Week 3 important

Question 1

What is a “tort”? How does it differ from a “crime”?

Answer 1

Whereas a claim in tort is made by a person in their private capacity, criminal proceedings are instituted by the State. The standard of proof differs between tortious and criminal claims: in the former it is on the balance of probabilities and in the latter it is beyond reasonable doubt. Often a single act involves both tort and crime (eg assault and battery), but the actions have different purposes, parties and outcomes.

Question 2

Trespass

Answer 2

Trespass is where a person intentionally or negligently interferes directly with the person or property of the plaintiff. It may be trespass to land, goods or person.

Question 3

Detinue

Answer 3

Detinue is a type of trespass to goods where the defendant lawfully has possession of the plaintiff’s goods but refuses to return them to the plaintiff when asked (cp conversion where the defendant interferes with the plaintiff’s goods in a manner that is inconsistent with the plaintiff’s possession or ownership of the goods).

Question 4

Battery

Answer 4

Battery is direct contact with the plaintiff’s body without the latter’s consent or lawful justification.

Question 5

Assualt

Answer 5

Assault is the threat of physical contact with the plaintiff.

Question 6

Nusiance

Answer 6

Nuisance is indirect interference with the plaintiff’s use and enjoyment of private of public land.

Question 7

Defemation

Answer 7

Defamation is spoken or written publication of statements damaging to the plaintiff’s reputation.

Question 8

Negligence

Answer 8

Negligence is where a careless act causes harm to the plaintiff.

Question 9

Johnny sees George, a young customer at his restaurant, reach into the open cash register and grab a handful of notes while Stephen, the person serving him, is looking the other Johnny rushes up to George, grabs his arm, pulls the money out of his hand, pushes him into a chair, and orders him to ‘stay there until the police arrive, or I will lose my temper’. Thirty minutes later the police arrive and take George away for questioning. George has now threatened to sue Johnny in the tort of trespass to the person. Has Johnny committed the tort? When answering this question consider all three forms of the tort.

Answer 9

Briefly, there are three possible torts of trespass to the person here.

First, battery. This requires the following: physical interference with the plaintiff’s body; the interference is direct; it may be either intentional or negligent; and, there was no consent or lawful justification for the act. Johnny has probably committed the tort of battery.

Second, assault. This requires: defendant causes plaintiff to develop a reasonable apprehension of imminent physical contact; the act is direct; it is either intentional or negligent; and, there is no consent or lawful justification for the act. Johnny has probably committed the tort of assault.

Third, false imprisonment. This requires: defendant causes plaintiff to be totally restrained; the act is direct; it is either intentional or negligent; and, no consent or lawful justification for the act. Johnny has probably committed the tort of false imprisonment.

However, Johnny may rely on the defence of ‘defence of property’ in relation to the tort of battery, but not so in relation to the torts of assault and false imprisonment as those acts were not necessary to protect Johnny’s property.

However, for these other torts he may insist that he lawfully detained George under criminal legislation allowing a ‘citizen’s arrest’ where a private person may arrest another person if there are reasonable grounds to suspect that the other person is committing or has committed an offence. The arrester must as soon as practicable arrange for the other person to be delivered to the custody of the police.

Question 10

Elaine has opened a new steakhouse restaurant next door to Johnny’s vegan Johnny is concerned that the smell of cooking meat wafting from the steakhouse is turning customers away from his restaurant. Can he establish that Elaine is committing the tort of private nuisance? If so, what remedy would Johnny be entitled to?

Answer 10

Briefly, this concerns whether Elaine has committed the tort of private nuisance. This requires: defendant’s interfering with the plaintiff’s use and enjoyment of private land; the plaintiff has an interest in the land; the plaintiff suffers actual harm or damage; and, defendant’s interference is (a) direct, (b) intentional or reckless, and (c) sustained or unreasonable.

Main issue: is Elaine’s interference ‘unreasonable’? Because her restaurant is in a strip of restaurants, and most restaurants cook meat, her interference by way of the smell from her restaurant is not unreasonable.

However, if he can establish the tort of private nuisance, he may claim damages to compensate him for any loss of custom, and an injunction prohibiting her from cooking meat at her restaurant.

Question 11

Robin writes a popular restaurant review blog for the local online city Her latest blog includes the following: ‘By the way, I ate at a certain vegan restaurant on Kerouac Avenue last Saturday night. Whatever you do, do not order the tofu burger unless you happen to like eating something that tastes like the congealed leftovers of a liposuction treatment that is smeared between two slices of stale bread.’ Johnny wants to sue Robin in the tort of defamation. Is Johnny’s action likely to succeed? When answering this question consider:
(a) the three elements of the tort, and

Answer 11

aBriefly, this problem concerns whether Robin has committed the tort of defamation.

Requirements for defamation: defendant’s statement about plaintiff is defamatory; statement identified the plaintiff; statement was published to a third party who could understand the defamatory meaning.

It seems that Robin has committed the tort of defamation as all elements of defamation are satisfied. Therefore Johnny is entitled to the remedies of damages and an injunction prohibiting further publication of the review.

Question 12

What elements do you need to prove to make a case of negligence? What defences are available?

Answer 12

Elements to prove negligence:

• Duty of care
• Breach of the standard of care; and
• Damage caused by the breach.

Defences to negligence:

• Voluntary assumption of risk
• Contributory negligence.

Question 13

Tort

Answer 13

Tort is the French word for wrong and in English legal language relates to a wrong causing another harm. Tort law is concerned with compensating a victim for the harm caused to them by another outside of contract law.

Question 14

Crime

Answer 14

Crime is concerned with punishing the wrongdoer either by a fine or imprisonment.

Question 15

Robin writes a popular restaurant review blog for the local online city Her latest blog includes the following: ‘By the way, I ate at a certain vegan restaurant on Kerouac Avenue last Saturday night. Whatever you do, do not order the tofu burger unless you happen to like eating something that tastes like the congealed leftovers of a liposuction treatment that is smeared between two slices of stale bread.’ Johnny wants to sue Robin in the tort of defamation. Is Johnny’s action likely to succeed? When answering this question consider:
(a) the three elements of the tort, and

  (b) whether or not Robin can rely upon the defence of honest opinion

Answer 15

However, Robin may claim the defence of honest opinion, which requires:

• the statement is an opinion, not fact;
• made in relation to a matter of public interest;
• based on material that is substantially true; and,
• is honestly held.

It seems all requirements for the defence of honest opinion are satisfied: it was a statement based on material that is substantially true – she ate the tofu burger and did not enjoy the experience. Johnny will not be entitled to damages and an injunction.

The counter-argument is that her statement was so extreme that the facts claimed are not substantially true and the defence is not established.