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Lecture 4

Business Law – Lecture 4.docx

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University of Queensland
Kate Curnow

Business Law – Lecture 4 – 12/08/2013 The consequences of causing harm to someone may be criminal and/or civil. We will focus upon the civil consequences of causing harm: the person harmed (the plaintiff) sues the person who caused the harm (the defendant) TORT – civil wrong (other than breach of contract) Tort of Trespass Trespass is direct and intentional interference with the person or property of the plaintiff. The trespass may be: - To land - To goods; or - To the person. Tort of trespass to land A person commits the tort of trespass to land if they interfere with another person’s exclusive possession of land. Tort of trespass to goods A person commits the tort of trespass to goods if they interfere with another person’s possession of goods. Tort of trespass to the person A person commits the tort of battery if they cause some sort of physical interference with the body of another person. A person commits the tort of assault if they cause another person to develop an apprehension of imminent physical contact. A person commits the tort of false imprisonment if they cause another person to be totally restrained. Tort of Nuisance A person commits the tort of private nuisance if they indirectly interfere with another person’s use and enjoyment of private land (e.g. a street or a park) Tort of Defamation A person commits the tort of defamation if they publish to a third party, in spoken or written form, a statement about another person that would damage the reputation of the other person. The other person must show that: - The statement about them was defamatory; and - The statement identified them; and - The statement was published to a third party Defences include: justification (truth); absolute privilege; qualified privilege; honest opinion and innocent dissemination Tort of Deceit A person commits the tort of deceit if: - They make a statement of fact to another person knowing that it is false; and - They make the statement with the intention that it be relied upon by the other person; and - The other person relies upon the statement; and - The other person suffers harm as a result of relying upon the statement Passing Off A person commits the tort of passing off if: - They make a misrepresentation (expressly or by implication) that their goods or services are connected with another person or have the other person’s endorsement or approval; and - The misrepresentation is made in the course of trade; and - The misrepresentation is intended to deceive potential purchasers. Carelessly Causing Harm Even if the person did not intend to cause harm to other person, they may still be liable if they have been negligent. Negligence is by far the most common tort: most acts that cause harm to other people are the result of carelessness rather than intent. Since the civil liability reforms following the insurance crisis, the law of negligence is now a combination of case law and statutory rules. A person commits the tort of negligence if: - They owe the other person a duty of care; and - They breach the duty of care; and - Their breach causes the other person to suffer reasonably foreseeable harm. Requirement 1: A duty of care In most cases the establishment of the existence of a duty of care will be relatively straightforward, provided that the relationship between the parties falls within the established categories of duty of care. Manufacturers owe a duty of care to people who use their products Motorists owe a duty of care to other road users Doctors owe a duty of care to their patients Employers owe a duty of care to their employees If the relationship does not fall within one of the established categories, the plaintiff must establish that two tests are satisfied. First it must be shown that at the time of the incident it was reasonably foreseeable that the defendant’s conduct could cause harm to someone in the plaintiff’s position. Second,
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