This chapter discusses the account of profits, disgorgement, and other forms of gain-based relief. It will consider the difference between compensation, restitution and disgorgement. It will then consider the account of profits, and the operation of bars to relief and other limiting factors.

The primary rationales of the account of profits have been identified as deterrence and prophylaxis (that is, preventing a defendant from gaining from wrongdoing). Deterrence looks not to the dispute in question, but to the future conduct of the specific defendant (specific deterrence) and the future conduct of other potential defendants (general deterrence). By stripping the defendant of her gain (or part of her gain), the defendant (and other potential defendants) will be deterred from engaging in similar conduct in the future. It is argued that the remedies discussed in this chapter have a deterrent flavour.

In this chapter we discuss two doctrines that are interrelated in that they impose liability either because of the relationship between the defendant and the tortfeasor (D2–D1) (vicarious liability), or the relationship between the defendant and the plaintiff (D2–P) (non-delegable duty of care).

We will start by examining vicarious liability, which is a form of strict liability. We will learn that the employer–employee relationship is the most common instance of vicarious liability. At common law, the employee who commits the tort is always liable, and so vicarious liability of the employer is in addition to the direct liability of the employee (tortfeasor). We will distinguish the employer–employee relationship from the relationship of principal–independent contractor, as the employer is not vicariously liable for the acts of independent contractors. Then, we will establish when the employee acts in the course of employment. We will also note the employer’s right of indemnity from an employee.

As we have already seen, there are three basic elements to a successful action in negligence:

1. (1) a duty to take reasonable care owed by the defendant to the plaintiff

2. (2) a breach of that duty of care by the defendant

3. (3) damage resulting to the plaintiff from that breach.

This chapter deals with the third element. This stage involves taking (yet again) three steps:

1. (1) Identify the damage having an adverse effect on the plaintiff to be recognised by law as damage for which compensation can be sought.

2. (2) Link the defendant’s conduct (act or omission) to the damage suffered by the plaintiff.

3. (3) Establish the scope of the defendant’s liability or, putting it differently, establish the extent to which the defendant should be found liable for the harm suffered by the plaintiff OR the type of harm suffered was within the scope of foreseeability.

Having discussed how the law of torts protects a person’s physical integrity and freedom of movement in the previous chapter, we will now consider how the law protects a person’s interests in property against certain types of interference, including trespass to land and trespass to personal property

In this chapter, we will explore the definitions and features of these trespass actions.

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.

The common law principles of duty of care and negligence potentially apply to all actors, public and private, and earlier chapters have discussed their application to government actors. This chapter analyses two distinct forms of tortious action which are connected to the performance or non-performance of statutory duties and powers. The first, the action for breach of a statutory duty of care, exists where Parliament intends a legislative duty to be enforced by a private cause of action. This action in essence facilitates the enforcement of specific types of legislative duties which are aimed at the protection of certain interests. The second cause of the action, misfeasance in public office, exists as an action to prevent the bad faith use of statutory power by public officers performing public functions.

In a tort action, if the plaintiff’s claims are successful and no relevant defences are available to the defendant, the plaintiff will be entitled to an order or award by the court for an appropriate remedy. Such judicial remedies include:

• damages

• injunctions

• declarations.

In addition, self-help remedies are available and include:

• eviction of trespassers and re-entry of land

• self-defence

• abatement

• apology.

  The focus of this chapter will be on judicial remedies, especially damages.

Tort law is a compelling and dynamic area of law, affecting many aspects of individuals’ lives. A strong understanding of tort principles is important for legal practice, as lawyers may be required to represent clients in a range of tort disputes, from a physical altercation in a bar, to a fall in a supermarket or possibly the lowering of a client’s reputation through defamatory material posted on the internet. At its core, a tort is a civil wrong. Deriving from the Latin word tortum (‘wrong’), a tort is an act or omission that infringes upon the rights of individuals in society, allowing the aggrieved individual to seek a legal remedy.

Nuisance is one of the oldest and most interesting in the law of torts. It developed early in the common law to protect a person’s interest in land. The emergence and rise of the modern tort of negligence has posed a challenge to the precise scope and relevance of the tort of nuisance. An action in nuisance covers conduct of the defendant that is excessive, substantial, and unreasonable, which interferes with the plaintiff’s use and enjoyment of his or her land. Nuisance covers both physical and non-physical damage.

There are two types of nuisance: private nuisance and public nuisance.

Since liability in nuisance is strict, the defendant must establish his or her defence, once a prima facie case has been established. A defendant is only liable for a harm that is foreseeable; thus, foreseeability is essential to establish the tort of nuisance. The tort of nuisance protects the pleasure, comfort and enjoyment derived by a plaintiff in the occupancy and use of both public and private rights in land. This chapter considers the elements of each tort.

The tort of defamation protects the reputation of individuals in society. A cause of action arises where one individual publishes a false matter about another that lowers the reputation of the latter in the eyes of ordinary and reasonable members of the society. While many of the torts covered in this book seek to protect the bodily integrity of individuals, the tort of defamation seeks to protect their reputation. Defamation laws are concerned with balancing freedom of speech with the protection of individuals’ reputation, character and standing in the community. The increased use of social media has a significant role to play in defamation, with the speed and ease of publication on the internet creating new sites for defamation action. Additionally, the emergence of novel technologies and methods of sharing defamatory posts online – such as hashtags, emojis and memes – have raised novel questions about application of traditional defamation principles to the modern technological landscape. This makes defamation a highly relevant tort in contemporary society.

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.

To establish that a defendant is liable in negligence, the plaintiff must establish that a duty of care is owed, that the duty has been breached, and that the breach has caused damage within the scope of liability. The concept of duty of care can be the most challenging to establish because it is difficult to define it in a meaningful way. At present, where a set of facts requires us to consider whether a duty of care is owed, the following general approach is used:

1. (1) Determine whether there is a relevant precedent establishing that a duty of care is owed to a person in the plaintiff’s position by a person in the defendant’s position for this type of harm.

2. (2) If there is no established precedent (in other words it is a ‘novel’ case), balance the ‘salient’ features of the relationship (the multi-factorial approach).

   This chapter will consider the general principles of duty of care, some of the established categories of relationships of duty, as well as duty of care in novel cases.

Once the plaintiff has established that the defendant owed him or her a duty of care, the next question is whether the defendant breached that duty of care. In its broadest terms, breach is about whether the defendant has engaged in negligent conduct, which can be understood as failing to take the precautions against certain risks of harm that the reasonable person, in the circumstances, would have taken.

So how do we work out which precautions the reasonable person would have taken in the circumstances? This analysis has two main parts:

1. (1) A court determines the qualities of the reasonable person against whom the behaviour of the defendant will be compared.

2. (2) The court then decides what that reasonable person would have done if placed in the same circumstances the defendant was in.

   What the defendant actually did or did not do is then compared to that standard of expected carefulness. If the defendant’s conduct was less careful than what the court decides the hypothetical reasonable person would or would not have done, the defendant is said to have fallen below the standard of care expected of them and will have breached their duty of care.

‘Trespass’ is a generic term encompassing a set of wrongs involving direct, and usually intentional, interference with either the person or property affected. There are three different forms of trespass actions: trespass to the person, trespass to land and trespass to goods (chattels).

These trespass actions create a number of fundamental common law rights protecting a plaintiff’s personal dignity, desire for autonomy, interests in the physical integrity of people’s body and the exclusive possession of land and goods. While the common aim of these forms of action is to protect the fundamental common law rights of a person, the ingredients of each tort are quite disparate.

This chapter first considers the historical origins of trespass, before discussing the trespass action. It then deals with the tort of ‘trespass to the person’ as well as three nominate torts under this form of action, before discussing remedies available for trespass to the person.