Trespass and intro Flashcards
Tort vs Crime
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)
Tort vs Contract
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)
Common law vs statute law
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
Basic criterion of tortious liability
fault (or lack of)- determines underlying legal responsibility-
Two main social purposes of torts
-Provides compensation for interference, harm, loss
-Deterrence of behaviour that is unreasonably risky or interfering
Defn of torts (basic)
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.
Defn False imprisonment
The total restraint of the plaintiff’s freedom committed directly + intentionally (or negligently) w/o legal authority by the defendant
List the key elements of false imprisonment
-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
Describe total restrain of liberty
-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
What is contractual consent
-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)
False imprisonment protects which fundamental right
Personal freedom of movement
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?
Balmain New Ferry Co Ltd v Robertson (1906)
What does Coles-Myer Pty v Webster (2009) illustrate about directness
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.
Defn Battery
the voluntary, direct, intentional (or negligently) contact with another person’s body without their consent X generally acceptable in the ordinary cond
What is to be said about intention in battery cases + which case best exemplifies this
-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
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What does the tort of battery aim to protect
Protect bodily integ from non-trivial contact or interference
What are the key elements of assault
-Intention to cause apprehension of imminent battery
-Reasonable apprehension
-Immediacy/imminence-
-Conditional threats (other)
What are the key contestable elements in battery
-Reasonableness/acceptableness of contact
-Intentional contact w the plaintiff’s body
-Direct contact by the defendant
What did Collins v Wilcock [1988] establish
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
Which case examined what it means to exceed the reasonable/acceptable grounds for contact? (battery)
-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’
Who does the onus of proof to prove a defence to trespass lie with
the defendant
What does the Latin ‘Volenti non fit iniuri mean?
No harm is done to they who consent
What is imp to prove in SD defence
-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)
What does McNamara v Duncan establish
Rules for consent as a defence in cases for trespass to the person in sports games
What is the intention in false imprisonment cases
Which cases are relevant
-The intention to imprison
-X matter if is done in good faith
-Cowell v Corrective Services
