What is the difference between a tort and a hill

His case was that the dental treatment had been completely unnecessary to address the problem with his teeth; and the dentist must have known that when embarking on the treatment. Advice that the treatment was necessary must have been fraudulent, consequently the fraud vitiated any consent given to the procedure.

Accordingly, the plaintiff argued, the dentist was liable for battery in treating him without a valid consent. His Honour conducted a detailed examination of consent to medical treatment, including consideration as to who bore the burden of negativing consent. Basten JA at [61]—[64] expressed four principles supported by the authorities he had examined:.

Consent is validly given in respect of medical treatment where the patient has been given basic information as the nature of the proposed procedure. It is necessary to distinguish between core elements of the procedure and peripheral elements, including risks of adverse outcomes. Wrong advice about the latter may involve negligence but will not vitiate consent.

The motive of the practitioner in seeking consent will be relevant to the question whether there is a valid consent. Burden of proof will lie on the practitioner to establish the existence of a valid consent where that is in issue. If, however, some kind of fraud were required to vitiate consent, Basten JA considered that the dentist at the least had been reckless as to whether the treatment was either appropriate or necessary.

Consequently, on either basis, the plaintiff was entitled to have his damages re-assessed and, in the circumstances, increased. However, Macfarlan JA accepted that the dentist had acted fraudulently in the sense that he was reckless as to whether the treatment was either appropriate or necessary. The practitioner had performed the treatment to generate income for himself.

This enabled a conclusion that consent was vitiated and a trespass had occurred. A young man — only a few months away from his 18th birthday — had refused to receive his own treated blood products. The treatment was necessary to preserve his life.

He had provided cogent reasons for his refusal, based on his religious beliefs. His refusal was fully supported by his parents who were of the same religious persuasion. The court acknowledged that, without the order, the proposed treatment would have constituted a battery upon the young man.

The order was made, notwithstanding that in a few months time, the appellant would be, as an adult, entitled to refuse any further treatment for his condition. As in the case of trespass to the person, there is no requirement that the defendant intend to act unlawfully or to cause injury. For example, where a prisoner is held in detention beyond the terms of their sentence as a consequence of an honest mistake, the defendant will nonetheless be liable for false imprisonment: Cowell v Corrective Services Commission NSW 13 NSWLR Traditionally the notion of false imprisonment related to arrest by police officers or other authorities.

The plaintiff believed he would have been compelled to go along if he had refused. The High Court held that the plaintiff had a justified apprehension that, if he did not submit to do what was asked of him, he would be compelled by force to go with the defendant.

This restraint thereby imposed on the plaintiff amounted to imprisonment per Walsh J at The respondents imposed a picket near the site which made it impossible for the appellants to leave by the most direct route without permission. However, there was an alternative route available through the bush for exit purposes. There was also evidence that the protesters were anxious to remain at the site during the duration of the picket.

Moreover, the court agreed with the trial judge that an alternative means of exit was both available and reasonable.

There was an altercation between the two brothers and state rail transit officers. One of the transit officers was convicted of a criminal assault on one of the brothers. The plaintiff was a young woman with severe developmental disabilities. She lived in the community but in circumstances where she had been in trouble with the police on occasions.

Ultimately, the Local Court ordered that she be taken to Kanangra, a residential centre which accommodates and treats persons with intellectual and other disabilities, located in Morisett. The Department of Community Services intended that Ms Darcy should be returned to the community but difficulties of a bureaucratic and funding nature prevented this happening.

Her case was an unusual one and, in the situation which developed, she remained at Kanangra for some six years before residential accommodation was arranged for her. The primary issue was whether the circumstances of her stay at Kanangra amounted to imprisonment. The secondary issue was whether the Public Guardian had consented to her remaining at the institution. She did not wish to stay there and, while she had a relatively wide degree of freedom within the property, she was required to return there after any absence.

The degree of latitude she had in being able to leave the premises, for example to visit her mother, was offset by the fact that she could only do so with permission, and on condition that she returned to the institute.

The court explored the issue of lawful justification for her detention at Kanangra. In this regard, the court, while acknowledging that the Public Guardian did not consent to Ms Darcy staying at the premises on a permanent basis, nevertheless consented tacitly to her remaining there while attempts were made to find her appropriate accommodation. The circumstances were that, when he was about a year old, he was taken from hospital by an officer of the Aborigines Protection Board and later placed in long-term foster care without his parents knowing of the removal or the fostering.

There was no maltreatment or issue of neglect or any other matter which justified the removal of the plaintiff from his family. The plaintiff lived in foster care until he was 10 years old.

The Full Court unanimously held that, while neither the plaintiff nor his parents had consented to his foster placement, he was not falsely imprisoned during the period of his foster care.

The fact that the plaintiff was an infant and needed care and nurture spoke against any finding of restraint. Any element of restraint, whilst he grew as a young child, was solely attributable to the obligation of his foster parents to care for him and also attributable to his immaturity.

The court said:. We do not think it realistic to describe the care and protection given by the carer of a child a restraint on the child, in the relevant sense of the term. Her fitness to be tried was in doubt and a special hearing under the mental health legislation in New South Wales was held.

A District Court judge found, on the limited evidence available, that she had committed the offence of assault with intent to rob. The Mental Health Review Tribunal determined that the respondent was suffering from mental illness. Accordingly, the District Court judge then ordered that the respondent be taken to and detained in a hospital.

Contrary to this order, for some 16 days, the appellant was detained in a cell at Long Bay Gaol in an area which was not gazetted as a hospital. The Court of Appeal had to determine whether she was entitled to damages for unlawful imprisonment. The court held that, as a consequence of the second order made, it became the only lawful authority for the continued detention of the respondent.

In these circumstances, the State could not justify her detention in the particular area of Long Bay Gaol where she had been held. The order required her to be detained in a hospital and this was the only relevant order which determined her place of detention. The mere fact that she could and should have been detained in another place did not prevent the detention being unlawful. Consequently, the necessary elements of the claim were established. In that case, the House of Lords decided that prisoners lawfully committed to prison under the relevant legislation did not have a residual liberty which would entitle them to sue the Secretary of State for the Home Department or a governor of the prison if the prisoners were unlawfully confined in a particular area of the prison.

The trial judge had held that the detention order was valid until it was set aside. The appellant had bought proceedings against the Commonwealth of Australia alleging that a federal police agent had arrested him without lawful justification and thereby falsely imprisoned him. There was no doubt that the police officer honestly believed that the respondent was a particular person of dubious background and that he had committed an offence for the purposes of the Crimes Act Cth s 3W.

See also [ ] Justification. The critical question turned upon the evaluation of the complex and thorough material obtained by the Australian Tax Office. The police officer relied on this information to form his belief that the respondent had been engaged in a fraudulent scheme. Hoeben JA also placed reliance on the surrounding circumstances and the source of information on which the officer had relied.

His Honour agreed that the primary judge had not erred in concluding that the officer had reasonable grounds for his belief for the purposes of the Crimes Act s 3W 1. This was so notwithstanding that the relevant provisions of the Defence Force Discipline Act subsequently had been held to be invalid.

This is one of those rare cases where the court considered matters of public policy in deciding whether a cause of action for this tort would be available. The court said at [67]:. To allow an action for false imprisonment to be brought by one member of the services against another where that other was acting in obedience to orders of superior officers implementing disciplinary decisions that, on their face, were lawful orders would be deeply disruptive of what is a necessary and defining characteristic of the defence force.

He produced a pensioner concession card but could not supply any photo ID when asked. There was a brief interlude during which the officer checked the details over the radio. Mr Le was then told he was free to go. The respondent commenced proceedings in the District Court claiming damages for assault and false imprisonment.

He was successful and the State sought leave to appeal in the Court of Appeal. The appeal was upheld. Eventually the young man was arrested and charged with assault and resist arrest. In the circumstances, this finding was not open and should not have been made. The Supreme Court of the ACT found that he was unlawfully imprisoned in full-time detention for 82 days by reason of an invalid decision of the Sentence Administration Board to cancel his periodic detention after he failed to report on numerous occasions.

The origins of tort law are difficult to determine, and it has been suggested that tort law was poorly defined in the beginning. Such examination is used to determine if one wronged another, and if so, what degree of harm or damage was done. However, the concept of torts was to be different from criminal action. A criminal breaks man-made laws, and a tortfeasor wrongdoer commits acts that violate what is generally acceptable to society.

And if one caused sufficient damage, injury, or harm to another, his or her responsibility usually involved monetary compensation to the aggrieved party. As long ago as the seventeenth century, it appeared that great concern was given to the unfortunate soul who was wronged.

The English case of Lambert v. It was intended not to infringe upon such legal areas as criminal actions, breach of contract matters, general property rights, government issues, and a host of other Your MyAccess profile is currently affiliated with '[InstitutionA]' and is in the process of switching affiliations to '[InstitutionB]'.

This div only appears when the trigger link is hovered over. Otherwise it is hidden from view. Forgot Username? About MyAccess If your institution subscribes to this resource, and you don't have a MyAccess Profile, please contact your library's reference desk for information on how to gain access to this resource from off-campus. Learn More. Sign in via OpenAthens. Sign in via Shibboleth. AccessBiomedical Science. A 14 year-old was seriously injured when he tried to jack up the boat in order to repair it.

The authority was found liable since it knew that children regularly played on the boat, so it was foreseeable that a child would be injured. It did not matter that the precise nature of the injury could not be foreseen. The cases may appear to conflict, since The Wagon Mound focuses on foreseeability of the type of damage whereas Jolley v Sutton focuses on foreseeability of some harm. There are a number of cases in this area and they are not always easy to reconcile.

For the purposes of Corporate and Business Law , the key point to remember is that the test for remoteness in the tort of negligence is based on foreseeability of harm. You should be prepared to illustrate this point with examples. Note that the law of negligence considers foreseeability twice: once in relation to duty of care and again in relation to remoteness.

Remember that, if there is no duty of care, the question of remoteness does not arise. Caparo v Dickman is a useful illustration of this: it might be foreseeable that existing shareholders would rely on an audit report in deciding whether to increase their shareholding.

Nevertheless, the auditor did not owe a duty of care to potential investors. This was based on other aspects of the duty test: proximity and the question of whether it was fair, just and reasonable to impose a duty.

Negligence — the measure of damages As with contract, once liability in negligence has been established, the next point to consider is that of remedies and the aim of the remedies is to put the claimant in the position that he would have been in had the breach of obligations not taken place. For negligence, the aim is therefore to put the claimant in the position that they would have been had the tort not been committed. In negligence, this may be due to the partial defence of contributory negligence.

This happens in cases where, even though the defendant was at fault, the claimant contributed to their own loss. The leading case here is Sayers v Harlow UDC where the claimant was trapped in a public toilet due to a defective lock. She was injured when trying to climb out and it was held that she had contributed to her own injuries. It is for the defendant to prove that the claimant was contributorily negligent.

Contract and the tort of negligence arise in separate questions on Corporate and Business Law , so you will not be asked to compare and contrast them. The aim of this article is to identify some key similarities and differences so that you are less likely to confuse these two areas.

Your aim for the exam should be to be able to explain these key aspects of contract and negligence without confusing them. You may find that the following table acts as a useful revision aid:. Key aspects of the law of contract and the tort of negligence. The aim of this brief article is to set out some key aspects of contract and the tort of negligence using the following headings: The relationship between the parties The nature of the obligation Causation and remoteness of damage The measure of damages.

Key aspects of the law of contract Contract — the relationship between the parties A contract is a legally binding agreement formed by the mutual consent of the parties.

In order to be recoverable, the loss must be: either a normal result of the breach, or one which, at the time of the contract, both parties would have contemplated as a probable result. We will now use the same headings in relation to the tort of negligence. Key aspects of the tort of negligence Negligence — the relationship between the parties Negligence cases are based on a non-contractual relationship between the parties.

The House of Lords held that the requirements for a duty of care to exist were as follows: the harm must be reasonably foreseeable there must be proximity between the claimant and the defendant it must be just, fair and reasonable to impose a duty of care on the defendant. Conclusion Contract and the tort of negligence arise in separate questions on Corporate and Business Law , so you will not be asked to compare and contrast them.

Written by a member of the F4 examining team. Related Links. Student Accountant hub. Contact us Send us a message. Planned system updates View our maintenance windows. The relationship is created and governed by the contract.