Defenses to Tortious Acts: Self-Defense & Defense of Others in Australian Law, Lecture notes of Business

Download Defenses to Tortious Acts: Self-Defense & Defense of Others in Australian Law and more Lecture notes Business in PDF only on Docsity! SVIP SAMPLE Sem 2 2018 1 1.4 TRESPASS TO THE PERSON: DEFENCES Self-defence D will argue that because ______, he was under a reasonable apprehension that P was about to inflict force on him (Zecevic v DPP). D will argue that his actions against P were reasonable and necessary (Zecevic v DPP). P will argue they are not. It is at least plausible that there was a reasonable means by which D could have avoided any reasonable means of force upon his person – could have simply turned and run away (Fontin). However, D will argue that this wasn’t reasonable as it would involve him turning his back on P who he reasonably perceived as a threat. P will respond that if that was D’s concern, D could simply have backed out of the house. P will also argue that D’s response was disproportionate response as D was in fact harmed (Fontin). P will argue that it wasn’t disproportionate because _______. Can raise mistaken belief. Trigger: A response to force, actual or apprehended Response: D’s conduct constituting self-defence must be reasonable in the circumstances. • D must take steps in avoiding the violence when he is able to do so e.g. in Fontin D could have just moved away • The degree of force used by D must be proportionate to the harm inflicted on him (Fontin) o May sometimes be reasonable to use a disproportionate amount of force Where the assailant acted under a mistaken belief in an imminent danger of being attacked, the assailant must prove that the mistaken belief was not only honestly held but reasonable (Ashley v Chief Constable Sussex Police) Provocation by the plaintiff • Amount of exemplary damages D has to pay may be reduced if P provoked infliction of force (Fontin) Defence of others – when force is directed by D to P, who is inflicting force on 3P, in order to protect 3P D will seek to rely on the defence of protection of others, with regards to _____. In order for the defence to succeed, D must have reasonably apprehended that force was being employed against a 3P and must have acted reasonably in seeking to protect that 3P (Zecevic v DPP). For the sake of this defence, it is irrelevant that the 3P was a stranger to D (Goss v Nicholas). D will argue, with regard to the first requirement, that D reasonably apprehended that force was being employed against a 3P because ______. P will contend D’s act of ____ was disproportionate response, even to the activity that D perceived P to be carrying out (Fontin). D, by contrast, will argue that in ____ they acted reasonably in seeking to protect 3P. P will contend that D could have avoided the violence (Fontin)/ P may argue that D acted under a mistaken belief however this does not prevent this defence from being made out, as long as the mistaken belief was not only honestly held, but reasonable (Ashley v Chief Constable Sussex Police). • May sometimes be reasonable to use a disproportionate amount of force …. SVIP SAMPLE Sem 2 2018 2 VICARIOUS LIABILITY Vicarious liability (VL) is essentially the servant tort theory which says that the master is responsible for the servant’s tort. In order for _____ to be vicariously liable for the [tortious act] of D, the relationship between the D and _____ must be of a kind that the law recognises as giving rise to vicarious liability e.g. relationship of employer/employee. 1. Is D an employee? [Employer] may be vicariously liable for the act of D if D is found to be an employee, but will not be if D is an independent contractor (IC) (Hollis v Vabu, 2001). The court balance a variety of indicia to determine the character of the worker (Hollis v Vabu). • Employees employed under Contract of service; ICs employed under Contract for service • Control: the more control exercised over the way it is done, the more likely it is that D is an employee, especially where the work being controlled was central to [business]. The emphasis is on the capacity and right to exercise control, rather than whether there was actual control (Steven v Brodribb). o Here, the court may have regard to the organisation test (Stevenson v MacDonald). The relevant question is whether the work done by D is central to the business, or whether it just helps it to operate. The latter points towards IC. • Holidays: if [business] can stipulate when D can take holidays and for how long, this suggests that they are an employee. • Skill level: the lesser the level of skill necessary to do the relevant work – and the lesser the need for any special qualifications – the more likely it is that D is an employee. • Identification: if D is somehow presented as an emanation of the person paying him, then D is more likely to be an employee. In Hollis v Vabu this was held to be a key factor. • Equipment (+ expense/nature): If the person doing the work is provided with equipment by the person for whom he is doing the work, that will point towards the person doing the work being an employee. o Vabu: employees bought own bike but was cheap and used it outside of work time too • Deterrence: can the company take measures to prevent D’s wrongdoing? Mason J in Stevens v Brodribb mentioned other indicia to be considered: • Obligation to work – points away from being an IC • Setting own hours – points towards IC • Ability to work for other employers – points towards IC • Ability to delegate work – points towards IC • Type of payment – do they do their own taxes; paid in salary à employee; paid for work done à IC EXAM: “On balance, it appears that D is an independent contractor and therefore [business] will not be vicariously liable for D’s tortious act. However, in case I am wrong, I will continue with this analysis…” Borrowed employees - Mersey Docks & Harbour Board v Coggins & Griffiths: • Case: Harbour authority leant crane and operator to Stevedores to load a ship. Hiring conditions stipulated that crane operator was to be servant of hirers. Crane operator injured 3P by negligently operating crane. Held: Harbour authority was liable. court focused heavily on issue of control – the