Tort of trespass Committing tort 1. Causing interference with a person 2. The act is direct 3.

. The act is either intentional or negligent 4. There is no consent or lawful justification for the act

Tort of defamation publish a statement damaging reputation 1. Statement about them must be shown to be defamatory 2. Statement identified them 3. Statement was published to a third party Defences to defamation Justification substantially true Contextual truth Absolute privilege (e.g. parliament) Publication of public documents Reporting of public concern Qualified privilege Honest opinion Innocent dissemination Triviality

Tort of deceit 1. 2. 3. 4. Make a statement of fact knowing it is false Make the statement with intention of other person relying on it Other person relies on the statement Other person suffers harm as a result of relying on statement

Tort of passing off 1. Misrepresentation that goods/services are connected/endorsed by another person 2. Misrepresentation is made in course of a trade 3. Misrepresentation is intended to deceive potential purchasers (Pacific Dunlop v Hogan, 1989) Tort of private/public nuisance (with examples)

Interferes with enjoyment of private land - Johnnys vegan restaurant. Johnny is concerned that the smell of cooking meat Indirectly wafting Plaintiff has an interest in land - Johnnys vegan restaurant Plaintiff suffers actual harm - turning customers away from his restaurant Intentional or reckless - Elaine has opened a new steakhouse restaurant Sustained & unreasonable (severity, duration & time of day, location of Plaintiffs property, whether plaintiff is abnormally sensitive, deliberate & malicious, did the defendant take precautions)

TORT OF NEGLIGENCE Carelessly causing harm to another person, law of negligence now a combination of case law and statutory rules tort of negligence committed when: 1. Duty of care is owed to the other person 2. They breach the duty of care 3. The breach causes the other person to suffer reasonably foreseeable harm DEFENCE to trespass accident, consent, necessity Examples Motorists, doctors, manufacturers, occupiers/landowners, employers Lord Atkin in 1932 : NEIGHBOUR TEST: you must take reasonable care to avoid acts & omissions which you can (or should) reasonably foresee would be likely to injure your neighbour. Duty of care 1. Show that at the time of incident it was reasonably foreseeable that defendants conduct could cause harm to someone in the plaintiffs position 2. Show that salient (relevant) features of case are consistent with existence of duty of care 3. Show defendant failed to do what a reasonable person would do under same circumstances Taking into account a. the probability of harm: Bolton v Stone (1951) b. the likely seriousness of the harm: Paris v Stepney Borough Council (1951) c. the burden of taking precautions: Latimer v AEC (1953) d. the social utility of the defendants activity: Watt v Hertfordshire County Council (1954)

Defence against negligence Voluntary assumption of risk Contributory negligence plaintiff contributed in some way to loss or injury, liability split (Ingram v Britten [1994]) Barrister, volunteer, emergency service providers immunity Compliance by professionals with standard practice

e.g. Agar v Hyde (rugby players broke necks in scrum) Manley v Alexander (Drunk lay down in road driven over by Manley Phillips v Daly (1989) Remedies Common law Remedy is payment of damages Equity Remedy of injunction for defendant to not repeat activity causing nuisance

Breach of DoC Steps to analyse Probability of harm, likely seriousness of the harm, burden of taking precautions, social utility of the defendants activity, lower duty of care Examples Causation Wagon Mound
Oil careless released into water oil spread cotton waste from unloading in harbour too welding ignited the oil. Held: Although DoC was owed & breached, the damage was not reasonably

forseeable as a result of oil spill Australian Safeway Stores Pty Ltd v Zaluzna provides a direct case authority for the duty owed by occupiers to entrants on the occupiers premises Hackshaw v Shaw even trespassers are owed duty of care Donoghue v Stevenson manufacturer of products with the knowledge that the absence of reas care in the preparation will result in an injury to consumers life or property owes a duty to consumer to take reasonable care

Contracts Agreement + Intention + Consideration Agreement = Offer + Acceptance Offer willingness to immediately enter into contract, in writing, verbally or through conduct. Can be Accepted/rejected by offeree or revoked by offerer Advertisement Carlill v Carbolic Smoke Ball Co (1893) smoke ball Offeree indicates by words or actions they are willing to enter contract on terms offered they are said to accept the offer. Acceptance must be unqualified or else it is counter-offer If offer has not been accepted or rejected offeror is entitled to revoke offer Agreements made in social or domestic context court presumes agreement was not intended to be legally enforceable IS enforceable in commercial/business context Agreement is not contract unless both parties pay or promise to pay consideration (price) Consideration forms: Money, goods, service, onerous obligation, refraining from action, promise to do any of above Consideration must be sufficient, not vague, outdated or otherwise Example of past consideration: Roscorla v Thomas p144 R bought horse from T - After contract was completed ($$ paid & horse handed over) R asked T to give assurances/promises about horses condition. These were later found to be untrue Held: Promises re horses condition were not supported by consideration as made after contract was completed Consideration need not be market value only some legal value - Thomas v Thomas (1842) QB 851 Consideration cant consist of a prior legal obligation. Stilk v Myrick (1809) 2 Camp 317 Facts: Before the start of a voyage, plaintiff contracted to work as one of 11 seaman for the voyage for $5 a month. During the voyage 2 seamen deserted; Captain then made an agreement with the rest of the crew that they should receive the wages of the deserters if they continued to work the ship back to London. Plaintiff sued for his share of the wages of the two deserters.

Held: Not legally enforceable because crew were already contractually obliged to bring the ship home ie they had an existing legal obligation PROMISSORY ESTOPPEL Held: M could rely on promissory estoppel where: 1. Promisor makes a promise 2. Promisor creates or encourages an assumption that a K will come into existence or a promise will be performed 3. Promisee relies on this to his/her detriment; and 4. It is unconscionable, having regard to the promisor's conduct, for the promisor to ignore the promise. These are the elements of estoppel Equity intervenes because it would be unconscionable conduct on Ws part to ignore the assumption. Enforceable contract W was estopped from denying the existence of contract, even though it was not signed Alfred must show: A clear expectation that A would get part of the farm Which was encouraged or induced by his parents That he gave up his successful business in reliance on that expectation That the parents knew and encouraged him in this assumption(promised they were arranging with lawyer and led him to believe by accepting his work for nothing) He will suffer detriment if expectation/assumption is not fulfilled (went into debt to build house) The parents fail to avoid that detriment by giving the farm to maria Minors are only able to bind themselves by contract to acquire necessities Minors will then be bound to pay reasonable price for what was received

MISTAKES: Contract only enforceable if both parties enter willingly If party has made mistake it does not entitle them to terminate contract exceptions being unilateral mistake (about fundamental aspect, seek to take advantage unfairly) common mistake (both parties mistaken) and mutual mistake (belief of agreement but no meeting of minds) Contract is voidable in case of duress (Threatening negative consequences) can be economic or financial wellbeing concerned economic duress - North ocean Shipping Co Ltd v Hyundai Construction Co Ltd (1979) also voidable due to undue influence (Johnson v Buttress 1936)

1. Intention to create a legal relationship (ICLR) presumed in commercial but not family/social relationships; can be disproved

2. Mutual agreement offer & acceptance

Or conduct 3. Consideration - promises need to be mutual, from each party to the other - Not required for formal contracts such as deeds 4. Real & genuine consent - avoid mistakes, misrepresentations 5. Legal capacity of all parties & legal objects (purpose) Eg capacity: mental state, minors, not-yet-registered companies Eg objects contract to kill someone will not be enforced 5. Is the contract legal / illegal?

Wakeling v Ripley (1951) Facts: Mr. Ripley who lived in Sydney promised his relatives, who lived in England that if they came to live with him in his house, he would let them live rent free and leave them his house upon his death. The Wakelings agreed to the proposition and moved in with Mr. Ripley. After a while the parties quarrelled, Mr Ripley sold his house and excluded the Wakelings from his will. They sued for breach of contract. Held: There was evidence to rebut the presumption that there was no intention to be legally bound in a domestic agreement. The Wakelings had changed their position detrimentally in reliance on the agreement and Mr Ripley was aware of this. Carlill v Carbolic Smoke Ball Co (1893) Facts: The Company made a "smoke ball and claimed it to be a cure for flu The Company published ads, claiming that it would pay 100 to anyone who got sick with influenza after using its product according to the instructions. Mrs Carlill saw the ad, bought one of the balls and used it as instructed until she contracted the flu. She claimed 100 from

the Company. Mrs Carlill argued that the ad and her reliance on it was a contract between her and the company, and so they ought to pay. The company argued it was not a serious contract as no ICLR. The Court held that there was a fully binding contract for 100 with Mrs Carlill. Company had advertised that it had set money aside in bank, so this showed its serious intention. Dickinson v Dodds (1876) Facts: On 10 June Dodds offered to sell house to Dickinson, stating this offer to remain open until 12 June". Dickinson decided to accept on 11 June but did not advise Dodds. Later on the 11th Dickinson was told by a 3rd party that Dodds had sold to someone else. Dickinson then tried to accept the offer but Dodds said it was too late - the property had already been sold. Held: All that is required to revoke is that the offeror in some way conveys that they have changed their mind about the offer. Dickinson knew Dodds was no longer prepared to sell before attempting to accept. Ratio: Communication of the withdrawal of the offer can be made by any reliable third party. Option must have consideration to be binding. Goldsborough Mort v Quinn Facts: Quinn offered to sell his land to G and promised to keep the offer open in return for 50c. Before the week was up Q tried to revoke his offer Held: G had paid Q to keep the offer open(option) for 1 week and could not withdraw Powell v Lee Facts: Powell applied for a job as headmaster and the school managers decided to appoint him. One of them, acting without authority, told Powell he had been accepted. Later the managers decided to appoint someone else. Then Powell brought an action alleging that by breach of a contract to employ him he had suffered damages in loss of salary. Held: 3rd party was not authorised to communicate acceptance, so no agreement no contract