Torts Autumn 2026 Lecture Notes - Practice Flashcards

A comprehensive set of 120 vocabulary flashcards covering Torts concepts relating to Trespass, Negligence, Nuisance, and relevant New South Wales legislation.

Actionable per se

A legal characteristic of trespass torts where the act itself is sufficient to bring a claim without the need for the plaintiff to prove actual damage.

Intentional Trespass

A category of trespass concerning voluntary acts and intended consequences, as clarified in Fede v Gray (2018).

Negligent Trespass

A category of trespass concerning voluntary acts but unintended consequences.

Onus of Proof (Trespass)

The plaintiff must prove the facts constituting the trespass; the onus then shifts to the defendant to disprove fault by establishing the act was not intentional.

Battery

A trespass tort requiring a direct and intentional voluntary act and physical contact with the plaintiff.

NSW v Ibbett

A case used to establish that for Battery, the act of the defendant must be voluntary.

Recklessness in Battery

Established in James v Campbell as being sufficient to meet the intentional element of battery.

Scott v Shepherd

Established that if a Battery is not explicitly direct, there must be an unbroken sequence of events resulting in the tort for it to be actionable.

Rixon v Star City

Established that physical contact in battery does not include everyday contact or touching, as it must go beyond reasonable limits.

Assault

A trespass tort requiring a direct and intentional positive voluntary act, conduct or threat of offensive contact, and reasonable apprehension by the plaintiff.

Stephens v Myers

Established that it is not relevant to an assault claim that the defendant was not actually able to physically carry out the threat.

Barton v Armstrong

Established that words alone may constitute a threat sufficient for the tort of assault.

Tuberville v Savage (1669)

A case regarding conditional threats where literal words 'If it were not assize-time' meant there was no assault because the attacker explicitly stated they would not attack.

Rozsa v Samuels [1969]

A case where a taxi driver's threat to 'cut you to bits' in response to a punch was held to be assault because the response was too disproportionate to be self-defence.

Police v Greaves [1964]

Held that a threat to stab police if they came closer was assault because the condition imposed on the police was not reasonable as they were acting lawfully.

Zanker v Vatzokas

Established that the plaintiff must subjectively apprehend imminent bodily contact for the tort of assault to be satisfied.

False Imprisonment

A trespass tort requiring a direct act, intentional conduct, and total deprivation of the plaintiff's liberty.

Total Deprivation of Liberty

An element of false imprisonment meaning there are no reasonable means of escape, as established in Burton v Davies.

Murray v Ministry of Defence

Confirms that the plaintiff does not need to be aware they are being falsely imprisoned at the time of the detention.

Trespass to Land

A voluntary, direct interference with exclusive possession of land that is unauthorised and actionable per se.

Smith v Stone

Confirms that trespass to land requires a voluntary act by the defendant.

Newington v Windeyer

Established that for trespass to land, the plaintiff must have exclusive possession of the land in question.

Halliday v Nevill

Recognised the existence of an implied licence to approach a front door, which if exceeded, may constitute trespass.

Plenty v Dillon

Held that police entering a property to serve a summons without statutory authority and over objections constituted a trespass to land.

Kuru v New South Wales

Held that police remaining on land after consent was withdrawn became a trespass.

Trespass ab initio

A legal doctrine possible in Australia where an entry that was originally lawful becomes a trespass from the beginning due to subsequent conduct.

Volenti non fit injuria (Consent)

A complete defence where the defendant proves the plaintiff freely and voluntarily consented to the act constituting the trespass.

Marion’s case

The Australian authority establishing that consent as a defence must come from a competent person.

Rogers v Whitaker

In the context of consent, established that consent must be informed and not obtained by fraud, duress, or misrepresentation.

Self-Defence (Common Law)

A person may use reasonable force to protect themselves where they reasonably have no other option and believe their life or safety is in danger.

Part 7 Civil Liability Act 2002 (NSW)

Legislation governing the defence of self-defence for all torts and crimes.

Section 52 Civil Liability Act 2002 (NSW)

Provides that there is no civil liability if a defendant uses self-defence as a response to 'unlawful conduct' by the plaintiff.

Unlawful Conduct (s 52)

Defined in NSW v McMaster (2015) as not being confined to criminal conduct and including tortious conduct.

Section 51 Civil Liability Act 2002 (NSW)

Limits the availability of self-defence to cases where the plaintiff suffered actual harm in the form of personal injury or property damage.

Section 53 Civil Liability Act 2002 (NSW)

Provides that excessive self-defence (unreasonable response) will generally deny the plaintiff damages unless the case is exceptional.

Sahade v Bischoff [2015]

Held that under $s\,53$, the onus is on the plaintiff to establish that damages should be awarded because failure to do so would be harsh and unreasonable.

Fontin v Katapodis (1962)

Established that self-defence cannot be pleaded as retaliation or revenge, and force must be reasonable in the circumstances.

McCelland v Symons [1951]

Confirmed that the force used in self-defence must be proportional to the threat and that a 'pre-emptive' strike can qualify.

Necessity

A defence where an action was reasonably necessary to protect life or property in an urgent situation of imminent danger.

Murray v McMurchy [1949]

Stated that for the defence of necessity, the defendant's act must be reasonably necessary and not just convenient.

Lawful Authority

Conduct authorised by statute or common law (e.g., a search warrant) that prevents an act from constituting a trespass.

Section 54 Civil Liability Act 2002 (NSW)

A defence stating no damages are awarded if the plaintiff's conduct at the time of injury constituted a 'serious offence'.

Vicarious Liability

Holds an employer liable for torts committed by an employee acting in the course of their employment, regardless of personal fault.

Bugge v Brown (1919)

Established the 'Salmond' test for vicarious liability: an act is in the course of employment if it is a wrongful or unauthorised mode of doing an authorised act.

Section 3C Civil Liability Act (NSW)

The provision governing vicarious liability in New South Wales.

Employees Liability Act 1991 (NSW)

Provides that an employer who is vicariously liable cannot generally seek contribution from the negligent employee.

Zujis v Wirth Bros (1955)

Focuses on the 'Control Test' to determine if an employer-employee relationship exists based on the right to control how work is done.

Organisation Test

A test for employment status asking whether the person is 'part and parcel of the organisation'.

Hollis v Vabu Pty Ltd (2001)

A leading case distinguishing independent contractors from employees, using indicia such as uniforms, control over routes, and provision of equipment.

Frolic of his own

A term from Joel v Morrison referring to a purely personal deviation by an employee for which the employer is not vicariously liable.

Deatons Pty Ltd v Flew (1949)

Held that an employer is not liable for an intentional act by an employee that is not incidental to or in consequence of their employed duties.

NSW v Lepore (2003)

Held that sexual assault may be within the scope of employment if there is a sufficient connection through power and intimacy.

Compensatory Damages

Awarded for loss flowing from a trespass, including personal injury, property damage, and consequential economic loss.

Nominal Damages

Small sums awarded in cases of trespass to vindicate the plaintiff's rights because the tort is actionable per se without proof of damage.

Aggravated Damages

Damages available when a defendant's conduct was high-handed or insulting, causing injury to the plaintiff’s feelings or dignity.

Exemplary Damages

Also known as punitive damages, these are available in exceptional cases to punish deliberate or contumelious conduct.

Negligence

A tort requiring proof of four elements: Duty of Care, Breach of Duty, Causation, and Remoteness.

McLean v Tedman

Establishes that an employer owes an employee an established duty of care to provide a safe system of work.

Donoghue v Stevenson

Foundational case for the 'Neighbour Test' and the established duty of care owed by a manufacturer to a consumer.

Occupier’s Duty of Care

Established in Australian Safeway Stores v Zaluzna; an occupier must take reasonable steps to prevent dangers on the land from occurring.

Commonwealth v Introvigne (1982)

Establishes that a school authority owes a non-delegable duty of care to its students.

Advocates' immunity

A policy-based exception from D'Orta-Ekenaike v Victoria Legal Aid where duty of care is negated for lawyers for work done 'in court'.

Neighbour Test

Lord Atkin's principle requiring reasonable care to avoid acts/omissions likely to injure persons closely and directly affected by one's actions.

Smith v Leurs (1945)

Established the general rule that there is no duty to prevent another person from harming a third party.

Non-delegable duty

A duty that cannot be discharged by delegating performance to a contractor; the defendant remains personally liable for any negligence.

Indeterminate Liability

A policy concern (Perre v Apand) that prevents the imposition of a duty if it would expose defendants to an unlimited class of plaintiffs.

Salient Features

A methodology from Perre v Apand used to determine duty of care in novel cases, including factors like vulnerability, control, and knowledge.

Section 5B Civil Liability Act 2002 (NSW)

The provision outlining the requirements to prove a breach of duty, focusing on foreseeability and reasonable response.

Reasonable Foreseeability (s 5B(1)(a))

Under Wyong Shire Council v Shirt, a risk is foreseeable if it is not far-fetched or fanciful.

Not Insignificant Risk (s 5B(1)(b))

A threshold slightly more demanding than common law; the risk must be 'weighty enough' to warrant a reasonable response.

Section 5O Civil Liability Act 2002 (NSW)

The standard of care for professionals, based on practice widely accepted in Australia by peer professional opinion.

Irrationality Exception (s 5O(2))

Peer professional opinion cannot be relied upon if the court considers the opinion to be irrational.

Section 5P Civil Liability Act 2002 (NSW)

Specifies that the professional standard in $s\,5O$ does not apply to the duty to warn of a risk of death or injury.

Calculus of Negligence (s 5B(2))

Four factors used to judge reasonableness: probability of harm, likely seriousness, burden of precautions, and social utility.

Bolton v Stone

A case where no breach was found because the probability of a cricket ball injuring someone was so low a reasonable person could disregard it.

Paris v Stepney Borough Council

A case where breach was found because the likely seriousness of harm (total blindness) for a one-eyed worker required providing goggles.

Social Utility (s 5B(2)(d))

A factor in the calculus of negligence justified in Watt v Hertfordshire (fire truck emergency) and Wilson v Nilepac (physical fitness).

Standard of Care for Children

In McHale v Watson (1966), the standard is that of a reasonable child of the same age and experience.

Material Risk (Duty to Warn)

A risk is material if a reasonable person in the patient's position would attach significance to it, or the doctor knows the specific patient would.

Imbree v McNeilly (2008)

High Court ruling that learner drivers are held to the full standard of an ordinary competent driver.

Section 5D Civil Liability Act 2002 (NSW)

The provision prescribing a two-stage test for causation: factual causation and scope of liability.

Factual Causation (s 5D(1)(a))

The requirement that the defendant's negligence was a necessary condition of the occurrence of the harm.

But For Test

The primary test for factual causation: would the harm have occurred but for the defendant's negligence?

Adeels Palace Pty Ltd v Moubarak (2009)

Held that factual causation was not established because it couldn't be proven that security guards would have prevented a determined gunman.

Strong v Woolworths (2012)

Established factual causation by showing that but for the failure to clean the floor regularly, the plaintiff would not have slipped.

Bonnington Castings Ltd v Wardlaw

Established the principle that a 'material contribution' to an indivisible injury is sufficient for liability.

Section 5D(2) CLA (Exceptional Cases)

Allows a court to find causation even where it isn't a 'necessary condition' if responsibility should be imposed based on policy.

Material Increase in Risk

A concept (McGhee/Fairchild) not currently established as a sufficient principle for causation in Australia via $s\,5D(2)$, as per Strong v Woolworths.

Performance Cars v Abraham

Held that if a car already needs respraying due to a prior accident, a second collision does not 'cause' the need for the respray.

Section 5D(3) CLA

Governs 'failure to warn' cases, requiring a subjective determination of what the plaintiff would have done if warned, while making their post-harm statements inadmissible.

Scope of Liability (s 5D(1)(b))

The 'normative' stage of causation asking whether it is appropriate for the negligent person's liability to extend to the harm.

Wallace v Kam (2013)

Established that liability does not extend to a harm the plaintiff was willing to risk, even if the surgeon failed to warn of a different, more serious risk.

Novus Actus Interveniens (NAI)

A new intervening act that breaks the chain of causation, provided it is 'free, deliberate and informed'.

Chapman v Hearse (1961)

Established that subsequent negligent medical treatment does not generally break the chain of causation.

Modbury Triangle Shopping Centre v Anzil

Held that a third-party criminal act broke the chain of causation because the occupier's duty did not extend to protecting entrants from criminals.

Remoteness

A doctrine limiting liability to harm of a kind that was reasonably foreseeable.

Wagon Mound No 1 [1961]

Overruled the 'direct consequences' test and established that the KIND of damage must be reasonably foreseeable.

Hughes v Lord Advocate [1963]

Established that if the kind of injury is foreseeable (burn), the precise mechanism or 'manner' (explosion) is irrelevant to remoteness.

Doughty v Turner Manufacturing Co Ltd

Case where defendant was not liable because a chemical eruption was held to be a 'different kind' of harm than a foreseeable splash.

Egg-shell skull principle

A rule stating that a defendant is liable for the full extent of harm if a foreseeable kind of harm triggers an unforeseeable extent due to pre-existing vulnerability.