The concept of ‘remedy’ used in this chapter encompasses a court order replicating a preexisting right, not a response to civil wrongdoing. Restitutionary remedies responding to unjust enrichment differ from remedies responding to a wrong (breach of contract, tort, or equitable wrong). As noted in Ch 1, they do not fit easily into a division between the primary right and the secondary remedy. It is for this reason that the cause of action and the remedy overlap, and they are notoriously difficult to untangle. Discussions of restitutionary remedies inevitably turn into discussions of the cause of action.

This chapter deals with defences to the trespass actions discussed in Chapters 6 and 7. As a general rule, the defendant bears the burden of proving the facts necessary to constitute a defence. Where the defence is established, the defendant will be relieved of liability.

It should be noted that some statutory defences, which are similar to common law defences, are provided by the civil liability legislation and/or Criminal Code in most of the Australian states and territories. Therefore, when considering such defences, the relevant legislation in a particular jurisdiction must be consulted. This chapter will discuss some of the most important defences available for trespass to the person, trespass to land and trespass to personal property.

The defences fall within three roughly divided categories:

1. (1) Self-help based defences

2. (2) Justification-based defences

3. (3) Fault-based defences

   We also consider a number of factors that are not defences to trespass at the end of this chapter.

Once a plaintiff has established that a duty of care is owed and has been breached and that the breach has resulted in damage the burden of proof then shifts to the defendant. In an action for negligence, the plaintiff’s claims can be defeated if the defendant can prove a relevant defence. The key defences to an action in negligence are the following:

• The plaintiff’s failure to take reasonable care of their own safety, or ‘contributory negligence’

• The plaintiff’s previous acceptance of the risk – their voluntary assumption of the risk created by the defendant’s conduct

• The plaintiff’s intoxication or willing undertaking of dangerous recreational or unlawful activities may operate as a defence in some jurisdictions. In others, it may be relevant to establishing that a breach has occurred

• Statutory defences, including the plaintiff’s delay in initiating proceedings

  A defendant who wishes to rely on one of these defences must: (1) plead these matters by filing a defence that raises the matters; and (2) produce evidence to prove them on the balance of probabilities. The defendant bears the onus of proving the defence.

The consultation is likely to be the first experience the patient has of a psychodynamic way of thinking and it has the potential to be an experience of being deeply heard and understood. In the consultation period the aim is for the therapist to have an experience of the internal world of the patient and the patient an experience of what the therapy will be like. A consultation over a series of meetings may even give the opportunity of developing a patient’s capacity to undertake therapeutic work. It is a complex process that often starts before the patient even enters the room. There are different approaches to the consultation process and some of these are discussed. Given that the psychodynamic consultation is an encounter which will, in all likelihood, create anxiety and a sense of vulnerability in the patient, we can expect to see defences emerging in the moment-by-moment interaction and these are considered. A tripartite structure of psychodynamic formulation is outlined as a helpful framework for picking out the relational dynamic

This chapter provides an overview of current thinking regarding the supporting theory of psychodynamic psychotherapy. Rather than going through theoretical constructs in historical order of when each theory was proposed, they are presented as a composite of past and present thinking that the authors have found to be clinically relevant. It commences by describing theories on the early development of the infant and the creation of the internal world and object relations. The chapter them moves on to the issue of accommodating to the world as it is experienced by the infant, outlining circumstances leading to adaptive and less adaptive development. The chapter then outlines ‘core theory’ which covers more traditional psychodynamic concepts such as conflict, resistance, and defence mechanisms with an emphasis on projective identification. The role of this latter defence mechanism is linked with the theoretical constructs of transference and countertransference. There is a section on the narcissistic constellation in order to help the reader negotiate later sections in the book. Finally the chapter concludes with an introduction to theories as to how change is effected in psychodynamic psychotherapy.

Equity has always protected certain information from unauthorised misuse. In Coco v A N Clark (Engineers) Ltd (1968) 1A IPR 587, Megarry J dated this jurisdiction to before 1535, saying: ‘The equitable jurisdiction in cases of breach of confidence is ancient; confidence is the cousin of trust’. However, equity’s protection is not unlimited. Four elements must be satisfied in order for an equitable obligation of confidence to arise: (1) The information must be specifically identified. (2) It must have the necessary quality of confidence. (3) It must have been received by the defendant in circumstances that import an obligation of confidence. (4) There must be an actual or threatened misuse of the information, contrary to the plaintiff’s wishes. Any kind of information might be protected by the equitable obligation of confidence, such as trade secrets or commercially valuable information that cannot otherwise be protected by patent, trademark or copyright law. It can also be used to protect personal information. Confidential information can take virtually any form.

The principal liability for any breach of trust lies with the trustee who must compensate the trust for any loss caused by the breach or account for any profit arising from the breach. Where loss to the trust estate has been caused by the commission of a tort or breach of contract by a third party, the duty to obtain compensation from the third party also rests on the trustee, and failure to seek compensation may itself constitute a breach of trust on the part of the trustee unless it would be impracticable to litigate. If the trustee fails to pursue the third party, the beneficiary can bring a claim, joining the trustee as co-defendant. Liability for breach of trust is in principle strict although liability for failure to exercise reasonable care and skill, for example in making trust investments, requires proof of fault, applying, as the context requires, equitable or statutory standards of care. The rigour of the trustee’s strict liability persuaded legislatures. Trustee legislation also includes provisions excusing trustees from personal liability in cases where the principal wrongdoer is co-trustee or an agent of the trust and the trustee has not behaved improperly.

The story moves into the inner quarters of international courts and tribunals, where judicial bureaucrats are studying the files and starting to prepare for the cases. This chapter tackles the seemingly innocuous, but in fact crucial task of summarizing the parties’ submissions. Far from purely mechanical, the drafting of summaries entails a series of fundamental choices about the nature and contours of the dispute. By distilling the irreducible complexity of life into a digestible set of claims and arguments, bureaucrats initiate a process of lyophilization that will eventually lead to a clean, apodictic, and self-contained ruling. At every step of the judicial process, certain lines of reasoning come to the fore while others are relegated to the margin of the analysis. Often, the final judgment bears only a faint resemblance to the setting in which the dispute initially arose.

This chapter contemplates the possibility of enforcing the responsibility of individuals with regard to violations of the principles of lawful targeting. It foregoes re-stating the general principles that govern the individual responsibility for war crimes, in favour of strictly addressing the responsibility for unlawful attacks during armed conflict. Two issues are discussed separately. The first one is the norms that criminalize attacks against persons not directly involved in hostilities and against civilian objects. It is verified whether each violation of IHL as regards targeting results in criminal responsibility. The second issue is responsibility strictly for the participation in hostilities, because in several states there have been attempts to criminalize this as a type of war crime. Moreover, punishability of such participation offers a good illustration of the differences in treatment of those on the state and the non-state side of armed conflict.

How should IP be reformed to incorporate a negligence liability rule? This chapter considers the various implementation options. It argues that, rather than return to a nineteenth-century reliance on formal rules, IP law should change infringement doctrine to incorporate a reasonable person standard. It then applies this proposed regime to a range of contemporary problems in IP law (i.e. orphan works, independent invention, strategic behaviour, IP triangles).

The law of occupiers’ liability is a true mix of statutorily-stated principles and common law negligence. Both Acts impact, to some degree, as to whether the occupier owed a duty of care or breached that duty, and the defences available to him; while causation and remoteness are entirely governed by the common law.

This chapter considers three different torts: battery (unlawful physical touching); assault (an apprehension or threat of unlawful touching); and false imprisonment (unlawful confinement or constraint). While their common aim is to protect the integrity of C’s person, the ingredients of each tort are quite disparate.

As a preliminary matter of terminology: trespass to the person is a form of action, but assault, battery, and false imprisonment are causes of action.

This chapter examines the nature of trusteeship and the possible actions for breach that can be brought by the beneficiaries. Breach can arise by commission [actively commiting a breach of trust]or by omission [failing to carry out a duty owed by the trustee]. The duties of a trustee arise either under common law or under statute or under the trust instrument. A trustee is liable for any breach of trust that causes a loss to the beneficiaries and must restore the equivalent value. The trustee will only be liable for a breach that caused the loss to the fund and the claimant must establish a causal link. The liability of trustees is joint but the beneficiaries can choose to only sue one trustee but in some cases the court may indemnify a trustee such as where one trustee has acted fraudulently. The beneficiaries may be able to claim interest as well as compensation from the fund. Trustees may be able to rely on an exemption clause which will exonerate them from liability. If there is no exemption clause trustees may be able to rely on other defences such as consent of the beneficiaries or the statutory defence under s.62 Trustee Act 1925.

This chapter explores the topic of product liability. The Explanatory Memorandum to the Trade Practice Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth) states that:

the defences to recognition and enforcement under English law

the defences to recognition and enforcement under English law