THE ROLE OF TORT LAW
-Compensation for people who are injured by a wrong, injury to the person , or to the property Torts law can be divided into trespass action on the case and statutory torts
TORT LAW REFORM
Torts law used to be judge made, similar to common law 20th century statues came in Workers Compensation scheme, Motor Accidents Scheme, Occupational Health and Safety (Factories Act), Dust Diseases Schemes. Drug Compensation Schemes (uk).
Characteristics of torts:
1. Wrongful conduct (by way of an act or omission)
2. Infringement of a person’s rights
3. An Available action for damages
LAW REFORM AFTER 2002
* RECENT push to regulate the law of negligence in relation to personal injury * INTRODUCED Civil Law (Wrongs Act 2002). Civil Liability Act 2002 (NSW) Personal Injury (Liabilities and damages) NT. * ALL OF ABOVE ^ referred to as the Civil Liabilities Acts. INTRODUCTION TO INTENTIONAL TORTS
Concept of directness is the first element that distinguishes trespass from action on the case. TRESPASS = direct act or interference.
ACTION ON THE CASE: is consequential. (HUTCHINSON V MAUGHAN) – illustrates the concept of directness. WHAT TO EXTRACT FROM THE HUTCHINSON CASE
* Time –so if the act of the defendant causes immediate injury to the plaintiff then the act is trespass however if some one throws a log and another person trips –on that log than it is classified as consequential and it is “case”. (Scott v Sheperd) – the log case. * Judges ruled in Hutchins that it wasn’t trespass because the defendant’s act was consequential and not direct. It was argued by the plaintiff for action on the case under negligence and nuisance but failed. ELEMENTS FOR TRESPASS generally
1. CONDUCT: - interference must be direct (Hutchins v Maughan) onus on Plaintiff to prove direct interference. 2. FAULT – Negligence or intentional With trespass there must be an element of fault for the defendant to disprove (except highway cases). Plaintiff has to prove it. A plaintiff may sue in trespass or case (negligence) where the injury is direct but unintentional (Williams v Milotin).
The Australian case of Williams v Milotin 1957 suggests that a voluntary and negligent act is enough to satisfy the state of mind element for trespass to the person.
Fault is an element for actions in trespass and actions on the case. In Australia the action for trespass is not limited to intentional interference, there can be a negligent trespass. 3. Damage Trespass: is actionable per se. This means that it is not necessary to prove loss or damage resulting from the defendants act. Action on the case: damage is the gist of the action. Without damage the action will fail. ACTION ON THE CASE – onus of proof:-
The onus of proof for all elements of an action on the case is on Plaintiff. I.e. Conduct, fault and damage.
TRESPASS TO PERSON
THREE TYPES, ASSAULT, BATTERY AND FALSE IMPRISONMENT.
TRESPASS TO THE PERSON
A battery occurs when the defendant directly and deliberately causes physical contact to occur to the person of the plaintiff without the plaintiff’s consent or legal justification. (Marion’s Case) The court affirmed the individuals’ right to personal inviolability. Rixon v Star City Casino – lawful touching because it fell under the Casino Act. Elements of battery
-POSITIVE ACT: - a plaintiff in any trespass action must establish that the interference complained of has occurred as a result of a positive act. Opposed to an omission (failure to act). Fagan v Metropolitan 1969 – initial act of driving on to the police office is positive, his failure to remove the car was an omission, which occurred during the positive act of driving. So basically it means its all part of the same act, one continuous positive act. - Must establish that interference complained of has occurred. -DIRECT AND INTENTIONAL /NEGLIGENT ACT : - MUST PROVE...
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