all Flashcards
What is a tort
a legal wrong that is not a criminal offence
What is the aim of a tort
A tort gives rise to a civil action with the main intention claiming compensation for loss. It also aims to transfer the loss of the victim to the wrongdoer
What are the four main types of torts
Negligence, Trespass, Defamation, and Nuisance
Define trespass
Trespass is an an unlawful intrusion that interferes with one’s own person or property
When does trespass to the person occur
Trespass to the person occurs when there has been a direct interference with a person
Name the three types of trespass to person
assault, battery, and false imprisonment
What is assault
Assault is when the defendant makes a direct threat that causes the plaintiff to believe that they are in immediate danger or harmful contact
What is battery
Battery is when the defendant directly and intentionally or recklessly makes unlawful physical contact with the body of the plaintiff - does not always hurt the plaintiff
Assault and battery are considered both a civil and criminal offence under what legislation
Criminal Code QLD (1899)
What are the four defenses for assault and battery
- consent
- self defense
- necessity (action must be taken to avoid damage)
- lack of capacity
Define false imprisonment
False imprisonment is the deliberate confinement of someone without the authority to do so
What is a current issue involving false imprisonment
the detention centres for refugees
Define trespass to land
Trespass to land is the unauthorised interference with land that may interfere with the occupier’s use or enjoyment of the land by direct acts
what are three things the plaintiff must prove for trespass to land
- they own the land
- trespasser interfered with ordinary use of land
- damage is not required for successful trespass to land
What are the four defences for trespass to land
- to stop a nuisance (e.g. fire)
- of legal capacity (e.g. police)
- had permission from land owner
- to get back something that is yours
What remedies will be offered to the plaintiff of trespass to land
- court ordered injunction
- damages (if applicable)
- ejecting the intruder (with reasonable force
What is a current issue in trespass to land
mining companies going onto farmers properties to mine
give examples of goods or chattels that can be trespassed to
car, boats, machines, phones and computers
NOT LAND
when does trespass to goods occur
Trespass to goods occurs when a person directly and unlawfully interferes with the goods in possession of another
give three examples of trespass to goods
- Taking your friend’s car without permission and having an accident
- Stealing someone’s laptop
- Throwing a tin of paint over your neighbour’s boat
what is defamation
An act of communication that injures another person’s reputation without good reason or justification, causing them to be shamed, ridiculed, held in contempt and to lose their standing in the community or place of work
What three things make material defamatory
- Injure a person’s reputation
- Injure a person in their area of work
- Lead others to ridicule or despise the person
What legislation is associated with defamation
The Defamation Act (2005) QLD
What is the main purpose of the defamation legislation
To ensure that the law of defamation does not place unreasonable limits on freedom of expression, in particular on public matters of interest. And to provide suitable and fair forms of remedies and resolving disputes
What are the six defences to defamation
- honest opinion
- justification
- fair report of public concern
- qualified privilege
- absolute privilege
- triviality
What is qualified privilege and give an example
qualified privilege is when the person has an interest in receiving the information. An example of qualified privilege is giving an honest reference for someone who is a job applicant
What is absolute privilege and give an example
refers to the publication of proceedings in court and parliament
what are the four remedies for defamation
general damages, special damages, aggravated damages, court ordered injunction
What is the first thing a defamed person should do to resolve the dispute
provide a concerns notice to the person or organisation responsible for the action
What often follows a concerns notice
An offer to make amends usually follows
What must an Offer to Make Amends include
it must be in writing, and have an offer to publish a reasonable correction, an offer to pay the expenses
What is an apology (defamation)
is made by the party who has allegedly defamed the person - not seen as an admission of fault or liability
Explain court proceedings (for defamation)
-Either party must elect for the matter to be heard by a jury. The jury will determine whether defamed material has been published; the judge will determine damages
what damages can be suffered from defamation
Damages include economic (business loosing money) and non-economic loss (feelings, and reputation)
what is nuisance
a nuisance is something which interferes with the right of an occupier of property to use their property.
What are the two types of nuisance
private and public
Explain private nuisance
Property owners and tenants are entitled to the ordinary and reasonable ‘quiet enjoyment of their residence’, if the entitlement is interfered with by the actions of their neighbors, whether intentionally or unintentionally it is considered private nuisance
Give two examples of private nuisance
- excessive noise (music)
2. branches and roots of trees
What is public nuisance
public nuisance involves activities that interfere with the public’s safety, health or convenience. It is often seen as the interference with a citizen’s enjoyment of a public right of way
What factors (defences) does the court need to consider (for nuisance..)
- the locality
- how often the interference occurs
- duration of interference
- time of day
- reason for it
(there are more ….)
What three remedies are there for nuisance
damages, injunction, and abatement
What is abatement
entitled to enter onto the wrongdoer’s land and use reasonable force to stop the nuisance.
What are the three main categories of people that can be sued (nuisance)
- the land owner
- the person creating the nuisance
- the person who failed to take reasonable steps to prevent the nuisance
Under what legislation is nuisance covered
Summary Offences Act (2005) QLD
Defamation case:
Fairfax v Gacic (2007)
Trespass case:
Robertson v Balmain (1906)
Nuisance case:
Pantalone v Alaouie (1989)
What is one issue with defamation legislation
There is no distinction between verbal and written defamation –> lead to confusion about the trivial or ‘significance’ of the material
When did the defamation act come into action
January 2006
social media + defamation case:
Coates v Harbour Radio (2008)
