LAWS1100 – Business Law

Teaching Week 4

Torts 2 – Other Torts & Remedies

 What is a Tort?

Recapping from last week: a “tort” in French = a “wrong”

• The word ‘tort’ derives from the Latin tortus, meaning twisted
or crooked, and is established in the English language as a
synonym for ‘wrong’.
• A tort is a civil wrong that allows the aggrieved person to sue
the wrongdoer for the recovery of damages for the wrong.
• The damages are awarded by way of compensation for the
personal injury, property damage or economic loss that has
actually occurred or that the law presumes to have occurred.
 Rationale: Tort vs Criminal Liability
• A crime is an offence against the State, which
represents the public interest; the rationale
underpinning criminal law is essentially punishment
(although it also encompasses other objectives such
as deterrence and rehabilitation).

• The primary objective of tort liability, on the other

hand, is to compensate the injured person by
compelling the wrongdoer to pay for the damage
they have occasioned.
 Tort vs Contract Law
• CONTRACT: Contractual obligations arise because the parties
have intentionally agreed to uphold them. Thus, contractual
obligations are individually agreed obligations, as opposed to
obligations imposed by law (as in the case of tort and crime).
- The rights of the contracting parties are essentially rights to
have the promises of the other party performed.

• TORT: Liability in tort, requires no promise. As said last week,

the object of the law of torts is to protect those general rights
of every person which are conferred as a matter of law.
- The scope of tort law is therefore much broader than the
scope of the law of contracts.
Liability in Tort, Contract and Crime
 Two Types of Torts
• Intentional Torts – i.e. Defamation
– Plaintiff must prove Defendant intended the act and
damage was the direct result of that action – that the
Defendant did the action which injured/damaged the
Plaintiff.

• Unintentional Torts – i.e. Negligence (covered last week)

– Not Intended – but doing something that a reasonable
person would not do – being careless – failing to do
something which a reasonable person would do.
 Trespass
The tort of trespass – committed when the Defendant interferes with the
person or property of the Plaintiff.

Three common forms of trespass:

1. Trespass to land;
2. Trespass to goods; and
3. Trespass to the person.

A trespass action is “actionable per se”.

In other words, the Plaintiff is not required

to prove that actual damage occurred.

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 Trespass to Land
Trespass to Land – Defendant unlawfully enters,
remains on or puts something on Plaintiff’s land.

A person commits the tort of trespass to land if:

1. They interfere with another person’s exclusive possession of
land;
2. The interference is a direct result of the Def’s actions;
3. The interference is either intentional or even though trespass
was not intended, it was negligent (unintentional but a
voluntary act by the Def to enter the Pl’s land);
4. There is no consent or lawful justification for the interference.
See: Kelsen v Imperial Tobacco (1957)
Kelsen v Imperial Tobacco [1957] 2 QB 334

FACTS:
• Imperial owned the freehold in a premises from which he ran
a wholesale tobacco business.
• He leased part of the premises to Kelsen who ran a
tobacconist shop and had an adjoining flat where he lived.
• Imperial Tobacco erected a sign that protruded into Kelsen’s
airspace by four inches. 

HELD:
• An injunction was granted to prevent the trespass of the
airspace.
 Trespass to Goods
Goods
Trespass against goods is an interference by the Defendant with goods in the
possession of the Plaintiff – such as taking or using goods without permission.

A person commits the tort of trespass to goods if:

1. They interfere with another person’s possession of goods;
2. The interference is direct;
3. The interference is either intentional or negligent and unintentional;
4. There is no consent of the Def or lawful justification for the interference.

Note:
5. The Plaintiff does not have to be the owner of the goods, as long as they
have rightful possession of the goods at the time.
6. The Plaintiff does not have to prove that there was any damage.
 Trespass to the Person – Battery
Physical – as little as a touch

A person commits the tort of battery (the actual application of physical force) if:

1. They cause some sort of physical interference with a person’s body;

According to Moynihan J in Battiato v Lagana [1992] at 235:
“The direct intentional imposition of any unwanted physical contact on
another person constitutes the tort of Battery. There is NO requirement to
prove that the contact caused… any physical harm.”
2. The action is direct – directly causing contact with another body;
3. The act is either intentional or negligent (unintentional); and
4. There is no consent or lawful justification for the act.
 Trespass to the Person – Battery
Note:

1.) Sometimes even the smallest touch can amount to battery.

Any touching of another’s body is, in absence of lawful excuse, capable of
amounting to a battery and a trespass.

2.) However, Courts have held that a certain minimal level of physical contact
is unavoidable in daily life. According to Lord Goff in In re F (Mental
Patient: Sterilisation) [1990] 2 AC 1 at 72 -73:

This exception has been founded on implied consent – since those who go
about in public places … may be taken to have impliedly consented to bodily
contact of this kind. (Nowadays), it more appropriate to regard such cases as
falling within a general exception embracing all physical contact which is
‘generally acceptable in the ordinary conduct of everyday life.’
 Rixon v Star City Pty Ltd [2001]
FACTS:
• Rixon played roulette at Star City after being banned.
• Employee confronted Rixon and detained him until the police
arrived. In doing so, the employee had to place his hand on
Rixon’s shoulder.
• Rixon sued Star City in the tort of battery.

HELD:
• The physical contact was to get Rixon’s attention.
• It was deemed that this contact is “generally acceptable in the
ordinary conduct of daily life.”
• Star City was not liable.
 Trespass to the Person – Assault
The Anticipation of Physical Force

A person commits the tort of assault (the “threat” of the actual application of physical
force) if:

1. They cause another person to develop a reasonable apprehension of direct,

imminent and harmful or offensive physical contact;
“Reasonable apprehension”: discussed in Brady v Schatzel [1911] at 208.
It is not material that the person assaulted should be put in fear…
(otherwise)… the question would be whether the party assaulted was a
courageous or timid person.

2. The act is direct;

3. The act is intentional or negligent – unintentional; and
4. There is no consent or lawful justification for the act.

See: Stephens v Myers (1830)

 Trespass to the Person – Assault

Note:

1. No physical contact actually needs to occur for this tort.

2. Often assault and battery occur at the same time.

3. If a Def makes carrying out a threat conditional upon the Pl

complying with a demand (Eg. Johnny threatens to punch
Simon unless he leaves) – the tort is committed.
See: Rozsa v Samuels [1969].
 Trespass to the Person –
False Imprisonment
No reasonable means of escape
A person commits the tort of false imprisonment (the complete deprivation of
someone’s freedom of movement) if:

1. They cause another person to be totally restrained;

‘Total’ means that there is no reasonable avenue of escape for the
plaintiff from his or her imprisonment.
In Symes v Mahon [1922] SASR 447, the Pl was informed by a police
officer that he had a warrant for his arrest and he had to accompany
him to Adelaide. He did so. It was found that the Pl was not the right
person. The Pl successfully sued for false imprisonment.
2. The act is direct;
3. The act is intentional or negligent (unintentional);
4. There is no consent or lawful justification for the act.
 Contrasting Case Law
Bird v Jones (1845)
FACTS:
• Person was denied passage on a particular side of a bridge and then attempted to
force entry. Courts to decide whether a false imprisonment occurred.
HELD:
• Means of escape must be reasonable without risk of injury, or a serious
inconvenience.
• Courts held Plaintiff was merely ‘obstructed’.

Burton v Davies (1953)

FACTS:
• Hitch-hiker picked up from road and driver of truck groped the hitch-hiker.
• Hitch-hiker demanded to be let out and was denied.
• Only means of escape was to jump from a moving truck.
HELD:
• Means of escape must be without risk of injury.
• Courts deemed only means of escape would likely cause injury.
 Trespass – Defences
• Accident (interference neither intentional nor negligent);

• Consent;

• Necessity (protection from imminent and real harm);

• Self-defence (proportionate to threat);

• Defence of property.
 Tort of Nuisance – Private Nuisance
A person commits the tort of private nuisance if:

1. They interfere with another person’s use and enjoyment of private land
– as an indirect result of the Def’s action (Not direct like trespass);
2. The other person has an interest in that land (e.g. owner or a tenant);
3. The other person suffers actual harm or damage;
4. The interference is either intentional or reckless; and
5. The interference is sustained and unreasonable.

NOTE:
6. There must be a balance between the right to undisturbed enjoyment of
property vs the right to undertake activities.
7. Court looks at severity, duration, location, sensitivity, deliberateness or
maliciousness and if any precautions are taken to minimise interference.
8. Think about noise, vibrations, sounds, lighting etc.
 Tort of Nuisance – Public
There is also the tort of public nuisance.

NOTE

1. There are 4 elements to prove in order to establish this tort.

2. This is harder to establish than many of the other torts.
3. This tort will not be assessed this Semester.
 Tort of Defamation
A person commits the tort of defamation if they publish to a
third party, in spoken or written form, a statement about
another person that would damage their reputation.

The Plaintiff must establish three things to successfully bring this

action:
1. The statement about them was defamatory; and
2. The statement identified them; and
3. The statement was published to a third party.

Defences include: justification, absolute privilege (during

parliamentary or judicial proceedings), fair reporting, honest
opinion etc.
 Tort of Defamation
Requirement 1: The statement about them was defamatory:

A statement that:
• Makes ordinary people think less of the plaintiff
• Causes people to shun or ridicule the plaintiff
• Causes the plaintiff to be excluded from society.

The general test: Radio 2UE Sydney Pty Ltd v Chesterton [2009]:
“A person’s reputation may… be said to be injured when the esteem in
which that person is held by the community is diminished in some
respect.”
“Whether a person’s standing in the community… has been lowered or
simply whether the imputation is likely to cause people to think less of
the plaintiff.”
 Tort of Defamation
Requirement 1: The statement about them was defamatory
See: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979)
FACTS:
• Australian newspaper implied restaurant owner went bankrupt.
• Restaurant manager went bankrupt, not owner.
• The restaurant owner sued for defamation as the article indicated
that he was in financial troubles.
• The High Court upheld the claim

Other examples: Mirror Newspapers v Jools (article giving impression

that surgeon made a mistake during an operation which caused the
death of a patient); Rogers v Nationwide News (report that patient
blinded due to surgeon’s negligence); Andrews v John Fairfax (report
that building leaked water, implying architect was incompetent) .
 Tort of Defamation
Requirement 2: The statement identified the plaintiff

The plaintiff does not have to be named, as long as the

statement can be reasonably identified as referring to the
plaintiff.

An entire class of persons cannot sue for defamation but if the

class has a limited membership it may be possible.

Note: there are ways of identifying a person directly and

indirectly which are not covered in this course.
 Tort of Defamation
Requirement 3: The statement was published

Publication means communicated to someone other than the

plaintiff. Any communication, such as text, video, images or
spoken words or any combination of them are sufficient.

The failure to cease continuation of defamation or to remove

defamatory material may, by itself, give rise to liability.
 Tort of Defamation
Defences to a Defamation Claim

• Justification – substantial truth.

• Absolute privilege – statement made during parliamentary or
judicial proceedings. (Refer to Defamation Act 2005 (Qld) s26)
• Fair reporting – statement in a fair report of proceedings of
public concern such as Parliamentary committees,
commissions of inquiry and law reform bodies.
• Honest opinion/fair comment – honestly held opinion in
relation to a matter of public interest which is substantially
true. (Refer to Defamation Act 2005 (Qld) s31(1) – (6))
 Tort of Deceit
1. If a person makes a false statement during contractual negotiations to
induce the other, they make what is called a misrepresentation.
2. If the misrepresentation is fraudulent, they commit the tort of deceit.

A person commits the tort of deceit if:

3. They make a statement of fact to another person knowing that it is
false; and
4. They make the statement with the intention that it be relied upon by
the other person; and
5. The other person relies upon the statement; and
6. The other person suffers harm as a result of relying upon the
statement.

See: Bisset v Wilkinson (1927)

- Statement made was about the number of sheep a farm could hold.
- HELD: Not liable. Statement was an opinion honestly and reasonably held.
Tort of Passing Off
A Defendant commits the tort of passing off if they
misrepresent themselves or their product as having
some kind of connection with the Plaintiff.

This action is directly related to another area we study: Intellectual Property.

The tort of passing off is committed if the following requirements are satisfied:
1. The Def makes a misrepresentation (expressly or by implication) that their
goods or services were connected with another person or have the other
person’s endorsement or approval; and
2. The misrepresentation is made in the course of a trade; and
3. The misrepresentation is intended to deceive potential purchasers.
See: Pacific Dunlop v Hogan (1989)

Note: There is also an overlap between the tort of passing off and the statutory
liability for breach of s18 of the ACL (misleading and deceptive conduct).
 Remedies
• An award of damages is the typical remedy for a tort.
• The primary purpose of tort liability is to compensate the
person who is injured by making the person at fault pay
for the damage they have caused.
• Notions of punishment generally have no place in an
award of tortious damages.
• The objective of the award is to place the person injured
in the position they would have been had the tort not
been committed.
• In other words, the objective is to restore the injured
person, so far as money can do so, to their original
position.
 Consequences – Injunctions and Damages
Injunction
• A court order whereby a person is required to do or refrain
from doing certain acts.
• It will be an appropriate remedy if the person is committing a tort
on an ongoing basis, such as nuisance, trespass or defamation.
• Failure to comply with an injunction results in civil or criminal
penalties.
Damages
• Purpose: compensate the plaintiff for the loss or injury suffered as
a result of the defendant’s harmful conduct.
• Assessed ‘once and for all’ – Plaintiff cannot return to court
again seeking more compensation – so its necessary to estimate
future losses resulting from the harmful conduct.
Coming up next week...

Contract Law (1)