Trespass and intro

Question 1

Tort vs Crime

Answer 1

Tortious act may also be a crime h/w is a CIVIL wrong where individuals/groups must chose to sue another for perceived wrong for compensation (crime = public law + against state prosecuted by state)

Question 2

Tort vs Contract

Answer 2

Tort- Non-obligatory legal responsibility just by living, moving + working in society owe duty to avoid wrongs to those we don’t know
Contract- clear outline of who legal responsibility is owed to + inc degree of autonomy (freely enter into)

Question 3

Common law vs statute law

Answer 3

Most torts have common law foundation (enabling to be updated to fit societal norms)- judges determine outcomes of cases that serve as precedent to similar future cases
- Statute law (created by parl) >rides common law on same topics

Question 4

Basic criterion of tortious liability

Answer 4

fault (or lack of)- determines underlying legal responsibility-

Question 5

Two main social purposes of torts

Answer 5

-Provides compensation for interference, harm, loss
-Deterrence of behaviour that is unreasonably risky or interfering

Question 6

Defn of torts (basic)

Answer 6

A non-contractual civil action, mainly for financial compensation, where Plaintiff P says that Defendant D has wrongfully caused a relevant impairment to P’s recognised legal interests.

Question 7

Defn False imprisonment

Answer 7

The total restraint of the plaintiff’s freedom committed directly + intentionally (or negligently) w/o legal authority by the defendant

Question 8

List the key elements of false imprisonment

Answer 8

-Total restraint of liberty
-Def carried out directly
-Intention (or through negligience)- Requires the def to prove that they had legal authority to restrain liberty- lack of malice X sufficient

Question 9

Describe total restrain of liberty

Answer 9

-Detention-Must envolve the complete submission to the power of the def for any amount of time no matter how short- X require application of force
-Lack reasonable means of egress- I.e. the threat of harm to self, property, distance + time or legality of escape option x reasonable 4 pl
-Residual liberty- Even those lawfully imprisoned may have rights X expressly taken away which may amount to false imp

Question 10

What is contractual consent

Answer 10

-The consensual abdication of personal liberty which renders imprisonment/restraint under the terms of the contract x actionable + t/f X able to complain on constraint of liberty
-Contract cannot be broken by 1 party alone
-Def needs to prove that they made the pl reasonably aware of the terms of the contract
-*The Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 (p 756)

Question 11

False imprisonment protects which fundamental right

Answer 11

Personal freedom of movement

Question 12

Which case shows and stands for the principle that P cannot complain of false imprisonment where, by contract or otherwise, he consented to the constraint?

Answer 12

Balmain New Ferry Co Ltd v Robertson (1906)

Question 13

What does Coles-Myer Pty v Webster (2009) illustrate about directness

Answer 13

D can still be liable (there conduct in constraining P is still sufficiently ‘direct’ to meet the trespass element) where D is active in promoting and causing P to be detained by X.

Question 14

Defn Battery

Answer 14

the voluntary, direct, intentional (or negligently) contact with another person’s body without their consent X generally acceptable in the ordinary cond

Question 15

What is to be said about intention in battery cases + which case best exemplifies this

Answer 15

-X necessary to prove that touch was made in anger/hostility just that contact was intended
-Rixon v Star City- Intention had to exceed beyond what is considered socially acceptable + the implied level of consent given
-

Question 16

What does the tort of battery aim to protect

Answer 16

Protect bodily integ from non-trivial contact or interference

Question 17

What are the key elements of assault

Answer 17

-Intention to cause apprehension of imminent battery
-Reasonable apprehension
-Immediacy/imminence-
-Conditional threats (other)

Question 18

What are the key contestable elements in battery

Answer 18

-Reasonableness/acceptableness of contact
-Intentional contact w the plaintiff’s body
-Direct contact by the defendant

Question 19

What did Collins v Wilcock [1988] establish

Answer 19

That - ‘Plain + incontestable that everybody is inviolate, and that any touching of another person no matter how slight may amount to battery’
-T/f touch x need to hostile, cause damage, or from anger

Question 20

Which case examined what it means to exceed the reasonable/acceptable grounds for contact? (battery)

Answer 20

-Rixon v Star City Pty Ltd (2001)-
-Considered whether the ‘placing the hand on the shoulder’ was reasonable in getting the attention of the pl
‘the law cannot distinguish b/w differing levels of violence as every man’s body is sacred’

Question 21

Who does the onus of proof to prove a defence to trespass lie with

Answer 21

the defendant

Question 22

What does the Latin ‘Volenti non fit iniuri mean?

Answer 22

No harm is done to they who consent

Question 23

What is imp to prove in SD defence

Answer 23

-Percieved necessity to act @ the time of action
-The reasonableness of the action (proportional to the threat)- see s52 of the Civil Liability Act 2002 (NSW)

Question 24

What does McNamara v Duncan establish

Answer 24

Rules for consent as a defence in cases for trespass to the person in sports games

Question 25

What is the intention in false imprisonment cases
Which cases are relevant

Answer 25

-The intention to imprison
-X matter if is done in good faith
-Cowell v Corrective Services