TORTS 1: Context and Meaning of Torts Chapter Objectives To be able to explain: - The meaning of a tort - Difference between an action in tort and other areas of law - The sources of tort law - The interests protected by torts - Some matters of procedure and proof Meaning of a tort · Tort law is about 'righting wrongs between private individuals' / a civil wrong . Definition of a tort: 'an act or omission by the defendant, constituting an infringement of a legally recognised interest of the plaintiff, giving rise to a right to a legal remedy.' . There can be more than one tort on the same set of facts · Intentional torts are actionable per se (no need to prove damages) . All tort causes of action give right to unliquidated damages · Part of private law Difference between an action in tort vs other areas of law · Contract law: remedy options are broader o The duty is owed only to other contracting party . Crimes: 'public interest in the redress and repression of crime' . Restitution (quasi-contract or breach of trust): gains-based recovery (could impose legal or equitable remedies depending based on P's claim) . Trust: equitable remedies where there is breach of trust Sources of tort law . The OG source = common law o 'The evolutionary character of tort law reflects changes in community attitudes, expectations and indeed values' o Judicial activism · Legislation is the authoritative source o Civil Liability Acts Wrongs Act 1958 (Vic) · Statutes vary in detail, but elements are similar " Purpose: to limit d's liability where personal injury is caused by negligence Elements of torts . Act or omission infringing P's protected interest · Mental element consisting of fault o Can be: · Intentional (knows subjectively consequence is certain) · Reckless (knows subjectively consequence is likely)
TORTS " Negligent (objective test of what a reasonable person should have foreseen) o Under standard of strict liability, no need to establish any mental element · Two types of torts: o Based on protecting p's interests o Based on protecting others from D's fault Interests protected by torts · Bodily and mental security: battery, assault, negligence, action on the case · Freedom of movement: false imprisonment · Security and enjoyment of property: trespass to land, trespass to goods, conversion, detinue, negligence, nuisance, passing off · Fame and reputation: defamation · Financial and economic loss interests: negligence Matters of procedure and proof Procedure · Burden of proof on P o P needs to make out the elements of this relevant tort on the balance of probabilities . In Vic, jury trial in civil actions still common o O 47.f12 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) o No jury? > appellate courts may overturn inferences from primary facts · Limitation of actions o Actions in tort are barred by expiration of 6 years from date of accrual of the cause of action " Personal injuries: