TORT

A tort is a civil wrong. A party who has caused the wrong is required under tort to compensate the innocent party for any damages suffered by that party because of the wrong. No injury is to be classified as a tort if it is solely a breach of contract and the same facts may give rise to an action for breach of contract. Judges will create new torts when the occasion arises or will extend the field of existing torts. Generally, the elements of a tort are:


See trespass

A real estate agent or valuer is subject to the tort of duty of care. Therefore, both are liable for any damages or loss caused through careless, negligent, or reckless advice or actions   see negligence. The principal may be responsible for an agent's tort if the agent's actions and advice are within the principal's authority.

Other torts that may apply to an agent are trespass, conversion of goods or money, nuisance, or defamation. The liability may extend to a third party.

"Tort" means "wrong". Originally it meant twisted and this meaning has survived in the word tortuous, which should not be confused with tortious, meaning 'wrongful' or 'injurious'. Tort law is broadly concerned with civil wrongs. Torts are:


A tort is different to a breach of contract or a breach of trust. The law redresses the civil wrong not by punishment (for example, the sending to jail of the guilty person) as in criminal cases but instead, by awarding damages. At the same time, there are torts such as assault and battery that are also punishable as crimes.

A tort may be intentional or accidental:



There are 3 major bases of tortious liability:




INTENTIONAL TORTS

Intentional torts fall into 3 broad categories, all of which have some significance for those engaged in business:


INTENTIONAL TORTS TO CHATTELS OR GOODS:

EXAMPLES

When a real estate agent fails to return a chattel found on premises recently vacated by a tenant, and refuses to return it when lawfully requested to do so. He/she could be faced with an action for detinue (that is the wrongful detention of a chattel for which a demand for its return has been made by the person with a right to immediate possession).

Similarly, a property manager foolish enough to use guard dogs when collecting rent money, could find him/herself in court should a dog injure a person. The Common Law and relevant legislation provides “strict liability” on the owners of dangerous dogs that are capable of injuring people.

INTENTIONAL TORTS TO PERSONS: There are 4 such torts:



BATTERY: This is a form of trespass to the person of any act of the defendant that directly and either intentionally or negligently causes some physical contact with the plaintiff and without the plaintiff's consent.

ASSAULT: “Assault is a trespass to the person, any act of the defendant that directly and either intentionally or negligently causes the plaintiff immediately to apprehend a contact with his person.

EXAMPLE

It is possible to have an assault without a battery (eg a mere threat of immediate violence) and a battery without an assault (for example, a teacher pushes a pupil from behind), but in most cases assault and battery are usually committed together, with battery generally following an assault..

Assault is also a criminal offence (King v Nichols (1936)).

FALSE IMPRISONMENT: False imprisonment can be defined as an act of the defendant that directly and intentionally or negligently causes the confinement of the plaintiff within an area delimited by the defendant.

EXAMPLE

If a property manager locks a tenant inside his/her premises. It is immaterial whether or not the tenant knows that he/she was locked in.


NEGLIGENCE

The usual basis for legal action arising from physical injury is the law of negligence. The rise of negligence as a separate tort broadly coincided with the progress of the Industrial Revolution when new sources of risk presented the law with new problems. However, in little more than 100 years the negligence concept completely transformed the basis of tort liability such that today the existence of negligence as a separate tort with a distinct set of principles is easily the most important tort of all.

DEFINITION: Circumstances vary so widely that it is virtually impossible to offer a satisfactory definition of negligence that covers all possible situations. However, it can be defined as conduct falling below the standard established for the protection of others against unreasonable risk of harm. However, it must be appreciated that a person suffering injury as a result of someone's carelessness may not necessarily be able to sue for negligence. That is, careless acts do not necessarily constitute negligence.

The necessary ingredient for an action for negligence include the following:





It follows that no claim for damages will be successful in respect of what can rightly be described as an accident that is, an event which cannot be prevented, or which could not reasonably have been foreseen.

DUTY OF CARE: Negligence does not entail liability unless the defendant owed the plaintiff a duty in the circumstances to observe care. For example, "a man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them"   Le Lievre v Gould [1893] 1 QB 491 at 497.


Duty of care limits the liability of the tort of negligence, keeping it within reasonable bounds. If someone is injured it does not mean that someone else owed the injured party a duty of care. Therefore, a crucial question that a court will ask is; "does a duty of care exist in this particular case?" If the answer is “no” then there is no case to answer. The classic presentation of a general formula for “duty” was Lord Atkin's “good neighbour” test in Donoghue v Stevenson:

There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances...The rule that you are to love your neighbour becomes in law you must not injure your neighbour, and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly, affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question (Donoghue v Stevenson [1932] AC 562 at 580).

In Donoghue v Stevenson, it was S's friend who actually purchased the contaminated drink, and the defendant's counsel argued that since the manufacturer had no contract with S, he was not liable and owed her no duty of care. However, the case established a vital precedent, and thereafter remedy could be sought for such an injury. Responsibility was established such that the manufacturer owes his/her “neighbour” (the consumer) a duty of care, and can be sued for negligence for failure to exercise foreseeable care required of the reasonable person. The importance of Donoghue v Stevenson is two­fold:



Further. Lord MacMillan stated that the "'categories of negligence are never closed" which means that in accordance with changing social standards new classes of persons legally bound or entitled to the exercise of care will from time to time emerge. This is a good example of the common law being flexible and able to adapt to changing social values and needs, that is, “positive law”.

EXAMPLE

A good example of the emergence of a new notional duty of care is O'Connor v State of South Australia (1976) 14 SASR 187, where the court held the State vicariously liable for the negligence of a judge who injured someone by opening a door. There were no precedents to guide the court so the “court simply asked itself the question whether the judge should have foreseen harm in the circumstances of the case, and finding that he should, held that a duty of care existed” (Baker 1985, 82).

“DUTY IN THE AIR”: English/Australian law does not recognise a "duty in the air", as it were. A defendant's negligence must not only constitute a breach of duty of care, but also the duty must be owed directly to the plaintiff. Consequently, the law has limited the range of liability to persons alone who were foreseeably imperilled. This is to reduce the burden of excessive liability.

There are numerous examples of the “duty” concept. For example, a person can owe a duty of care not to cause injury to an “unborn” plaintiff. For our purposes, however, among the various existing relationships where a duty of care is owed, the “business professional-client”, “valuer client”, “builder-client”, “architect-client” and “property manager-tenant” relationships are perhaps the most important.

OCCUPIERS LIABILITY: The law of occupiers' liability is concerned with the duty owed by occupiers of land or premises towards visitors, whether invited or uninvited whose presence is lawful or unlawful, who suffer injury during the course of their visit. Until 1987 a somewhat archaic categorization existed whereby occupiers had different and “special” duties, depending on the category of the entrant to the premises or land. The 4 major categories of “visitor” were contractual, invitees, licensees and trespassers.

AUSTRALIAN SAFEWAYS STORES CASE: The situation in Australia was much simplified by the landmark High Court decision in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, that ensured that, in Australia at least, the notion of special duties (and categories) will be relegated to the realm of legal history. The High Court held that in order to determine whether the plaintiff was owed a duty of care:

[A]ll that is necessary to determine whether, in all the relevant circumstances including the fate of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member (Australian Safeway v Zaluzna (1987) 162 CLR 479 at 488).

The High Court also made it plain that the time had come to end the confusion by merging special duty of care and general duty of care:

It seems to us that the utility of the theory of concurrent duties could be accepted only if a situation could arise in which it was possible to establish a cause of action in reliance on Indermaur v Dames which could not be pursued by reference to the general duty of care postulated in Donoghue v Stevenson. And yet case after case affirms...that the special duties do not travel beyond the general law of negligence. They are no more than an expression of the general law in terms appropriate to the particular situation it was designed to address. [Consequently]...there remains neither warrant nor reason for continuing to search for fine distinctions between the so­ called special duty...and the general duty...(Australian Safeway v Zaluzna (1987)162 CLR 479 at 487).

Further, the Court adopted the Donoghue v Stevenson general notion of duty of care for all entrants to premises and land. This shows how old but good cases survive in the common law. This does not mean that the High Court is also imposing on the occupier of property exactly the same obligations in relation to every entrant. A trespasser is still at a disadvantage in an action on occupier’s liability compared to an invitee. Occupiers Liability is now codified in the various Wrongs Acts of the states and territories.


TRESPASS TO LAND

Trespass to land consists of:



ENCROACHMENT OF BUILDINGS: The Court has the power to grant relief to an adjacent or encroaching owner in respect of the encroachment of buildings. This is governed by the states’ and territories’ Encroachment of Buildings Acts.

TRESPASS MUST BE A DIRECT INTERFERENCE WITH THE PLAINTIFF'S LAND:

EXAMPLE

Cases of damage caused indirectly such as by the growth of a neighbour's trees, comes under the tort of nuisance - Smith v Giddy [1904] 2 KB 448. However, the law is unclear concerning encroaching trees.

BELOW THE SURFACE OF THE LAND: The occupier is normally in possession of what is under or attached to the land and so has a title to sue for trespass even though he may not know of the existence of the object interfered with - Corp of London v Applevard [1963] 2 All ER 834.

AIRSPACE ABOVE THE LAND: It is a trespass to fix an object in the air space above land - Kelsen v Imperial Tobacco Co [1957] 2 Q8 334. An object passing through the air space above land and touching an object on the land renders the person responsible guilty of trespass to the land - Oavies v Bennison (1927) 22 Tas LR 52. The rights of an owner of land in the air space above the land is that necessary for the ordinary use and enjoyment of the land and the structures on it. Interference outside this area will not constitute a trespass - Lord Bernstein v Skyviews [1977/ 2] All ER 902.

THE MEASURE OF DAMAGES  TRESPASS TO LAND: The measure of damages is the diminution in the value of property caused by the trespass. The plaintiff may claim a reasonable remuneration for any use of his land by the defendant. Where chattels are severed from the land by an act of willful wrongdoing, the plaintiff may recover either the value of the chattel at the moment of severance or the diminution in the value of the land, at his/her discretion. For other cases he/she is only entitled to the diminution in the value of the land or the cost of restoration provided that it is not disproportionate to the value of the land - Evan v Balog [1976] 1 NSWLR 36.


OTHER REMEDIES

INJUNCTION: The court orders the cessation of the trespass. This may be a remedy additional to damages.

CRIMINAL: Applies in certain cases.

EJECTMENT: Were a person is deprived of possession of his land by the act of another in wrongfully taking possession (trespass) or in holding over after the expiration of a lawful possession such at the expiration of a lease (not trespass) he/she may recover possession by an action of ejectment.

RE ENTRY: The dispossessed person should re enter peacefully. If he/she enters forcibly but peacefully, the party against whom the force is directed cannot bring an action in respect of the entry or of injuries caused to him/her by the use of that force. However he/she can recover for injuries caused by the use or excessive force - Hemmings v Stoke Poges Golf Club [1920] 1 K8 720. Although forcible entry by a person entitled in law to possession cannot result in a civil cause of action, a criminal offence under the relevant Crimes Act may be possible.

DAMAGE BY AIRCRAFT: The Civil Aviation (Damage by Aircraft) Act 1958 provides that the provisions of the Rome Convention of 1952 on damage by foreign aircraft to third parties on the surface applies in Australia (s8(1)). The Act drastically curtails common law rights in receiving and the amount of the award. See also Damage by Aircraft Act 1952.

TRESPASS TO LAND   MUST BE A DIRECT ACT, NOT CONSEQUENTIAL

This principle is illustrated by Southport v Esso Petroleum [1954] 2 All ER 561:

Denning LJ: "This is one of those cases, rare nowadays, where much depends on ascertaining the proper cause of action, particularly in regard to the burden of proof. The Southport Corporation alleges that the deposit of oil on their foreshore was either a trespass to land, or a nuisance, or that it was due to negligence. The judge seems to have thought that it did not matter much what was the proper cause of action; it all came back in the end to the universal tort of negligence. The action was, he said, "to be treated in the same way as any running down or collision case in which the plaintiff alleges negligence.

I do not share this view, and will give my reasons:

(1) Trespass to land. In order to support an action for trespass to the land the act done by the defendant must be a physical act done by him directly on to the plaintiff's land. That was decided in the year 1498 in the Prior of Southwark's Case (1498) Y8 13 Hen 7 which is conveniently set out in Fifoot's History and Sources of the Common Law at 87. The Prior complained because the defendant, who was a glover, had made a lime pit for calf skins so close to a stream as to pollute it. It was held that if the glover had dug the lime pit in the prior's soil the action ought to be in trespass; but if it was made in the glover's soil it should be in case. The same distinction was taken in Reynolds v Clarks (1726) 1 Str 634, where the defendant put a rainspout on his house from which water poured on to the walls of the plaintiff's house and rotted them. The plaintiff brought an action for trespass, but failed because he should have brought an action upon the case. The reason was because the prejudice to the plaintiff was not immediate, but consequential. Quite recently, in Read v Lyons [1947] AC 156,166; 62 TLR 646; [1946] 2 All ER 471 Viscount Simon, LC affirmed the same distinction when he observed that "the circumstances in Fletcher v Rylands (1866) LR 1 Ex 265 did not constitute a case of trespass because the damage was consequential, not direct.

Applying this distinction, I am clearly of opinion that the Southport Corporation cannot here sue in trespass. This discharge of oil was not done directly on to their foreshore, but outside in the estuary. It was carried by the tide on to their land, but that was only consequential, not direct. Trespass, therefore does not lie...."

TRESPASS AB INITIO: Under this doctrine a defendant who enters upon land with authority but abuses his privilege by some positive act of wrongdoing against the plaintiff, is regarded as a trespasser not merely upon committing the act but from the moment of original entry - Windeyer v Riddell (1847). The rule has been criticised in Chic Fashions v Jones [1968] 2 Q8 299) but may not be obsolete.

TRESPASS THROUGH THE AIR SPACE:

AIRCRAFT: There is no direct Australian authority on the problem of aircraft. The Civil Aviation (Damage by Aircraft) Act 1958 for example, allows for trespass.

THE TRESPASS MUST BE A DIRECT ACT, NOT CONSEQUENTIAL

This rule is illustrated in Gregory v Piper (1829)109 ER 220 where the defendant directed his servant S to pile rubbish in such a way as to obstruct the entry to the stable yard of the plaintiff's inn. The rubbish did not at first touch the wall of plaintiff's yard, but "being of a loose kind, as it became dry it naturally shingled down towards and ran against the wall". Plaintiff brought his suit in trespass. Because trespassory injury must be "direct", the law was that a master could only be liable for his servant's trespass if he had expressly ordered the act complained of or it was the inevitable consequence of his order.

TRESPASS BY AN OVERHANGING ADVERTISING SIGN

Signs that encroach on the neighbour’s property have been a fruitful cause of litigation. The legal principle is illustrated in Kelson v Imperial Tobacco Co [1957] 2 QB 334:

McNair J; The report of Gifford's Case reads(ibid): "If he"   that is, the judge  "was right in the conclusion to which he had come that the plaintiffs were tenants of the forecourt and were accordingly tenants of the space above the forecourt usque ad coelum, it seemed to him that the projection was clearly a trespass upon the property of the plaintiffs. That decision, I think, has been recognized by the textbook writers, and in particular by the late Professor Winfield, as stating the true law. It is not without significance that the legislature in the Air Navigation Act, 1920, s9, found it necessary expressly to negative the action of trespass or nuisance arising from the mere fact of an aeroplane passing through the air above the land. It seems to me clearly to indicate that the legislature at least were not taking the same view of the matter as Lord Ellenborough in Pickerina v Rudd (4 Camp 219) but rather taking the view accepted in the later cases, such as the Wandsworth District Case (13 QBD 904), subsequently followed by Romer J. in Gifford v Dent [1926] WN 336. Accordingly, I reach the conclusion that a trespass and not a mere nuisance was created by the invasion of the plaintiff's air space by this sign.


NEGLIGENT MISSTATEMENTS

The professional, any professional such as the valuer and real estate agent who hold themselves out against the world as an expert are subject to a duty of care in the information, reports and advice given to clients. This area of negligence is probably the most important area of tort affecting the real estate agent as it covers “economic loss”.

ECONOMIC LOSS: Where a defendant, as a result of careless or negligent words, causes purely economic loss (financial loss) to the plaintiff, then the circumstances in which the defendant is liable to the plaintiff in negligence are much more closely circumscribed than if the plaintiff suffered economic loss arising from damage to the person or property. Where negligent misstatements are concerned, questions such as whether or not the plaintiff relied on the defendant's statements or advice to his/her detriment, and whether a special close, or professional relationship existed between the plaintiff and defendant, take on crucial significance.

Traditionally, courts have been hesitant to impose liability for negligent misstatements, and there were several reasons for this, not least of which was the fear of indeterminate liability that is, liability to almost everybody who may suffer a loss because of a negligent misstatement made by the professional

EXAMPLE

Imagine a scenario of a real estate agent acting as an expert in housing finance, addresses a large hall of interested people on that matter. He/she was careless in some aspect of the advice given, and could have reasonably foreseen that the people would pass the advice to other people who may wish to buy a home (eg colleagues at work). Then, if reasonable foreseeability alone was the sole criterion of liability, the agent would be liable to all those who acted in the negligent advice to their cost no matter how remote they were from the agent. The adviser would be liable to an indeterminate class and as such could not estimate in advance the extent of liability.

An associated reason advanced for wishing to limit the liability for purely economic loss was that a negligent defendant could be exposed to claims that were out of all proportion to the extent to which the defendant's conduct fell below that of a reasonable person.


The landmark case that extended liability for pure economic loss was Hedley Byrne. However, Hedley Byrne suggested liability should attach only to those who were in a special relationship with the person(s) suffering loss as a result of negligent misstatement.

The present position is that liability is not limited to a particular class of persons, or a particular type of transaction. Rather, the defendant will be found to be under a duty to take care to prevent economic loss from his/her statements WHEN HE/SHE KNOWS, OR OUGHT TO KNOW, THAT HIS/HER WORDS ARE SUCH AS TO ENGENDER IN ANOTHER REASONABLE RELIANCE UPON THEM. Therefore, in the real estate agent acting as an expert adviser on housing finance scenario above, the question for the court to firstly decide is whether the agent could have reasonably foreseen that a workmate of a person attending the gathering would use the advice given.

This is why the agent must be careful about casual off the cuff statements even in informal social situations as the listener may be relying on the agent’s words as the agent is holding himself/herself out as an expert on the matter. Of course the agent can qualify his/her statements so as to make it clear that the words ought not to be relied on and this is the best advice if statements and advice is given. In such a case, no liability will attach to the speaker.

PROXIMITY: The range of the defendant's liability is determined by the concept of proximity, and this is certainly less than that encompassed by the notion of reasonable foreseeability. In this regard, the High Court has decided that where purely economic loss results from the defendant's negligence sufficient control on liability is exercised by confining the ambit of the duty to the circumstances where the plaintiff individually is (or ought to be) within the defendant's contemplation.

Therefore, liability for negligent misstatements is sufficiently confined if the defendant can reasonably contemplate that an individual (though unspecified) might properly place reliance on the defendant's words, and suffer loss if his statement is misleading. Therefore, an agent would not be liable to economic loss suffered by somebody who finds his/her professional report and acts on that advice. The agent could not have reasonably contemplated that his/her report would be used by a finder. All that is necessary to find liability is that the statement be of such a character as to engender in the plaintiff reasonable reliance thereon.

CAUSAL LINK: Another relevant consideration is that a plaintiff would need to establish the necessary causal link between the defendant's statement and the plaintiff's loss. The loss cannot be too remote a consequence. It may be difficult to establish this causal link of showing that the alleged financial loss for which the plaintiff claims recompense, was in fact a reasonably foreseeable consequence of the defendant's alleged negligent misstatement. For example, if the negligent advice given at the housing finance gathering had been made several years previously.

The professional expert in business such as accountant, valuer, real estate agent, architect or builder, should be careful in any advice he/she gives with regard its accuracy and about the extent to which any person may claim to have acted in reliance on it. In many situations it may be best to refrain from gratuitous advice (offering an opinion when one is under no duty to do so) or to at least place the onus back on the recipient by making clear that the advice is only tentative and should be checked from other sources. In practice, particularly where written reports are used, it is common to issue a disclaimer limiting the purpose and/or the party for which and to whom the advice is given. However, the effect or efficiency of such disclaimers is not clear and will depend largely on the circumstances of the case.

BREACH OF DUTY OF CARE

A plaintiff must establish that a duty of care exists (that the defendant is under an obligation to the plaintiff) and that a breach of that duty has occurred. Any breach of duty must be judged against a standard of care being that of the reasonable person [reasonableness test], a legal standard). Should the defendant fail the “reasonable person” test, then he/she is said to be in breach of a duty of care.

However, as Baker (1985, 114) points out, the phrase standard of care used to illustrate the “standard of reasonable conduct by which the defendant's conduct is measured”, tends to be misleading insofar as it implies that a pre existing standard is available by which to gauge actions of defendants in negligence cases:

In fact, the court always reaches its decision by an ex post facto adjudication that on the actual facts of the case the defendant acted reasonably or unreasonably. Previous decisions on similar facts, though they show what in the past has been regarded as reasonable or unreasonable behaviour, are decisions of fact alone and do not bind the court in its decision in the instant case (Baker 1985, 114).

The standard of care varies with the nature of the acts (for example, higher standards are required with more dangerous acts), and with regard to the type of person to whom care is owed. The standard of care expected of a person in charge of an adult group would be less than that demanded of a person in charge of say, infants. The issue is one of whether the harm from which the plaintiff suffers was reasonably foreseeable such that it results from a risk which a reasonable person would have taken reasonable precautions to prevent. Therefore, breach of duty is concerned with the question whether, granted that there was that foreseeable risk of harm, the defendant had taken reasonable care to prevent it from occurring.

THE COST OF AVOIDING HARM: In the main, courts do not respond sympathetically to arguments offered by defendants that expense and practicality mitigate against the provision of adequate precautions. However, the decision as to what is reasonable in this regard must obviously take account of the defendant's means and resources. For example, what sort of reasonable obligations should property owners make towards trespassers?

In some instances there is an interrelationship between the above factors that must be considered in regard to breach of duty. Where the degree of risk is insufficiently slight, the mere lawfulness of the activity in question, the absence of other deleterious consequences from it and the need for expensive measures to avert the slight risk it causes, are relevant factors in establishing that there is no breach of duty.

REASONABLE PERSON

The reasonable person test is a common test used in law. As can be seen by the comments above it is an important test in tort as well as contract. The person is a person of ordinary prudence, or a person using ordinary care and skill, Such a standard is necessary otherwise a defendant could only be judged by his/her own subjective standards. For example, “I did not think it was necessary for me to check that my recommended method of finance was in fact more expensive because of “hidden” costs than for the normal method of finance”.

However, courts will take into account of such factors as youth, old age, physical/mental infirmities of a defendant, where they are considered relevant.

GENERAL STANDARDS - PROFESSIONAL NEGLIGENCE

Property professionals are judged by the standards of generally accepted professional practice in the industry, and in the light of knowledge currently available to a reasonable practitioner at the time. Although not a legally enforceable set of rules, the various codes of ethics that professional institutes have would be evidence of acceptable standards. How would this test apply to property professionals, builders, valuers and architects?

PROOF OF NEGLIGENCE AND RES IPSA LOQUITUR

In actions for negligence the burden of proof is on the plaintiff to establish his/her case “on the balance of probabilities”, and the plaintiff usually relies upon direct evidence to achieve this. But in some cases direct evidence may be lacking (for example, where injuries occur to young children), in which case res ipsa loquitur may come to aid of the plaintiff.

Res ipsa loquitur entitles the court to “infer the commission of negligence by the defendant on proof of certain facts. The facts themselves, therefore, speak of negligence (res ipsa loquitur) and the plaintiff need not give direct proof that the defendant was negligent). Mere proof of an occurrence causing injury itself constitutes prima facie evidence of negligence. However, certain conditions are necessary for the rule to apply.

THERE MUST BE DAMAGE

Since damage is an integral element of liability of negligence no cause of action can accrue until damage occurs. Further, not only must there be damage (injury/harm of some legally acceptable form), but the damage must be caused by the defendant's fault, and as discussed above, the damage must be proximate and not too remote.

Causation, concerns the factual question of whether the relation between the defendant's breach of duty and the plaintiff's damage is one of cause and effect. Remoteness raises the question as to the extent to which the defendant should answer for the consequences which his/her conduct has helped to produce.


DEFENCES TO NEGLIGENCE

The concepts of duty of care and remoteness of damage comprise two judicial techniques which circumscribe liability for negligence. In addition, there are two formal defences which need to be pleaded and proven by the defendant.

CONTRIBUTORY NEGLIGENCE: Arises from the plaintiffs failure to take reasonable care for his own safety and well being which contributes, at least in part, to his subsequent injury.

EXAMPLE

An example of contributory negligence is Hasaganic v Minister of Education (1973) 5 SASR 554 in which a teacher in a school for mentally retarded children tripped over a wire whilst attempting to prevent a child from climbing a tree in the school playground. As a result she was injured and the court held the school negligent. But the teacher was found guilty of contributory negligence for failing to see the wire in an environment with which she had some familiarity. Liability was apportioned 80% to the school and 20% to the teacher.


VOLUNTARY ASSUMPTION OF RISK

This defence is also called volenti nonfit injuria (ie to a willing person there is no injury), or volenti for short. Volenti is a complete defence in the sense that, should it prove successful, the defendant is completely exonerated from negligence. Hence, with volenti (unlike contributory negligence) blame and damages are not apportioned.

Volenti may be deemed' (inferred from the plaintiff's conduct) or based on express agreement, but the consent must be genuine and in no sense coerced or resulting from economic necessity. Volenti is sometimes invoked by employers where employees have been injured in dangerous environments, or by drug affected drivers, sued by injured passengers as a result of negligent driving. In order to establish the defence, the plaintiff must be shown not only to have perceived the existence of danger, for this alone would be insufficient, but also that he fully appreciated it and voluntarily accepted the risk.

EXAMPLE

A property manager enters a premises to collect rent after being warned by the managing agent that there is a fierce dog in the yard and it is better to make an appointment with the tenant so that the dog can be controlled. The property manager ignores this advice and is bitten by the dog. In this situation the agent can plead the defence of volenti as the property manager entered the property at “his/her risk”.


DEFAMATION

The final tort to be considered here is that of defamation which covers the twin torts of libel and slander:

LIBEL: In common law libel refers to anything committed in a form of a permanent character and visible to the eye. For example, an article that defames a person is libel.

A defamatory statement may be defined, in general terms at common law as one that is of a kind likely to lead ordinary decent folk to think less of a person about whom it is made. Further, it need not impute any moral blame to the plaintiff. It is enough that the plaintiff is 'dishonoured'. Hence, to call someone 'insane' can constitute defamation. We should also appreciate that defamation protects a person's professional standing as well as social standing. At common law, a defamatory claim may be committed by an attack on the skill or competence of an architect, real estate agent or a valuer.

SLANDER: Slander refers to anything temporary and merely audible. A property manager that is overheard defaming a tenant is committing slander.

There are 3 defences against defamation: justification; privilege; fair comment. At common law it is a complete defence against an action for defamation using justification. This is showing that the statement complained of is true, (though knowing something to be true and proving it are two different things).

Given the costs of litigation, prudence dictates that the property professional scrupulously takes care about what one says and writes.


SOMETHING TO DO

Length: 1000 words

You have established a new real estate agency in the outer suburbs of a large city. Briefly list and describe the torts (as covered) above that may apply to the day to day operation of your agency.

As part of your agency practice you are providing potential sellers with a “free appraisal” of their home. Further, you advertised yourself as the “appraisal expert in (this suburb)”. What are the dangers under tort in this area of your professional activities?


"Tort" means "wrong". Originally it meant twisted and this meaning has survived in the word tortuous, which should not be confused with tortious, meaning 'wrongful' or 'injurious'. Tort law is broadly concerned with civil wrongs. Torts are:


A tort is different to a breach of contract or a breach of trust. The law redresses the civil wrong not by punishment (for example, the sending to jail of the guilty person) as in criminal cases but instead, by awarding damages. At the same time, there are torts such as assault and battery that are also punishable as crimes.

A tort may be intentional or accidental:


There are 3 major bases of tortious liability:



INTENTIONAL TORTS

Intentional torts fall into 3 broad categories, all of which have some significance for those engaged in business:


INTENTIONAL TORTS TO CHATTELS OR GOODS:

EXAMPLES

When a real estate agent fails to return a chattel found on premises recently vacated by a tenant, and refuses to return it when lawfully requested to do so. He/she could be faced with an action for detinue (that is the wrongful detention of a chattel for which a demand for its return has been made by the person with a right to immediate possession).

Similarly, a property manager foolish enough to use guard dogs when collecting rent money, could find him/herself in court should a dog injure a person. The Common Law and relevant legislation provides “strict liability” on the owners of dangerous dogs that are capable of injuring people.

INTENTIONAL TORTS TO PERSONS: There are 4 such torts:


BATTERY: This is a form of trespass to the person of any act of the defendant that directly and either intentionally or negligently causes some physical contact with the plaintiff and without the plaintiff's consent.

ASSAULT: “Assault is a trespass to the person, any act of the defendant that directly and either intentionally or negligently causes the plaintiff immediately to apprehend a contact with his person.

EXAMPLE

It is possible to have an assault without a battery (eg a mere threat of immediate violence) and a battery without an assault (for example, a teacher pushes a pupil from behind), but in most cases assault and battery are usually committed together, with battery generally following an assault..

Assault is also a criminal offence (King v Nichols (1936)).

FALSE IMPRISONMENT: False imprisonment can be defined as an act of the defendant that directly and intentionally or negligently causes the confinement of the plaintiff within an area delimited by the defendant.

EXAMPLE

If a property manager locks a tenant inside his/her premises. It is immaterial whether or not the tenant knows that he/she was locked in.


NEGLIGENCE

The usual basis for legal action arising from physical injury is the law of negligence. The rise of negligence as a separate tort broadly coincided with the progress of the Industrial Revolution when new sources of risk presented the law with new problems. However, in little more than 100 years the negligence concept completely transformed the basis of tort liability such that today the existence of negligence as a separate tort with a distinct set of principles is easily the most important tort of all.

DEFINITION: Circumstances vary so widely that it is virtually impossible to offer a satisfactory definition of negligence that covers all possible situations. However, it can be defined as conduct falling below the standard established for the protection of others against unreasonable risk of harm. However, it must be appreciated that a person suffering injury as a result of someone's carelessness may not necessarily be able to sue for negligence. That is, careless acts do not necessarily constitute negligence.

The necessary ingredient for an action for negligence include the following:


It follows that no claim for damages will be successful in respect of what can rightly be described as an accident that is, an event which cannot be prevented, or which could not reasonably have been foreseen.

DUTY OF CARE: Negligence does not entail liability unless the defendant owed the plaintiff a duty in the circumstances to observe care. For example, "a man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them"   Le Lievre v Gould [1893] 1 QB 491 at 497.


Duty of care limits the liability of the tort of negligence, keeping it within reasonable bounds. If someone is injured it does not mean that someone else owed the injured party a duty of care. Therefore, a crucial question that a court will ask is; "does a duty of care exist in this particular case?" If the answer is “no” then there is no case to answer. The classic presentation of a general formula for “duty” was Lord Atkin's “good neighbour” test in Donoghue v Stevenson:

There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances...The rule that you are to love your neighbour becomes in law you must not injure your neighbour, and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly, affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question (Donoghue v Stevenson [1932] AC 562 at 580).

In Donoghue v Stevenson, it was S's friend who actually purchased the contaminated drink, and the defendant's counsel argued that since the manufacturer had no contract with S, he was not liable and owed her no duty of care. However, the case established a vital precedent, and thereafter remedy could be sought for such an injury. Responsibility was established such that the manufacturer owes his/her “neighbour” (the consumer) a duty of care, and can be sued for negligence for failure to exercise foreseeable care required of the reasonable person. The importance of Donoghue v Stevenson is two­fold:


Further. Lord MacMillan stated that the "'categories of negligence are never closed" which means that in accordance with changing social standards new classes of persons legally bound or entitled to the exercise of care will from time to time emerge. This is a good example of the common law being flexible and able to adapt to changing social values and needs, that is, “positive law”.

EXAMPLE

A good example of the emergence of a new notional duty of care is O'Connor v State of South Australia (1976) 14 SASR 187, where the court held the State vicariously liable for the negligence of a judge who injured someone by opening a door. There were no precedents to guide the court so the “court simply asked itself the question whether the judge should have foreseen harm in the circumstances of the case, and finding that he should, held that a duty of care existed” (Baker 1985, 82).

“DUTY IN THE AIR”: English/Australian law does not recognise a "duty in the air", as it were. A defendant's negligence must not only constitute a breach of duty of care, but also the duty must be owed directly to the plaintiff. Consequently, the law has limited the range of liability to persons alone who were foreseeably imperilled. This is to reduce the burden of excessive liability.

There are numerous examples of the “duty” concept. For example, a person can owe a duty of care not to cause injury to an “unborn” plaintiff. For our purposes, however, among the various existing relationships where a duty of care is owed, the “business professional-client”, “valuer client”, “builder-client”, “architect-client” and “property manager-tenant” relationships are perhaps the most important.

OCCUPIERS LIABILITY: The law of occupiers' liability is concerned with the duty owed by occupiers of land or premises towards visitors, whether invited or uninvited whose presence is lawful or unlawful, who suffer injury during the course of their visit. Until 1987 a somewhat archaic categorization existed whereby occupiers had different and “special” duties, depending on the category of the entrant to the premises or land. The 4 major categories of “visitor” were contractual, invitees, licensees and trespassers.

AUSTRALIAN SAFEWAYS STORES CASE: The situation in Australia was much simplified by the landmark High Court decision in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, that ensured that, in Australia at least, the notion of special duties (and categories) will be relegated to the realm of legal history. The High Court held that in order to determine whether the plaintiff was owed a duty of care:

[A]ll that is necessary to determine whether, in all the relevant circumstances including the fate of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member (Australian Safeway v Zaluzna (1987) 162 CLR 479 at 488).

The High Court also made it plain that the time had come to end the confusion by merging special duty of care and general duty of care:

It seems to us that the utility of the theory of concurrent duties could be accepted only if a situation could arise in which it was possible to establish a cause of action in reliance on Indermaur v Dames which could not be pursued by reference to the general duty of care postulated in Donoghue v Stevenson. And yet case after case affirms...that the special duties do not travel beyond the general law of negligence. They are no more than an expression of the general law in terms appropriate to the particular situation it was designed to address. [Consequently]...there remains neither warrant nor reason for continuing to search for fine distinctions between the so­ called special duty...and the general duty...(Australian Safeway v Zaluzna (1987)162 CLR 479 at 487).


Further, the Court adopted the Donoghue v Stevenson general notion of duty of care for all entrants to premises and land. This shows how old but good cases survive in the common law. This does not mean that the High Court is also imposing on the occupier of property exactly the same obligations in relation to every entrant. A trespasser is still at a disadvantage in an action on occupier’s liability compared to an invitee. Occupiers Liability is now codified in the various Wrongs Acts of the states and territories.

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