Frequently Asked Questions
You need to check the relevant legislation in your State and Territory, as the rules are different in each jurisdiction.
-
What is the distinction between a crime and a tort?
- A crime is any wrong doing 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. See our Criminal Law area for more information.
- 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:
- intentionally but did not intend the actual harm that was caused;
- recklessly in that the offender did not care whether or not their acts would cause harm; or
- 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.
>> Read more & related FAQ's
-
What is meant by trespass to land?
- 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:
- throwing rubbish on another person’s property;
- placing graffiti on buildings or structures;
- parking on private property; or
- refusing to leave another person’s house or land when asked to do so.
>> Read more & related FAQ's
-
What is meant by trespass to the person?
- 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.
>> Read more & related FAQ's
-
What is the difference between assault and battery?
- 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.
- See our Assault, Sexual Assault and Homicide topic for more information on the criminal nature of these actions.
>> Read more & related FAQ's
-
What does the term “volens” mean?
- 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.
>> Read more & related FAQ's
-
What does defamation mean?
- Defamation is an intentional tort. To defame someone means to damage another person’s reputation either through:
- slander which is a spoken statement; or
- 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 have any concerns you can use our free and anonymous Ask a Lawyer service to get information specific to your situation.
>> Read more & related FAQ's
-
What is meant by false imprisonment?
- 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.
- However these statutory (written) laws vary greatly between the different states and territories so you should seek legal advice in advance if you are in a position where you may need to affect a citizen’s arrest (this refers to a member of the public detaining someone they reasonably suspect of committing a crime until the police arrive). If a citizen’s arrest is made unlawfully (without complying with the statutory requirements of your state or territory) you may find yourself liable for damages for false imprisonment.
- You can use our Phone a Lawyer service for a preliminary legal consultation if you think you may need legal advice.
>> Read more & related FAQ's
-
What does nuisance mean?
- Under Australian tort law a tort of nuisance can be brought against a person who interferes with someone’s enjoyment of land. It can either be:
- private nuisance which refers to interference on private property; or
- 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.
>> Read more & related FAQ's
-
What is meant by balance of probabilities?
- 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.
>> Read more & related FAQ's
-
What is meant by standard of care?
- 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.
>> Read more & related FAQ's
-
What is duty of care?
- 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:
- 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
- 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.
- The legislation (written law) which governs how a court will construct a duty of care may change between the different states and territories. It is always important to get legal advice specific to your situation rather than relying on generalised information. Our free Find a Lawyer directory may help you get in touch with an experienced civil lawyer near you.
>> Read more & related FAQ's
-
What is an obvious risk?
- 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.
- For example a plaintiff who is injured crossing a major road would be presumed to have been aware of the risks and required to take reasonable care for her own safety. If she was crossing behind an auto-transport truck and a poorly secured car rolled backwards off the truck and ran her over she would still be presumed to have known that crossing a major road gave rise to the obvious risk of being run over even though she could not have foreseen the exact manner in which that risk occurred. Her awareness of the risk of harm would go towards a calculation of contributory negligence that would be weighed against the truck driver’s negligence in not ensuring that his load was properly secured.
>> Read more & related FAQ's
-
What are chattels?
- '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:
- the market value of the phone or the cost of repairing it; and
- 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.
>> Read more & related FAQ's
-
What is contributory negligence?
- 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.
>> Read more & related FAQ's
-
What is meant by ‘agony of the moment’?
- 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:
- some people would argue that jumping off the terrace may seem like an exaggerated response to the risk posed by the defendant’s negligence;
- 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’.
>> Read more & related FAQ's
-
What is the statute of limitations?
- 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.
- Our LegalPlan™ membership will allow you to ask lawyers to handle your matter for a Fixed Fee Quote.
>> Read more & related FAQ's
-
What is an apology in law and what is the effect of a defendant’s apology on any claim in tort in NSW?
- 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:
- constitute as an express or implied admission of fault or liability; and
- evidence of apology is not admissible in any civil proceedings as evidence of the fault or liability of the defendant.
>> Read more & related FAQ's
View more Information on Negligence & Torts