Tort Law in Two Hours

[Music] get everyone Anthony Maddox my name welcome to the second of my two hour law courses as with the previous one the idea here is to gallop through an entire university of law course in two hours this time we'll be looking at intentional torts now most of you in most law schools will find that your study program includes two towards courses they might be called tort a and but you generally find that one of those courses is all about what we call the intentional torts and the other ones about negligence I'll describe the difference more once we get underway I'm hoping that a future to our law course will be done Englanders now as I said at the start of the previous two-hour lore video these videos are a great way to get an overview and they break for revision but we're doing this in two hours here obviously the detail is heaps less than what you'll get by studying each week at Union so this video can help that it can't replace an entire detail course in tort law finally as always on the bottom of the screen you'll find the statutes and cases which support the points of law that I'm making in my description take a note of those and you can go looking for them to help fill in the details the more discussed in this video is Queensland law the torts is very similar throughout Australia and I've done my best to illustrate those areas where the lorry and other states is different I understand the law to be correct as at the 30th of June 2018 alrighty two hours I'm up for the challenge again let's start the clock every towards of course in the whole world starts out by telling you that the word taught is a French word meaning wrong it's also customary to make a joke about how a tort is also a rather yummy cake so a tort is something that a person does wrong to another person with the result that the victim can sue them for a Remmy now that's a simple enough explanation but it's not altogether helpful one I would prefer to say that everyone in our community has a bundle of interests we have an interest in our own body for instance we don't like it when others hurt us touch-ups without our permission we have an interest in our own stuff if we own things or possess things well others shouldn't use them or take them without our agreement we have an interest in our land we don't want others coming into our homes or onto our lands without our permission we have an interest in our reputations when I was thrashing us we have an interesting theory economic transactions we sometimes have been interesting other people we have an interest in the communal environment in which we live we don't want others harming that communal environment especially where that directly affects us now once upon a time back in the Dark Ages or something if a person harmed us then we probably take it onto ourselves to go and do something about it we won't steal our stuff back or challenge them to a duel stab them in their sleep or set the house on fire or very satisfying stuff but the rule of law is supposed to create peace order and good government so the law has to provide people who have been wronged with things they can do about it without learning one another's answers now that's tort law tort law says here are a range of interests which the law will protect if someone messes with those interests you can sue them and obtain a remedy now some of you will straightaway see that tort law overlaps with some of the other types of law that you'll most likely be studying in your first year of law school for instance if someone was to physically harm you or if they were to steal your stuff then they'd be committing a criminal offense as well as a tort in the same way quite often a person who commits a tort against you might also be breaching a contract with you for instance if you put a beautiful dress in to be dry-cleaned and then saw the dry-cleaning staff member wearing your dress at a social function will they be committing the tort of conversion but that also potentially be breaching your contract the cool thing is that where these causes of action overlap you don't have to choose both remain open so let's say someone does hit you and as a result you end up with a big dentist's bill well the police might charge them with a criminal offense but that criminal offence is between the crowd and the defendant you as the victim well you're really just a witness for the prosecution under total although you can still potentially sue the damages for the harm they caused to you we'll look more at the detail later but for now just understand that tort law often does overlap with other areas of law and that's okay the victim will generally have access to both we traditionally divide torts into what we call intentional torts and negligent torts intentional torts which are the ones we're discussing in this video require a certain level of intention to commit the act or the omission which results in the harm negligent torts on the other hand don't require intention negligence occurs when a person has a duty of care towards someone else and they fail in that duty and the failure causes harm so the intentional torts there are a few fundamental things to think about first the law is only interested in whether the person committing the toy we call them intentionally committed the act the more isn't usually interested in whether they so let's say I threw a rock in your direction to give you a bit of a scare but my ami was off and I clocked in between the eyes well that'd still count as intentional there are a couple of thoughts where this isn't true and I mentioned those later but the basic principle is that we are only worried about whether the act was intentional not whether the harm was intentional second it's sometimes enough to be reckless so let's say I was at a concert and there were a bunch of people in with fines but just to be smart I was spraying people with a water pistol I might not have intended to spray anyone's fun but I knew it was a pretty solid possibility I didn't really worry about it in some cases recklessness might theoretically be enough for the act to be intentional but most recklessness cases are more likely to be sued as negligence without an intentional act of some kind you usually don't have an intentional toy finally one of the beautiful things about studying torts is how structured they are for this reason any of you into a criminal I certainly enjoy torts as well every intentional toy is broken down into a number of elements we're going to go through those elements for every intentional tort to work out whether an act was tortious that is whether it's a tort and whether it gives light rise to liability all we need to do is break the tort down to its elements and look for evidence to show that those elements are present from a conceptual perspective it's that easy there are a few things I want to look at briefly before we get stuck into the individual tort so first up anyone who knows my teaching knows and i'm they've cited for over the history you can't understand the law without understanding its history especially tort law you see tort law is some of the oldest we know the very old Sweetman rules that we know about are the code of hammurabi king of the Babylonians now these laws were written nearly 4000 years ago and most of them are basically tort law for instance law number 245 says if anyone hire oxen and killed them by bad treatment or blows he shall compensate the owner oxen for oxen in other words if you damage someone else's stuff here then they have to compensate them now the Romans who are much more likely to a provided a basis for our English based system of law they produced the lexically on that's a system of laws which was also about compensating people for damage unlawfully inflicted by the defendant in our terms by the tort feasor so you can see for thousands of years laws of look for ways to provide compensation to those who are harmed by the unlawful actions of others in the English system of law of this resulted in what was called the writ of trespass in the old rig system this rig first came on the scene during the twelve hundreds so in the same century that Magna Carta was signed to again very often the rid of trespass allowed people to claim compensation for interference with a person or their goods or their land the legal fiction was that the tort feasor by engaging in this interference had interfere with the king's peace which is why the courts could get involved in reality the courts were more likely involved to prevent breaches of the Pease which would occur if people just sorted it out for themselves while anyone another's house down and second the courts wanted the income from the fees paid by those bringing cases before the courts over the centuries another reap developed referred to as an action on the case is a very odd description and this route was used when the harm was caused by one person to another but where they couldn't necessarily show a trespass this writ ultimately became the tort of negligence in any event you can see the tort law is truly ancient and despite the passage of thousands of years it still basically does the same thing it's always done it requires tortfeasors to compensate their victims for interference with their protected interests in recent years though Parliament's have really changed the game when it comes to many types of toil I know you're probably busting for me to start talking about the actual torts themselves but bear with me this bit really is important you see there are a bunch of different situations where one person might cause harm to another and where the victim of that harm might be able to claim compensation or other forms of support under a parliamentary law or a statute rather than relying on general tort law so it's important to be aware of these up front because the last thing you want is to be rushing off to use tort law when in fact there's a statute which provides your client with a different scheme of compensation so let's look at some all states in Australia have established legislation requiring the operators of Motor Vehicles to have third party insurance relating to those motor vehicles that insurance covers the damages to some other person the third party if your car engines them in an accident where the driver of your car is at fault these schemes include simplified more efficient procedures for resolving disputes without those claims in addition there's a national scheme called the national injury insurance scheme which provides support to those seriously injured in motor vehicle accidents regardless of who's at fault now neither of these schemes actually stops a person from taking action under traditional tort law but they represents such an improvement that virtually every traffic access it's resolved under the legislation if a person is injured in their workplace then in a similar way their compensation the costs of their treatment and rehabilitation and the process of returning them to work is all now managed by a statutory scheme in each state and territory the scheme is funded by employers who are required to maintain appropriate insurance arrangements again while this scheme does not actually prevent people from taking action under traditional tort law the scheme is generally so much better than virtually everyone stays under the legislation all states have established victims of crime support schemes in Queensland the scheme is operated by a government entity called victims assist and it provides compensation to victims of violent crime it doesn't provide the same sort of compensation for victims of non violent crime the amounts payable at capped usually at $75,000 and the government itself then goes after the offender for the repayment of that money so the advantage is that victims don't have to go to the time and expense of legal action while trying to fund their recovery in the meantime the disadvantage is the limitation on damage however again this legislation doesn't stop people from also taking action under tort law next there's a joint Commonwealth state scheme involving all the states and territories called the National Disability Insurance Scheme this actually isn't an insurance scheme at all it's funded by the Commonwealth and the state governments and ultimately it's funded by the taxpayers who earn enough that they're required to pay the Medicare levy essentially the NDIS exists to provide necessary and reasonable supports to people with disabilities this includes people with congenital disabilities but also people who have disabilities which come about because of the actions of others so the sorts of things we normally think about in the area of torts now the relationship between the NDIS and tort is a little different because a person receiving support under the NDIS can actually be required to take action including under tort law to obtain compensation for whatever is caused their disability that compensation money then goes to fund their NDIS support finally the Australian Consumer Law which applies right across Australia contains provisions which allow consumers of goods and services to obtain compensation and other remedies if the goods and services don't work or more importantly for our purposes if they end up actually causing harm now these consumer provisions are much more relevant to negligence which is the other half of torts but I still want you to know that legislations out there so overall you can see that the parliaments in Australia have been quite active when it comes to reforming areas of the law related to the provision of compensation for people who've become by others the tort law we're going to be talking about in this lecture has to exist in harmony with those other schemes alright enough of the preliminaries let's get stuck innocent also at the outset I've said that one of the purposes of tort law is to compensate people for various types of interference the first of those types of interference we going to look at is interference with the person themselves in many texts you'll see this referred to as trespass two persons which is language harking back to that old read of trespass interference with person starts with a fundamental philosophy that the Lord should absolutely protect each individual person nobody should be allowed to touch you or take actions which hurt you unless you consent or unless they have some other lawful justification there are three torts relating to interference with a person they're called assault battery and false imprisonment they each to require a number of the same elements to be present first they each require a voluntary act this means that tort feasor must intend their conduct so to take an example from the cases if a person is having a medical fit and they strike somebody through the spontaneous action of that fit it's not a voluntary act second the voluntary act needs to have what we refer to as an injurious effect so it needs to cause some consequence that the law will protect now as we go through each tort you'll see that the injurious effect changes for each tool the Enduro suspect has to immediately follow on from the act so if there are intervening action was like a chain of events between the Act and the injurious effect is probably no liability finally for these torts against the person it's necessary to either intend to cause the injury or alternatively the tort feasor the wrongdoer needs to be reckless as to the injury so basically at all against the person occurs when one person performs a voluntary act which has an immediate injurious effect upon another person and where they intended the injury or what reckless as to the possibility of the injury let's start by looking at a salt because the salt is not actually what most people think it is a salt is the intentional offer of a threat of force or violence to another person who reasonably believes that the violence will be carried out immediately so salt doesn't require in touching at all assault is about the racial and you can see why if I put a gun at someone well they're entitled to be terrifying and they're entitled to the laws protection from that terror and that's the case where I intend to shoot them or not let's break down what we mean by assault the first element we need is an intentional offer how might this happen well there are two ways through words and through conduct so if I shouted at you I'm going to punch you then that would be an intentional offer of that threat similarly if I said nothing but I shook my fist at you in a way that made it clear that I was about to hit you well then that too more often though words and gestures happen at the same time and those words and gestures can actually affect one another so for instance in an old case called Reed & Co Co the plaintiff was surrounded in the workshop by the defendants workman who told him to leave well that would break his neck you can see in that case the words and the actions went together so that was definitely an assault in another even older case though the defendant having been provoked by the plaintiff ladies hand upon the handle of his sword and said if it were not a ceased time I would not take such language from you in other words the circuit judges were in town so it was the worst possible time to be killing someone in a duel and so well his gesture was threatening can you see that his words actually undid the threat he was saying I'd really like to pull out my sword and cut you in half but because the judges are in town I'm not going to so there was no offer of a threat and therefore no assault the second element is that there needs to be a threat of force or violence towards the other party so if the threat is something other than the force of violence it's not an assault one of the more interesting examples there is a threat to take a photograph the other person won't want their photograph taken it might be a threat of something unpleasant but it's not a threat of force or violence so it's not an assault the third element is that the other party has to reasonably believe that the threat can be carried out if someone makes it threat towards you and you don't from the moment believe they could carry the three out that was pretty hard to suggest that the threat has caused you any particular terrorism bear in mind the keyword reasonably so the question here is not whether this particular victim believe the threat can be carried out but whether a reasonable person would have believed that the classic case here is a pistol which might not even be loaded being pointed at a victim will the reasonable person in that situation fear the threat was likely to be carried out they can't be expected to have any idea whether the weapon was longer the final element is that the victim has to reasonably believe the threat can be carried out imminently but what we mean by imminently is a big puzzle it doesn't have to mean immediately in the sense of the next few seconds however the threat does have to immediately play on the victims mind and there does have to be a certain continuity between the threat and the likelihood of the violence so for instance in zacchara and Vaart okis the defendant had trapped the plaintiff in his car he unsuccessfully demanded sexual favors from her and then speeding along he said I'm going to take you my mates house he really fix you up now even though that threat have been resolved for another ten minutes half an hour perhaps it immediately cast terror upon her and she was stuck in the situation with no prospect of escape in the intervening time that was in Seoul the essence of assault though is the threat and apprehension once the force of violence becomes real you go to silver battery the battery is an act which intentionally and directly causes offensive physical interference with the plaintiffs person now we've already talked about what we mean by intentional and we've already talked about what we mean by direct so let's assume those two it comes off the third element we need to look for in a battery is offensive physical interference notice how it doesn't actually require harm it doesn't require pain or bruising in fact the form of words used is that the least physical touching can constitute an assault the slightest brush of a defendant's fingertips against the plaintiff can be enough to cause offensive physical interference now that makes a lot of sense because the model doesn't just want to protect us from being harmed the law says that we are each inviolable each of us gets absolute protection of our bodies we get to decide who touches us and if someone touches us in an offensive way it matters not that they did not inflict some physical part and yet and yet touching is also a very normal part of our social engagement with people isn't it I mean by going out into the community among other people we kind of accept that under certain circumstances we might touch and be touched someone might touch you on the shoulder to attract your attention a complete stranger might reach out and grab you if you're about to fall getting on the train or going up to the bar or sitting next to someone on an aircraft these are all situations in which we generally accept that some level of social touching is going to occur within certain social boundaries that we all tend to not the law says that this social touching does not constitute a battery because it's not offensive but even this sort of touching normal social touching might become offensive if the person touching continues to do so even after the other person has made it clear that they're uncomfortable touching someone to get their attention becomes offensive if they've made it clear that they do not wish to give you their attention this in turn means that the notion of offensiveness might be different in different cultural contexts for instance as a man for me to physically touch a Muslim woman might further be an offensive contact because of religious rules in the same way for a woman to touch a Buddhist monk would automatically be offensive if you knew that your touch and the nature of your touch was going to be offensive and you went ahead and did it anyway that would definitely be enough to constitute battery the final thing to note is that while the action must be direct that doesn't mean that the tortfeasor must actually touch their victim using an implement or throwing or firing or watching at least oil of some sort is just the same as striking the blow personally shining a bright light or a laser pointer in someone's eyes would be just the same if you've directly caused the contact that's enough the last element is that the interference has to be with the plaintiff's person now that doesn't say the plaintiffs body contacting for instance their clothing or something they might be carrying would also be enough you can't get out of battery by making a sneaky argument like I didn't hit him I only hit his shirt in the case of Purcell and horn horns wife Elizabeth threw a bucket of water the complaint said boiling water over the planet that ruined his greatcoat and he was able to sue her as a trespass to the person not merely a trespass against his goods the third of our torts against the person is what we call false imprisonment bit of an odd title really because there's nothing false about the in Brisbane really we should call it something like improper imprisonment but you get your idea false imprisonment is an intentional and direct act there's as words again which causes the total restraint of the victim within an area defined by the tort feasor for any length of time let's break that down again we're going to skip over intentional and direct but if you're looking at false imprisonment probably question or for a client you'll definitely need to be looking for an intentional act which directly causes the false imprisonment so the third element that is the title restraint of the victim what do we mean by these well for starters we don't necessarily mean that the victim must be bound hand and foot what we mean when we talk about total restraint is that they have been secured in an area from which they cannot leave so for instance in a case that we've already met anchoring via tokus she was locked in a moving car and the door handle on the door was not operating so she'd been trapped if there's a way out for the person even if it's not a way out they would like well then it's not false imprisonment so in burdened Jones the plaintiff was prevented from moving through a public park because part of it had been roped off for paying spectators of a boat rocks he was allowed to go in any other direction though and so there was no imprisonment similarly in Balmain new Ferry and Robertson the plaintiff Robinson was held not to have been falsely imprisoned on a wharf in Sydney because he realistically had the option of swimming the short distance from the wharf to the nearest point of land if he truly wished to avoid paying to make his way through the turnstiles the fourth element confinement within an area defined by the tort feasor really forth out of that discussion of total confinement if I am confining you then cut of what I'm doing is establishing the boundaries of how far you may travel whether it's keeping you in this car with it's room or on this wall for in this plane if the tortfeasor can't define the area that you must remain within then it's quite likely that you're not in fact totally restrained isn't it the final element is fit any length of time now this is really important false imprisonment might in fact occur for just the briefest moment if there is any period of time in which the victim is not free to leave then they have been falsely imprisoned one last thing with false imprisonment strangely enough it's not actually necessary that the victim should know at the time of their imprisonment that they're being imprisoned in the key case Mearing and ground white aviation the plaintiff was being interviewed by his employer in a closed office and he didn't know that there were big burly staff members posted outside to stop him from getting away can you see how he's been falsely imprisoned he had no realistic way of leaving that room if he wanted to and yet at the time he had no idea that he was being in prison now obviously the victim would need to find out later is why would they bring the action but at the time they can be blissfully ignorant so those are our three ports in the category of interference with the person assault which is based on the threat that tree which is based on offensive physical contact and false imprisonment in which a person's living is taken away there are a number of defenses open to a defendant accused of these torts but the tricky thing is that the burden of proof swaps over so the defendant must prove on the balance of probabilities that the defense applies let's look at those defenses briefly now the first one to look at is consent you see sometimes we do consent particularly to battery anyone who's ever stepped on a football field or taken a karate lesson or had a massage or visited doctor has most likely consented two types of touching or force which go well beyond normal social touching but they're not thoughts in that context because there's consent next there is necessity now this defense applies if the actions of the defendant were reasonably necessary for the preservation or protection of life and if the plaintiff was not able to give or withhold their consent this classically occurs in a situation of a medical emergency services of car accident however if the plaintiffs lack of consent is no necessity will not apply this happened in milette and Sherman a Canadian case in which an unconscious patient with carrying a card stating that she was a Jehovah's Witness and she did not consent to blood transfusions a transfusion that was given to save her life was still an assault next there's self defense you can rely on self defense in defense of yourself in defense of others and in defense of property but the force use has to be no more than reasonably as and not out of proportion to the threat you also can't go one step further cross the line into retaliation the next defense discipline is of course very controversial a parent a schoolteacher or the captain of a ship or aircraft may use force or cause force to be used in pursuit of their disciplinary powers provided the force used is no more than reasonably necessary in the circumstances so the force which might be used in relation to a young child by a parent might obviously be less than the force that might be used to stop a 16 year old child from flying home in order to make their drug dealer the final defense is lawful authority this has a couple of aspects most obviously a police officer executing their powers of arrest or an authorized person detaining somebody under an involuntary treatment order for their mental health would have very specific legal powers to engage in conduct which in the absence of those laws would be assault battery false imprisonment second as you'll find when we look at interference with land and Goods certain courts allow people to engage in self-help for instance by entering premises to take back their own goods which in those circumstances the person engaging in self cough will be entitled to use force but not to such an extent that they cause grievous bodily harm okay the next major category of tort for us to discuss is the category of interference with goods you'll sometimes see this referred to as trespass to Goods or trespass to shadows now before we really start looking at the torts themselves there are a couple of concepts that you need to wrap your head around if you've already done property law you'll probably know all of these but the refresher is not going to kill you there are two key types of relationships that a person might have with an object ownership and possession now very often they're the same I own something and I'll have it in my possession and it's mine but there are also lots of occasions with ownership and possession as several if I hire a car I take possession of the car rental company still owns it if I lend you a book that you're in possession of the ball but I still won't it's very important before we go any further for you to have very clearly in your mind the distinction between ownership and possession the second concept on which I understand what we call constructive possession you see Australia is an absurdly rich country and many of us own an awful lot of stuff far more than we could keep with us at all times constructive possession refers to things that we possess even if we don't have them immediately or need we possess them because anytime we want to we can go and grab them and we can also decide whether anyone else is allowed to grab them so when I leave for work in the morning I'm still in possession of my TV at night because I can watch it whenever I like and I can decide who else gets to watch it with me so far now the torts relating to interference with goods they protect possession so the person who was in possession of the goods at the time they read a field with is the person who brings the action not the owner it fascinates me that this is still true even if the person is in wrongful possession of the words a person who's in wrongful possession can successfully sue in tort anyone except the rightful owner of the person so let's say you lied to me your car and you said Anthony get it back by 8:00 p.m. Friday please but I did Saturday afternoon I still had the car and someone else stole it from me from the shopping centre car park can you see that they've stolen that car from me not from you and if I called them they could hardly weasel their way out of it by saying we're hang on Anthony you're not the owner of this car and you're not supposed to the imposition of it so yeah no more right to the carbon I do know these torts protect possession so the first question we have to ask in relation to any tort to do with goods is who was in possession prior to the tortious conduct let's have a look at the torts themselves there are three key towards trespass can and deadly trespass itself follows the form of words we've already come to expect it's an intentional act which directly interferes with the plaintiffs possession of their shadow to be honest though you almost never see this particular really we're making about interference with goods we're thinking about conversion and debt anew conversion occurs when there is an intentional act which directly interferes with the plaintiffs possession of goods in such a fundamental way that it essentially excludes the plaintiffs of possession now this is a bit of a fuzzy definition in some ways isn't it it's not like the elements of the tort tell us what specific actions are going to constitute conversion in fact you can convert words in any number of ways the only real question is whether you've interfered with the goods in someone else's possession in a way that essentially excluded that possession however without defining or somehow limiting the types of conduct of people that can be conversion we can at least identify some helpful categories for instance if the defendant took my goods and disposed of them by selling and delivering them that would definitely be a conversion it's completely inconsistent with my possession of those goods for them to be sold and delivered to someone else second if someone takes goods in my possession and they take possession of those goods for themselves well that on its own is a conversion when they've excluded my possession I can know to say that I can their I control who uses not if they have excluded my possession will that convert at the goods that third ones a bit more complicated imagine for a moment that I aligned an item to a friend say a car I lined it whereas me saying the law I bailed it to them subject to certain conditions for instance it might have been a condition that the car was only going to be used for short trips in town now let's say that on the following day I saw an Instagram photo of my friend in my beautiful car screaming around a hot drew flaps on a local racing track in this case had been given limited session of the goods and they've abused those limitations by doing that they've also abused my possession of those goods because they're essentially denying me the chance to set limits around how others might use my positions next let's say I transferred possession of my car to a friend that is aligned up to them and they then loaned it to someone else that's not okay first because by transferring possession to someone else yet again they're denying me the right to control who is in possession of mobiles so that's a conversion to one last month if I have my own something to you and I've loaned it to you at will which means I can ask for it back at any time well that means you have to give it back when I'll ask you and if you don't if you withhold my possession when I'm entitled to take it that you get it that's a conversion you can see the common thread running through all of it they all relate to situations where a person with the right of possession of words is unable to exercise that right because cyber person who either has no right of possession or only a limited right of position is acting in a way that stops the plaintiff from enjoying their rights of possession that's what conversion is all about now des anew is subtly different to conversion but realistically there's still quite a bit of overlap Denton ear is the intentional refusal by the tortfeasor to relinquish goods to the plaintiff provided the plaintiff is entitled to possession and the plaintiff hasn't demanded the goods let's break that down the first element is that there must be goods that's the second element is that the plaintiff must be entitled to possession of those goods now that can happen in a number of ways perhaps I lined the goods to you for a period of time and that period of time has expired perhaps our line of the goods to you on the basis that I could get them back anytime I wanted perhaps I'll and goods to you are the basis of a condition and you've broken the condition perhaps I didn't find the words to you at all and you've either accidentally will deliberately taken them from my position in any of these cases I'm entitled to position if I wasn't entitled to position there could be no actually in detonated next there has to be a demand this is a bit different to conversion because there are many types of conversion where the cause of action is good to go without the plaintiff needing to actually ask for the goods back with debt anew however the cause of action is not actually established until there's a demand for position the demand also has to be entirely clear and it has to provide sufficient details to enable the defendant to comply with it so for instance it has to indicate when and where the goods should be delivered and those demands have to be reasonable so if the plaintiff is entitled in possession and they've made a demand within the defendant should deliver up the goods they are entitled to continue to detain the goods for a short time just to ensure that the person making the demand is in fact entitled to the goods but beyond that if they intentionally refuse to do so then it actually in debt and you will succeed so if didn't you and conversion are so similar why do we still have well defin you allows for a slightly different type of remedy we haven't really discussed remedies yet and we're going to do that later but for now let's just say the usual remedy for conversion is the payment of damages however for debt in you the court can also potentially order the delivery up of the specific goods and when the goods are unique like for instance in artwork this could be very important you know just want the painting either them you know just want the money you want the painting the next interesting thing to know about conversion and Disney is the different person is entitled to immediate possession of goods then they're actually entitled to go on and turn those words so you can enter someone else's land in a way that might ordinarily amount to trespass provided you're doing so in order to obtain possession of goods belonging to you you can even use reasonable force against the other party if that force is reasonably necessary in order to recover possession and the use of that force won't be an assault or a battle however in recent years it seems likely that this right might be ripped down so that it only applies if the goods were wrongfully taken in the first place so you can use this right which we call the right of re caption if someone has stolen an item from you but you couldn't use it if you say lend it to them for a period of time so that they've been acting quite validly when they first took the item this is probably sensible because in reality we don't really want people running around using force on another over property disputes beyond this the defenses to these interference with goods torts are pretty similar to the ones we've already encountered when we look to do ferrets - the person considers a pretty obvious one also necessity so you can move or take possession of an item if this is necessary to protect the item itself or stop it doing damage to some person lawful authority is also very much the same for interference with purses there's one additional defense on one you get it has a Latin name ex Turkey causa which means there is no cause of action from dishonorable conduct that means that if the plaintiff and the defendant we're engaged in some sort of crime will talk together and the goods were involved in that improper conduct well then the law is not going to intervene to protect one wrongdoer from another this leads to the curious situation where a defendant might actually need to prove that they themselves were involved in improper conduct in order to resist a tort claim against them our final tort related to trespass is known as trespass to land it protects people against the intentional interference with the exclusive possession of their land now as those of you who've done land already know land is in some ways very similar to goods here in other ways entirely different both land and goods can be ironed obviously and both land and goods can be in the possession of someone other than the owner so for instance if you are renting a house then you're in possession of that house but the lessor retains ownership of the house with land however there are additional layers and it's really important to understand those layers in to understand how tort law protects the possession of land because just like for goods tort law protects possession and not ownership so at the top level we have the owner of the land the starting position of course is that the owner can do what they like with their land including possessing it however they can also give up possession to someone else on the basis of either a lease or a license so the next level down is the lessee of the land that's the person is taken out of lease now under our property rule they actually have what we call an estate in the land so they're not just a borrower they have an actual leasehold white which they can insist on even in the face of the owner the next level down is what we call a licensee on the Left our licensee is someone who's been allowed onto the land by whoever's in possession of the land now there are two types of licenses the first type which we'll call a substantial licensee is someone who has either an ongoing license to be there so say someone is temporarily renting a room there's no release or a person who has ongoing permission to come in the yard and take mangoes from the mango tree so you can see they have a kind of position but it's limited in the entire scope the second type of licensee we'll call a mere licensee they're on the land as result of permission from whoever's in position but really all they have is permission to be there so someone who comes over for a drink is a mere licensee someone who walks through your we are to knock on the door and offer you a pamphlet is a mere licensee finally at the bottom of the egg we have squatters who might be in possession of the land or some part of it but their rights are really quite limited so who among these has an interest in land which can be trespassed upon will the owner dollars but only if they've retained a position if they give up position for instance by granting a lease then they no longer have an interest that can be trespassed upon the person in possession in this case the Leslie well they definitely have interest which can be trespassed upon so they will be the usual plaintiff interest to land oceans what about a substantial licensee well a substantial licensee might actually have an interest that can be trespassed upon but their interest would be limited by their license well if they're staying in a room it's reasonable for them to think that I was like trespassing on their room if they're going on the land in order to pick the mangoes it's reasonable to think nobody's going to take the steps to prevent them from getting to the tree but beyond the terms of their license they have no interest to protect and if the license can be withdrawn at the whim of whoever granted a mere licensee has no interest to protect because they have only the most tenuous connection to the land strangely those squatters do in fact have sufficient possession to form the basis of a trespass action but only against any lady a trespasser so they can't maintain an action in trespass against anyone who has lawful possession of the land but if they'd set up a tent down by the river on a block of land someone else's land well someone else can't come along and occupy that tent and say tough because you're adding squatter so there is a basis of action that's pretty finally I need to make it clear that while I've tried to give those little some structure the bottom line remains that the position is always a question of fact and ultimately whether a plaintiff is in position or not will be a matter for the courts to decide okay so now we have a sense of who can sue the next thing we need to think about is what we actually mean by land I mean that it's narrow this land why I've only mean the very top milliliter of dirt within the boundaries you could say anything above that is sky and anything below that he's underground at its broadest though land can be a column stretching from the core of the earth into space there was no Latin legal phrase meaning whoever owns the land owns that land all the way from Hell below to heaven above so what are the actual rules let's start with this the general principle is that a trespass has to actually interfere with your rights of exclusive possession and so in each specific set of circumstances there's going to be a high above which anything that really happens doesn't actually interfere with your rise we never websites out there that will let you track the International Space Station's orbit around the earth and if it goes right over my house it's pretty hard for me to suggest that the trespass isn't it by the same token in one of the famous cases flying an aircraft hundreds of feet over a house was no trespass but as you get closer to the ground things get more complicated I mean I imagined that a drone 30 or 40 meters in the sky hovering over my backyard might constitute trespass as well as breaching aviation rules in one case of building crane 20 meters off the ground was held to be a trespass when it passed over the plaintiffs land and so really how high up the land goes depends very much on the circumstances thus the alleged trespass really interfere with your exclusive position of the land the same general principle applies on the way downwards if you're in possession of the land you're perfectly entitled to dig a hole you generally don't have the rights to any mineral deposits but a trespass underneath the land might be caused for instance by a neighbor whose excavations have led to erosion or undermining of your foundations because you can see that this has a genuine impact on your ability to exercise your possession of the land so now we know whose interests are protected by the tort of trespass to land we know what we actually mean by land finally what sorts of things can be a trespass well the most obvious one is coming onto the land and that's a trespass a second obvious one is staying on the land when you've been asked to leave this happens a lot in places like shopping centers where teenagers who are known to be problematic might be asked by sentiment to leave or at licensed premises where the bouncers will politely ask you to leave and then if necessary somewhat less politely escort you out but there are other types of trespass for instance if you place any object on another person's land well that's a trespass if you place objects in a way which will later result in them going into another person well that's what reciprocity so for instance if you break up your leaves and leave them in a big pile on the fence line knowing that the wind will blow them all next-door that's going to be a trespass the other thing to know is that even the merest trespass is enough trespass cases have succeeded even with the incursion was a matter of mere inches so what about defenses then consent necessity lawful authority they're all defenses we've come across previously and they work here as well there are a number of ways in which we implied consent even when it's not explicit for instance if we park our car across the footpath there's an implied consent that people can walk around the front to get passed even if that means coming onto our land necessity is all about actions necessary to protect life or property so for instance trespassing on someone's property to help put out a housefly it's not a trespass but there are some other interesting ones regarding land we've already spoken about the fact that it's lawful to enter premises in order to retain a person in possession of land also has the right of ejectment that is they can use reasonable force to remove people or words from their property in the case of people they have to be asked to leave and given a reasonable opportunity to do so but after that the right of ejectment allows the use of force even when that might ordinarily be a trespass to a person or a trespass to Goods be careful though because in Queensland and a number of other states that write of ejectment is not present if that person has a claim of right so in other words if they claim the right to remain on the premises even if they're wrong the in Egypt iment might not be possible so as a practical matter honestly if it cops a call alright that brings us to the end of our discussion of the types of talk derive from the concept of trespass trespassed a person's trespass to Goods trespass to land now we're going to start looking at some of the other types of intentional tool these tend to be a little more distinct from one another but they still all do really hang on the same idea as trespass the people have certain interests and they should be able to enjoy those interests without the interference of others so the next interest we're going to look at is the interest we have in our own reputation which is protected by the tort of defamation defamation occurs where the tort feasor publishes to a third party by any means some material which when read by a reasonable person would expose the victim to disparagement hatred ridicule or contempt from that reasonable person or which would cause a reasonable person to shun them so there are really three elements first has there been publication now publication is a problematic word in this context because it kind of gives the idea that we're talking about putting something in a formal publication but publication here means to make a public so saying something to the defamed person directly is not publication but the moment you say it or communicated by any means to anyone else there is publication to make better slightly more complicated read publication is the same as publication but the original publisher becomes responsible for all those Republicans so if I write something in an email to a third party defaming my victim but then that third party republishes my letter in a book about the victim I'm potentially liable for all the harm done by my letter including when it was republished the second element is can we identify the fact that the plaintiff is the one described by those words now often that won't be all together difficulty however in many cases the tortfeasor trying to be clever will not use the name of the victim but rather they'll leave it to innuendo in other circumstances the publisher might refer to a category of people rather than referring to an individual it will be up to the person bringing the case to demonstrate to the court that they personally have been defamed by the publication now they can't bring that action on behalf of a group or a class merely being a member of an impudent is not enough similarly most corporations can't bring defamation proceedings finally as most people know from popular culture you can't defame the dead so ultimately the plaintiff as an individual is going to need to show that they as an individual have been impugned by the words which were published the third and final element asks whether the words complained of carrier defamatory meaning which we call a defamatory imputation so do they disparage the victim do they bring about hatred ridicule or contempt from a reasonable reader viewer or listener with those words caused the reasonable person to shun the victim now back in the day defamation a little consisted of two common law causes of action called slander where the words were in transient form such as words spoken and libel where the words were printed it also used to be the case that the defenses to defamation vary from state to state now even before the internet became all-encompassing it was clear that in a world of national newspapers and national broadcasters it made no sense for the fam'ly Terry publication to be unlawful in one state but potentially allowable in another so in 2004 after a quite exhaustive process the states and territories agreed to essentially uniform defamation laws which were passed in 2005 and which now give us the same defamation laws right around Australia now I don't have time to be getting too theoretical in it too video but you have to understand that there is a conceptual challenge at the very heart of defamation law you see defamation law occurs at the intersection of two very important principles on one hand we have the principle that people's reputations should be protected against improper attacks and that sounds fair enough to yet on the other hand as a society we also value will set value the principle of free speech particularly when it comes to public affairs and these principles are permanently opposed the more your reputation is protected the more boundaries there are online free speech the more of my speech is free the less your reputation is protected the eternal question for the courts the parliaments and our community as a whole is how we undertake this balancing act it's particularly important when it comes to the media the threat of a defamation action which may tie up staff for months and cost many thousands of dollars in legal fees may be an effective means of suppressing unwelcome media attention the news website Crotty kaamdar au has for some years maintained a list of Australian politicians who commits defamation proceedings primarily against media dollars and it's surprising how many of those end up settling out of court one of the ways in which the Uniform defamation legislation tries to manage this balance between free speech and the protection of reputations is by setting in place a number of defenses to defamation proceedings now often times in defamation matters establishing the cause of action itself is not all that difficult not too hard to identify the plaintiff will to find the words which have a defamatory imputation often then the real battleground is whether one of the defenses applies now there are a bunch of them and I'll suggest you go have a look in the defamation Act to read them in detail but let's look at some of the key months two of the defenses relate to truth it's a defense if the allegedly defamatory statement is substantially true it's also a defense if the defamatory statement is what we call context actually true this is where there are some statements shown to be true and others not true but the statements which are shown to be true have done so much damage to the plaintiffs reputation that the untrue statements don't make things any worse the interesting thing about these defenses is that it means if something is true it can be safely published no matter how intrusive it is no matter how much it might be in bad taste and no matter what amount of harm is going to be caused to the subject so this is one instance in which the balance has tipped in favor of free speech second it's a defense to defamation if the publisher is genuinely reporting on the proceedings of public bodies which by their nature we expect to be open and fair so there's no danger in publishing words spoken under the privileged immunity of parliament or coil and is no danger in publishing public documents and there's no danger in giving a fair report of proceedings of public interest based on a formal report of those proceedings third there is a defense referred to as the defense of honest opinion now this monthly treaty it is a defense to defamation if the publisher is publishing their honest opinion about a matter of public interest and if the opinion is based on proper material which essentially means on true material so there are three elements here first the opinion has to be honestly held so if you're a food critic can you give a bad review to a restaurant when you actually like the restaurant but you know that bad reviews attract more clicks or you couldn't rely on this defense second the opinion has to be about a matter of public interest now that's actually pretty broadly defined by the courts anything which isn't truly a private matter will likely be considered to be of public interest third the opinion has to be based on proper material so if the opinion turns out to be based on material which is itself defamatory well it makes sense that the opinion would be defamatory too in this defense I think you can really see the Parliament trying hard to balance free speech and the protection of reputation you can express whatever opinion you like but it has to be your honest opinion it can't be about truly private matters and it has to be based on proper material ok the last one I want to talk about is called qualified privilege this one is basically the journalist friend it says that you have a defense if you are providing a report to a recipient who has an interest in the topic and if you behave reasonably in all the circumstances which means things like doing your best to check the accuracy of statements acting from a sense of public duty and not a sense of malice and whether the person making the report tried to give the other side an opportunity to put their view ok before we move on from defamation I want to make one last point and that is that nowadays roughly half of all their formation cases relate to online publications and with the advent of modern social media our single post by a single person might suddenly go viral and be reposted and viewed potentially millions of times potentially right around the world at the same time social media has transformed the internet from being the information superhighway to being the opinion superhighway where people feel they have the right to promote whatever opinions they might hold regardless of the validity of the foundation of those opinions don't be for publication on the internet and publication on social media is still publication and it still puts you at legal risk I cringe when I see these memes going around with someone's photo saying be on the lookout they're a pedophile now these are shared but good people trying to do the right thing but what is the photos wrong we're going to turn now to an entirely different family of torts with all the torts we've discussed so far the interest which is protected is fairly uncontroversial within our culture it seems entirely normal for the law to protect a person's body their possessions their land and their reputation economic interests however are a bit more fuzzy for a couple of reasons first off nobody has the right to a particular economic actor sometimes investments go well and sometimes they go disastrously sometimes a competitor might do extremely well because they had a really pithy commercial even though their product is inferior economics just isn't always fair second economics is inherently competitive if I'm selling books and you're selling books then I want people to be buying my books and I don't want them buying yours I'm trying to advertise you I'm gonna try to beat you on price I'm going to try and beat you on quality everything I do to try and make sure my own economic success will also be in part an attempt to suppress your economic success it's harsh but that's business so we could hardly have tort law which penalized me for harming we have an economic system that rewards people for arming women but there are limits aren't there our economic system is not going to reward me if I go around and burn your shop down ideally we do want economic competition but we want it to be conducted fairly so this category of towards towards interfering with economic interests regulates behaviors which constitute unfair forms of economic activity the first three that I want to talk about all relate to dishonestly we call them injurious falsehood to seek and pass it off then we'll talk about three torts where the tortfeasor is acting with a bullies aggression interference with contracts intimidation and conspiracy the first one in Deraa is false which is sort of a second cousin to defamation it doesn't protect reputation but rather it protects the ability to trade injurious falsehood happens when the tortfeasor spreads information about the victim or the victim's goods in an effort to stop people from dealing with the victim the tool is only complete when it actually has that effect so if a restauranteur started telling people on facebook the health inspectors have been spending a lot of time looking at my competitors restaurant lately and if that was not true and if people stopped going to dine with the competitor as a result will the competitor might sue for that lost trail due to the injurious falsehood a second dishonesty talk is called deceit this happens when the tort feasor makes a false statement of fact and they even know the statement is false well they don't care whether it's true or false and when they make that statement with the intention that the victim will rely on the statement if the victim does rely on the statement and they suffer on loss as a result well then they made the able to claim of remedy in the tort of deceit the classic example is the case of Pekin gurney where there were false statements made in a company prospectus and that deliberately misled potential investors about the liabilities associated with a company takeover now any investor who had invested in reliance on those statements would have been able to sue in the tort of deceit when the whole venture failed our final dishonesty tort is called passing off now the beautiful kingdom of Cambodia is one of my favorite places in the world and from time to time I've visited the ROC market or the Russian market and I've picked up a great pair of ray-bans Sony's for five us box or Hugo Boss shirt for seven dollars 50 now either I'm the best shopper in the world or those are two great examples of passing off you see passing off occurs when a merchant makes misrepresentations to potential customers and where those misrepresentations are calculated to injure the trading activities of a competitor and where they actually do cause that injury so by selling me five dollar fake ray-bans the market store holder was basically depriving the real radian company the chance to have me as a customer unless of course they were the real deal similarly a business which adopted a trading name very similar to its competitor might be sued for passing off a business that adopted a color scheme or a logo or distinctive packaging too similar to its opponents might be sued the same way the damage is not just the loss of business by the victim's company but also the potential harm to their reputation and goodwill if their logo and their business name instead of being associated with high-quality products is attached to inferior products okay the other three economic torts I want to discuss I really quite a bit nastier and more aggressive they're not just dishonest they're genuinely mean the first one is called interference with the performance of a contract so let's say that you're aware that your business competitor has scored a lucrative contract and you're upset about it here are some things you can do you can try to undercut them on price for instance and make it even better one than they've contracted for well that's fine that's just competition but there are things you can't do specifically you couldn't try to bribe one of the parties of the contract into breaching the contract and you can't take other steps that are calculated to prevent the parties from discharging their obligations under the contract a great example of this happened in the World Series cricket class in 1978 most of you don't follow cricket Australia's Kerry Packer was intent on establishing a rival system of international cricket and he'd signed contracts with three dozen of the best players in the world to play in his matches the English cricket authorities swiftly made a new rule which meant that any player who wanted their contract with mr. packer would not be allowed to play official matches in any other competition now this action by English cricket was found to be an intentional interference with the contracts between mr. packer and the cricketers intended to procure the breach of those contracts by the cricketers the second of our nasty talks is called intimidation intimidation occurs when a party threatens their victim or someone connected to the victim with some form of unlawful act if the victim doesn't take certain steps which will result in them suffering economic loss this talk has long been associated with union activities in the UK and in Australia where the line between legitimate industrial action and unlawful intimidation is often very difficult to discern the foundation case in Australia see profs and actors and announcers equally involved the threat of unlawful picket lines against certain clubs if they continue to deal with mr. Ross they stop dealing with him and of course in business something unlawful intimidation within the industrial relations context or any other context may result in the victim being able to sue the Intimidator to recover any economic losses they suffered in compliance for the intimidation our final economic tort is referred to as conspiracy it's fairly similar to the concept of conspiracy you may have already come across in criminal law it occurs when two or more parties engage in a joint desire to commit unlawful acts or lawful acts in unlawful ways in order to cause harm to a victim now if they do so and they're successful in causing harm to the victim well then the victim may have an action to recover any such economic arm again conspiracy has led to a fine line being walked between legitimate industrial action and unlawful conspiracy the foundation case in Australia mckernon and Fraser was one in which members of the seaman's Union conspired to prevent the plaintiffs from being engaged by any vessel until they paid their union dues you can see how it really is a matter of one's personal political views whether this was an example of legitimate union solidarity or quite offensive conspiracy and intimidation next we're going to look briefly at some torts which in some ways feel like we're stepping into a time machine going back into the antique past back into the days when the patriarchal nature of our society was unchallenged and where people had servants and slaves you see there's a range of torts whereby people seek to be compensated for harm that's been done not to them personally but to the people they rely on personally or economically there are four categories interference where the person's provider their employee their spouse or their children now before we actually get underway it's important that you understand this is an area of tort law which has been heavily heavily amended over the years by statute the statute is worn off some of the worst of the sharp edges if you're watching this video in a state other than Queensland it's important that you carefully check where the law stands in your state we're going to start by thinking about the loss of a provider for years and years tort law was in a somewhat counterintuitive position where if a person was injured saved by battery they'd be able to suing battery obtain compensation however if they were killed well obviously it'll be a matter of criminal law but the position of tort law was that they are now deceased so they couldn't maintain an action and they know I've had interests which could be protected by talkable because they were dead now well that sounds off there is a certain logic to it but what about any dependents of that deceased person if a person has a dependent spouse and two dependent children and I would run them down with my car and kill them well haven't we also harmed the interests of those dependents I mean they're now left high and dry humping this was particularly the case prior to compulsory superannuation with its death benefits but even in that case dependents might be left high and dry as a result the Parliament has passed legislation enabling dependents which usually means spouse and children to claim compensation for the death of a provider in addition claims can be made for the value of gratuitous domestic services provided by the the deceased person which means in effect if the deceased person was not in paid employment but if they were say a carer then the value of their contribution can also be compensated naturally of course a marriage or partnership is not merely an economic venture and the harm done to a person by the injury or death of their spouse goes well beyond the loss of earning capacity or their domestic services spouses offer one another companionship love sexual partnership and the concept of a mutual future these things are all much harder to quantify that they really are the essence of the relationship and the statute recognizes this by allowing an award of damages for what's called loss of consortium this is only allowed if the spouse dies or if they suffer very serious injuries lesser or more transient injuries will not support a claim for temporary loss of consortium note however that this remedy is only available in Queensland in South Australia the other jurisdictions in Australia have all repealed the loss of consortium as a cause of action all right now let's really go through the historical looking loss in relation to killed they used to be taught scald seduction whereby if any man other than her husband had sex with an adult daughter that there would be liable to her father for their supposedly loss of value and there used to be a talk called enticement if a tortfeasor enticed a child to move away from their parents and he used to be a taught for the loss of services provided by an injured child all three of these believe it or not remain on the books in Queensland and they remain on the books in a number of other states but they have to be relied on in many years and in truth if a party did seek to rely on them the court would most likely find that they were no longer finally and perhaps a little more sensibly an employer who loses the services of an employee as a result of someone else's taught can sue for the losses they incur as a result we call this an action for the loss of service you now in many cases of course the employer is hardly going to find it worth their while to pursue this action though generally just hire a new staff member and get on with it however if the employee had particular value let's say they had a unique public image and so now the whole advertising strategy needs to be reconsidered then it's easy to see why the employer might want to recover the losses arising from the tortfeasors conduct towards their employee note however this is only available in relation to employees not contractors or partners or anyone in similar business relationships finally in Queensland damages for the loss of serve ischium are only available where the damages claim reaches a certain statutory threshold okay now we're going to change pace completely and talk about the tort of nuisance so far all of the torts that we've talked about it really rely on the basic idea that you have one person the tort feasor and they do something wrong towards the other person or the victim or to their goods their land and this gives rise to the opportunity for the victim to sue them for damages nuisance is a bit different nuisance relies on the idea that we all live in a common we live in a society we live in a place and the things we do even in our own private environment can have an impact on others and under certain circumstances if the things we do have a sufficiently negative impact on others talk normal step in and either tell us to stop or to make good any harm with cause to those around us so there's no requirement for any direct improper behavior towards another person or their words or their land the improper behavior comes from creating circumstances by acting unreasonably or improperly in the environment there are two types of nuisance private nuisance and public nuisance private nuisance occurs when the tortfeasor unreasonably interferes with the plaintiffs ordinary enjoyment or use of their land so it's related in a way to trespass to land but it recognizes that you don't always need to physically trespass in order to affect someone else now there are no specific categories of what sorts of activities might constitute a private nuisance in a British case called hunter at Canary Wharf Lord Gough of chiefly Gavin non-exhaustive list as fires he said noise dirt fumes noxious smell vibrations and such like he said occasionally activities on the defendants land are themselves so offensive to neighbors as to constitute an actionable nuisance as in a case where the site of prostitutes and their clients entering and leaving a neighbourhood premises was held to fall into that category so given that there's no limit of the capacity of human beings to find new ways to be a nuisance the question of a nuisance will turn on the individual facts of each case however we do know certain types of conduct which will not be considered nuisance even if they do interfere with someone else's enjoyment of their land first up there's the general principle of live-and-let-live anyone who's just behaving in accordance with normal standards of social conduct will not be committing a nuisance so for instance if I've been pieces of wood with a hammer at midnight on the closest boundary point to your house for no purpose other than maliciously disturbing well that's a nuisance but if I make exactly the same sounds in the course of doing some carpentry during the daytime it's not a nuisance a certain amount of neighborly tolerance is expected next the plaintiff can't rely on any special sensitivity they have the test is one of reasonableness so it's a matter of what a reasonable person might consider to be a problem this was famously stated by Vice Chancellor night Bruce in Walter himself when he said the inconvenience must be more than one of mere delicacy or fastidiousness not merely according to elegant or dainty modes and means and habits of living but according to playing and sober and simple notions having said that if someone knows you have a particular sensitivity and they maliciously take advantage of that to create a nuisance well that might be actionable even if the activity was relatively normal finally there are two interesting issues regarding infusion first a person has no natural right to a view from their property so someone else builds you out then that's not a nuisance even though they might be preventing you from enjoying the view you once had similarly it's not a nuisance for somebody outside your land to look into your land and for that matter it's not a trespass for them to take photographs public nuisance is just a little different from private nuisance if you think about the description of private nuisance which were given we're still really all about protecting private rights only the value of the land my view my peace and enjoyment my ability to go about life undisturbed if you have to be the one in possession of that land in order to take action public nuisance extends this concept considerably public nuisance refers to nuisance behavior which affects the public at large and so it's generally the state that sues for public uses and all states and territories also have a criminal offense of public muses so what sorts of things can be in uses well anything that obstructs public access to the roadways can certainly be a nuisance and he sort of pollution activity that interferes with say the use of a beach or a lake or a park would be a nuisance attracting a crowd to a particular place and therefore obstructing people's passage through that place could be a nuisance that's why most governments require permits for public rallies and the like you get the picture it's really the same sort of behavior as private nuisance but it affects the use of cupboard spaces rather than profiles the next thing we want to talk about in terms of nuisance is the actual parties now in many cases this presents a little difficulty the person creating the nuisance is obviously going to be the defendant and the person whose land is affected will be the plaintiff in private nuisance and generally the state will be the plaintiff in public nuisance sometimes a private person or company can be the plaintiff in public nuisance but only if they can show they've been unusually affected by the users there are two more interesting questions though first up what if you buy a piece of land and then you discover that your predecessor entitled has things set up in such a way that they create a nuisance for your neighbor well it all depends on your state of knowledge if you as the success or in title become aware of a nuisance or if your constructive legally and which means you could have become aware if you bothered to check then you are obliged to take reasonable steps to remove the nuisance however if the nuisance comes from so-called some cause where the successor in title really can't be what about the other end of the equation what if there was already a nuisance and someone comes along and buys a piece of land well aware of that nuisance when the classic example here is someone who buys a piece of land cheaply under an airport flight path and then winches about aircraft noise one of the most famous cases of British law was a case called Miller and Jackson and it starts with Lord Denning saying in summertime village cricket is that delight everyone newly every village has its own cricket field where the young men play and the old men watch lord denning refused to award a remedy to a lady who had bought a home adjoining the village cricket field and who lived in terror of cricket balls however the general rule is that it is no defense to say that someone has come knowingly to the nuisance if there is a nuisance it must be abated whether the plaintiff is new or not there are ever some successful defenses which can be raised in response to an allegation of nuisance first consent and necessity are our favourite defenses they still work for private uses if the other party has consented to the nuisance or if the nuisance was created to avoid some imminent peril then there's a defense be careful though about consent we've just learned that if someone comes to the nuisance they can take action and this is true even if their predecessor consented to the nuisance next if there was an act of God that led to the creation of the nuisance something that was catastrophic and couldn't have been predicted then that will be a defense so you might have to maintain the sufficient drains to deal with normal rainfall without diverting the water into your neighbor's place but if there's an extraordinary deluge where you won't be liable third if the nuisance was created by some third party and the defendant didn't know and they couldn't have reasonably been expected to know the nuisance then they won't be liable as soon as they do know however they have only a reasonable amount of time in which to take steps to abate the nuisance finally if the defendant has some specific right or prescription or requirement under law to do the thing that is said to constitute the nuisance well then that of course will be a full defence provided the thing done actually does fall strictly within that authorizing law in the same way there are now often specific laws regulating behavior which might previously have been a nuisance aircraft noise which I mentioned a few moments ago okay we've now really dealt with all of the torts that I've been planning to look at in this two-hour overview and we're doing pretty well for time too however before we move to the end of the program there are a few other tricky bits and pieces I want to go through things that can affect all of the torts we've discussed above so vicarious liability and multiple tortfeasors but before we even get to those I want to take a couple of moments to talk about animals and children because these often seem to come up in exams and the like see everything that we've talked about so far has really looked at the actions of a person and sometimes that way those actions have affected things or land in the case of animals and children though we have a situation where there may be had taught involving something with a mind of its own but for which and that might be responsible let's start with animals first up there's a type of tort known as scienter liability so enter is a Latin word meaning to Noah so I enter liability makes the keeper of an animal liable for any harm the animal might cause if one of two circumstances is true first if the animal is a wild animal so if you keep a wild animal and it harm someone well then you'll be liable second if the animal is a domesticated animal but it has vicious characteristics towards humans and you as the keeper know of those characteristics well then you will be liable if it harms someone see with a scientific company now scienter of liabilities still exists in Queensland but it's been done away with in a number of other jurisdictions so please check your local laws so keeping wild animals or animals with a vicious streak requires a lot of care next there are some very specific rules in each state and territory regarding dogs all states make dog owners or those in charge of a dog strictly liable for any harm the dog might do that means it doesn't matter whether you intended to allow the dog to do harm or not the wording varies from state to state in Queensland the rule is that it's an offence if you don't take reasonable steps to ensure that a dog does not attack or cause fear to a person now that's an interesting situation isn't it who's been out for a run or wider in the park and suddenly an off-leash dog being walked by one of those idiots who doesn't obey the rules comes rushing at you the owner happily seems yeah that worried he might hurt you but by that time you are really looking for a tree to climb but whether the dog attacks or not the offense has already been committed there are exceptions of course for dogs like police dogs whose very businesses to be mean and scary but setting aside those exceptions someone who's in control of the dog needs to stop that there are also in each state and territory specific rules for breeds of dog which have been declared dangerous and also for individual dogs which have been declared to be dangerous let's now think about children as in other parts of the law children occupy really we an ambiguous position because they don't have full legal personality but they're still subject to the law so the boards are often inconsistent and a little bit strange most of the talks we've discussed in this lecture have required either intention or recklessness in relation to an act they haven't usually required intention of a particular harm just intention of the act and so if a child is able to understand the act that causes are taught even if they're not able to understand the gravity of the harm they might be causing or they're liable so the test is whether the minor was sufficiently able to form the intention of conducting whatever act this is a dumb rule because surely the nature of a tort relates ultimately to the hump if the child does something and it never occurs to them that their action what anyone well how do we say that they start in the same position as an adult now lots of people believe that parents are responsible for their children's life that's not actually so and that's one of the reasons that so few people sue children in toilet it's much more likely that an injured person will just sue their parents or whoever was in charge of the child for negligence the bottom line though is that a child we're going to turn now to a mind-bending little concept called vicarious liability my curious liability is a situation where one person or entity can be responsible for torts committed by others in practice this overwhelmingly occurs when an employer is held to be vicariously liable for the absence of any employee and it makes sense for this to be the case I mean imagine for instance a crane operator on a big building saw that operator might not be making an awful lot of money just but the equipment they're lifting might be worth millions of dollars if they were personally a risk for any harm to those goods or who take the job realistically its employers that carry the insurance for such things and employers who make the contract with the client and therefore its employers who bear the liability but especially in these days of the gig economy how do we know when someone's actually an employee I mean it's become pretty common for companies to insist that people filling staff roles within their organization should actually become contractors the court hasn't actually said our single test to determine whether somebody is an employee or a contractor however the court will look at factors such as the extent to which the employee these activities are controlled by the employer the extent to which the employees activities are integrated into the business system of the employer and the extent to which the employee would be considered by others as representing the employer the more that it seems a person is integrated in the business activities or subject to the control of the employer or representing the employer the more likely it is that they will be considered an employee for the purposes of vicarious liability regardless of how the employer and employee themselves characterize their relationship okay let's assume there is an employer employee relationship that's not yet enough for vicarious liability next we need to establish that the tort has happened in the course of employment so whatever the action constituted taught that had to happen in the course of this can be a tricky concept because whatever thing you do at work is regardless you might do something at work which is completely unrelated to your employer so a bar worker who threw a glass into a customer's face ultimately caused him to lose an eye was considered not to be acting in the course of her employment at the same time though just because an employee is not following all the rules doesn't mean they're acting outside the course of their employment so for instance a person who fails to follow a safety procedure resulting in harm to another person it's still acting within the course of their employment finally before moving on from vicarious liability it's important to point out that because of vicarious liability happens in the course of employment it very often happens in the workplace and we now have comprehensive nationwide workplace health and safety laws which also provided for the responsibilities of employers and employees for the safety of so often you won't be looking to talk okay in all of our discussions to this point with the exception of the economic toilet of conspiracy we've pretty much assumed that there was one court fees are causing the huddle in the real world however it's often not like that if there's more than one person involved in committing harm we need a way for the victim to be able to take action against all of them and we also need a way to divide up the liability between we split these multiple tort feasor situations into two types joint tortfeasors and several tortfeasors let's look at each of those now joint tortfeasors are even together they've basically formed a team to carry out whatever conduct formed the toilet and we've just been talking about one obvious that's vicarious liability if you have an employer and an employee in contact which occurred in the employment well we've also run into another good example remember mirroring and gray and white ideation that's the one where the boss was interviewing an employee in a lot through with the goon squad outside prevent him from escaping now you can see better they were all acting as a team that plan they executed it so even setting aside the fact that they were employees they were joint tortfeasors because they were all part of a team committing the same tool now even though there's more than one tortfeasor each tortfeasor is responsible initially for the whole harm and the whole remedy so you can't just say well there were four of us so I'm only cutting a quarter so you want to make sure you choose you can Spirit is carefully hopefully rich ones however with joint tortfeasors once one party has paid the remedy the liability of all parties is extinguished so everybody's liable for the whole amount but once that amount has been paid by someone everybody's liability is discharged now we say that there have been several tortfeasors when the actions of two or more tortfeasors have combined to cause the harm but where they haven't been part of the same thing and there hasn't been any joint plan between the classic case called the course is a great example five ships including the atrium the clan Chism and the course were all sailing in a convoy and they will light a breast so side by side the entry up in the middle was the guide vessel clan Chism was next to her and of course was on the other side of Clan Chism now the course negligently came off course and it was threatening to collide with clan chiselin clan Chism started taking evasive maneuvers but didn't do what she should have done which was to reverse their engines and get out of the way as a result the course ran into the clan Chisholm and pushed the clan Chisholm into a tree you can see that both course and Clan Chisholm were at fault for the harm to each REO course should have stayed on course playing Chisholm should have reversed their engines but there's no sense in which they were part of some collective plan to run into each other they made separate mistakes which contributed to the single tool that makes them several tortfeasors now whether our soon phasers that phasers are not each responsible for the whole the court can apportion responsibility between them each of them will then be responsible for a proportion of the remedy equal to their proportion of them one last thing about multiple tortfeasors sometimes the plaintiff might only sue one tort feasor but that tort feasor might consider that others were also responsible for the tool or alternatively there might be a judgment against joint tortfeasors but then they sit around looking at one another way to see if is gonna pay in either of these cases a person who is liable for a judgment or settlement in thought can sue for a contribution by any other party who would also be found liable had they been sued so this includes joint tortfeasors who actually did get sued and parties who perhaps should have been sued but wound the court will then apportion the remedy between the contributors based on the courts view about the level of responsibility which each party should set based on their conduct in committing to it all right now all of a sudden we come for the last substantive section of our to our intentional tort cause we're going to finish by talking about remedies at that time some of you'll be saying I mean it's kind of odd in one sense isn't it that I've talked about all these different towards without really talking about remedies we have talked about the self-help remedies that are available so in a debtor new situation you're allowed to trespass on premises and use reasonable force to get your stuff back and in a trespass to land situation you're allowed to use reasonable force to enter your own land and to eject people and things which are on your land in which you don't want there anymore beyond those though there are really only two remedies which we see in total the first and overwhelmingly dominant remedy is the payment of damages in other words the payment of money payment of damages in torts is based on compensating a person for the harm they've received in relation to their goods their land their body their reputation and so on but there are a few things to note first up for some thoughts particularly the three types of trespass you don't actually need to show that you've suffered any particular damage so somebody trespasses on your land for instance you can take action in tort even if they don't harm the land at all because just by being there they've harmed your exclusive possession of the land so that damaged to your right of exclusive possession is enough the second thing to note is that damages in TOR are guided by a principle called restitution in integral which means restoring to the ancient state in other words the aim of the damages is to restore the person to the state they were in at the time of the tort so damages are calculated as at the date of the tort and then interest might be added this is different to damages in contract law where the court will also consider expectation damages or the loss of a profit so damages are calculated in contract law at the date of the judgment don't get confused in tort law damages are calculated that the tort in contract law they're calculated at the date of the judgment in addition to however sometimes the court will award what I call exemplary damages the name gives you a pretty good hint about what these are the aim of exemplary damages is to make an example of the tort feasor so that they don't do it again and so that others might realize that the potential costs of being a tort feasor are so high that they shouldn't commit towards obviously though exemplary damages are more likely to be given for the torts that really do involve morally questionable things like false imprisonment deceit conspiracy intimidation defamation and exemplary damages are really only likely to be given where there was some sense of malice in the conduct of the finally the court can award what I called nominal damages these take two forms the first one's what is essentially a moral victory to the plaintiff acknowledging that they've shown themselves to be the victim of a tort but noting that there was no real the second type of nominal damages does just the opposite and we call this contemptuous stages in order moral victory to the defendant it says if the plaintiff that the plaintiff is technically shown that they were the victim of the toilet but that in all the circumstances they really have nothing to complain about and the court will show its contempt for the claim by awarding a tiny amount of damages perhaps the most famous case of contentious damages was daring in URIs what a small daring was a doctor who worked in the Ashford's concentration camp in the second world war where he carried out unlawful experimental medical procedures on Jewish prisoners after the war Leon URIs a very famous author wrote a book called Exodus about the foundation of modern Israel in that book he called out daran daran sued for libel now in those days in the UK truth on examine was not a full defense to libel in the trial URIs brought forward other doctors who'd better - myths including the amazing doctor Adelaide white that if any of you want to learn about a truly amazing woman look her up she refuses to perform improper surgeries both at Auschwitz and the infamous burqa doubt concentration camps after hearing dr. Hoyt Val's story the jury found for daring because he had technically been labeled but the jury awarded him one half penny in damages the smallest coin of the realm contemptuous damages indeed URIs then wrote a wonderful fictionalized account in a novel called qb7 which stands the Queen's Bench Court civil every young will should read that novel finally other than damages our plaintiff can seek an injunction you've probably run into injunctions previously in your studies now requires someone to do something or they require someone to refrain from doing something injunctions and in particular what are called interlocutory injunctions which can happen at an early stage in the trial well these can be particularly useful in defamation cases because they can stop the reputational harm from spreading they're also useful in cases where there's an ongoing trespass which the injunction can stop however injunctions are only used in situations where the court is convinced that whatever harm is being done by the alleged tort cannot be undone by an award of dangers well here we are we've looked at towards protecting us from either fear it's with our person our boots our land our reputation we've looked at torts affecting our economic circumstances torts affecting those we rely on and those who rely on us we've looked at torts affecting our enjoyment of our land and torts affecting the public's enjoyment of common space we've looked at what happens when torts are committed by more than one person when they're committed by someone else under our responsibility we've looked at the remedies mostly damages with the occasional injection and we're done stop the clock all right the crazy thing of course is that what we've done here is really only half of torts and the overwhelming majority of actual legal disputes for now hopefully this video has given you a good primer or a good refresher if you're about to start studying torts in detail enjoy and if you're revising for an exam the very best of luck please don't forget to hit subscribe to my channel so that you can be among the first to know in the next of my two our law courses is released please do share this video with your friends and I'll see you again soon

Channel: Anthony Marinac

Views: 49,499

Rating: 4.887898 out of 5

Keywords: law study, legal study, torts law, trespass, assault, false imprisonment, battery, trepass to persons, trespass to chattels, trespass to goods, conversion, detinue, trespass to land, ejectment, recaption, ex turpi causa, defamation, injurious falsehood, passing off, consortium, servitium, nuisance, private nuisance, public nuisance, scienter liability, vicarious liability, tortfeasor, exemplary damages, contemptuous damages, nominal damages, restitutio in integrum, intentional torts

Id: DHeooxk2r-M

Length: 103min 46sec (6226 seconds)

Published: Wed Jun 27 2018