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Law Notes Tort Law Notes

Strict Liability And Intentional Torts Summary Notes

Updated Strict Liability And Intentional Torts Summary Notes

Tort Law Notes

Tort Law

Approximately 129 pages

Full set of class notes, as well as summaries of key cases....

The following is a more accessible plain text extract of the PDF sample above, taken from our Tort Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Q4 Strict Liability and negligence A problem question requiring identification and application to the facts of the elements of torts of trespass to land, nuisance, the principle in Rylands v Fletcher and Negligence. Intentional Torts, Trespass to Land: Trespass: Actionable per se - not necessary that the defendant suffered any harm. Doesn't need to be directed at the defendant, just a positive, intentional act. The damage must be direct. Negligence: Provides remedy for the loss suffered as a result of carelessness. Lord Atkin (Donohue v Stevenson): Neighbour principle. Everyone must take reasonable care to prevent foreseeable, physical injury to others. Purely economic loss: 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 recognised economic loss as giving rise to an action. Now, negligence law intrudes heavily on the law of contract. Damages: Nominal damages: Small, not for compensation but to recognise a legal right. Compensatory Damages: Compensate the plaintiff for actual loss suffered. Special: Compensate for loss that is capable of objective assessment in monetary terms. Lane v Karalus: Night and day, man shoplifted worth $2.80, store sued him for $1500 upkeep of preventing shoplifting. Judge fixed damages at $300, but didn't give any justification. 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: Where act was committed in circumstances that caused extreme embarrasment or suffering. Exemplary/Punitive Damages: Not compensatory in any sense, for punishing the defendant and deterring others. Rookes v Barnard:HL would have abolished exemplary damages if they could. Can be awarded in three situations: If allowed by statutes, or if opressive, arbitrary or unconstitutional action by govt. officers or officials, or if defendant's conduct was calculated to make a profit that may well exceed any compensatory damages that may be awarded. Taylor v Beer: CA Refused to follow Rookes, said that the purpose of tort law is not limited to compensation. Donselaar v Donselaar: While ACC bars all claims for compensatory damages, exemplary damages are still allowed, arises from the outrageous conduct of the defendant. A v Bottril: PC held that courts had the jurisdiction to award exemplary damages when the defendant's conduct was so outrageous as to warrant judicial condemnation. McDermott v Wallace: Behaviour of flight instructor was outrageous conduct. Identified six factors to be taken into account when assessing exemplary damages. 1. Whether the claimant was a victim of punishable behaviour 2. Awards should be moderate 3. The means of the parties 4. Whether any other compensation has been awarded 5. Any criminal penalty that has been imposed 6. Conduct of the parties leading up to the date of judgement S v AG: Vicarious liability for exemplary damages - CA held not normally appropriate. Possible exception: Where an official of the state has been guilty of outrageous behaviour that directly resulted in personal injury. Couch v AG: Crown accepts vicarious liability. Baigent's Case: Awarded monetary compensation for NZBORA breach. Not allowed compensation for personal injury, intangibles like mental injury allowed. Should reflect the need to vindicate the right and deter, not punishment. Taunoa v AG: NZBORA right breached for prisoners. Supreme Court said declaration of infringement will be enough, especially when the breach is inadvertent or technical. Restraint should be shown in awarding damages. Intentional Interference with the Person: 1. Battery: Intentional and direct application of force to the body of another without that person's consent or other lawful justification. No intention to harm the plaintiff is needed. 2. Assault: Intentionally creating in another person a reasonable apprehension of imminent physical contact. Test = Whether a reasonable person would have had the necessary fear of immediate harm. 3. False/Wrongful Imprisonment: Intentionally and without lawful justification subjecting a person to a total restraint on his/her freedom of movement. Total = no reasonable means of escape. Trevorrow v State of South Aus: Lost generations controversy, taken away from mother. Court held plaintiff was subject to a total restriction on his movement. Damages for false imprisonment. Malicious prosecution: Special action on the case for unjustified commencing of a criminal prosecution. More limited in its scope than false imprisonment. Must show no reasonable or probable cause, and malice. Not actionable per se. Defences: - Consent: Genuine, voluntary and informed. Implied consent - provides a defence to ordinary everyday contact that would otherwise be a battery. - Self Defence and the Defence of Property - The force used must be no more than is reasonable in the circumstances. - Statutory Authority. - Honest and Reasonable Mistake provides no defence to trespass. Ex Parte Evans: Prison authorities can detain a prisoner, accidentally held for longer than they should have. HL said complete lack of blameworthiness was not a defence. Manga v AG: Prisoner detained for 9 months longer, prison acted honestly on legal advice - provided no defence here either. Wilkinson v Downton: Defendant told plaintiff her husband had a terrible accident, was lying, resulted in mental distress. Not able to sue for trespass, instead, the courts created a new action on the case: protects person's individual security. "Wilfully done an act calculated to cause physical harm to the plaintiff." Wainwright v Home Office:CA said in order for Wilkinson tort, two requirements: 1. Intent: "actually intended to harm the plaintif or have been reckless in the sense that harm was so likely to follow that intention will be imputed." 2. Plaintiff must suffer bodily harm or a recognised mental illness. Merely transient distress is not sufficient. Went on to HL, where they confirmed the decision and left open the possibility of action for mere distress. Intentional Interference with Land: Motive irrelevant to liability, may be relevant to damages, actionable per se. Defences: Consent (license). Most common form of implied licence is for proceeding to the main door of the house. Occupier can exclude implied licence by putting a sign up. License can be revoked at any time though. Limited defence of necessity. Dehn v AG: HC held defence of necessity available. "Honestly and reasonably believes entrance is necessary in the circumstances for 1 of three purposes: 1. To preserve human life 2. Prevent serious physical injury 3. Provide assistance" Recovery of Land: - Forcibly eject a trespasser. Preferred: Get a court order directing the trespasser to leave. Plaintiff needs to prove that he is entitled to immediate possession and denied possession by defendant. Trespass to Goods: - Possession - Intentional and direct interference with possession - Bailment at will - recoverable at any time. Bailor is regarded as never having parted with possession. Does not apply to bailment for fixed term. Conversion: - Action on the case - Intentional but indirect interference with goods Wilson v New Brighton Panelbeaters: Took car, wasn't his car, real owner sued. Court held liable for trespass and conversion. Trespass tort complete as soon as the car was touched. Not liable for conversion if:

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