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PEARSON

Education Australia

,

Torts

Mandy Shircore , , •

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Shircore, Mandy. Pearson law briefs: tortS I author, Mandy Sh ircore. Frenchs Forest, N.s.W. Pellrson Edutation Australia, 200S. 978174 10387;0 (pbk.) Includes index. Bibliography. -[br ts~·Austra li a

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PEARSON --­Education Australia

An imprint of Pearson Educat ion Australia (a division o f Pearson Australia Group Pty Ltd)

foreword ~----------------------------------------------------- --- ---- -

Pearson Law Briefs is a series designed to assist those people studying law to come to grips with what are at times complex

legal issues. The law is about analysing cases and statutes and then applying the prevailing law to legal problems that cl ients present to their lawyers. From there, lawyers synthesise an

argument based on the prevailing law and receive instructions

from their cUents on what course of action is appropriate,

based on that process of syntheSis. This process, simply desclibed here, can involve a complex

interpre tation of what a judge or judges sayan how to apply the relevant precedent case or cases to the client's facts. Every clay in courts around the common law world lawyers e.'{piore whether

precedent should be applied to the client 's facts or whether the law should distinguish precedent and create some new law or

a derivation of the prevailing law. The complexity of such an

explonnjon is at times quite daunting.

Pea'rson Law Briefs seek to achieve two imponant goals in

dealing with dle level of complexity th rown up by d,e law. First, dley seek to demystify the complexity of the law by providing clear and concise explanations of the law, Second, they seek

to provide a diagrammatic explanation of the law that wiU help students grapple with the co mplexity of legal concepts and allow students to have a clearer understanding of the area of

law they are studying. Pearson Law Briels have engaged expert authors in each of

the basic and core areas of study in the law who actually teach

the area of law they are \vriting about. This is an im portant

factor in the success of the l.aw Briefs series as it ensures

students are reading the words of law teachers who are actively

teaching in the field they are writing on. This means the latest and best explanations of the concepts students are studying.

I hope Pea1·son Law Briefs assist you to achieve great results

in your law studies and help to instil a love of learning the law and ultimately a love of practising the law in whatever fie ld of endeavour you choose . The law is a challenging profession that responds to a dynamic soaery constantly adapting to its surroundings. Best of luck with your law studies.

David Spencer Series Editor

Contents .-------------- - - --- ----- ---- - - ------- - --- -------- --- - -- --- - - --- - -- - -

Foreword VII

Preface x 1 Introduction to torts liability 1 2 Interference with the person 12 3 Trespass to land and invasion of privacy 24 4 Interference with goods 36 5 Defences to intentional torts 47 6 Duty of care generally 59 7 Particular duty of care situations 70 8 Duty of care-Omissions to act, public authorities

and the role of policy 82 9 Duty of care-Pure psychiatric injury and pure

economic loss 93 10 Breach of duty 104 11 Standard of care 117 12 Factual causation 128 13 Scope of liability/remoteness of damage 139 14 Defences to negligence 151 15 Personal injuries damages-Part 1 163 16 Personal injuries damages- Part 2: Wrongful

death and survival actions 174 17 Vicarious liability, non-delegable duties and

multiple tortfeasors 185 18 Nuisance-Part 1 196 19 Nuisance-Part 2: Breach of statutory duty 208 20 Defamation 220 Glossary 232 Index 239

.J

Preface ------- -- ----- - - ----------- ---- ---- --- ----- ----- - -----

Unlike many other core areas of law that students are

requ ired to study in their degree, {he law of torts consists

of a number of distinct civil wrongs. Lt is for this reason that

defining exactly what amounts to a tort has proved difficult. Many commentators prefer to define torts in the negative, by comparing and distinguishing tons from other actions with

similar features, such as contract law and criminal law. Others

prefer to define torts by considering the rypes of interests the law of torts seeks to protect. In general terms, torts law

provides a right to compensation where one person wrongfully

breaches a dury or obligation that has been imposed by the law (rather than the parties themselves) for the protection of

another. Until recently, the clevelopmenr of the law of torts has been

left largely to the common law. The earliest tort of trespass was developed to protect a person's bodily integrity, land and goods from direct imerference by another. ln 1932, the modern tort of negligence was born and with the advent of industrialisation the tort continued to expand to cover an ever-increasing range

of unintentional conduce. Towards the end of the cemury there

were concerns expressed that the Jaw of negHgence had gone

too far. In response to the 'insurance crisis' in 2002, Australian

governments introduced sweeping civil liabi li ty legislation to

recluce the number of possible negligence claims ancllimit the clamages available. Even so, many of the principles established under the common law remain, and study of the law of

negligence requires detailed examination of both case law and the various legislarjve p rovisions.

As it is not possible to cover all tortious actions in this

book, the most sign ificant torts have been selected. After an introductory chapter, wh ich defines torts and traces their '

historical development, the book is divided into three main parts . The first section covers what are generally referred to as the intentional tons, trespass to the person, goods and land,

and the development of a new tort of invasion of privacy. The second, and largest, part of the book deals with the tort of negligence. Duty of G'1re, breach of duty, causation, defences to

negligence and damages are all considered. In the final section, a number of miscellaneous tofts are dealt wi th including

nuisance, breach of statutOIY duty and defamation.

As interactions wi thin society become more complex, the

law of torts will continue to develop and adapt. Amidst calls to pare back legislative reforms, further changes to civil liability legislation and negligence laws are to be expected. This makes the law of torts a dynamic and challenging area of the law to study. Good luck with your studies in lbrts Law.

Mandv Shircore

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