• A crime is any wrongdoing committed against the community or a member of the community that has been legislated against (declared to be a crime by parliament). Examples include murder or manslaughter, road traffic offences, burglary, drug trafficking offences and aggravated assault. Crimes are prosecuted by the government and the courts determine the appropriate punishment for a person found guilty of committing a crime. The victim may receive compensation but this is separate from the offender’s punishment. Criminal law is public law. 
• A tort occurs when an individual suffers a wrong caused by the intentional, negligent or reckless act of another. The courts may help that individual obtain damages for their injury. The focus is on compensation rather than punishment although punitive damages may be awarded in rare cases for conduct that the court feels should be punished. Damages are also intended to have a deterrent effect to prevent other people engaging in the same wrongful behaviour. Torts law is private law. 
• There is some overlap between intentional torts and the criminal law. For example, assault and battery are both criminal offences and intentional torts. Offenders could find themselves being prosecuted and punished for the crime and sued by the victim for compensation under torts law for the same conduct. 
• There are many other areas including motor vehicle accidents and fraud where the same conduct can give rise to prosecution under criminal legislation (written laws) and liability for damages under the common (historical judge made) law of torts.
• An action in tort will often be brought if a criminal prosecution fails under the higher standard of proof. Criminal offences must be proved beyond reasonable doubt and the offender must be shown to have had the required mental intention to cause harm known as ‘mens rea’. For negligence the offence must only be proved on the balance of probabilities to have caused the harm complained of and damages may be awarded if the offender committed the act: 

1. intentionally but did not intend the actual harm that was caused;
2. recklessly in that the offender did not care whether or not their acts would cause harm; or
3. negligently in that a reasonable person in the offender’s place should have known that their actions could foreseeably cause harm of the kind that was suffered.

• Trespass to land is an example of an intentional tort. It occurs when a person interferes with property that is in possession of another person and without that person’s consent. For example:

1. throwing rubbish on another person’s property;
2. placing graffiti on buildings or structures;
3. parking on private property; or
4. refusing to leave another person’s house or land when asked to do so.

• Trespass to the person is an example of an intentional tort. It protects a person’s right to bodily integrity and liberty and includes assault, sexual assault, battery and false imprisonment. 
• Assault, sexual assault, battery and false imprisonment are both criminal offences and torts. 
• The same conduct may see an offender being prosecuted by the government and punished for their crime as well as being sued by the victim and required to pay damages.

• Assault and battery are related but different concepts. Assault is a legal term to describe apprehension (fear) of immediate and unlawful offensive or harmful physical contact. 
• Battery is the intentional infliction of unlawful force on another person without that person’s consent. 
• To make this even more confusing indecent and sexual assault are technically forms of battery in tort law.

• The term ‘volens’ is used under one of the defences available to the defendant in a tort of negligence claim called ‘volenti non fit injuria'. 

• If the plaintiff is said to be ‘volens’ it simply means the plaintiff accepted or appreciated the risks involved.

• Defamation is an intentional tort. To defame someone means to damage another person’s reputation either through:

1. slander which is a spoken statement; or 
2. libel which is a published or written statement.

• Defamation is unlawful under most circumstances. 
• Defamation is a strict liability tort in that the mere fact that you have made defamatory material public may result in you having to pay damages regardless of your intention in doing so although if your intention was innocent and you can prove you could not reasonably have known that the material was defamatory you may have a statutory defence.
• If you prove that you could not reasonably have known that the material was defamatory you may have a statutory defence.

• False imprisonment occurs when a person is restrained by another person in an enclosed area without justification or consent. It is a criminal offence and an intentional tort.
• Some forms of imprisonment may be justified under statute such as a store detective’s right to hold a suspected shoplifter for a short time until the police arrive.
• You should seek legal advice in advance if you are in a position where you may need to affect a citizen’s arrest (detaining a member of the public you reasonably suspect of committing a crime until the police arrive). If a citizen’s arrest is made unlawfully you may find yourself liable for damages for false imprisonment.

• A tort of nuisance can be brought against a person who interferes with someone’s enjoyment of land. It can either be:

1. private nuisance which refers to interference on private property; or
2. public nuisance which refers to interference on public property. 

• An example of public nuisance may be unreasonably blocking a public access road such as by parking your car in a driveway and leaving the trailer sticking out onto the road where it blocks traffic while you unload it.

• An example of private nuisance may be a dog that barks loudly all day while you are out at work when your neighbour who is a shift worker is trying to sleep.

• Balance of probabilities is the standard of proof required by the court to establish a case against a person in tort. 
• The plaintiff or the defendant (if raising a defence) must establish that their version of events is more likely than not to have happened.
• They do not need to establish that the offence occurred with certainty. However they do need to show that there is no other likely or more reasonable explanation for what happened. 

• The standard of care is a legal concept and is determined by looking at what a reasonable person would have done in the same circumstances. It is determined objectively. That means what a reasonable person with your characteristics in your situation would have considered reasonable not what you yourself considered to be reasonable. 
• The question that you should ask yourself is 'what standard of care would an objectively reasonable person exercise in these circumstances?' You will then be compared to this hypothetical reasonable person to assess whether you acted reasonably.

• A duty of care is a legal obligation placed on a person to avoid actions or omissions where resulting harm is reasonably foreseeable.
• The court will determine firstly whether the duty of care exists. They will ask whether:

1. the defendant and the plaintiff were in a relationship automatically giving rise to a duty of care such as a teacher and a student; or 
2. there was sufficient connection between the acts of the defendant and the situation of the plaintiff to make it reasonable for the defendant to have considered the potential effect of their acts or inaction on people like the plaintiff.

• The court will then determine the scope of the duty of care. This means asking whether there are any practical or public policy reasons for limiting the extent of the duty such as by confining it to a certain class of people or range of conduct. In determining whether to limit the scope of the duty, in most jurisdictions the court will consider the magnitude of the risk and the likelihood of harm resulting. The question is whether under the circumstances it is appropriate to hold the defendant responsible for the harm that occurred.
• It is always important to get legal advice specific to your situation rather than relying on generalised information. 

• In NSW a defendant will not be liable for harm that occurred as a result of an obvious risk.

• An obvious risk is a risk that a reasonable person in the plaintiff’s position would have known about. It includes risks that are common knowledge even if they have a low chance of happening or are effectively invisible (such as the risk of being pulled out to sea by a rip if you swim outside the flags at a beach).

• Plaintiffs in a negligence claim are presumed to be aware of obvious risks of harm unless they can prove on the balance of probabilities that they were not aware of the risk. Awareness includes a general knowledge of a risk of the type or kind rather than requiring that the plaintiff be aware of exact nature of the risk that eventuated.

• 'Chattel' is an old English term meaning ‘goods’ or ‘moveable property’. An action for trespass to chattels may be brought against a person who directly interferes with personal property in the possession of another person. 
• For example if someone took your mobile phone from your bag without asking, dropped and broke it you would have an action for trespass to chattels. You would be able to claim damages in the form of:

1. the market value of the phone or the cost of repairing it; and
2. any loss you suffered as a result of not being able to use your phone.

• You cannot claim trespass to your property if the property that is interfered with is affixed to land. Objects affixed to land are not considered to be 'chattels'. They fall into a different category of property. For example the unlawful removal of a tree from a private property will not be considered as trespass to chattels but it may be considered a trespass to land. This is because a tree is permanently affixed to land. Another example includes machines that are permanently affixed to the property. 

• Contributory negligence is one of the defences available to a defendant in a negligence case. Contributory negligence occurs if the plaintiff’s negligence contributes to their injury.
• The defendant’s wrongdoing is weighed against the plaintiff’s contribution to their injury and liability is apportioned between them as a percentage. 
• In assessing contributory negligence the court will take into account the age and situation of the plaintiff.
• For example a 7 year old girl was injured when she wore roller skates on a trampoline that was accessible by children without adult supervision. The court held that the defendant homeowner was liable for not preventing the children getting onto the trampoline without supervision and that given the young age of the plaintiff there had been no contributory negligence.
• In another case a man riding his bicycle along a pathway at dawn collided with a bollard (cement pillar) that had no reflective tape on it. The court found that the defendant council had breached its duty of care by installing the bollard in the middle of the path but assessed the plaintiff’s contributory negligence at 50% because he had failed to think about potential obstacles in his path.

• Under Australian common law the plaintiff may not be found guilty of contributory negligence if it can be proved the plaintiff reacted to the defendant’s negligence in a reasonable manner.
• For example in the situation where the plaintiff was a guest at your house who was injured when they jumped off the terrace because your aggressive dog was trying to attack them:

1. some people would argue that jumping off the terrace may seem like an exaggerated response to the risk posed by the defendant’s negligence; 
2. yet if it can be proved that it was justifiable under the circumstances the plaintiff may not be found guilty of contributory negligence because by jumping they were acting in the ‘agony of the moment’.

• The statute of limitations is the time within which the plaintiff must bring an action against the defendant. For example in NSW a case of personal injury can only be brought within 3 years from the date on which the incident occurred.
• If you are outside the 3 year limitation period you may still be able to bring your claim if you can show that you have only recently learned that you suffered damage (such as with a latent injury which developed over time) or have only recently learned the identity of the wrongdoer.
• Different limitations apply to different torts and in different places. It is for this reason that you should try to obtain legal advice as soon as practicable after the occurrence of an incidence. 

• Section 68 of the Civil Liability Act 2002 (NSW) defines apology as an "expression of sympathy or regret or of a general sense of benevolence or compassion.”
• Section 69 of the Civil Liability Act 2002 (NSW) states that an apology made by or on behalf of the defendant does not:

1. constitute as an express or implied admission of fault or liability; and 
2. evidence of apology is not admissible in any civil proceedings as evidence of the fault or liability of the defendant.

Question

I want to bring a case of negligence against my neighbour for spraying weed poison on a windy day. I think it must have floated over to my land because most of my crop in an adjoining paddock has completely withered. Everywhere else is fine. I've lost so much money because of this and I need to seek compensation. What would I need to prove in court? 

Answer

• To bring a case of negligence against your neighbour you need to prove the following elements in court:

1. that your neighbour owed you a duty of care;
2. that your neighbour breached that duty of care;
3. that you have suffered damage or injury;
4. that there was a connection between your neighbour’s breach and your injury; and
5. that the harm caused was reasonably foreseeable by the neighbour and not too remote.

• Whether you can prove each of these elements will depend on your particular case including the quality of any evidence you may have.
• In your situation you have suffered financial loss and damage to your property.
• You would need to prove that it is more likely than not that the withering of your crop was caused by your neighbour spraying weed poison rather than something else. 
• You would also need to prove that your neighbour should have known that if they sprayed weed killer on a windy day that it may damage your crop or at least that a reasonable person in your neighbours' situation would have foreseen this possibility.
• It is always essential to obtain legal advice in relation to your particular situation.  

Question

My friend is claiming that I was negligent by leaving a hose lying across the garden path which she then tripped over and broke her ankle. I don't think it's entirely my fault. She was carrying a large box of cupcakes at the time and she wasn't watching where she was going. I think it's her fault. Anyone who was paying attention would have seen the hose. Will I have to defend myself in court?

Answer

• In court proceedings for negligence your friend will have to prove the case against you on the balance of probabilities. That means she must satisfy the court that you were negligent in leaving the hose lying across the garden path. 

• You can challenge her arguments by bringing evidence and making submissions that attempt to show the court that there has been no negligence at all. This is not a defence. It is simply challenging the evidence that your friend brings before the court in the hope that she will not be able to prove her case. 

• However if she succeeds in convincing the court that you have been negligent then you may want to try to prove that you have a defence. You are not obliged to argue a defence. It is up to you. If you choose to argue that you have a defence against the case of negligence it is your responsibility to prove it.

• Under tort law only specific defences are available to the defendant. These include contributory negligence, voluntary assumption of risk, the plaintiff’s unlawful conduct or that the plaintiff delayed in initiating proceedings (statute of limitations).

• Your best options in this situation might be contributory negligence and obviousness of risk. 

• Whether this will be accepted by the court will depend on many, many factors specific to your circumstances. It is always recommended that you seek out a local lawyer who can give you advice on your prospects of launching any defence.  

Question

I accepted a ride home from a party with a friend of a friend who was clearly drunk. We got into an accident on the way home and I've injured my back. The medical expenses have cost a lot. Can I raise a negligence claim against the driver? 

Answer

• Whether you can claim negligence against the driver will depend on the facts of your individual case. You should seek legal advice specific to your situation at the earliest opportunity.
• You may raise a claim of negligence against the driver but be aware that the driver can raise defences to either mitigate their liability or rebut your claim altogether. Generally if you know that the driver is drunk and still accept a ride with them you may be found to have acted in a way that contributed to you suffering the damage. You may also have acted negligently and failed to exercise the degree of care for your own safety that you should have in the particular circumstances. 
• In NSW a plaintiff’s contributory negligence may lead to a reduction of damages claimed rather than dismissal of claim.
• A defence of voluntary assumption of risk is rarely accepted by courts because it is believed that the plaintiff did not fully appreciate the risk that the drunken driver could not drive properly or that the plaintiff was not sober enough to make a sound decision.
• The courts may be more willing to accept a defence of contributory negligence because a court considers a passenger ought to have known the risk associated with a drunken driver.

Question

I play indoor cricket with my mates every week and last week I tripped over and sprained my elbow. Can I sue the operator of the facility?

Answer

• The answer to this question depends on the facts of your individual case. Always seek legal advice specific to your situation.

• The courts have usually held that if the risks associated with an activity are obvious to a reasonable bystander then the claim is likely to fail because the operator may lodge a defence of voluntary assumption of risk. Voluntary assumption of risk means that the plaintiff (in this case you) has accepted that there is an inherent degree of risk associated with the particular activity and has taken that risk upon themselves.

• If the facility operator succeeds with this defence then your claim of negligence will fail and you won't be able to recover any damages.

• Generally when playing indoor cricket a person:

1. understands and accepts the risk of getting hit accidentally by a ball or a bat;
2. appreciates the danger of being injured; and
3. voluntarily accepts the risk of being injured prior to commencing play.

• The situation may be different if the facility operator left equipment lying around and you tripped over it for example.

• Without knowing more it is difficult to say whether you will have a strong claim against the facility operator. You should seek out advice specific to your situation from a local lawyer.

Question

I have been accused of writing defamatory content about a person at my workplace. I fear that I may be sued. Can I be sued? Are there any defences?

Answer

• Defamation is unlawful in Australia. If you have been accused of saying or publishing defamatory material about another person you should seek legal advice to discuss any defences that may be relevant to your particular circumstances.

• Since 2006 all states and territories in Australia have uniform defamation laws. In NSW the relevant legislation is the Defamation Act 2005 (NSW). According to the law the following defences against defamation are available: 

1. Defence of justification – the defendant must prove that the defamatory content of which the plaintiff complains is substantially true.
2. Defence of contextual truth – in the case of multiple defamatory imputations the defendant must prove that the most serious imputation is substantially true. 
3. Defence of privilege – this defence applies if the material published is found to be important enough for publication despite its defamatory content.
4. Defence for publication of public documents – the defendant must prove that the matter was contained in a public document or was a fair summary of a public document.
5. Defence of report of matter of public concern – the defendant must prove that the defamatory comment was a fair comment on matter of public interest.

• If the information that you have published is untrue then you are unlikely to have any success in proving a defence. 

Question

While unloading heavy boxes from the back of the truck I momentarily lost concentration. I didn’t notice that the ramp on the back of the truck had been lowered and I injured myself. If I sue my employer for negligence will I be found as being contributory negligent? 

Answer

• The answer to this question depends on the facts of your individual case. Always seek legal advice specific to your situation. The courts have occasionally found that if the employee does not disobey any direction or warning from the employer and if the employer does not provide any warning about changes in the work environment (such as the ramp being lowered) the employee will not generally be found to have contributed to their injuries. This is especially the case if the employee is performing a repetitive task. 

• If however an employee does not exercise reasonable care or works contrary to instructions or purposely adopts a different system of work then the employee may be found to have negligently contributed to their injury.

• It is unclear from the information provided whether your loss of concentration would mean that you were not exercising reasonable care particularly if you were being diligent the rest of the time. 

Question

Last night at a dinner party a person that I did not know well jumped out from behind a bush on my host’s porch and pulled a knife on me. When I screamed for help they started laughing and told me it was just a joke and the knife was fake. I didn’t know the knife was just a toy. I got a real shock and I'm still feeling anxious. Can I sue this person? 

Answer

• Under Australian tort law an assault is constituted even if there is no physical contact or no intention of physical contact. An assault can be the mere apprehension (fear) of immediate and unlawful physical violence. 
• Arguably if someone pulls a knife on you then you will apprehend immediate and unlawful physical violence against you. Without knowing more about the situation it is difficult to evaluate your claim with any certainty. However some general rules are as follows: 

1. A threat of violence does not have to be presented verbally to constitute assault. Actions can be enough.
2. It is enough that you had a reasonable apprehension that the defendant’s conduct may lead to an imminent attack.
3. Courts have previously found that if you know or have a reason to believe a weapon is fake then the defendant won’t be liable under a claim of intentional tort.
4. In your case it appears that you did not know the knife was fake and that up until you discovered that fact you held reasonable apprehension that the defendant’s conduct constituted a threat. This may be enough to enable you to bring a claim for assault.

Question

Last week I went to the dentist to have a crown fitted over my tooth. At the same time and without first obtaining consent the dentist also did some cleaning and scaling and gave me a filling. I only found out once the dentist gave me the bill. Can a dentist carry out any medical or surgical procedure on me without first obtaining my consent? 

Answer

• The answer to this question depends on the facts of your individual case. Always seek legal advice specific to your situation.
• Generally speaking in NSW all medical practitioners must obtain consent from the patient before commencing any medical or surgical procedure.
• If the dentist performed the surgical procedures without your consent they may be found to have committed battery and trespass to the person unless a defence applies (such as medical necessity).
• If sued the dentist may invoke the defence of necessity but it is important to note that carrying out any medical procedure without consent constitutes as battery.
• In NSW the case of Dean v Phung [2012] NSWCA 223 stated that if a dentist carried out additional procedures that did not address the patient’s problem it would constitute an intentional tort and trespass to person. This was the case because valid consent could not be founded. The burden of proof lies on the medical practitioner to establish whether valid consent exists in any particular case. 

Question

I was playing rugby last week and one of the opposing defenders deliberately struck me across my face and broke my nose. At the time of the incident the ball was not in my possession. Can I take legal action against the defender? 

Answer

• The answer to this question depends on the facts of your individual case. We can provide legal advice specific to your situation.
• If you play an impact sport you generally consent to injury sustained within the rules of the game. 
• Based on the facts provided the defender from the other team acted contrary to the rules of the game and deliberately injured you.
• It is possible that you have a valid claim in intentional tort against the defender. If you can successfully prove the tort then you may receive compensation for your injury.
• However if you had the ball or the ball was in play near you and the defender was acting within the rules of the game you likely have no claim in tort against the defender.

Question

My son needs treatment for a small fracture in his arm and he keeps refusing to allow anyone to fix it. It is only minor treatment but we still need him to cooperate if he's going to get it done. Can we force him to do it? 

Answer

• There have been cases in Australia where the courts have recognised children as having capacity to consent in certain circumstances. The courts must determine whether the child is capable of giving informed consent if he or she has sufficient intelligence to enable them to fully understand what is proposed by the medical treatment.
• There have been instances where the court has overridden a child’s refusal of medical treatment. For example in the case of X v The Sydney Children’s Hospitals Network [2013] NSWCA 320 the court overruled a 17 year old boy’s decision to refuse lifesaving blood treatment on grounds of religious beliefs and issued a court order to continue treatment.
• In this instance the court gave more importance to what the court thought was in the best interests of the child and not to the child’s religious beliefs. The court also stated that upon turning 18 years of age the boy would be entitled to refuse any treatment. In this case to administer treatment without obtaining a court order would have constituted a battery.
• There are many factors that are taken into consideration here including the extent of the treatment, the level of bodily interference, whether the treatment is necessary and if so how necessary, the age of the child and more.
• Without knowing more about your son and the particular circumstances it is difficult to say what a court would decide. You should seek advice from a lawyer who deals with issues around children's consent to medical procedures.