Law of torts

Full Title
Copyright
Preface to the Fifth Edition
Preface to the First Edition
Table of Cases
Table of Statutes
Table of Contents
	PART I INTRODUCTION
		Chapter 1 General Observations
			Difficulty in Defining a Tort
				Tort and contract
				Tort and restitution
				Tort and crime
			Aims of the Law of Torts
				Deterrence
				Compensation for losses suffered
				Loss distribution and insurance
				Economic analysis
			Structure of the Book
	PART II INTENTIONAL INVASION OF PERSONAL AND PROPERTY INTERESTS
		Chapter 2 General Considerations Appertaining to Trespass
			Trespass and Fault
			Trespass and Negligence
				Suits in both trespass and negligence
				Burden of proof
				Negligent trespass or negligence: advantages and disadvantages
		Chapter 3 Intentional Torts to the Person
			Battery
				State of mind of the defendant
				No consent by the plaintiff
				Character of the act of the defendant
				Damages
			Assault
				Character of the defendant’s conduct
				Plaintiff’s state of mind
			Intentional Physical Harm Other than Trespass to the Person
			False Imprisonment
				State of mind
				Character of the act
				Knowledge of the plaintiff
				Who is liable, the police officer or the aggrieved defendant who calls in the police officer?
				Damages
			Other Forms of Compensation
		Chapter 4 Goods
			Introduction
			Conversion
				Interest of the plaintiff
				Bailment
				Lien and pledge
				Sale
				Licensee
				Finder
				Jus tertii (third party rights)
				The subject matter
				State of mind of the defendant
				Acts of conversion
				Taking goods or dispossessing
				Destroying or altering
				Using
				Receiving
				Disposition without delivery
				Disposition and delivery
				Misdelivery by carrier
				Refusal to surrender on demand
				Goods lost or destroyed
				Residual acts amounting to a conversion
				Conversion as between co-owners
				Damages
				Limitation of actions
			Trespass to Goods
				Forms of trespass
				Character of the act of the defendant
				State of mind of the defendant
				The interest of the plaintiff
				Damages
			Detinue
				Demand and detention
				Interest of the plaintiff
				When to choose detinue
				Period of limitations
				Damages
			Residual Torts: The Action on the Case
		Chapter 5 Land
			Trespass
				Types of acts
				Subject matter
				State of mind of the defendant
				The interest of the plaintiff in the land
				Remedies
			Actions by Reversioners
		Chapter 6 Defences to Intentional Torts to the Person and Property
			Mistake and Inevitable Accident
				Mistake as such is no defence
				Inevitable accident
			Consent
				Distinguished from assumption of risk
				What constitutes consent?
				Revocation of licences
				Withdrawal of consent
			Contributory Negligence
			Self-defence
			Defence of the Person of Another
			Defence of One’s Property
			Defence of the Property of Another
			Necessity
				Distinguished from defence of property
				Nature and scope of the defence
			Recaption of Chattels
			Re-entry on Land
			Abatement of Nuisance
			Distress
				Distress for rent
				Distress damage feasant
			Replevin
			Discipline
				Children
				Passengers in public transport
			Arrest
				How arrests may be made
				Reasonable cause
				Force in arrest
				Manner of arrest
				Detention of suspected offender
			Execution of Process
			Statutory Authority
			Judicial Acts
			Acts Connected with Parliamentary Proceedings
			Executive Acts
				Act of state
				Prerogative
			Military Acts
			Plaintiff a Wrongdoer
	PART III NEGLIGENT INVASIONS OF PERSONAL, PROPERTY AND FINANCIAL INTERESTS
		Chapter 7 Duty of Care
			Introduction
				Emergence of negligence as a separate tort
				Conduct must be negligent and not merely careless
			The Duty Concept in General
				Duty as a complex concept
				Rationalisation of the duty concept
				Creation of new duties
				A duty must be owed directly to the plaintiff
			Particular Examples of the Duty Concept
				Unborn plaintiffs
				Omissions
				Special relationships
				Existing relationships
				Duty to control the acts of third parties
				Statutory powers
				Occupiers’ liability
				Pure mental harm or ‘nervous shock’
			No Duty Situations
				Barristers
				‘Wrongful conception’: ‘Wrongful life’
				Protection of volunteers
				Liability for animals straying onto the highway
		Chapter 8 Breach of Duty
			The Standard of Care
				Law, not fact
				Striking the balance
				The guiding principles of law
				The obviousness of the risk
				The relation between standard of care and duty
			The Reasonable Person
				Minors
				Old age; physical and mental infirmities
				Intelligence
				Knowledge
				Skill
				The circumstances of the plaintiff
				Degrees of care
				Reasonable anticipation
				Foreseeable negligence by third parties and plaintiffs
				General practice of the community
			Proving Negligence
				Province of judge and jury; law and fact
				The ‘no evidence’ rule
				Standard of proof; discharging the burden
			Res Ipsa Loquitur
				Requirements
				The effect of res ipsa loquitur
		Chapter 9 Causation and Remoteness of Damage
			Evidence of Causation
			Analysis of Causal Concepts
			Remoteness of Damage
				Foreseeable type of harm
				The means by which the harm was caused
				Existing physical states
				Ulterior harm
			Concurrent Causes
			Accelerated Injury or Death
			Successive Injuries
				The vicissitudes principle
				Taking your victims as you find them
		Chapter 10 Defences to Negligence
			Contributory Negligence
				Conduct constituting contributory negligence
				The apportionment legislation
			Voluntary Assumption of Risk
				Meaning of voluntary assumption of risk
				Volenti distinguished from other defences
				When the plaintiff might be deemed to have assumed the risk
				Scope of risk
				Knowledge and appreciation
				Voluntary act
		Chapter 11 Compensation in Personal Injury Actions
			Awards of Damages to Living Plaintiffs
				Introduction
				Pecuniary damages
				Non-pecuniary damages
			Death
				Death as a cause of action
				Survival of causes of action
		Chapter 12 Alternative Sources of Compensation for Personal Injuries
			Social Security
			Workers’ Compensation
			Criminal Injuries Compensation
			No-fault Transport Accident Compensation Schemes
				Victoria
				Tasmania
				Northern Territory
				New South Wales
			Compensation for Death or Injury from Civil Aviation Operations
			Comprehensive Accident Compensation in New Zealand
		Chapter 13 The Negligent Infliction of Purely Economic Loss
			Introduction
				What constitutes ‘purely economic loss’?
				Reasons for judicial reluctance to impose liability
				Is there a difference between words and acts?
			Negligent Misstatements
				When does a duty of care arise?
				To whom may the duty be owed?
				Conduct which constitutes a misstatement
				Extent of liability
			Negligent Acts or Omissions
				Losses consequent upon damage to another’s property
				Losses consequent on damage to the plaintiff’s property
				Defective property
				Economic loss and wills
	PART IV INVASION OF PERSONAL AND PROPERTY INTERESTS BY CONDUCT NOT NECESSARILY INTENTIONAL OR NEGLIGENT
		Chapter 14 Nuisance
			Nuisance as a Separate Tort
				Meanings of the word ‘nuisance’
				Nuisance and negligence
				Private and public nuisance
				Nuisance and trespass
				Conclusion
			Is Damage Necessary?
			The Nature of the Invasion of the Interest in Land
				Physical injury to land
				Substantial interference with enjoyment
				Plaintiff putting land to a sensitive use
				Interferences which are not protected
				Duration of the interference
				Locality
				‘State of affairs’
				Interference with property rights
			Unreasonableness
				The conduct of the defendant
				The seriousness of the interference with the plaintiff’s user of land
			Who Can Sue?
				Nature of the interest necessary
				Type of damages recoverable
			Who Can Be Sued?
				Creation of the nuisance
				Failure to remedy
				Landlord and tenant
			Must the Interference Complained of Emanate from Land?
			Defences
				Prescription
				The relevance of the conduct of the plaintiff
				Statutory authority
				Other defences
				Fire
			Remedies
				Damages
				Injunction
				Abatement
			Public Nuisance
				Elements
				The relation between public nuisance and private nuisance
		Chapter 15 Animals
			Cattle-trespass
				What comprises ‘cattle’
				Character of the act
				Character of the conduct of the defendant
				Who is liable?
				Who may sue?
				Damages
				Defences
			The Scienter Action
				Two classes of animal
				Scienter in the case of ‘harmless’ animals
				Nature of the conduct of the defendant
				The character of the harm
				Who can be sued?
				Defences
			Statutory Liability for Dogs
				Nature of liability
				Type of damage
				Defences
		Chapter 16 Violation of Interests Protected by Statute
			History
			The Basis of the Action
			What the Plaintiff Must Prove
				An obligation (and not merely a power) on the defendant
				The statute must impose the burden on the defendant
				The statute protects the plaintiff’s interest by way of a cause of action in tort
				The harm suffered is within the risk
				Plaintiff one of the persons protected by the statute
				The conduct of the defendant was of such a character as to violate the statute
				Causation
			Defences
				The relation between criminal and tortious liability
				Voluntary assumption of risk
				Employer’s breach caused by employee’s conduct
				Contributory negligence
				Act of third party
	PART V PROTECTION OF INTERESTS IN REPUTATION
		Chapter 17 Defamation: Introduction
			The Complexities of the Tort
			Historical Development
			Defamation and the Australian Consumer Law
		Chapter 18 Elements of Defamation
			What is Defamatory?
				In general
				The interpretation of defamatory statements: the innuendo
			Reference to the Plaintiff
				Who may be defamed?
				Identification of the plaintiff
				Defamation of a group
			Publication
				What constitutes publication?
				Defendant unaware of defamatory nature of the statement
				Innocent disseminators
		Chapter 19 Defamation: Defences and Remedies
			Justification
				What constitutes justification?
				Contextual truth
			Honest Opinion
				Matters of public interest
				Comment on true facts or privileged statements
				Comment must be honest
			Privilege
				Absolute privilege
				Qualified privilege
				Abuse of privilege
				Statutory qualified privilege
				Constitutionally protected privilege
			Offer of Amends
			Consent and Acquiescence
			Triviality
			Defences and Interstate Publication
			Remedies
				Damages
				Injunction
	PART VI PROTECTION OF TRADING OR BUSINESS INTERESTS
		Chapter 20 The Economic Torts in General
			Introduction
			Action for Loss of Services
				The nature of the relationship
				Measure of damages
				The future of this tort
		Chapter 21 Intentional and Unjustifiable Interference with Trade or Business
			Inducing Breach of Contract
				Historical development
				State of mind of the defendant
				Kinds of contract
				What constitutes a breach?
				Knowledge of the contract
				What acts constitute an inducement?
				Damage
				Justification
				Remedies
			Unlawful Interference with Trade
			Intimidation
				The elements of the action
				Justification
				Remedies
			Conspiracy
				Development of the tort
				Common elements of liability
				Conspiracy by unlawful means
				Conspiracy by lawful means
		Chapter 22 Statutory Protection Against Unfair Business Practices
			Basis of Liability
				Intention or negligence not relevant
				To what entities does the Australian Consumer apply?
				‘In trade or commerce’
			Types of Conduct which Contravene the Statute
				Conduct which denigrates the plaintiff’s business
				Conduct which misleads the public regarding the business relationship between plaintiff and defendant
				Statements relied on by the plaintiff
			Remedies
				Injunction
				Damages
				Other compensatory orders
		Chapter 23 Injurious Falsehood, Passing Off and Deceit
			Injurious Falsehood
			Passing Off
			Deceit
				History
				Comparison of deceit with negligence and statutory protection against misleading statements
				Conclusion
	PART VII OTHER INTERESTS MERITING PROTECTION
		Chapter 24 Family Relations
			Husband and Wife
			Parent and Child
				Rights of action in favour of a parent
				Rights of action against a parent
		Chapter 25 Misuse of Process
			Malicious Prosecution
				Institution of proceedings
				Favourable termination of proceedings
				Absence of reasonable and probable cause
				Malice
				Limited categories of damage
			Collateral Abuse of Process
			Misfeasance in Public Office
				Holder of a public office
				Bad faith
				Damage
			Maintenance and Champerty
				Definition and application
				Justification and exception
				The need to show special damage
	PART VIII REMEDIES AND PARTIES
		Chapter 26 Vicarious Liability
			Importance of the Distinction Between Employees and Independent Contractors
			Criteria for Distinguishing Employees from Independent Contractors
				No single factor conclusive
				Some particular cases examined
			Is There a Separate Category of Agent?
				Holding out of the agent by the principal
				Owner and driver of a motor vehicle
			Liability in Respect of an Independent Contractor
				Authorisation to commit a tort
				Torts where intentional or negligent conduct need not always be proved
				Reasonable care not taken
			Liability in Respect of Employees
				Theories of vicarious liability
				The course of employment
				Public employees and vicarious liability
		Chapter 27 Remedies
			Damages
				Different types of damages
				Limitations on recovery
				Issues of quantification
				Plaintiff with different causes of action
				Injunction
		Chapter 28 Extinction of Remedies
			Limitation
				Period of limitation
				Commencement of the limitation period
				Discretionary extension of the limitation period
				Plaintiff under a disability
				Fraud and concealment
				Contribution between tortfeasors
				Dependants’ action under fatal accidents legislation
				Limitation periods and the conflict of laws
			Death
			Satisfaction
			Judgment
			Release
			Accord and Satisfaction
		Chapter 29 Parties
			The Crown
				Meaning of ‘the Crown’
				Vicarious liability
				Personal liability
				Violation of interest protected by statute
				Military operations
			Foreign States
			Diplomatic and Consular Officers
			Trade Unions
			Unincorporated Associations
				As plaintiffs
				As defendants
			Partners
			Husband and Wife
			Intellectually Disabled Persons
			Minors
				The standard of care
				Liability for tort which is also a breach of contract
			Bankruptcy
				Liability
				Power to sue
			Assignees
			Convicted Persons
			Multiple Tortfeasors
				Categories
				Differences between the categories
				Effect of injured party bringing more than one action
				Contribution
				Proportionate liability
Index