TORTS SUMMARY - WEEK 1

INTRODUCTION TO TORTS
Terminology - in criminal proceedings someone is charged or prosecuted - in civil proceedings someone is sued - tortfeasor person who commits a tort Role of Tort Law to determine whether a loss to one person should or should not be shifted to another. rules say whether there is - no liability, strict liability or fault liability if the relevant rule says there is liability, other rules determine whether loss should be shifted in full or part (L&H, p 14) 1. Definition of Tort civil course of action initiative left to the individual person who has been harmed to take action against another person compensation is usually payment of money from one person to another tort is a term applied to a miscellaneous and more or less unconnected group of civil wrongs other than breach of contract for which a court of law will afford a remedy in the form of an action for damages. LH6 at [1.4.23], p 75, Prossers definition. it is a right not dependent on the will of the parties does not involve any contract 2 judicial definition provided by Murphy J in the Supreme Court of Victoria in McPherson & Kelley v Kevin J Prunty & Associates [1983] 1 VR 573 at 587: Torts, or wrongs, are breaches of a duty owed generally to ones fellow subjects, the duty being imposed by law and not as a consequence of duties fixed by the parties themselves. 2 Excursus on Stingel v Clark (2006) 226 CLR 442; [2006] HCA 37 original case limitation period extended, damages awarded. HC 3/2 held breach of duty included trespass to the person because Victorian legislation included wide range of tort actions, including battery. But in common law battery was not a breach of duty. see also A v Hoare [2008] 1 AC 844; [2008] UKHL 6. result important indicates law is changing 2-5 legal rules hinge on distinction between tort and other things remoteness how close connection adverse consequences to actual wrong rules different in tort and contract limitation periods difference between tort and contract contributory negligence applies in tort but not in contract - Astley v Austrust Limited [20099] HCA 6. since this case some legislation amended to include some actions in contract 5

TORTS SUMMARY - WEEK 1 2. Tort and things that are not, or may not be Torts a) Tort and Crime crime initiative taken by criminal courts - matters deemed serious enough for community to take action fines paid to and/or other penalties imposed by government harm may result in two different sets of proceedings standard of proof is different criminal beyond reasonable doubt is required civil balance of probabilities is sufficient so - may get two different results 6 b) Tort and Contract tort action based on perceived wrong contract action based of pre-existing legally enforceable promise useful because of difference in limitation periods contractual and tort duty may be concurrent so can sue for one, and the other in the alternate, at the same time cannot recover double damages 6/7 c) Tort and Unjust Enrichment civil liability based on the need to restore money paid by one person to the other where to retain it would be unjust payment must fall into some legally recognised category of "injustice"; eg money paid by mistake not based on contract or tort but on rule of law precluding "unjust enrichment" Lumbers v W Cook Builders Pty Ltd (2008) 232 CLR 635, [2008] HCA 27. 7 d) Tort and Equitable Damages are legal remedies for private wrongs but are not characterised as "torts" main examples are "breach of trust" and "breach of fiduciary duty" 7 e) Tort and Statutory Civil Liability many statutory obligations only enforced by criminal law some liabilities are determined by statute eg s 52 Trade Practices Act 1974 (Cth), and not classified as torts some tort actions may be replaced by statute eg. Trees (Disputes Between Neighbours) Act 2006 (NSW). statute which does not expressly create a civil obligation may be basis for a separate tort action called breach of statutory duty

TORTS SUMMARY - WEEK 1 Parliament may "adjust" the rules of tort law by statute, eg Civil Liability Act 2002. 8/9 Summary of Torts & Statutory Civil Liability
Statutory Duties

Civil Liability

No Civil Liability

Expressly Created

Impliedly created

Tort action for breach of statutory duty- see Topic C later

Additional to other tort liabilities, but not said to be a tort eg s 52 TPA

In replacement for preexisting tort, not said to be a new tort eg NSW T(DBN) A

In replacement for preexisting tort, said to be a tort eg NSW CA s 177

Where Tort Law Fits In to Legal Duties Overall Legal Duties

Arising under Criminal Law

Arising under Civil Law

Contract Law (enforcement of promises)

Law of Unjust Enrichment (restitution of money unfairly obtained)

Tort Law (payment for wrongs done to others, mainly based on the common law )

Other civil obligations eg equitable wrongs; direct statutory obligations

TORTS SUMMARY - WEEK 1 3. The Aims of the Law of Torts a) Norms to regulate civil behaviour provide a set of norms to guide and regulate human behaviour tort law provides a basis on which to resolve disputes 10/11 b) Compensation for loss corrective justice harm which has been done must be "put right" aim of compensation not always met delay in the court system cost of obtaining an order amount awarded may prove inadequate in the long term accepting these problems, compensation "works" in many cases 11 c) Appropriate punishment of wrongful conduct important moral aspect of system 11/12 d) Deterrence of wrongful behaviour by wrongdoer and society at large 12 e) Distribution of loss resource allocation a valid economic aim may ignore other important elements of tort such as the need for justice, deterrent , etc 13 f) Closure and reconciliation people can have their "day in court 13 4. The Role of Insurance two types 1. first-party or indemnity eg. home insurance you receive money if something happens to your home 2. third-party or liability insurance eg. third-party property (car) someone else receives money if something happens to their car and it was your fault 14 presence of insurance has impact on decision of tortfeasor to sue or not sue where litigation is common, so is insurance some entities big enough to be self-insurers insurance usually involves right of subrogation insurance company takes over the case

TORTS SUMMARY - WEEK 1 should courts take presence of insurance into account classic view presence of insurance is irrelevant to doctrine of duty of care recent years some courts have started to take insurance into account main danger incorrect assumptions may be made as to availability of insurance; may distort legal reasoning 14