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If it is Trespass (batter/assault/TP to goods & land/conversion/detinue) The intentional acts are excluded from the operation of the CLA: s3B(1)(a) of the CLA except Part 7, which does apply to the question regarding self-defence. Negligent trespass However, negligent trespass might be arguably be governed by the CLA as it is not form intentional act. When did the proceedings commence? The operation of the CLA depends on when proceedings were commenced (regardless of the date of injury): s.2 CLA. So the student should pick up on this trick in the question and provide two answers: 1. If the injury occurred pre-20/3/02 and proceedings were commenced pre-20/3/05, then the common law will apply; and 2. If the injury occurred pre-20/3/02 but the proceedings were commenced on or after 20/3/02, then the CLA will apply However, as (a) of the question related to the operation of the CLA, the student should assume (b) only relates to the operation of the common law
[Vicarious liability]
X (employer) is vicariously liable for the tortuous acts (or omissions) by Y (his employee) in the course of his/her employment whether or not such act or omission was specifically authorised by the employer : Lepore v NSW Requirement: For the vicarious liability to be held, the tortfeasor must (a) be a servant (not independent contractor), and (b) in the course of his or her employment (a)Servant (is under a contract of services) v Contractor (is under a contract for services) Control test (if the Master controls what/how employee does, then servant):Zuijs v Wirth Bros Totality of the relationship: Hollis v Vabu (bicycle couriers -> servants upon circumstances) (b) Whether the torts is committed in the course of employment or not, turns on: whether his/her tasks are authorised: Deaton v Flew whether the employees tortuous act so connected to authorised tasks that it can be seen as a mode of carrying out the task albeit wrongfully: Morris v Martin In general the employer is not liable where the employee commits a torts while on frolic of his or her own(eg horseplay): Harvey v ODell (detour to get tool and lunch) Where the employer expressly prohibits a particular conduct, the employees act in breach of the prohibition is generally considered to be outside the scope of the employees services. (not liable) Non-Delegable Duties: reasonable care to be taken in the carrying out of any work delegated s5Q of the CLA FACT: We are told that Scott is an employee. The question then becomes: is his contravention of PW (employer)s specific standing instructions in allowing Geoff to dive in prior to Scott's testing the water within the course of employment? The answer is a question of fact: Bugge v Brown. If Scott's conduct is in the course of employment then PW will be liable to indemnify him.)
[Onus of Proof]
On/off highway In trespass, once the P proves injury caused by the Ds act, the burden of proof shifts to the D to show that the act was involuntary or they were not at fault: McHale v Watson The only exception to this rule is a highway trespass. Where a trespass occurs on or near a highway, the P must prove either intention or negligence on the part of the D: Venning v Chin. on highway: P proves Ds intention/negligent off highway: D disprove that his act was involuntary or at at fault. FACT: (In this Q, it is unclear whether it is on or off highway..) Discussion in Blay, Onus of Proof of Consent in an Action for Trespass to the Person Vol. 61 ALJ (1987) 25. The specific issue of proving or disproving consent in trespass to the person was never arisen for determination by the Australian Courts. After surveying the authorities in England, US and Canada, Blay comes down that absence of consent is an ingredient of trespass and must therefore be alleged and proved by the P.
But, Bunyan v Joradan is not because of circumstance that harm was not foreseeable FACT: Y can bring an action on the case against X for causing Ys mental harm following the principles of Wilkinson v Downton. This action requires proof of intent and proof of damage, that is, proof that the D subjectively intended to shock the P and that the damage was objectively likely to result. Statements made to the P that are intended to cause harm are actionable if they cause mental harm.
Re: if Self-defence involved IF Question says Advise the types of damages he may receive. Do not attempt to quantify damages
According to s3B(1)(a) of the CLA, restricted damages does not apply in respect of an intentional act. However, if Part 7 applies (-which it does not on these facts-), then s53(2)(a) may operate to restrict damage under CLA even though there was an intentional act which are: general damage: past and future pain & suffering, loss of enjoyment of life, etc economic loss: past & future, includes loss of wages/loss of upper/loss of opportunity: Malec v Hutton, use 3% Tables to assess future economic loss under s16(3) of the CLA out-of-pocket expenses: past and future treatment expense gratuitous care: past and future; Griffinths v Kerkemeyer Interest on past heads of damage refer to above: rate on Schedule J of Supreme Court of NSW for past economic loss (but see Gojic re general damage) exemplary damage (available most likely in this case) s53(1)(a)&(b), unless the circumstances are exceptional and a failure to award damage would be Noel Kim 2010
harsh and unjust, a court is not to award against the D, even if the conduct of self defence was not a reasonable response. This section has a 2 limb test and both (exceptional and harsh & unjust) must be satisfied. The terms exceptional and harsh & unjust are not defined in the Act, so the ordinary meaning can be adapted: s34 of the Interpretation Act 1987. If s53(1)(a)&(b) test passed, the court is to award damage to P: s53(2)(a), but no damage may be awarded for non-economic loss: s53(2)(b). s54(1)&(2) Criminal cannot be awarded damages. A court is not award damage if the conduct of P, on the balance of probabilities, constitutes a serious offence (punishable by imprisonment for 6 months or more) unless the conduct of D constitutes offence (whether or not serious offence) but these offence are kind of criminal wrongs not civil wrongs.