In its third edition this text continues to question whether foundational principles and policies of torts law, reflect the social and moral values of modern Australian society. Living up to its name as The New Law of Torts, this book has been up-dated with the latest legislative and judicial development as well as the recent major cases, reflecting the changing nature of tort law.
This is an essential and accessible text as it provides a clear and succinct discussion of the interface between the statutory regime in each jurisdiction and the common law. It comprehensively covers the law as it is applicable to the whole of Australia. The book has clearly delineated parts, sections and topics for each genus of torts (trespass, action on the case, statutory wrongs, etc), and each species (battery, assault, negligence, nuisance). Headings and sub-headings provide useful breaks in the text, and selected cases are used not only as authorities, but also as illustrations of principle and judicial reasoning.
New to this editionUpdated with the latest legislative and judicial development as well as the recent major cases, reflecting the changing nature of tort lawRevised chapters on Causation and Breach of Duty of Care which are increasingly being structured around legislation Damages chapter revised to help simplify this complex topic Revised and updated further reading and references The New Law of Torts Pack includes both The New Law of Torts 3rd edition and The New Law of Torts Case Book 3rd edition.
PART I: INTRODUCTION1. Introduction to the Law of Torts and Historical Overview1.1 Definition and classification of torts1.2 Historical origins of the law of torts1.3 Interpretation and construction of legislative provisions1.4 Torts Reforms of 2002–032. Damages2.1 Introduction2.2 History of compensation in the law of torts2.3 Nature of compensation in the law of torts2.4 Classification of damages2.5 Special and general (compensatory) damages2.6 General damages2.7 Non-economic loss2.8 Damages for gratuitous services and attendant care2.9 Punitive (exemplary) damages3. Survival Actions and Wrongful Death; Statutory Compensation Schemes3.1 Survival of causes of action3.2 Wrongful death3.3 Statutory compensation schemesPART II: INTENTIONAL TORTS4. Trespass to the Person (Battery and Negligent Trespass; Assault and False Imprisonment)4.1 Historical origins of the tort of trespass to the person4.2 The tort of battery4.3 Negligent trespass4.4 The tort of assault4.5 The tort of false imprisonment5. Trespass to Land5.1 Trespass to land: history and rationale5.2 Elements of the tort of trespass to land5.3 Trespass beneath and above the surface of the land5.4 Damages5.5 Limitations of the tort of trespass to land5.6 Tort of trespass to land and the right to privacy6. Miscellaneous Intentional Torts of Action on the Case for Personal Injury6.1 Origins of action on the Case6.2 Action on the Case for intentional infliction of physical harm6.3 Cause of action for intentional infliction of nervous shock6.4 Malicious prosecution6.5 Tort of collateral abuse of process6.6 Misfeasance in public office6.7 Tort of breach of confidence and misuse of private information7. Deceit and Injurious Falsehood7.1 Introduction7.2 Deceit7.3 Injurious falsehood8. Torts of Intentional Interference with Goods or Personal Property8.1 Introduction8.2 Trespass to goods (chattels)8.3 Detinue8.4 Conversion8.5 Special action on the Case for intentional damage to goods8.6 ‘Spoliation’: intentional or negligent destruction of evidence9. Defences to Intentional Torts9.1 Introduction9.2 The concept of fault in intentional torts9.3 Consent in intentional torts9.4 Statutory defences of legal authority9.5 Defences to battery9.6 Defences to false imprisonment9.7 Exceptions and defences to trespass to land9.8 Defence of insanity9.9 Defence of limitation of actions9.10 MistakePART III: THE TORT OF NEGLIGENCE10. Negligence: Duty of Care10.1 Introduction10.2 Special kinds of duties and liabilities11. Breach of Duty of Care11.1 Introduction11.2 Factors that the court must consider when determining the reasonable person’s response to the risk11.3 Aspects of statutory provisions relevant to the determination of the breach of duty of care11.4 Specific standards11.5 The nature of inference in law12. Causation and Proof of Breach12.1 Introduction12.2 Statutory principles of legal causation12.3 Multifactorial causality at common law12.4 Exceptions to factual causation at common law and under statute12.5 Other aspects of causation13. Remoteness of Damage13.1 Introduction13.2 The meaning of ‘reasonable foreseeability’13.3 The concept and nature of remoteness of damage13.4 The test for remoteness of damagePART IV PARTICULAR CATEGORIES OF CASE14. Pure Nonfeasance (Pure Omissions)14.1 Historical introduction: acts and pure omissions14.2 Pure nonfeasance and the common law14.3 Liability of public authorities for omissions at common law14.4 Liability of highway authorities14.5 Entities vested with regulation making power15. Mental Harm: Liability for Negligently Occasioned Pure Psychiatric Injury15.1 Conceptual underpinnings15.2 The nature of the damage: recognised psychiatric illness15.3 Consequential nature of the injury15.4 Statutory paradigm for recovery of damages for negligently caused mental harm15.5 Evolution of liability for negligently occasioned pure psychiatric injury15.6 Elements of action for negligently occasioned pure psychiatric injury at common law16. Pure Economic Loss16.1 Negligently occasioned pure economic loss16.2 Negligent misstatement16.3 Causation and the doctrine of vulnerability16.4 Remoteness of damagePART V: DEFENCES TO NEGLIGENCE17. Defences to Negligence17.1 Introduction17.2 Historical background17.3 Contributory negligence17.4 Assessment of damages17.5 Voluntary assumption of risk17.6 Defence of joint illegal enterprise and the nature of illegalityPART VI: STRICT-LIABILITY TORTS18. Public and Private Nuisance18.1 Introduction18.2 Legal species of nuisance18.3 Tort of private nuisance18.4 Interference with the use and enjoyment of property rights18.5 Activities that offend sensibilities of neighbouring occupiers18.6 Title to sue18.7 Who may be sued?18.8 Remedies18.9 Defences19. Breach of Statutory Duty19.1 Historical introduction19.2 Nature of private action for breach of statutory duty19.3 Elements of the action for breach of the statutory duty19.4 Defences20. Vicarious Liability and Non-delegable Duty of Care: Types of Liability20.1 Part 1: Introduction20.2 Vicarious liability20.3 Part II: Non-delegable duty of care20.4 Non-delegable duty of care and vicarious liability20.5 Part III: Solidary and proportionate liabilityPART VII: DEFAMATION21. Establishing Defamation21.1 Introduction21.2 Abolition of the distinction between libel and slander21.3 Cause of action for publication of defamatory matter21.4 Elements of the cause of action21.5 Element 1: The matter conveys a defamatory meanings (imputations)21.6 Element 2: The matter identifies, or is capable of identifying, the plaintiff as the person defamed21.7 Element 3: The matter has been published by the defendant to at least one person other than the plaintiff21.8 Procedural matters22. Defences and Remedies in Defamation Law22.1 Introduction to defences22.2 Justification22.3 Statutory defence of contextual truth22.4 Honest opinion22.5 Absolute privilege22.6 Public documents22.7 Reports of proceedings of public concern22.8 Common law qualified privilege22.9 Statutory qualified privilege22.10 Triviality22.11 The effect of an apology on liability22.12 Remedies22.13 Limitation periods22.14 Offers to make amends
Danuta Mendelson, Professor, Chair in Law (Research), Law School, Deakin University
