03 THE LAW OF TORTS WEEK 1

Introduction Intentional Torts

Professor Sam Blay

THE LECTURE STRUCTURE

§  Texts§  Defini+on,aimsandscopeoflawoftorts§  Inten+onaltorts

TEXT BOOKS DominicVillaAnnotatedCivilLiabilityAct

LawbookCo.(2016)

BalkinandDavisTheLawofTorts5thEdLexisNexis

Luntz&Hambly,Torts-CasesandCommentary,7thed.LexisNexis,

StewartandStuhmcke,AustralianPrinciplesofTortsLawFedera+onPress,3rdEd

Blay,TortsinaNutshellLBC

ClassRules

•  hUps://www.youtube.com/watch?v=tUkEq0taWg0

DEFINITION: THE NATURE OF TORTS

INTRODUCTION

TortsinEverydayLife

•  CrouchervCachia[2016]NSWCA132(9June2016)

WHAT IS A TORT?

� A tort is a civil wrong � That (wrong) is based a breach of a

duty imposed by law � Which (breach) gives rise to a

(personal) civil right of action for for a remedy not exclusive to another area of law

TortsandCrime

THE DIFFERENCE BETWEEN A TORT AND A CRIME

� A crime is a public /community wrong that gives rise to sanctions usually designated in a specified code. A tort is a civil ‘private’ wrong.

�  An action in criminal law is usually brought by the state or the Crown. Tort actions are usually brought by the victims of the tort.

�  The principal objective in criminal law is punishment. In torts, it is compensation

THE DIFFERENCE BETWEEN A TORT AND A CRIME

•  Differences in Procedure:

–  Standard of Proof

•  Criminal law: beyond reasonable doubt • Torts: on the balance of probabilities

TORTAcivilac+on

Broughtbythevic+m

Remedy:compensa+on

Proof:balanceofprobabili+es

CRIMEAcriminalac+on

BroughtbytheCrown

Remedy:punishment

Proof:beyondreasonabledoubt

TORTS DISTINGUISHED FROM BREACH OF CONTRACT

•  A breach of contract arises from breach of promise(s) made by the parties themselves.

CIVILOBLIGATIONS

TORT BREACHOFCONTRACT

TORTS CONTRACT

Dutytoothercontrac+ngparty

Dutyarisesfrompar+es’promises

Protectsexpecta+onoffuturebenefits

Damagesocenliquidated

Duty owed generally

Duty imposed by law

Protects what is already owned or possessed

Damages unliquidated

SIMILARITIES BETWEEN TORT AND CONTRACT

•  Both tort and breach of contract give rise to civil suits •  In some instances, a breach of

contract may also be a tort: eg an employer’s failure to provide safe working conditions

Questions

• What are the objectives of tort law?

THE OBJECTIVES OF TORT LAW

Lossdistribu+on/adjustment:shicinglossesfromvic+mstoperpetrators

Compensa+on:Throughtheawardof(pecuniary)damages• Theobjectofcompensa+onistoplacethevic+mintheposi+onhe/shewasbeforethetortwascommiUed.

Punishment:throughexemplaryorpuni+vedamages.Thisisasecondaryaim.

Question

•  What interests are protected by the Law of Torts, and how are these interests protected?

INTERESTS PROTECTED IN TORT LAW

Personalsecurity•  Trespass•  Negligence

Reputa+on•  Defama+on

Property•  Trespass•  Conversion Economic

andfinancialinterests

SOURCES OF TORT LAW

•  Common Law: –  The development of torts by precedent through the

courts •  Donoghue v Stevenson

•  Statute: –  Thematic statutes: eg Motor Accidents legislation •  Motor Accidents Compensation Act 1999

–  General statutes: eg Civil Liability legislation •  The Civil Liability Act (NSW) 2002

ACTIONS IN TORT LAW

Trespass•  Directlycausedinjuries•  Requiresnoproofofdamage(ac+onableperse)

Ac+onontheCase/Negligence•  Indirectinjuries•  Requiresproofofdamage

LIABILITY IN TORTS

LIABILITY IN TORT LAW

•  Liability = responsibility •  Liability may be based on fault or it

may be strict •  Fault liability: the failure to live up to a

standard through an act or omission .

TYPES OF FAULT LIABILITY

Inten+onal

Negligence

Fault

Intention in Torts

Deliberateorwilfulconduct

‘Construc+ve’intent:wheretheconsequencesofanactare

substan+allycertain:t

Whereconductisreckless

Transferredintent:whereDintendstohit‘B’butmisses

andhits‘P’

Negligence in Torts

•  When D is careless in his/her conduct •  When D fails to take reasonable care

to avoid a reasonably foreseeable injury to another and that party suffers damage.

STRICT LIABILITY

•  No fault is required for strict liability

INTENTIONALTORTSTOTHEPERSON

BATTERYASSAULT

FALSEIMPRSONMENT

Trespass

Conversion

Defama+on

Misrepresenta=on

Deceit

Inten+onalTorts

WHAT IS TRESPASS?

•  Intentional act of D which directly causes an injury to the P or his /her property without lawful justification

•  The Elements of Trespass: –  fault: intentional act –  injury* caused directly –  injury* to the P or to his/her property –  No lawful justification

*INJURY IN TRESPASS

•  Injury = a breach of right, not necessarily actual damage

•  Trespass requires only proof of injury not actual damage

Inten=onalAct

Direct

Absenceoflawfuljus=fica=on

Interferencewithpersonortheirproperty

TheElementsofTrespass

TRESPASS

SPECIFIC FORMS OF TRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT

TREAPASS

The Nature of the tort

Battery :

BATTERY

•  The intentional act of D which directly causes a physical interference with the body of P without lawful justification

•  The distinguishing element: physical interference with P’s body

THE INTENTIONAL ACT IN BATTERY

•  No liability without intention •  The intentional act = basic willful act +

the consequences.

THE ACT MUST CAUSE PHYSICAL INTERFERENCE

•  The essence of the tort is the protection of the person of P. D’s act short of physical contact is therefore not a battery

•  The least touching of another could be battery – Cole v Turner (dicta per Holt CJ)

•  ‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate’ ( per Goff LJ, Collins v Wilcock)

CrouchervCachia[2016]NSWCA132

UguzcuvMacquarieHotelLiverpoolPtyLtd[2016]NSWSC843

WhitevJohnston[2015]NSWCA18

Theissuesonappeal:

Whetherapa+ent'sconsentisinvalidifthesolepurposeoftreatmentisnon-therapeu+c;

WhethertheabsenceofconsentformsthegistofassaultandbaUery;and

Whethertheonusofprovingconsentlieswiththepa+entortheprac++oner.

RixonvStarCityCasino

•  D places hand on P’s shoulder to attract his attention; no battery

CollinsvWilcock

•  Police officer holds D’s arm with a view to restraining her when D declines to answer questions and begins to walk away; battery

SHOULD THE PHYSICAL INTERFERENCE BE HOSTILE?

•  Hostility may establish a presumption of battery; but

•  Hostility is not material to proving battery

•  The issue may revolve on how one defines ‘hostility’

THE INJURY MUST BE CAUSED DIRECTLY

•  Injury should be the immediate The Case Law: – Scott v Shepherd ( Lit squib/fireworks in market

place)

THE ACT MUST BE WITHOUT LAWFUL JUSTIFICATION

•  Consent is Lawful justification •  Consent must be freely given by the P if P is able

to understand the nature of the act –  Allen v New Mount Sinai Hospital

•  Lawful justification includes the lawful act of law enforcement officers

ASSAULT

WHAT IS ASSAULT

•  The intentional act or threat of D which directly places P in reasonable apprehension of an imminent physical interference with his or her person or of someone under his or her control

ASSAULT

TRESPASS:ASSAULT

•  The intentional act or threat of D which directly places P in reasonable apprehension of an imminent physical interference with his or her person or of someone under his or her control

•  It is any act — and not a mere omission to act — by which a person intentionally — or recklessly — causes another to apprehend immediate and unlawful violence:

The Gist of the Action

•  …Assault necessarily involves the apprehension of injury or the instillation of fear or fright. It does not necessarily involve physical contact with the person assaulted: nor is such physical contact, if it occurs, an element of the assault. (Barwick CJ in The Queen v Phillips (1971) 45 ALJR 467 at 472

THE ELEMENTS OF ASSAULT

•  There must be a direct threat: – StateofNewSouthWalesvMcMaster[2015]NSWCA228;328ALR309,

– StateofNewSouthWalesvIbbeJ[2005]NSWCA445

• 

D’actmustinduce

apprehensioninP

Itmustbea‘reasonable’

apprehensionofimminentunlawfulphysicalinterference

Whatisimminent

dependsonthecircumstance

Police v Greaves Barton v Armstrong Zanka v Vartzokas

Zanker v Vartzokas and the issue of

imminence/immediacy

•  The Facts: – Accused gives a lift to victim and offers money

for sex; victim refuses. –  Accused responds by accelerating car, Victim

tries to open door, but accused increases acceleration

– Accused says to victim: I will take you to my mates house. He will really fix you up

–  Victim jumps from car then travelling 60km/h

ZankervVartzokas:TheIssues

•  Was the victim’s fear of sexual assault in the future reasonable? •  Was the feared harm immediate

enough to constitute assault?

ZankervVartzokas:TheReasoning

•  Where the victim is held in place and unable to escape the immediacy element may be fulfilled.

•  The essential factor is imminence not contemporaneity

•  The exact moment of physical harm injury is known to the aggressor

•  It remains an assault where victim is powerless to stop the aggressor from carrying out the threat

MereWordsandSilence

•  In general, mere words are may not actionable –  Barton v Armstrong

•  But silence as in silent telephone calls, may constitute an assault: R v Burstow; R v Ireland [1998] AC 147.

Condi+onalThreats

•  In general, conditional threats are not actionable –  Tuberville v Savage –  Police v Greaves

03 THE LAW OF TORTS WEEK 2

False Imprisonment Trespass to Land

Professor Sam Blay

FALSEIMPRISONMENT

SPECIFIC FORMS OF TRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT

TREAPASS

FALSE IMPRISONMENT

•  The intentional act of D which directly causes the total restraint of P and thereby confines him/her to a delimited area without lawful justification

•  The essential distinctive element is the total restraint

THE ELEMENTS OF THE TORT

Itrequiresallthebasicelementsoftrespass:

Inten+onalact

Directness

Absenceoflawfuljus+fica+on

Totalrestraint

RESTRAINT IN FALSE IMPRISONMENT

•  The restraint must be total –  Bird v Jones (passage over bridge) –  Rudduck v Vadarlis –  The Balmain New Ferry Co v Robertson

•  Total restraint implies the absence of a reasonable means of escape –  Zanker v Vartzokas (D refuses to allow P out of car)

•  Restraint may be total where D subjects P to his/her authority with no option to leave –  Symes v Mahon (police officer arrests P by mistake)

KNOWLEDGE IN FALSE IMPRISONMENT

•  The knowledge of the P at the moment of restraint is not essential. – Merring v Graham White Aviation – Murray v Ministry of Defense

StateofSouthAustraliavLampard-Trevorrow(2010)106SASR331

•  WhenPwasaboutayearold,hewastakenfromhospitalbyanofficeroftheAboriginesProtec+onBoardandlaterplacedinlong-termfostercarewithouthisparentsknowingoftheremovalorthefostering.IssuewhethertherewasFI.

•  TheFullCourtunanimouslyheldthat,whileneithertheplain+ffnorhisparentshadconsentedtohisfosterplacement,hewasnotfalselyimprisonedduringtheperiodofhisfostercare.Thefactthattheplain+ffwasaninfantandneededcareandnurturespokeagainstanyfindingofrestraint.Anyelementofrestraint,whilsthegrewasayoungchild,wassolelyaUributabletotheobliga+onofhisfosterparentstocareforhimandalsoaUributabletohisimmaturity.

•  Howeverthattheplain+ff’sclaimofnegligenceagainsttheStatewasupheldbytheappealcourt.

INTENTIONALTORTSTOPROPERTY

SPECIFIC FORMS OF TRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT

TREAPASS

CHATTELS LAND

TRESPASSTOPROPERTY:LAND

TRESPASS TO LAND

•  The intentional of D which directly interferes with the plaintiff’s exclusive possession of land

SCOPE OF THE TORT

•  Land includes the actual soil/dirt, the structures/plants on it and the airspace above it •  Cujus esft solum ejus est usque

ad coelum et inferos – Bernstein of Leigh v Skyways & General

Ltd – Kelson v Imperial Tobacco

THE NATURE OF D’S ACT

•  The act must constitute some physical interference which disturbs P’s exclusive possession of the land – Victoria Racing Co. v Taylor – Bathurst City Council v Saban

THE NATURE OF THE PLAINTIFF’S INTEREST IN THE LAND

•  P must have exclusive possession of the land at the time of the interference exclusion of all others

THE NATURE OF EXCLUSIVE POSSESSION

•  Exclusive possession is distinct from ownership.

•  Ownership refers to title in the land. Exclusive possession refers to physical holding of the land

•  The nature of possession depends on the material possessed

EXCLUSIVE POSSESSION: CO-OWNERS

•  In general, a co-owner cannot be liable in trespass in respect of the land he/she owns; but this is debatable where the ’trespassing’ co-owner is not in possession.

•  A co-possessor can maintain an action against a trespasser (Coles Smith v Smith and Ors)¯

THE POSITION OF TRESPASSERS AND SQUATTERS

•  A trespasser/squatter in exclusive possession can maintain an action against any other trespasser – Newington v Windeyer (1985) 3 NSWLR

THE POSITION OF LICENSEES •  A licensee is one who has the

permission of P to enter or use land (belonging to P)

•  A licensee is a party not in possession, and can therefore not sue in trespass

•  A licensee for value however may be entitled to sue(E.R. Investments v Hugh)

THE TRESPASSORY ACT

•  Preventing P’s access Waters v Maynard)

•  The continuation of the initial trespassory act is a trespass continuing trespass –  Where D enters land for purposes

different from that for which P gave a license, D’s conduct may constitute trespass ab initio/pro tanto

CaseLaw

–  SinghvSmithenbecker:Denteredlandtotakesheeplawfullypurchased.ButbecametrespasseronceheremovedP’sgateandtookcertainsheepwithoutpermission.

–  BondvKelly:Dbecametrespasserwhenhecutmore+mberfromP’slandthanpermiUedamount.

–  Howeversee:Healing(Sales)vInglicElectrix:DwenttoP’shousetotakesomeoftheirproperty,butalsotookP’s.Held:BarwickCJandMenziesJ-Dwasnotliableaspartofpurposewaslawful.KiUoJsaidtakingP’sstuffmadethemliable.Thus,thereissomedoubtastothetrespassprotantodoctrine.

THE POSITION OF POLICE OFFICERS

•  Unless authorized by law, police officers have no special right of entry into any premises without consent of P. (Halliday v Neville)

•  A police officer charged with the duty of serving a summons must obtain the consent of the party in possession (Plenty v. Dillion )

Police Officers; The Common Law Position

•  The poorest man may in his cottage bid defiance to all forces of the Crown. It may be frail- its roof may shake- the wind may blow through it- the rain may enter- but the King of England cannot enter- all his force dares not cross the threshold of the ruined tenement. So be it- unless he has justification by law’. ( Southam v Smout [1964] 1QB 308, 320.

03 THE LAW OF TORTS WEEK 3

Interference with Goods Action on the case for willful injury

Defences Professor Sam Blay

TRESPASSTOCHATTELS

TRESPASS TO GOODS/CHATTEL

•  The intentional/negligent act of D which directly interferes with the plaintiff’s possession of a chattel without lawful justification

•  The P must have actual or constructive possession at the time of interference.

• 

DAMAGES

•  Itmaynotbeac+onableperse(EveriJvMarSn)

CONVERSION

•  The act of D in relation to another’s chattel which constitutes an unjustifiable denial of his/her title

CONVERSION: Who Can Sue?

•  Owners •  Those in possession or entitled to immediate

possession –  Bailees* –  Bailors* –  Mortgagors* and Mortgagees*(Citicorp

Australia v B.S. Stillwell) – Finders (Parker v British Airways; Armory v

Delmirie)

ACTS OF CONVERSION

•  Mere asportation is no conversion –  Fouldes v Willoughby

•  The D’s conduct must constitute an unjustifiable denial of P’s rights to the property –  Howard E Perry v British Railways Board

•  Finders of lost property –  Parker v British Airways

•  The position of the auctioneer –  Willis v British Car Auctions

•  Destruction of the chattel is conversion –  Atkinson v Richardson;)

•  Taking possession •  Withholding possession – Clayton v Le Roy

ACTS OF CONVERSION

•  Misdelivery ( Ashby v Tolhurst (1937 2KB); Sydney City Council v West)

•  Unauthorized dispositions in any manner that interferes with P’s title constitutes conversion (Penfolds Wines v Elliott)

DETINUE

•  De+nue:ThewrongfulrefusaltotendergoodsupondemandbyP,whoisen+tledtopossessionItrequiresademandcoupledwithsubsequentrefusal(GeneralandFinanceFaciliSesvCooksCars(Romford)

DAMAGES IN CONVERSION AND DETINUE

•  In conversion, damages usually take the form of pecuniary compensation

•  In detinue, the court may in appropriate circumstances order the return of the chattel

•  Damages in conversion are calculated as at the time of conversion; in detinue it is as at the time of judgment –  The Mediana –  Butler v The Egg and Pulp Marketing Board –  The Winkfield –  General and Finance Facilities v Cooks Cars (Romford)

ACTION ON THE CASE FOR INDIRECT INJURIES

INDIRECT INTENTIONAL INJURIES: CASE LAW

•  Bird v Holbrook (trap set in garden) – D is liable in an action on the case for

damages for intentional acts which are meant to cause damage to P and which in fact cause damage (to P)

THE INTENTIONAL ACT

•  Theinten+onalmaybedeliberateandpreconceived(BirdvHolbrook)•  Itmayalsobeinferredorimplied;thetestfortheinferenceisobjec+ve

•  WilkinsonvDownton•  JanviervSweeney•  NaSonwideNewsvNaidu

Action on the Case for Indirect Intentional Harm: Elements

•  D is liable in an action on the case for damages for intentional acts which are meant to cause damage to P and which in fact cause damage to P

•  The elements of this tort: –  The act must be intentional –  It must be one calculated to cause harm/damage –  It must in fact cause harm/actual damage

•  Where D intends no harm from his act but the harm caused is one that is reasonably foreseeable, D’s intention to cause the resulting harm can be imputed/implied

THE SCOPE OF THE RULE

•  The rule does not cover ‘pure’ mental stress or mere fright – Wainright v Home Office

•  The act must be reasonably capable of causing mental distress to a normal* person: – Bunyan v Jordan – Stevenson v Basham

The Future of the Wilkinson v Downtown

•  The High Court obiter dicta Magill v Magill –  Subsequent developments in Anglo-Australian law

recognise these cases as early examples of recovery by reference to imputed intention to cause physical harm ; a cause of action later subsumed under the unintentional tort of negligence ( Per Gummow, Kirby and Crennan JJ)

–  Wilkinson v Downton, decided in 1987 and Janvier v Sweeney decided in 1919, which were cases of deception causing nervous shock, would probably now be explained either on the basis of negligence or intentional infliction of personal injury ( per Gleeson CJ)

ONUS OF PROOF •  In Common Law, he who asserts proves •  Traditionally, in trespass D was required to disprove

fault once P proved injury. Depending on whether the injury occurred on or off the highway ( McHale v Watson; Venning v Chin)

•  The current Australian position is contentious but seems to support the view that in off highway cases D is required to prove all the elements of the tort once P proves injury –  Hackshaw v Shaw –  Platt v Nutt –  See Blay; ‘Onus of Proof of Consent in an Action for Trespass

to the Person’ Vol. 61 ALJ (1987) 25 –  But see McHugh J in See Secretary DHCS v JWB and SMB

(Marion’s Case) 1992 175 CLR 218

IMPACT OF THE CIVIL LIABILITY ACT

•  Section 3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability in respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct – the whole Act except Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death

DEFENCESTOINTENTIONALTORTS

INTRODUCTION: The Concept of Defence

•  Broader Concept: The content of the Statement of Defence- The response to the P’s Statement of Claim-The basis for non-liability

•  Statement of Defence may contain: –  Denial –  Objection to a point of law

–  Confession and avoidance:

MISTAKE

•  An intentional conduct done under a misapprehension

•  Mistake is thus not the same as inevitable accident

•  Mistake is generally not a defence in tort law ( Rendell v Associated Finance Ltd, Symes v Mahon)

CONSENT

•  In a strict sense, consent is not a defence as such because in trespass, the absence of consent is an element of the tort – See: Blay; ‘Onus of Proof of Consent in an

Action for Trespass to the Person’ Vol. 61 ALJ (1987) 25

– But McHugh J in See Secretary DHCS v JWB and SMB (Marion’s Case) 1992 175 CLR 218

VALID CONSENT

•  To be valid, consent must be informed and procured without fraud or coercion: ( R vWilliams;)

•  To invalidate consent, fraud must relate directly to the agreement itself, and not to an incidental issue: (Papadimitropoulos v R (1957) 98 CLR 249; R v Linekar (the Times, 1994)

CONSENT IN SPORTS

•  hUp://www.youtube.com/watch?v=VgtKW5PLso4

•  Incontactsports,consentisnotnecessarilyadefencetofoulplay(McNamaravDuncan;HiltonvWallace)

•  Tosucceedinanac+onfortrespassincontactsportshowever,thePmustofcourseprovetherelevantelementsofthetort.–  GiumellivJohnston

Self-DefenceCLAS52

•  1.Apersoncarriesoutconductinself-defenceifandonlyifthepersonbelievestheconductisnecessary:–  (a)todefendhimselforherselforanotherperson,or–  (b)topreventorterminatetheunlawfuldepriva+onofhisorherlibertyorthelibertyofanotherperson,or

–  (c)toprotectpropertyfromunlawfultaking,destruc+on,damageorinterference,or

–  (d)topreventcriminaltrespasstoanylandorpremisesortoremoveapersoncommitnganysuchcriminaltrespass,

•  andtheconductisareasonableresponseinthecircumstancesasheorsheperceivesthem.

CrouchervCachia[2016]NSWCA132

StateofNewSouthWalesvMcMaster;StateofNewSouthWalesvKarakizos;StateofNewSouthWalesv

McMaster[2015]NSWCA228

TheIssueofReasonableResponse:CLAs53

Wheres52couldapplybutforthefactthattheconductwasnotareasonableresponseinthecircumstancesasDperceivedthem,acourtisneverthelessnottoawarddamagesagainstthepersoninrespectoftheconductunlessthecourtissa+sfiedthat:

• (a)thecircumstancesofthecaseareexcep+onal,and• (b)inthecircumstancesofthecase,afailuretoawarddamageswouldbeharshandunjust.

SahadevBischoff[2015]NSWCA418

•  Analterca+onoccurredwhentherespondentcaughttheappellantbreakingaparthisstaircasewithasledgehammer.

THE DEFENCE OF PROPERTY

•  D may use reasonable force to defend his/her property if he/she reasonably believes that the property is under attack or threatened

•  What is reasonable force will depend on the facts of each case, but it is debatable whether reasonable force includes ‘deadly force’

•  But see S52(3) CLA: – S52 provisions on self defence does not protect D if

D’s conduct involves the intentional or reckless infliction of death only: •  (a) to protect property, or •  (b) to prevent criminal trespass or to remove a person

committing criminal trespass.

PROVOCATION

•  Provocation is not a defence in tort law. •  It can only be used to avoid the award of

exemplary damages: Fontin v Katapodis; Downham Ballett and Others

NECESSITY

•  The defence is allowed where an act which is otherwise a tort is done to save life or property: urgent situations of imminent peril

Urgent Situations of Imminent Peril

•  The situation must pose a threat to life or property to warrant the act: Southwark London B. Council v Williams

•  The defence is available in very strict circumstances R v Dudley and Stephens

•  D’s act must be reasonably necessary and not just convenient Murray v McMurchy –  In re F – Cope v Sharp

INSANITY

•  Insanity is not a defence as such to an intentional tort.

•  What is essential is whether D by reason of insanity was capable of forming the intent to commit the tort. (White v Pile; Morris v Marsden)

INFANTS

•  Minority is not a defence as such in torts. •  What is essential is whether the D

understood the nature of his/her conduct (Smith v Leurs; Hart v AG of Tasmania)

DISCIPLINE

•  PARENTS –  A parent may use reasonable and

moderate force to discipline a child. What is reasonable will depend on the age, mentality, and physique of the child and on the means and instrument used. (R v Terry)

ILLEGALITY:Ex turpi causa non oritur actio

•  Persons who join in committing an illegal act have no legal rights inter se in relation to torts arising directly from that act. – GollanvNugent(1988)166CLR18