Historical background of modern tort law

Question 1

True or False

If Simon falls over a log Dale threw onto a road, this is an example of trespass

Answer 1

False
It is action on the case
(Reynolds v Clarke)

Question 2

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?

Answer 2

Action on the case - the injury occurs due to actions that are consequential on the original action of throwing the log on the highway

Question 3

True or False

The modern tort of negligence is actionable per se

Answer 3

False

Question 4

Who bears the onus of proving or disproving fault in relation to a trespass occurring on a highway?

Answer 4

Plaintiff

Question 5

Case or Trespass

Proof of material loss or damage is an essential element of…

Answer 5

Action on the case

Question 6

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…

Answer 6

Case

Question 7

McHale v Watson established which principle?

Answer 7

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)

Question 8

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

Answer 8

Williams v Milotin

Question 9

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________

Answer 9

Croucher v Cachia

Question 10

Generally, who must disprove fault in trespass cases?

Answer 10

Defendant

Question 11

In trespass cases occurring on the highway, who must prove both the trespassory act, and the fault element?

Answer 11

Plaintiff

Question 12

In trespass cases occurring on the highway, the plaintiff must prove what 2 things?

Answer 12

1. Trespassory act

2. The fault element

Question 13

Case or Trespass

Directly and intentionally caused harm

Answer 13

Trespass

Question 14

Case or Trespass

Directly and negligently caused harm

Answer 14

Can choose both trespass and/or on the case

Question 15

Case or Trespass

Indirectly and negligently or intentionally caused harm

Answer 15

On the case

Question 16

Liability is fault based in which 2 forms?

Answer 16

1. Intention

2. Negligence

Question 17

Negligence is a type of fault as the defendant…

Answer 17

Failed to act with reasonable care

Question 18

Intention is a type of fault as the defendant…

Answer 18

Intended the consequences of their actions

Question 19

What is the exception to ‘no fault’?

Answer 19

Strict liability

Question 20

What needs to be established in strict liability?

Answer 20

Whether the defendant did the wrong thing

Question 21

Who bares the onus of proof in action on the case?

Answer 21

Plaintiff proves all elements of fault of the defendant

Question 22

Who bares the onus of proof in trespass?

Answer 22

1. Plaintiff to prove trespassory act to prove that it was the defendant who did the trespassory act
2. Onus then shifts to defendant where they have to prove they are without fault (neither intentionally or negligently)

Question 23

Who bares the onus of proof in negligence actions on the case?

Answer 23

Plaintiff bears the onus of proof in every element of negligence

Question 24

What were the rules established in Williams v Holland?

Answer 24

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

Question 25

Actionable per se means….

Answer 25

That a tort can be brought without proof of damage

Question 26

What is a negligent trespass?

Answer 26

A trespass action may still be brought for a direct, negligent interference (as an alternative to an action on the case for negligence)

Question 27

Battery and assault protects…

Answer 27

Bodily integrity

Question 28

The firecracker case of Scott v Shepherd established that…

Answer 28

The wrong had to be directly causes on trespass or indirectly caused on the case

Question 29

Defamation protects…

Answer 29

Reputation

Question 30

Trespass to land protects…

Answer 30

Property rights

Question 31

What are the 4 functions of tort law?

Answer 31

1. Compensation
2. Appeasement and justice
3. Deterrence
4. Punishment

Question 32

Tort claims are subject to which act?

Answer 32

Limitations Act 1969 (NSW)

Question 33

What does the Limitations Act 1969 (NSW) do?

Answer 33

1. Sets a certain time limit in which a claim can be brought by plaintiff
2. Creates different limitation limits for different torts

Question 34

Williams v Holland established the directness rules for trespass which include…

Answer 34

1. Directly and intentionally caused harm: trespass
2. Directly and negligently caused harm: trespass OR case
3. Indirectly and negligently or intentionally caused harm: case

Question 35

Which case brought the rule of Williams v Holland into Australian law?

Answer 35

Williams v Milotin