This chapter considers two torts that impose civil liability arising out of the failure to exercise, or the wrongful exercise, of statutory duties and powers. The first is the tort of breach of statutory duty. A breach of statutory duty will not ordinarily give rise to a private law cause of action. However, a private law cause of action will arise if, on the proper construction of the statute, it can be shown that the statutory duty was imposed for the protection of a limited and specific class of persons and the legislature intended members of that class to have a private right of action to obtain a remedy for the breach of the statute. The gravamen of the second tort, misfeasance in public office, is the dishonest misuse of public power by a public officer. This tort provides a remedy where a public officer has misused their public powers or duties by acting intentionally so as to harm the plaintiff or by knowingly or recklessly exceeding their powers where they knew about, or were reckless as to the likelihood of, harm to the plaintiff.The chapter is not concerned with liability in negligence for the performance or non-performance of a statutory power or duty.

This chapter introduces you to tort law. One aim is to equip you with an overview of fundamental torts that will form an integral first step in your learning journey of tort law. In this chapter, we explain important theoretical frameworks that underpin tort law, such as corrective justice, economic efficiency theory, distributive justice and feminist critiques. We also explore the important connection between torts and human rights, along with tort law and the Stolen Generations litigation. Next, the chapter addresses important practical considerations such as litigating a tort claim. Finally, it outlines some key reforms in tort law that impact the law as it operates in modern society, along with statutory schemes that can supplement fault-based tort claims.

At their broadest, remedies are simply the different ways in which tortious disputes are resolved. Normally, the courts provide remedies upon an ultimate finding that the defendant actually breached a duty they owed the plaintiff – that is, upon the plaintiff successfully establishing the elements of their cause of action and the defendant failing to establish a relevant defence.This chapter begins by differentiating between self-help and court-ordered tort remedies. It then divides court-ordered remedies into two categories: first, specific relief, as exemplified by the remedy of injunction; and second, substitutionary relief, as exemplified by the remedy of monetary damages. This chapter mainly examines the remedy of ‘compensatory damages’. It focuses, in particular, on its role in remedying (or ‘putting right’) two types of harm that breaches of tortious duties often cause plaintiffs to suffer: property damage and personal injury. The final part of the chapter addresses remedies in cases involving multiple tortfeasors.

Defamation is a ubiquitous tort in modern society. Defamation protects a person’s reputation, rather than their bodily integrity, goods or land. With the rapid expansion of social media, it is frighteningly easy for false and disparaging comments to spread online like wildfire. This chapter introduces the tort of defamation and its purpose in society. Defamation has undergone substantial reform over the years, thus key amendments are explained, along with emerging issues. The chapter outlines and explains the elements of defamation and explores cases that clarify how courts interpret and apply defamation principles. Next, defences and remedies are explained, followed by the increasing focus on defamation and social media. The chapter concludes with a brief discussion of privacy and breach of confidentiality, on which plaintiffs can rely when defamation does not assist.

In order to hold someone liable for the tort of negligence, it is not enough for the plaintiff to establish that, first, the defendant owed them a duty of care and, second, the defendant breached that duty by failing to meet the requisite standard of care. A further requirement for the imposition of negligent liability is that the plaintiff suffered legally recognised damage as a result of the defendant’s breach of their duty. This is the third necessary requirement of a successful claim in negligence. Once it is proved, the plaintiff’s cause of action is complete. It therefore comprises the third and final stage of a negligence inquiry.This chapter focuses on this requirement. It breaks it down into three distinct questions: (1) Has the plaintiff suffered damage that is actionable in negligence, or has the law yet to recognise such damage? (2) Is the plaintiff’s (legally recognised) damage causally related to the defendant’s breach of their duty of care? And (3) Ought the full extent of the plaintiff’s damage be within the scope of the defendant’s liability to compensate for it?

This chapter examines the broad legal framework governing sexual offences by examining the selected offences of rape and sexual assault, which provide a foundation for understanding other sexual offences. This chapter will also briefly discuss sexual offences against vulnerable individuals such as children. Finally, the chapter considers the challenge that technology increasingly poses in the area of sexual offences and considers how technology may facilitate traditional forms of offending or create new forms of offending.

A person’s interest in real or personal property is protected by the law of trespass. Trespass is one of the oldest of the common law actions, and most of the core principles arise from common law. Trespass was used for various claims, the common element of which was that the interference was direct – where the interference was indirect the ‘action on the case’ was more appropriate, and this action evolved into the modern law of negligence. Trespass is actionable per se – that is, there is no need for the plaintiff to prove that they suffered damage. Trespass can also be a crime; however, the principles should be kept distinct.As we saw in Chapter 6, the trespass action is also used to protect the plaintiff’s interest in their bodily integrity – trespass to the person can be assault, battery or false imprisonment. In this chapter we are dealing with trespass to land and to personal property. Land is defined in the same way as it is in the general law of property, and personal property is, in essence, any property other than land. ‘Personal property’ as a term is often used interchangeably with the terms ‘goods’ or ‘chattels’.

This chapter introduces summary offences, sometimes referred to as ‘simple offences’, or matters laid ‘on complaint’. In Chapter 2, we observed how criminal matters are determined in different ways, including jury trials, before a magistrate sitting alone, and infringement notices. We also observed that summary matters carry with them a spectrum of penalties, ranging from (limited) terms of imprisonment, fines, and administrative sanctions. Here, we move to a consideration of actual offence provisions.The term ‘summary offence’ is a reference to the procedure through which an offence is determined. Matters that are ‘disposed of summarily’ are processed in a Local or Magistrate’s Court by a Magistrate sitting alone in the absence of a jury. We begin this chapter by considering the nature of summary offences, before turning to explore the concept of public peace and its associated relationship with procedure and powers. We then consider the major categories of summary offences relating to public order, before concluding with traffic offences.

Once a duty of care has been established, the plaintiff must then establish that there was a failure to comply with that duty – that the defendant fell below the standard required. There are two steps to this: establishing the standard required and determining whether the defendant fell below that standard. This area of law was developed in case law, which has been affected by statute in most jurisdictions. However, the statutes use many of the concepts, and much of the wording, from common law.

Depending on the construction of a particular crime, criminal responsibility is generally analysed in terms of an individual carrying out proscribed acts with a culpable state of mind. The framework of criminal responsibility can be extended in various ways and those extended forms will be synthesised and discussed in this chapter.The first extension category encompasses the inchoate crimes of attempt, conspiracy and incitement. The term ‘inchoate’ comes from the Latin past participle of ‘incohare’ meaning ‘to begin’ or ‘start work on’. These are substantive crimes which extend liability back in time and to other people so that conduct is criminalised, which arguably is not directly harmful but which is regarded as culpable for policy reasons and allows earlier intervention of law enforcement authorities to prevent the completed offence.The second category is complicity, which is a concept allowing for the extension of criminal liability to people other than the accused person who carries out the conduct with the requisite mental element constituting the offence. There are various forms of principal and accessorial criminal liability within the concept of complicity.

Chapters 6 and 7 dealt with the substantive requirements of the torts of trespass to the person and trespass to property and goods. This chapter deals with the defences and remedies available to those actions.Defences to trespass based on self-help include the defences of self-defence or defence of another, defence of property, necessity or abatement. Defences based on justification are consent and the exercise of disciplinary powers. There is a fault-based defence of inevitable accident. Provocation, mistake, contributory negligence and the incapacity of the defendant are not defences to trespass.The remedies available for trespass to the person include damages (nominal, compensatory, aggravated and exemplary) and injunctions.

This chapter will address the two nuisance torts: private nuisance and public nuisance. Both torts concern interferences with the plaintiff’s ability to use and enjoy their land, with the extent of the interference the key determinant of which tort is applicable. Private nuisance involves an interference with the plaintiff’s use and enjoyment of their individual property rights, whereas public nuisance involves an interference with the health safety, comfort and convenience of the public at large, but where the plaintiff has suffered special or particular damage over and above other members of the public.The nuisance torts play an important role in providing a cause of action for environmental pollutants, such as noise, smell, smoke and fumes. The torts are adaptive to contemporary twenty-first century issues – for instance, it is possible that these torts can be utilised to obtain remedies from operators of facilities that emit greenhouse gas emissions for harm caused by global warming and rising sea levels.

As we have seen, to establish that a defendant is liable in the tort of negligence, the plaintiff has to prove, on the balance of probabilities, that (1) a duty was owed by the defendant to the plaintiff; (2) the duty was breached; and (3) the breach caused compensable damage within the scope of liability. The first of these requirements, the duty of care, was the key innovation established by the case of Donoghue v Stevenson and the concepts of ‘neighbourhood’ and ‘reasonable foreseeability’ are central to the reasoning in that case. However, although these concepts are easy to describe and have theoretical elegance, they are much more difficult to apply to a given relationship. This chapter shows the attempt by Australian courts to find a unifying principle or single approach by which to answer the question of duty in a novel case, and then a resolution of sorts, occurring around 2000–01, that any such test is likely to be problematic. The current approach in a novel case is the ‘multi-factorial’ or ‘salient features’ approach.