Historical background of modern tort law Flashcards
True or False
If Simon falls over a log Dale threw onto a road, this is an example of trespass
False
It is action on the case
(Reynolds v Clarke)
In Reynolds v Clarke, Justice Fortescue gives the example of a man falling over a log left on a highway as an example of: trespass or action on the case?
Action on the case - the injury occurs due to actions that are consequential on the original action of throwing the log on the highway
True or False
The modern tort of negligence is actionable per se
False
Who bears the onus of proving or disproving fault in relation to a trespass occurring on a highway?
Plaintiff
Case or Trespass
Proof of material loss or damage is an essential element of…
Action on the case
Antigone builds a dam on her land that stops water flowing onto Barbara’s land. In doing so, Antigone stops Barbara from gaining the benefit of the water. Does this give rise to an action in the historical tort of…
Case
McHale v Watson established which principle?
Where the defendant is a child, their age will be relevant to determining whether he or she acted with reasonable care (i.e., was not negligent)
The case of ________v________ brought into Australian law the principle that where a plaintiff suffers harm caused directly but negligently by the defendant, the plaintiff may choose to bring the action either in case or in trespass
Williams v Milotin
What is the name of the NSW Court of Appeal case that confirms that it is possible to bring an action for negligent battery? ________v________
Croucher v Cachia
Generally, who must disprove fault in trespass cases?
Defendant
In trespass cases occurring on the highway, who must prove both the trespassory act, and the fault element?
Plaintiff
In trespass cases occurring on the highway, the plaintiff must prove what 2 things?
- Trespassory act
2. The fault element
Case or Trespass
Directly and intentionally caused harm
Trespass
Case or Trespass
Directly and negligently caused harm
Can choose both trespass and/or on the case
Case or Trespass
Indirectly and negligently or intentionally caused harm
On the case
Liability is fault based in which 2 forms?
- Intention
2. Negligence
Negligence is a type of fault as the defendant…
Failed to act with reasonable care
Intention is a type of fault as the defendant…
Intended the consequences of their actions
What is the exception to ‘no fault’?
Strict liability
What needs to be established in strict liability?
Whether the defendant did the wrong thing
Who bares the onus of proof in action on the case?
Plaintiff proves all elements of fault of the defendant
Who bares the onus of proof in trespass?
- Plaintiff to prove trespassory act to prove that it was the defendant who did the trespassory act
- Onus then shifts to defendant where they have to prove they are without fault (neither intentionally or negligently)
Who bares the onus of proof in negligence actions on the case?
Plaintiff bears the onus of proof in every element of negligence
What were the rules established in Williams v Holland?
Trespass or an action on the case is maintainable for direct injury caused negligently
An action on the case may be brought for direct, negligent injury
