Torts The law of torts protects against a number of recognised interests including:  Person – e.g. tort of battery  Chattels (property) – e.g. tort of conversion  Land – e.g. torts of trespass and nuisance  Reputation – e.g. tort of defamation There are two separate categories/forms of action of torts law:  Trespass – a direct interference. Can be to a person (e.g. battery, assault, false imprisonment), to land or to personal property (e.g. trespass to chattels, conversion, detinue).  Actions on the Case – a non-direct interference. Can be classified as either nominate or innominate. Nominate means there is a name for the action (e.g. negligence, nuisance, defamation) and innominate refers to when there is indirect interference and damage but it does not fit into one of the nominate torts. TRESPASS ACTION ON THE CASE Direct Indirect Type of Interference Interference is immediate result of Consequential interference defendant’s act No fault Fault Act must be intentional or careless e.g. in negligence, fault refers to failing to achieve a legal standard Actionable per se Plaintiff must prove loss/damage to Damage Plaintiff does not have prove damage/loss to succeed succeed Non-Highway Plaintiff prove direct interference, then Onus on plaintiff throughout Onus of Proof defendant disprove fault no distinction between highway Highway and non-highway Onus on plaintiff throughout EXCEPTION: Direct + unintentional + damage → Plaintiff can sue in trespass AND case. Trespass Direct Interference  Must be a direct interference.  May be an unbroken series of consequences (see for example Hillier v Leitch). o Example: Person A punches Person B who is holding a child. This causes the child to fall to the ground and be harmed. Person A, through a series of consequences, could be considered to have directly interfered with the child. Fault  The interference in trespass must be intentional or done through a lack of care. That is, it is voluntary either through intention or carelessness. This implies fault.  It is not necessary to prove that the defendant intended for the consequences to happen, it is enough to simply be able to prove that the defendant intended to perform the action and that there was substantial reason to believe that the outcome was possible. o Example: In one case, a boy moved a chair that the plaintiff had been sitting on and upon returning to sit down the plaintiff fell to the ground and injured themselves. Although the boy did not intend to injure the person, the movement of the chair was a direct interference and the boy was found to be at fault because there was substantial certainty of the result. Onus of Proof  Trespass o Non-highway (did not occur on a road or footpath)
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