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Torts - Intentional Torts 5th March: Tortious duties are owed to everyone, contractual duties are owed to the other parties to the contract
- Contracts Privity Act. Negligence - Tortious and contractual duties overlap. Restitution/Unjust enrichment laws - try to prevent unjust enrichment by making the party give up anything that unjustly enriched them. Tort emphasises loss suffered by the plaintiff, not the gain of the other, and to put the plaintiff in the position he was before. If the breach is one of equity, it is not a tort. Trust obligations are imposed for a single purpose - to ensure they act exclusively in the interests of the beneficiary. Strict duties of loyalty and disclosure for trustees and fiduciaries. CA says you can award damages for any breach of equitable obligations - Aquaculture Corp v Green Mussel Co. Tort law is very flexible and capable of radical change, but v. messy. Aims and Functions of Tort Law:
- There are some conflicting values and freedoms e.g. freedom of choice, freedom of actions. Torts should be concerned with only the essential freedoms of human autonomy, and creating rules to stop anything that infringes on those freedoms... and no further?
- What about values of security, protection of the weak and vulnerable?
- From this angle, the law of torts should protect a wide range of values - even if it means creating quite restrictive freedoms. There is no single unifying principle that underlies the law of torts. Early torts reflected an overriding concern with freedom, and emphasises punitive and deterrant liability. Later developments have often been in response to need, and have emphasises compensation of victims. Trespass:
- Don't need to intend to cause harm or deprive of any right - doesn't need to be directed at the plaintiff at all, just needs to be a positive deliberate act.
- Not dependant on proof that the plaintiff suffered any harm.
- Actionable per se
- Reflects the fact that the primary purpose was not to compensate, but to suppress interference with rights.
- If no loss suffered, can get nominal damages. Or, if the defendant acted outrageously and maliciously, can award exemplary or punitive damages.
- Requirement that the interference with the person's interest must be direct. Defamation developed early on, to protect the individual's reputation. Malicious prosecution, to protect individual's from indirect interferences with individual liberty.
Deceit - Loss from plaintiff acting in reliance on false statement made to him. Main restraint on trespass - tort does not operate in actions on the case (indirect damage). Most actions on the case require a narrower, more specific form of intent - directed at the plaintiff, or at least was reckless. One action on the case carries strict liability - nuisance. Prevents occupiers of land from interfering with neighbours land.
11th March: Negligence:
- Provides remedy for loss suffered as a result of the defendant's carelessness.
- Impetus was the increase in indirect, unintended injuries, because of industrialisation.
- No social security system, so injured persons were left in dire financial need. Activities were beneficial, prima facie normal, but accidents would happen nonetheless. Felt this might unnecessarily inhibit the betterment of society. Negligence developed as a mid ground - only really careless conduct could allow a claim in negligence. Instead of punishment/deterrance, it was to compensate for loss, and to spread it over as many people as possible. To advance those goals:
1. Courts broadened the concept of vicarious liability (employer made strictly liable for tortious acts of employees)
2. Contracts of insurance for unintentional but not deliberate damage - okay.
3. Contracts for deliberate damage - void. Undermine deterrant and punitive functions, but highlight compensatory functions. Injured plaintiff would sue employer of person who's negligence caused injury. If paid, could then pass the cost on through - e.g. goods and services prices raised. Usually the employer would have liability insurance. Ability of insurance companies to cover loss encouraged the courts to widen the tort of negligence. Lord Atkin (Donohue v Stevenson): Neighbour principle. Everyone must take reasonable care to prevent foreseeable, physical injury to others. The need to prove actionable negligence was seen as a costly barrier that a defendant had to go through to get compensation through the community. Court process = long delay, high cost. 1967 Royal Commission of enquiry. Woodhouse comission - recommended all common law actions for personal injuries should be abolished. 1974 Accident Compensation Scheme set up - tort of negligence was excluded from the area it had come from. Still applied in the area of property damage. Very few property damage claims came before the courts - mostly covered by insurance. Insurer could attempt to recover its loss by suing the third party that caused the damage - doctrine of subrogation. Once indemnifier has paid out claim, can step into shoes of the injured party. Subrograted to the rights of the owner. Very seldom exercise their subrogation rights. Not worth suing 3rd party unless that 3rd party has liability insurance. Purely economic loss:
- loss that does not result from property damage or physical personal damage.
- Usually suffered by business people, who's expectations of financial gain are frustrated by someone's negligent act. Until recently, the courts held that the tort of negligence did not cover pure economic loss at all. Risks of accidental economic loss should be allocated through the law of contract. Hedley Byrne v Heller:
- Recognised for the first time a right of action in negligence to recover purely economic loss. When the ACC came into effect, seemed like there was very little practical scope - turned out not to be the case. Courts reluctant to see negligence disappear. Areas unaffected by ACC scheme expanded, property damage unchanged.
1. Reinserted negligence into personal injury field to an extent:
2. Massively expanded scope of claims for purely economic loss.
Now, negligence law intrudes heavily on the law of contract. Nominal damage - small. Not for compensation but to legally recognise the plaintiff has a legal right that the defendant has infringed. Only available in actions that can be brought without actual harm needed. Compensatory damages: Compensate the plaintiff for actual loss suffered. Restore the plaintiff to the position he or she was in immediately prior to the tortious act. Includes compensation for opportunities. Special: Compensate for loss that is capable of objective assessment in monetary terms. Lane v Karalus:
- Regent night and day
- Man shoplifted a can of air freshener worth $2.80
- Escorted him back to the store
- Store sued him for trespass to goods and conversion for $1500 (ongoing costs of trying to prevent shoplifting)
- Karalus counter claimed $1500 for assault and false imprisonment Most important issue in the case involved a question of damages. Satisfied that the defendant's theft contributed to costs that night and day continued to incur in trying to prevent thefts. Impossible to quantify the loss exactly. Judge fixed damages at $300, but didn't give any justification. He keeps referring, wrongly, to this as 'nominal damages'. He was in fact making an award of special damages. General Damages: Compensate for intangible losses that aren't capable of being objectified in monetary terms e.g. pain and suffering, mental distress, embarrassment, inconvenience, loss of reputation. Aggravated Damages: are a form of general compensatory damages. Where act was committed in
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