lOMoARcPSD|3767662

Laws 1113 Study Notes - LAW OF TORTS A LECTURE

SUMMARY and case studies
Law Of Torts A (University of Queensland)

StuDocu is not sponsored or endorsed by any college or university

Downloaded by Hanh Trang Nguyen (nguyenhanhtrang3105@gmail.com)
 lOMoARcPSD|3767662

Laws 1113 Study Notes

Week 1:
 Definition of a tort: A tort is a civil (not criminal) wrong amounting to a breach of
contract (imposed set of obligations)
 Aim of a tort: To put the plaintiff in the position that he or she would have been in if
the tort had not been committed (compensations, damages)
 Distinction between trespass and action on the case:
o Prior to development of negligence, the two actions brought by P with
respect to interference with person or property were trespass and action on
the case.
o Negligence = action on the case
o Battery, assault and false imprisonment = trespass
 Direct v indirect:
o The focus of distinction between trespass and action on the case is whether
there existed a direct interference of person, property or land as opposed to
an indirect interference. (Reynolds v Clarke)
 “If a man throws a log onto the highway, and in the act it hits me: I
may maintain trespass because it is an immediate wrong: but if it lies
there I tumble over it, and receive an injury, I must bring an action
upon the case”
 Trespass actionable per se:
o A trespass action is actionable per se. This means the plaintiff is not required
to prove he/she suffered damages as a result of D’s actions.
o In comparison, to institute legal proceedings for an action on the case, P must
prove he/she suffered damage as a direct result of D’s actions.

Week 2
Battery
“A direct and intentional act which interferes with the person of another without lawful
justification” (Baitato v Lagana).
Elements
1. Direct: a direct interference with the person of the plaintiff rather than an
interference which is merely a consequence of D’s actions (Reynolds v Clarke)
2. Positive: active not passive (Innes v Wylie)
3. Intentional: It is the action of D which must be voluntarily, not the harm which
results (Gray v Barr)  recklessness can constitute intentional
4. Interference with the person of another: no need to prove hostility (in ReF (mental
patient: sterilization)
Defenses:
Consent elements: (Marion’s Case)
1. Consent must be real & freely given with respect to the tortious act
2. Any consent given must not be exceeded. In sporting (Macnamara v Duncan)
3. Implied consent to everyday touching (Collins v Wilcock)

Downloaded by Hanh Trang Nguyen (nguyenhanhtrang3105@gmail.com)

 lOMoARcPSD|3767662

Assault
“A direct threat by D that causes P to reasonably apprehend some imminent contact with
his or her person, either by D or by some person or thing within D’s control”
Elements:
1. Positive act and direct physical threat: There is an apparent means to carry out the
threat (Stephens v Myers)
2. Reasonable apprehension: Present and apparent ability to carry out the threat with
fear of imminent harm (Brady v Schatzel)  whether P was “scared” or not is not
necessary as not reliant on whether P is a courageous or timid person
3. Imminent contact: Fear is a continuing fear in the mind of the victim, the utterance
having as much effect in an hour as in the moment of utterance: “the young women
was in immediate and continuing fear so long as she was imprisoned by D” (Zanker v
Vartzokas)
Other factors
 Conditional threats: Conditional threats can amount to assault (Tuberville v Savage)
 Verbal Threats and Threats over the phone: can constitute assault (Martin v
Armstrong)
 Intention: cause apprehension, doesn’t matter if battery ensues, there is an intent
for threat not actual physical harm (Hall v. Foncea)
Defenses:
 Consent: same as above  (Marion’s Case)

False Imprisonment
“A direct act by D that totally deprives P of his or her liberties without lawful justification”
(Myer stores v Soo)
Elements:
1. Direct, Positive and Intentional
a. Direct: the restraint on P must be a direct result of D’s conduct (Dickenson v
Wales Ltd)
b. Positive: active not passive (Stephens v Myers)
c. Intentional: D must intend to deprive P of his/her liberty (Ruddock v Taylor)
2. Total deprivation of liberty: Not partial obstruction (Bird v Jones) and there must
exist a risk to “life or limb” with regard to escape (Burton v Davies)
Other factors
 Don’t need to be aware of the imprisonment at the time (Murray v Ministry of
defense)
 Threats to a third party

Defenses to trespass torts (come back?) check Milan’s document

Week 3
ILAC method
Issue: What is the legal issue at hand?
Law: Look to the relevant laws and state authorities. Explain each element. Relatively short
explanations but treat examiner as if he is unaware of legal principles.
Application: apply to the case at hand  if one of the elements is not met then there is no
case, if elements are satisfied then look to see if any defenses are open.

Downloaded by Hanh Trang Nguyen (nguyenhanhtrang3105@gmail.com)

 lOMoARcPSD|3767662

Conclusion: would P be successful?

Week 4
Trespass to land
“Any unauthorized, direct interference with another person’s lawful possession of land”
Elements
1. The interference must be with the land in lawful possession of the plaintiff: P must
have exclusive possession pursuant to some form of proprietary right (Delaney v
T.P. Smith)
2. There must be a positive act and direct interference: (Esso Petroleum v Southport
Corporation)
3. Must relate to land  Acts interpretation Act 1954 s36 defines “land” and this
definition reflects common law
a. Airspace
i. (Berstein of leigh v Skyviews General Ltd)  airspace only extends
necessary for ordinary use and enjoyment of land and structures
upon it.
ii. Cranes: Cranes can amount to a trespass of land and so too cn
transient trespass (Graham v K.D. Morris)
4. Intention: (Public Transport Commission of NSW v Perry) women fell onto rail road
track after an epileptic fit  no trespass as it wasn’t intentional
5. Unjustifiable entry or interference (lack of consent): (Halliday v Nevill and another)

Section 180 Property law Act 1974 (QLD): Transient trespass  Apply for statutory right of
user that allows for temporary trespass with compensation
 Owner of land must apply for this
 Servient land = Land being effected
Example:
 Servient land owner must allow transient trespass if:
o The building is accepted by the community to be built (it is consistent with
public interest)
o If P is compensated for damage or
o The refusal is unreasonable
Remedies
 Damages
 Injunctions (not immediate remedy) --> comes out of courts of equity
 Abatement by self-help (Take matters into own hands and remove trespasser)
Defences
 An intentional trespasser can be held liable for the foreseeable consequences of the
trespass – (Hogan v Wright/ Mayfair limited v fares)
 Necessity: Defense of necessity if the interference was reasonably necessary to
protect persons or property from the threat or real and imminent harm (Cope v
Sharpe)
6. Consent: There can be no trespass to land if there has been consent granted for the
interference (Halliday v Nevill and another)

Downloaded by Hanh Trang Nguyen (nguyenhanhtrang3105@gmail.com)

 lOMoARcPSD|3767662

7. Lawful authority: it is a defense to trespass to land that the defendant has lawful
authority to interfere with the P’s possessions.

Week 5
Nuisance
Who can sue?
 A private nuisance is an interference with the use and enjoyment of land, so the
plaintiff must have an interest in, or appropriate rights over the land.
Who can be sued?
 Most private nuisances are created by neighboring landowners, but there is no need
for the defendant (as opposed to the plaintiff) to have any interest in the land.
Private Nuisance
“An unreasonable; indirect interference with the use & enjoyment of land in respect of a
person, who has the right to exclusive possession of the land”
Damage can be:
1. Physical damage  where material damage to property occurs, an action in nuisance
will generally succeed.
2. Interference with comfort and amenities
The nuisance must be unreasonable (St Helen’s Smelting v Tipping) note: not elements just
factors so don’t have to satisfy them all
a) Triviality: the requirement of ‘substantial’ interference (Walter v Selfe) (Cinders from
brick kiln)
b) Give and take: the law subscribes to a morality of ‘give and take, live and let live’
(Kennaway v Thompson)  motorboat racing; ordinary use of land does not
constitute nuisance
c) Hypersensitivity: “a man who carries on an exceptionally delicate trade cannot
complain because if it is something which would not injure anything but an
exceptionally delicate trade” (Robinson v Kilbert) brown paper manufacturer
d) Locality: (St Helen’s Smelting v tipping)  material damage to clothing
e) Timing and duration: Noise at night (Halsey v esso petroleum) and loss of even 1-
night sleep can amount to nuisance (Munro v Southern Diaries)
f) Motive of D’s conduct: intentional malice can make reasonable interference
unreasonable (Hollywood v McCleod Country Gold Club)
Defences
 Prescription: A private nuisance can be legalized ‘by prescription’ is it continues for a
certain period, provided the party suffering it was in a position either physically to
prevent it or to sue on it, but refrain from doing either (Sturges v Bridgman)
 No defence to say a person has moved towards a nuisance (Miller v Jackson)
Remedies
 injunctions (restricts or impedes)
 Abatement of self-help
 Damages

Public nuisance
“Requires an act or missions which materially affects the reasonable comfort and
convenience of a class(group) of her majesty’s subjects” (AG v PYA Quarries ltd)

Downloaded by Hanh Trang Nguyen (nguyenhanhtrang3105@gmail.com)

 lOMoARcPSD|3767662

 It is a crime, however, an individual can have an action in tort if he or she suffered

particular damage over and above that suffered by the public in general  that is if
the damage was different in nature (Benjamin v Storr)

Week 6
Intentional torts to Chattels
Trespass to goods
“Trespass to goods occurs when a person without lawful justification commits any act of
direct, physical interference with personal property in the possession of another”
Elements:
1. Direct: Trespass must be directly occasioned with D’s act (Hutchins v Maughan)
2. Intentional: doesn’t matter if D doesn’t intend to interfere unlawfully with P’s
possessions but the mere interference must be intentional (Colwill v Reeves)
3. Interference: moving or taking of goods or any unlawful contact with goods
4. Goods in possession of the plaintiff:
a. There is a difference between bring in actual possession of goods and having
an immediate right to possession of goods
b. Only a person in actual possession of the goods can sue for trespass to goods
with 4 exceptions:
i. A trustee may sue for direct interference of goods which are in the
possession of a beneficiary (Barker v Furlong)
ii. An executor may sue for trespass to goods of a deceased person
which occurs prior to the executor taking actual possession (tharpe v
Stallwood)
iii. Owner of a franchise may sue for interference which franchise cattels
which takes place prior to actual possession to be taken by franchisee
(Bailiffs of Dunwich v Sterry)
iv. Bailment: trespass to goods where the direct, interference by a third
party is to the possession of a Bailee under a bailment at will or a
revocable bailment may sue.
1. Bailor = person retaining ownership, Bailee= the person who is
given possession of the goods
2. BUT: Penfolds: the exception does not apply if the Bailee
voluntarily delivered possession to a third party.
Conversion
Detinue

Week 7
Negligence
1. D owed P a duty to take reasonable care
2. D breached duty owed to P by failing to attain the required standard of care
3. D’s breach caused P’s loss
4. The loss suffered from P was not too remote a consequence of the breach to be
recoverable (remoteness of damage or causation in law).

Downloaded by Hanh Trang Nguyen (nguyenhanhtrang3105@gmail.com)

 lOMoARcPSD|3767662

Duty
“D owes P a duty to provide reasonable care to avoid inflicting damage” (question of law not
fact)
Steps to determine whether a duty is owed:
1. Look to see whether CLA was in force (QLD – commenced 2 December 2002) s2(1)
2. S7(1)  Act does not confer any cause of action for the recovery of damages (thus
no new duties are created under the CLA)
a. S7(5) act is not a codification of the law
3. S5  exclusions to the act: areas of law not covered:
a. compensation is payable under the Workers' Compensation and
Rehabilitation Act 2003,
b. if (c) an injury that is a dust-related condition; or
c. (d) an injury resulting from smoking or other use of tobacco products or
exposure to tobacco smoke.
4. Thus, look to common law  established duties include (may argue by analogy):
a. Duty of care owed between road users: (Manley v Alexander)
b. Duty of care owed by an employer to an employee: (Czatyrko v Edith Cowan
University)
c. Duty of care owed by an occupier to an entrant: (Thompson v Woolworths)
d. Doctor/patient (Rogers v Whittaker)
5. General test???
6. If it doesn’t fall within the established categories – go back to first principles
Donoghue v Stevenson (salient features- not all have to be looked at):
a. Control: control exercised by the defendant over the relative relationship
b. Knowledge: relative knowledge and experience of the parties
c. Vulnerability: special factors which the plaintiff may possess which makes
him or her susceptible to a given situation
d. Autonomy: the reverse of vulnerability
e. Determinacy of class: court assess what wider impact a finding of a duty of
care in a particular case
f. the general sense of predictability and logic

Week 8
Breach of duty
“D has breached his duty by failing to attain a standard of care required”.
Steps to determine whether D has breached his duty owed to P:
Look to CLA (statute) first: codification of (Wyong Shire v Council) so if CLA doesn’t apply
then just do same steps
 S9(1) of CLA – a person does not breach duty unless (P must prove)
o Risk was foreseeable (D knew or ought reasonably to have known);
o Risk is not insignificant;
o Reasonable person would have taken precautions in the same circumstances
(s9(2))
 S9(2) in deciding whether a reasonable person would have taken precautions, the
court can consider (amongst other things):
o Probability of harm (Bolton v Stone)
o Likely seriousness of the harm (Paris v Stepney Borough Council)

Downloaded by Hanh Trang Nguyen (nguyenhanhtrang3105@gmail.com)

 lOMoARcPSD|3767662

o Burden of taking precautions (Caledonian Collier v Spiers)  if it’s really easy

to prevent harm then there is no reason to not.
o Social utility of the activity
Exceptions
 Standard care of medical surgeon – what a reasonable person
 Exception to reasonable person - superior knowledge – no longer judged by a
reasonable person but rather what a reasonable surgeon would do (Rogers v
Whittaker)
 Secondly, the court will take into consideration if the defendant is a child – children
are less knowledgeable, they don’t have reasonable foreseeability – (McHale v
Watson)

If there is no clear cause of the accident then you can use Res Ipsa Loquitur  jury can infer
negligence: (Schellenberg v Tunnel Holdings Pty Ltd)
A breach can be proved if:
1. The thing (causing the accident) be shown to be under the management or control
of the defendant; and
2. The accident is such as in the ordinary course of things does not happen if those who
have management use proper care; then
3. It may be inferred that the accident was caused by the defendant’s negligence with
the result that a prime facie case is made out and the case can fo to the jury and the
jury may but is not required to infer negligence

Week 9
Causation
 CLA  s12 onus of proof on the defendant
 s11(a)  codification of common law: “but for test” (Barnett v Chelsea) no causation
founded
o There are problems in the but for test (March v stramare);  looks at what
happens when there is an intervening act and there is a discussion in that
case; the problems are:
 What happens if there are multiple sufficient causes
 Intervening causation “intervening act might break in the chain of
causation” (Chapman v Hearse)
o S11(2) use common sense

Remoteness of Damage
 S11(1)(b) and s11(4)  reasonable foreseeability: “is the kind and type of damage
that occurred, the kind and type of damage that was reasonably foreseeable” (The
Wagon Mound Case)
o The precise damage didn’t need to be foreseeable; however, you have to ask
whether damage of the same class was foreseeable (Tremain v Park)
 What happens under the “egg shell skull rule”  you could still be liable
o “you take the plaintiff as you find them” (Dulieu v White)

Downloaded by Hanh Trang Nguyen (nguyenhanhtrang3105@gmail.com)

 lOMoARcPSD|3767662

Week 10 Multiple Tortfeasors

 Thompson v ACT (Australian capital television): You can have multiple tortfeasors
 Brinsmead v Harrison: Old rule that you couldn’t have multiple tortfeasors

Downloaded by Hanh Trang Nguyen (nguyenhanhtrang3105@gmail.com)