The trespass torts are some of the oldest causes of action in the common law. These torts create a number of fundamental common law rights protecting our personal dignity, our desire for autonomy, and our interests in the physical integrity of our bodies and the exclusive possession of land and goods. This chapter examines the nature of these torts and focuses on the three forms of trespass to the person: battery, assault and false imprisonment. It also briefly considers the potential development of a tort of privacy. Chapter 6 looks at the torts of trespass to land, trespass to goods, conversion and detinue.

Defences play a critical role in tort law by allowing courts to balance individual rights with broader considerations of justice and social policy. For example, a person who acts in self-defence or under necessity may interfere with another’s rights in a way that would ordinarily be unlawful, but their actions may be justified by the circumstances. Similarly, defences like consent or statutory authorisation reflect the idea that liability should not arise where the plaintiff has permitted the interference or where the defendant is acting in accordance with the law. Without defences, the law would be overly rigid, punishing conduct that, in context, may be entirely reasonable or socially acceptable.

In this chapter we begin by discussing the distinction between a denial of liability and a defence. A denial of liability challenges whether the plaintiff has proven the elements of the tort, whereas a defence assumes that the elements are satisfied but provides a justification or excuse for the defendant’s actions.

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.

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.

A defendant wishing to defeat or reduce liability pursuant to a claim in negligence can prove a relevant defence. The key defences are contributory negligence, voluntary assumption of risk, the plaintiff’s own intoxication, engagement in dangerous recreational or unlawful activities, or other statutory defences such as failure to bring proceedings within the time limits prescribed by statute.Contributory negligence is the plaintiff’s own failure to meet the standard of care required for their own protection, where that failure is causally relevant to the injury. The defendant must establish that the plaintiff failed to take reasonable care for their own safety or the protection of their own interests and that this failure was a cause of their harm created by the plaintiff’s conduct. A successful defence of contributory negligence results in an apportionment of the damages between the plaintiff and the defendant.

This chapter takes a relatively broad approach to defences, covering a range of factors that might serve to exculpate a defendant who might otherwise appear to have committed an offence. The defences examined here are arranged into two, imperfectly realised, categories. The first group have been termed ‘mental state defences’ and the second ‘self-help defences’. The group titled ‘mental state defences’ are so categorised because they depend to a greater or lesser extent on the contention that the accused did not possess the requisite mens rea to commit the offence. In assessing whether an accused may be able to rely on a defence a number of subjective and objective elements have to be applied and analysed. It is important to understand that the considerations informing the development of each of the defences are often very different and sometimes controversial. The groupings are far from perfectly realised and the rationales and doctrines of each of the defences may manifest as many dissimilarities as they do similarities. It is hoped that the arrangement of the material in this chapter will aid understanding by drawing comparisons across different aspects of the criminal law.

There are three ways of becoming a shareholder: by subscribing to a new issue of shares in a company; by purchasing shares from an existing shareholder; or by transmission of ownership in shares due to the operation of law (for example, where shares are transferred to the beneficiary under a will). In this chapter, we focus on the first method: the issuing of shares and securities as a means of fundraising, commonly referred to as ‘raising capital’ or ‘equity raising’. The term ‘subscription’ describes the relationship where a company issues shares directly to a shareholder. The legal relationship between the company that issues and the shareholder who subscribes for new shares can be analysed using the contractual rules of offer and acceptance.

Our primary focus in this chapter is the issue of securities by public companies. Generally speaking, only public companies are permitted to raise capital by issuing securities to a broad cross-section of the public.

International criminal law recognizes certain defences, excuses and justifications that may be raised against a charge of genocide. These include mistake of fact, duress and necessity and self-defence. The defences are codified in detailed provisions of the Rome Statute but they are also derived from case law. The Rome Statute declares that an order to commit genocide is ’manifestly unlawful’ and therefore unavaible to an accused person. A defence of ’official capacity’ is explicitly excluded by article IV of the Convention whereby offenders must be punished ’whether they are constitutionally responsible rulers, public officials or private individuals’.

As in other world regions, warfare played an important role in shaping the sociopolitical landscape of pre-Columbian North America. In contrast with many of these, however, written records are lacking for all but the last few centuries following European contact. The history of indigenous North American warfare and war strategy must therefore be reconstructed largely from archaeological remains. One of the most accessible types of information available on war strategy from this source pertains to defence, as archaeological features such as rock walls, palisades and lookout towers tend to preserve in the archaeological record. The type of defensive measures used reveals people’s degree of concern with attack and shows how they employed attributes of their environment to protect themselves. The location of features may also provide insight into the direction and identity of the threat. Burned houses and unburied bodies, on the other hand, document strategies used by enemies when defences were breached. Stone weapons also preserve in the archaeological record and can reveal the arsenal available to combatants at different times and places, as well as forms of engagement: shock weapons imply hand-to-hand combat, for example, whereas projectile weapons can be deployed from a greater distance, suggesting ambush or open battle. The skeletal remains of the victims provide some of the most definitive evidence for the existence and nature of active conflict, including the demographic characteristics of victims, the spatial relationship between victim and attacker(s), and the scale and lethality of conflict (e.g. a few victims versus 500 in a mass grave). In combination with early European written accounts, which inform on aspects of Native American warfare not readily apparent in the archaeological record, the collective evidence yields a picture of war in pre-Columbian North America that is both unique and reminiscent of war in other world regions, and argues for the importance of including North America in global histories of human warfare.

The concept of ‘remedy’ used in this chapter encompasses a court order replicating a preexisting right, not a response to civil wrongdoing. Restitutionary remedies responding to unjust enrichment differ from remedies responding to a wrong (breach of contract, tort, or equitable wrong). As noted in Ch 1, they do not fit easily into a division between the primary right and the secondary remedy. It is for this reason that the cause of action and the remedy overlap, and they are notoriously difficult to untangle. Discussions of restitutionary remedies inevitably turn into discussions of the cause of action.

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.

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.

The consultation is likely to be the first experience the patient has of a psychodynamic way of thinking and it has the potential to be an experience of being deeply heard and understood. In the consultation period the aim is for the therapist to have an experience of the internal world of the patient and the patient an experience of what the therapy will be like. A consultation over a series of meetings may even give the opportunity of developing a patient’s capacity to undertake therapeutic work. It is a complex process that often starts before the patient even enters the room. There are different approaches to the consultation process and some of these are discussed. Given that the psychodynamic consultation is an encounter which will, in all likelihood, create anxiety and a sense of vulnerability in the patient, we can expect to see defences emerging in the moment-by-moment interaction and these are considered. A tripartite structure of psychodynamic formulation is outlined as a helpful framework for picking out the relational dynamic

This chapter provides an overview of current thinking regarding the supporting theory of psychodynamic psychotherapy. Rather than going through theoretical constructs in historical order of when each theory was proposed, they are presented as a composite of past and present thinking that the authors have found to be clinically relevant. It commences by describing theories on the early development of the infant and the creation of the internal world and object relations. The chapter them moves on to the issue of accommodating to the world as it is experienced by the infant, outlining circumstances leading to adaptive and less adaptive development. The chapter then outlines ‘core theory’ which covers more traditional psychodynamic concepts such as conflict, resistance, and defence mechanisms with an emphasis on projective identification. The role of this latter defence mechanism is linked with the theoretical constructs of transference and countertransference. There is a section on the narcissistic constellation in order to help the reader negotiate later sections in the book. Finally the chapter concludes with an introduction to theories as to how change is effected in psychodynamic psychotherapy.

Equity has always protected certain information from unauthorised misuse. In Coco v A N Clark (Engineers) Ltd (1968) 1A IPR 587, Megarry J dated this jurisdiction to before 1535, saying: ‘The equitable jurisdiction in cases of breach of confidence is ancient; confidence is the cousin of trust’. However, equity’s protection is not unlimited. Four elements must be satisfied in order for an equitable obligation of confidence to arise: (1) The information must be specifically identified. (2) It must have the necessary quality of confidence. (3) It must have been received by the defendant in circumstances that import an obligation of confidence. (4) There must be an actual or threatened misuse of the information, contrary to the plaintiff’s wishes. Any kind of information might be protected by the equitable obligation of confidence, such as trade secrets or commercially valuable information that cannot otherwise be protected by patent, trademark or copyright law. It can also be used to protect personal information. Confidential information can take virtually any form.

The principal liability for any breach of trust lies with the trustee who must compensate the trust for any loss caused by the breach or account for any profit arising from the breach. Where loss to the trust estate has been caused by the commission of a tort or breach of contract by a third party, the duty to obtain compensation from the third party also rests on the trustee, and failure to seek compensation may itself constitute a breach of trust on the part of the trustee unless it would be impracticable to litigate. If the trustee fails to pursue the third party, the beneficiary can bring a claim, joining the trustee as co-defendant. Liability for breach of trust is in principle strict although liability for failure to exercise reasonable care and skill, for example in making trust investments, requires proof of fault, applying, as the context requires, equitable or statutory standards of care. The rigour of the trustee’s strict liability persuaded legislatures. Trustee legislation also includes provisions excusing trustees from personal liability in cases where the principal wrongdoer is co-trustee or an agent of the trust and the trustee has not behaved improperly.