70311 Torts

Warning: The information on this page is indicative. The subject outline for a particular semester, location and mode of offering is the authoritative source of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.

UTS: Law
Credit points: 8 cp

Subject level:

Undergraduate and Postgraduate

Result type: Grade and marks

Requisite(s): ((70113 Legal Process and History AND 70105c Legal Research) OR 79203 Business Law and Ethics OR 70120c Legal Method and Research)
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.

Handbook description

This subject covers the functions and aims of the law of torts. The law of torts deals with claims for redress for civil wrongs. Students examine the nature of tortious liability in the light of a selection of specific torts, namely, trespass to the person, goods and land; detinue and conversion, the action on the case for wilful injuries; negligence; nuisance and statutory workers compensation and motor vehicle accident schemes. Negligence is the most significant tort and it is the primary focus of this subject. Students engage with and develop an understanding of the common law development of doctrine and rules through reading cases. In 2002 and 2003 there were significant legislative reforms to tort law and the impact of this legislation, in particular the Civil Liability Act 2002 (NSW), and its relationship to the common law is examined.

A law of torts subject is required for admission as a legal practitioner in all Australian jurisdictions. This subject is part of the core program for the Bachelor of Laws and provides students with foundational knowledge required for more advanced 'private law' subjects in the law degree. Subjects covering areas such as commercial law, and equity and corporate law also require a sound knowledge of tort law as a basis for the legal concepts learned in those subjects.

Subject objectives/outcomes

This subject will assist students to develop graduate attributes by pursuing the following learning objectives. Students will undertake class activities to practise their development of these attributes, and will complete a range of assessment tasks designed to assess their attainment of the identified attributes.

1. To understand and apply the key concepts of the common law of torts and the Civil Liability Act 2002 (NSW), with reference to the basis of liability, the forms of action in the law of torts, the interests protected by the law of torts and the adaptability of tort law to the changing needs and values of society. Targeting Graduate Attributes 1, 2, and 5.
2. To appreciate diversity and racial, cultural and gender values specifically in the context of tort law. Targeting Graduate Attribute 9.
3. To demonstrate ability to identify, comprehend and relate relevance and importance of legal and factual issues and to develop argument in response to a problem in the context of tort law. Targeting Graduate Attributes 1, 2 and 3.
4. To demonstrate ability to concisely articulate coherent oral argument within a group discussion of tort law principles and issues. Targeting Graduate Attributes 1, 2, 3 and 5.
5. To understand the nature of the lawyer’s duty to the client and to demonstrate an ability to recognise and resolve an issue of an ethical nature with guidance. Targeting Graduate Attribute 7.
6. To develop self and priority management skills and to demonstrate ability to manage independent preparation and completion of 4 “self-learning modules” on areas of tort law. Targeting Graduate Attribute 8.
7. To demonstrate an ability to locate, use and cite relevant reference material from both primary and secondary sources, in order to research a tort law topic. Targeting Graduate Attribute 4.

Contribution to course aims and graduate attributes

The UTS, Faculty of Law has identified a number of professional attributes that graduates from the Faculty will possess upon graduation.

INTELLECTUAL
1. Critical Thinking: An appropriate level of independent thinking, creativity and critical analysis.
2. Analysis and Evaluation: An ability to strategically analyse issues of law, evaluate options and viewpoints to reach and implement decisions.
3. Spoken and Written Communication: Advanced oral and written communication skills.
4. Legal Research and Technological Literacy: Appropriate research techniques to acquire, distil and utilise legal information.

PROFESSIONAL
5. Disciplinary Knowledge: A coherent and extensive knowledge of substantive and procedural law.
6. Lifelong Learning: A capacity to continually update the knowledge skills and awareness appropriate to the practice of law.
7. Ethics: A capacity to value and promote honesty, accountability and ethical standards.

PERSONAL
8. Self and Cooperative Work Management: Self and priority management skills including cooperative work.
9. Cultural Awareness and a Global Outlook: An appreciation and valuing of cultural and intellectual diversity and an ability to function in a global environment.
10.Social Justice: An acknowledgement and acceptance of individual responsibilities and obligations and of the assertion of the rights of the individual and the community.

Teaching and learning strategies

Strategy 1: Small group classes (4 hours per week)
Strategy 2: Preparation/independent study
Strategy 3: Participation in class discussion
Strategy 4: Participation in class problem solving
Strategy 5: Research and essay writing
Strategy 6: Formal examination

Subject Delivery
GROUPS
The subject will comprise two (2) classes per week, each of 2 hours duration. The learning in these classes is discussion based.
Students will be assigned to a group and must stay in their assigned group throughout the course. Classes will be discussion groups where substantive law and problems will be discussed in detail. Students will be required to complete essential reading before each class in order to be able to participate fully in discussion. Classes will not be taped. UTS Online will be used in this subject for the purposes of making announcements only.

EXPECTATIONS OF STUDENT PREPARATION AND PARTICIPATION
Because classes are discussion groups, students MUST complete ALL ESSENTIAL READING FOR EACH WEEK before class. Students will be required to answer questions in class and to participate usefully in class discussions. Students will be asked direct questions about the materials and failure to have read and reflected on materials will be detrimental not only to the individual’s learning, but to the group as a whole. In extreme cases students who are manifestly unprepared may be asked to leave classes.

Students should be aware that the reading for this subject is demanding. For each 2 hour session there is at minimum 50 pages of reading. In some weeks reading will be considerably more than this where an important High Court decision needs consideration. Do NOT expect to be able to pass this subject without having done the required reading.

The timetabled activities for this subject can be found on the UTS timetable online at http://timetable.uts.edu.au. Students enrolled in this subject can view their personalised timetabled in My Subject Activities online at https://mysubjects.uts.edu.au

There are 4 Self Learning Modules in this subject. These Modules will form part of the assessment for the examination. The Modules will not be covered in class time. Please note that you are NOT expected to read outside the subject materials, in particular whilst you should understand the scheme of the workers compensation legislation and the motor accidents legislation in NSW you will not be expected to be familiar with the detail of specific sections.

Content

• Introduction, Trespass to the person
• Trespass to land & goods
• Defences to intentional torts
• The cause of action in Wilkinson v Downton
• Introduction to negligence
• Duty of care; Role of policy; Advocates immunity.
• Breach of duty
• Causation
• Proof
• Remoteness of damage
• Egg shell skull cases
• Defences to negligence
• Particular duty areas:
  • Unusual plaintiffs
  • Unborn children
  • Mental harm
  • Rescuers, Occupiers
• Pure economic loss
• Negligent misstatement
• Liability of statutory authorities
• Defective structures
• Omissions
• Vicarious liability;
• Independent contractors;
• Duties to employees;
• Concurrent liability.
• Tortious remedies.

Assessment

Assessment Item 1: Class Participation

Objective(s):	Link to Objectives 1, 2, 3, 4, 5, 6 Link to Graduate Attributes 1, 2, 3, 4, 5, 6, 7, 9, 10.
Weighting:	20%

Assessment Item 2: Research Essay

Objective(s):	Link to Objectives 6, 7. Link to Graduate Attributes 1, 2, 3, 4.
Weighting:	20%

Assessment Item 3: Final Examination

Objective(s):	Link to Objectives 1, 3, 6, 7. Link to Graduate Attributes 1, 2, 3.
Weighting:	60%

Required texts

There are THREE prescribed sources used in this subject:

1. Stewart P & Stuhmcke A, Australian Principles of Tort Law, 3rd ed, Federation Press, 2012 (Stewart & Stuhmcke). Do not purchase previous editions.

2. Law of Torts Book of Readings (for purchase from the UTS Union Shop, Haymarket Campus).

3. You will need to acquire a consolidated copy (or relevant extracts) of the Civil Liability Act 2002 (NSW) which can be located on LexisNexis through the UTS Library homepage or from the NSW Lawlink website at http://www.lawlink.nsw.gov.au/.

In addition the following text is Highly Recommended and is referred to throughout this outline:

Luntz, Hambly, Burns, Dietrich & Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, 2013. Do not purchase previous editions. This is a case book and is of particular value. Reference to relevant chapters is included in the prescribed reading for each week’s classes. If you choose not to purchase the casebook, then you will need to read prescribed cases online.

Recommended texts

The following new editions are highly recommended and are particularly useful:

1. Paine, Timothy. Torts - Questions and Answers,3rd ed, LexisNexis Butterworths, 2012.

2. Stuhmcke, Anita. Essential Tort Law, 4th ed, Zortonomy, 2010.

You might also select from the latest edition of any of the following:

Balkin and Davies, The Law of Torts, Butterworths

Clarke et al, Torts, Lexis Nexis

Davies, Tutorial Series: Torts, Butterworths

Fleming, The Law of Torts, LBC

Gardiner & McGlone, Outline of Torts, Butterworths

Mendelson, Butterworths Casebook Companions – Torts

Mendelson, D The New Law of Torts, Oxford University Press,

Sappideen, C et al Torts: commentary and materials, Thomson Legal and Regulatory

Swanton, McDonald, Anderson & Yeo, Cases on Torts, FP

Trindade and Cane, The Law of Torts in Australia, OUP

References

Report of the Panel for the Review of the Law of Negligence (the Ipp Report) available on the Commonwealth treasury website at http://revofneg.treasury.gov.au/content/reports.asp

The CCH Torts Law Library includes the Australian Torts Reporter and Australian Professional Liability - available via CCH Online.

There are two very useful dedicated Australian tort law journals: the Torts Law Journal and the Tort Law Review both available via UTS library.

Free online legal databases: AUSTLII and BAILII

Other resources

The following journal indexes are useful in tracking down journal articles. Some of these emphasise Australian materials, others cover international materials with some references to Australian materials. Some of the indexes allow you access to the full text of journal articles.

Go to http://www.lib.uts.edu.au/databases/index.php?subject%5B%5D=22&startswith=

where you will find the following:

· AGIS Plus Text via Informit allows you access to the local and overseas journals received by the Attorney-General’s Library, Canberra.

· Australian Public Affairs Full Text via Informit allows you access to both legal and non legal Australian journals.

· CaseBase via LexisNexisAu indexes many Australian and some overseas law journals. If the hypertext link works, you have access to the full text of many journal articles.

· HeinOnline in particular The Law Journal Library contains the fulltext of over 500 journals. While the majority of these originate in the United States, many of the major university law reviews from Australia and other common law jurisdictions are also included.

· Index to Legal Periodicals & Books is a US index focusing primarily on US materials plus other common law countries such as the UK, Canada, Australia, New Zealand etc.

· Lexis contains a comprehensive range of United States primary and secondary legal materials and a range of international material from both common and civil law jurisdictions in fulltext. Includes the full text of many journals from various common law countries such as the US, the UK, Canada, Australia, New Zealand etc. This site does NOT provide access to fulltext newspaper services.

· Specialised Australian torts journals include:

Torts in focus (CCH)

Torts Law Journal (Australia and New Zealand) in print or online via Lawbook Online

Torts News in print or online via LexisNexis Au

Tort Law Review (Lawbook Co)