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Law Notes Tort Law Notes

Laws 301 Lecture Notes Malicious Prosection Notes

Updated Laws 301 Lecture Notes Malicious Prosection Notes

Tort Law Notes

Tort Law

Approximately 368 pages

Highly comprehensive notes covering all topics in Torts to the Person (part 1), Property based Torts (part 2), and Negligence (part 3)...

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Torts to the Person 2

Trespass to the person 2

Malicious Prosecution 2

Initiating a prosecution 2

Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 (HCA) 2

Watters v Pacific Delivery Services Ltd (1963) 42 DLR (2nd) 661 (SCC) 3

Identity of the prosecutor 3

Commercial Union Assurance Co of N.Z. Ltd v Lamont [1989] 3 NZLR 187 (CA) 3

Martin v Watson [1996] AC 74 (HL) 4

Favourable termination 5

Van Heeren v Cooper [1999] 1 NZLR 731 5

The Mental Elements 8

Maliciously Commenced Civil Proceedings 9

Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd [2014] AC 366 (PC) 9

Torts to the Person

Trespass to the person

Malicious Prosecution

Lecture 19: (05/05/20)

Where the plaintiff is wrongfully prosecuted:

The foundation of the action [for malicious prosecution] lies in abuse of the process of the court by wrongfully setting the law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper purpose.

The plaintiff must prove that the proceedings instituted against them were:

  1. Malicious

  2. Without reasonable and probable cause

  3. That they terminated in the plaintiff’s favour (if that be possible)

  4. And that the plaintiff has suffered damage.

  • Note that the plaintiff in civil proceedings for malicious prosecution would have been the defendant in the criminal prosecution.

To found an action for damages for malicious prosecution based on criminal proceedings, the test is not whether the criminal proceedings have reached a stage at which they may be correctly described as a prosecution; the test is whether such proceedings have reached a stage at which damage to the plaintiff results. – Amin v Bannerjee [1947] AC 322 (PC) at 330 – 331

  • Proceedings do not need to go to a hearing – all that is needed is a wrongful setting of the law in motion (filing a charge).

In New Zealand, the filing of criminal charges is usually done by the Police, but there are other authorities which have the power to lay charges.

  • Resource Management Act allows Councils to file charges

  • The Fair Trading Act allows the Commerce Commission to file charges

  • A complainant who lays a false complaint to the Police or other authority could be treated as commencing the prosecution, even if they do not formally lay charges.

Initiating a prosecution

A defendant who has procured the institution of criminal proceedings by the police is regarded as responsible in law for the initiation of the prosecution.

Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 (HCA)

Charges were laid by a police officer acting on information supplied by the defendant company:

  • Question for the Court – who was the appropriate defendant?

  • Court held that the defendant company had instigated the prosecution and had not genuinely believed the prosecution was justified.

Australian High Court held that no responsibility is incurred by someone who merely provides information that they do not disbelieve to the authorities, in the hope that a prosecution will result:

  • However, if the police’s discretion to charge is misled by false information or are procured to lay a charge, those who bring about the prosecution are responsible.

Watters v Pacific Delivery Services Ltd (1963) 42 DLR (2nd) 661 (SCC)

Complainant told an untrue story about someone stealing beer from him.

  • Police laid charges

  • Defendant was liable because he instigated the proceedings that resulted in arrest and did so maliciously without reasonable cause.

Identity of the prosecutor

Commercial Union Assurance Co of N.Z. Ltd v Lamont [1989] 3 NZLR 187 (CA)

Plaintiff made claim on insurance company after fire damaged building:

  • Police received reports from the fire service. They took the view that there could be something suspicious about this fire.

  • They asked the plaintiff’s insurer for their file, and the insurance company sent some materials

  • Police relied upon this material in prosecuting but lost.


Richardson J – a defendant who has procured the institution of criminal proceedings is responsible for the initiation of the prosecution.

  • Requires a close analysis of the circumstances

  • Difficult if defendant/complainant gave false information – the information must have influenced the police decision to prosecute.

Where the police have conducted an investigation and decide to prosecute:

  • When the complaint is laid, the police may act on that complaint and charge, but they may do some investigation and exercise discretion

  • Courts must proceed in caution where the police have investigated and prosecuted on material other than the complaint.

  • For a defendant to be liable for malicious prosecution, they must have procured the prosecution

  • The intervention of police could break the chain of causation, so the complaint is no longer effective

  • The onus is on plaintiff to prove this causation on balance of probabilities.

As a general rule, prosecution is brought when the information is laid:

  • Police will generally be treated as the prosecutor

  • But in some cases, the person who supplied the information may be regarded as the prosecutor.

  • Complainant may be regarded as prosecutor if they give police information which compels them to lay charges.

  • If they deliberately deceive police by supplying false information or withholding information.

When the police are laying charges, but this test is met, then look to the person that caused the police to act and ask whether they have acted maliciously.

Martin v Watson [1996] AC 74 (HL)

Plaintiff (man) and defendant (woman) were neighbours.

  • Long history of mutual antagonism between them

  • Defendant started to make accusations about the plaintiff – that he was climbing up a ladder and indecently exposing himself to her

  • She made several complaints over several weeks.

  • Police made a number of visits. The defendant complainant told the police she would be prepared to attend court and give evidence.

  • Eventually, the plaintiff was arrested and charged with indecent exposure.

At Court, the...

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