Australian Torts Law

Description

Full Title Copyright Preface Table of Cases Table of Statutes Table of Contens Chapter 1 An Introduction to Torts 1 Introduction 2 What is a Tort? Act or Omission Infringement of Rights Action for Damages 3 Parties — Capacity to Sue and be Sued Minors Intellectually Disabled Persons 4 Comparison with Other Areas of the Law Contract and Torts Crimes and Torts 5 The Evolution of Torts Law The Impact of Statute The Impact of Insurance The High Court Further Reading Chapter 2 The Distinction Between Trespass and Case 1 Introduction 2 Trespass Direct Interference Fault of the Defendant Actionable Per Se Onus of Proof 3 Action on the Case 4 Criticisms of the Australian Position 5 Innominate Actions on the Case Further Reading Chapter 3 Trespass to Person 1 Introduction 2 Battery Direct Application of Force Offensive Contact Lack of Consent Knowledge of the Contact Fault 3 Assault Threat Ability to Carry Out the Threat Fault Stalking and Domestic Violence 4 Queensland Position on Common Law Assault and Battery Definition of Assault Differences Between the Common Law and s 245 5 False Imprisonment Direct Interference Restraint in All Directions Fault Lawful Justification 6 Remedies Nominal Damages Compensatory Damages Aggravated and Exemplary Damages Injunction and Other Orders 7 Limitation Period Further Reading Chapter 4 Trespass to Land 1 Introduction 2 Title to Sue Tenants and Lessors Licensees Co-owners Easements and Profits à Prendre Purchasers Under a Contract of Sale 3 Actionable Interference Direct Interference Interference with Land Unauthorised Interference 4 Fault 5 Examples of Actionable Interferences Placing or Leaving Objects on Land Animals Transient Interferences with Airspace Continuing Trespass 6 Remedies Self-help Damages Injunction Mesne Profits Statutory Relief 7 Limitation Period Further Reading Chapter 5 Trespass to Personal Property 1 Introduction 2 Trespass to Chattels Title to Sue Direct Interference Fault Actionable Without Proof of Damage 3 Conversion Title to Sue Repugnant Dealing Fault 4 Detinue Title to Sue Detention of Goods Fault 5 Innominate Tort by Reversionary Owners 6 Remedies Self-help Damages Injunction 7 Limitation Period Further Reading Chapter 6 Defences to Trespass 1 Introduction 2 Inevitable Accident 3 Consent Scope of the Consent Voluntary Capacity to Consent Consent to Medical Treatment Revocation or Withdrawal of Consent 4 Self-Defence 5 Defence of Another 6 Provocation (Queensland) 7 Defence of Property 8 Self-Help 9 Necessity Imminent Threat Reasonable Necessity Imminent Threat Not Due to Defendant’s Negligence Medical Necessity 10 Defences Specific to Trespass to Personal Property Jus Tertii Loss of Possession Distress Damage Feasant 11 Statutory Authority 12 Disciplinary Powers 13 Judicial Acts 14 Execution of Process 15 Crown Authority 16 Contributory Negligence 17 Mistake, Insanity and Involuntarism Mistake Insanity and Involuntarism 18 Ex Turpi Causa Oritur Non Actio Further Reading Chapter 7 Intentional Damage to a Person 1 Introduction 2 Intentional Infliction of Psychiatric Injury 3 Malicious Prosecution Proceedings Initiated Against the Plaintiff by the Defendant Proceedings Terminated in Favour of Plaintiff Malice Absence of Reasonable and Probable Cause Damage Remedy 4 Privacy Development of a Tort of Privacy under the Common Law Law Reform Other Jurisdictions Further Reading Chapter 8 The Negligence Action 1 Introduction 2 The Structure of a Negligence Action Reasonable Foreseeability 3 Overview of the Elements of the Negligence Action Duty of Care Breach of Duty Damage 4 Questions of Law and Fact Further Reading Chapter 9 Established Duties of Care 1 Introduction Scope of the Duty of Care Established Duties of Care 2 Occupiers of Premises Scope of the Duty 3 Employers Scope of the Duty Legislation 4 Road Users Scope of the Duty Legislation 5 Persons in Control of Others School Authorities and Students School Authorities and Third Parties Parent and Child Parent and Third Party Prison Authorities and Prisoners Prison Authorities and Third Parties 6 Professionals Medical Professionals Legal Professionals 7 Manufacturers of Goods Scope of the Duty Legislation Further Reading Chapter 10 Novel Duties of Care 1 Introduction 2 Historical Summary Reasonable Foreseeability The Anns Approach The Proximity Approach The Caparo Approach The Incremental Approach The Salient Features Approach 3 The Current Approach of the High Court Sullivan v Moody Reasonable Foreseeability Legal Principle v Legal Policy Legal Policy v Public Policy 4 Scope of the Duty 5 Pure Psychiatric Injury Recognised Psychiatric Injury Reasonable Foreseeability Relevant Factors Pure Psychiatric Injury in an Established Duty 6 Pure Economic Loss Relational Loss Negligent Provision of Services Defective Buildings 7 Liability of Public Authorities Statutory Power Relevant Factors Road Authorities Further Reading Chapter 11 Standard of Care and Breach 1 Introduction 2 Standard of Care Objective Test 3 Breach of Standard Foreseeable and Not Insignificant Risk Reasonable Response to the Risk Balancing the Factors 4 Procedure and Proof Functions of Judge and Jury Appeals Onus and Standard of Proof Res Ipsa Loquitur (The Thing Itself Speaks) Further Reading Chapter 12 Damage — Causation and Scope 1 Introduction 2 Recognised Kind of Damage Damage Not Recognised at Law 3 Factual Causation Common Law Tests Civil Liability Legislation Multiple Tortfeasors Onus of Proof 4 Scope of Liability Remoteness of Damage Intervening Acts Legally Significant Cause Further Reading Chapter 13 Defences to Negligence 1 Introduction 2 Contributory Negligence The Common Law Position Modern Contributory Negligence Establishing Contributory Negligence Apportionment Legislative Presumptions of Contributory Negligence Appeals 3 Volenti Non Fit Injuria (No Injury is Done to One Who Voluntarily Consents) Full Knowledge of Risk Voluntary Acceptance of Risk 4 Illegality Joint Illegal Enterprise Plaintiff’s Illegal Activity 5 Immunity from Civil Liability Provision of a Professional Service Obvious Risks Inherent Risks Rescue Cases Volunteers 6 Exclusion of Liability Clauses Further Reading Chapter 14 Limitation of Actions 1 Introduction 2 The Limitation Period Personal Injury Property Damage and Economic Loss 3 Accrual: Commencement of the Period Personal Injury Property Damage Economic Loss 4 Suspension and Extension of the Limitation Period Suspension of Time Extension of Time 5 Contribution Between Tortfeasors Further Reading Chapter 15 Judicial Remedies 1 Introduction 2 The Equitable Remedies Declaration Account Injunction 3 Damages at Common Law The Categories of Damages 4 Principles of Assessment of Compensatory Damages Egg-shell Skull Rule The Indemnity Principle Once and for All Rule Lump Sum Rule Duty to Mitigate 5 Property Damage Cost of Repair and Diminished Value Replacement Costs Consequential Losses 6 Damages for Personal Injuries Compensatory Damages Hospital and Medical Expenses Loss of Earning Capacity Gratuitous Services Gratuitous Domestic Services Non-Pecuniary General Damages Other Expenses Achieving the Indemnity Principle The Award Further Reading Chapter 16 Wrongful Death 1 Introduction 2 Compensation to Relatives Right of Action Causation Dependants Executor Brings the Action Damages that May be Claimed for Wrongful Death Assessment of Damages for Wrongful Death Interest Limitation Period 3 Survival of Causes of Action Damages Limitation Period Further Reading Chapter 17 Service and Family Relations 1 Introduction 2 Loss of an Employee’s Services Damages 3 Interference with Domestic Relations Between Husband and Wife Loss of Consortium and Servitium Seduction, Enticement and Harbouring Damages 4 Interference with Domestic Relations Between Parent and Child Loss of Services Seduction, Enticement and Harbouring Further Reading Chapter 18 Public and Statutory Duties 1 Introduction 2 Breach of Statutory Duty A Private Cause of Action The Duty was Imposed on the Defendant The Statute was Intended to Prevent that Kind of Harm The Plaintiff was a Person for Whose Protection the Statute was Passed Breach of the Duty Causation Defences 3 Abuse of Process Improper Motive Damage Defences 4 Misfeasance in Public Office Invalid or Unauthorised Act Committed with Malice Public Officer in Purported Discharge of Duty Damage Further Reading Chapter 19 Misrepresentation in Torts — Negligence and Deceit 1 Introduction 2 Actionable Misrepresentations 3 Negligent Misrepresentation Historical Background Duty of Care Scope of the Duty of Care Breach and Damage Contributory Negligence Remedies Limitation Period 4 Deceit (Fraudulent Misrepresentation) Misrepresentation of Fact Scienter (Knowledge of Falsity) Intended Reliance Reliance Damage Remedies Limitation Period 5 Statutory Actions for Misrepresentation Person or Corporation Trade or Commerce Misleading or Deceptive Conduct Disclaimers Remedies Limitation Period Further Reading Chapter 20 Vicarious Liability and Non-Delegable Duties 1 Introduction 2 Vicarious Liability Employer and Employee Course of Employment Principal and Agent 3 Non-Delegable Duties Employers Schools Hospitals Occupiers of Premises Characteristics of a Non-Delegable Duty Scope and Breach of Duty Legislation 4 Indemnities Further Reading Chapter 21 Multiple Tortfeasors 1 Introduction 2 Joint Tortfeasors The Legislation 3 Several Tortfeasors 4 Concurrent Tortfeasors Contribution by Concurrent Tortfeasors Assessment of Contribution Indemnity and the Rule in Lister v Romford Ice 5 Proportionate Liability Apportionable Claim Concurrent Wrongdoer Exclusions Apportioning Liability Further Reading Chapter 22 Defamation 1 Introduction 2 History of Defamation Law in Australia National Defamation Law 3 Description of Defamation Common Law Defamation Acts 4 Jurisdiction 5 Elements of Defamation Defamatory Matter Defamatory on the Facts Reference to the Plaintiff Publication Parties to the Action Limitation Period 6 Australian Consumer Law Defamation Further Reading Chapter 23 Defences and Remedies in Defamation 1 Introduction 2 Defences Justification (Truth) Contextual Truth Absolute Privilege Qualified Privilege Protected Reports Implied Constitutional Protection Fair Comment/Honest Opinion Innocent Dissemination Triviality Consent Acceptance of Offer to Make Amends 3 Remedies Injunction Damages Further Reading Chapter 24 Interference with Business Interests 1 Introduction 2 Passing Off Reputation False Representation Calculated to Deceive Representation Damage Examples of Passing Off Defences Remedies Legislation 3 Interference with Contractual Relations Contract Knowledge of the Contract Intention Interference Breach of Contract Damage Defences Remedies 4 Conspiracy Agreement Intention Damage Defences Remedies 5 Intimidation Threat of an Unlawful Act Compliance Intention Damage Defences Remedies 6 Injurious Falsehood False Statement Publication Malice Damage Remedies Australian Consumer Law Comparison with Defamation Further Reading Chapter 25 Nuisance 1 Introduction 2 Private Nuisance Title to Sue Who Can be Sued Rights Capable of Protection Interference with the Protected Right Interference with Enjoyment Damage Onus of Proof Defences Remedies Limitation Period 3 Public Nuisance Title to Sue Who Can be Sued? Interference with a Public Right Substantial and Unreasonable Interference Onus of Proof Defences Remedies 4 A Comparison of Nuisance and Negligence Historical Development The Interests Protected and the Right to Sue The Class of Wrongdoers Basis of Liability Onus of Proof Damage Defences Remedies Further Reading Chapter 26 Liability for Animals 1 Introduction 2 Strict Liability Scienter Strict Liability for Dogs Cattle Trespass 3 Fault Trespass Negligence Rule in Searle v Wallbank Nuisance Further Reading Index