70311 Torts
Warning: The information on this page is indicative. The subject outline for a
particular session, 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.
Subject handbook information prior to 2017 is available in the Archives.
Credit points: 8 cp
Result type: Grade and marks
Requisite(s): 70120c Legal Method and Research OR 70102 Foundations of Law
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
Description
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 and land; the action on the case for wilful injuries; negligence and nuisance. 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 Juris Doctor and provides students with foundational knowledge required for more advanced 'private law' subjects in the law degree. Subjects covering areas such as commercial and corporate law, equity and remedies also require a sound knowledge of Tort law as a basis for the legal concepts learned in those subjects.
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 1. | Apply selected key concepts of the common law of torts and the Civil Liability Act 2002 (NSW) with reference to the basis of liability, forms of action and interests protected in the law of torts, and the adaptability of Tort law to societal changes. |
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| 2. | Critically analyse the policy, development and application of the law of torts, making reasoned choices amongst alternatives to develop logical, justifiable and structured arguments, and advice to parties as to the tortious rights and liabilities in specific scenarios. |
| 3. | Recognise the perspectives of various stakeholders in selected tort cases and the role of a professional lawyer in advising on claims in Tort law, including evaluation of how lawyers??? ethical duties to clients and courts are addressed with respect to negligence. |
| 4. | Apply cases, statute law and secondary sources to generate appropriate written and oral responses to questions of individual rights and liabilities in Tort law, as well as to issues of legal policy and theory. |
| 5. | Initiate and complete self-directed learning through engagement with legal materials to prepare for class-based discussion and problem solving; complete self-learning modules and accurately assess their own capabilities and performance of tasks. |
Course intended learning outcomes (CILOs)
This subject also contributes specifically to the development of the following graduate attributes:
- Ethics and Professional Responsibility
A capacity to value and promote honesty, integrity, accountability, public service and ethical standards including an understanding of approaches to ethical decision making, the rules of professional responsibility and, an ability to reflect upon and respond to ethical challenges in practice. (2.0) - Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively including an ability to identify and articulate legal issues, apply reasoning and research, engage in critical analysis and make reasoned choices. (3.0) - Self management
The ability to implement appropriate self-management and lifelong learning strategies including initiating self-directed work and learning, judgment and responsibility, self assessment of skills, personal wellbeing and appropriate use of feedback and, a capacity to adapt to and embrace change. (6.0)
Teaching and learning strategies
Strategy 1: Preparatory Reading for Problem Solving
Students’ preparation and reflection outside the classroom is central to the learning in this subject, which relies on students familiarising themselves with the substantive law before each class by completing essential reading. This enables collaboration and full engagement in class discussions of the law, and its application to a set problem scenario every week. Materials selected to help you prepare include Tort law cases, statutory provisions, and chapters in prescribed texts and where appropriate journal articles or other secondary materials. The reading required for this 8 credit point subject is substantial (for each week a minimum 50 pages) so students need to ensure they allocate time to ‘make sense’ of the materials for each class and test their understanding by reflecting on and considering their responses to the problem question set for in class discussion each week. The gateway to these materials is UTSOnline where the Learning Guide and weekly materials are available in the Subject Documents folder. Students are NOT expected to read outside the suggested subject materials. Students will have also the opportunity in class each week to monitor their preparation and level of self-management.
Strategy 2: Collaborative Discussion in small group classes
Learning takes place in ‘small group’ classes that are active, discussion based and collaborative. Students engage with one another and their teacher in oral discussion of legal principles to synthesise and elaborate upon their prior learning, reading and class preparation. This is where issues and questions from torts readings are addressed collaboratively and substantive law of torts questions considered. We discuss the key cases and statutes in detail, including what the judges have said and get ‘inside’ the law in this area. Students can ask any questions that arose from their reading and get feedback on their developing understanding of Torts law. Students will be required to answer questions in class and to participate usefully in class discussions about the material. 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. Volunteers may be allocated to lead the discussion for the following week.
Strategy 3: Collaborative Problem Solving
Each week students actively and collaboratively engage in solving a set problem which enables them to apply their reading to factual scenarios. This requires analysis and application of Tort law principles in order to argue a case based on the facts of the problem. Through this process students are able to practise and develop their capacity to identify and articulate legal issues and to think critically, strategically and creatively to provide advice on tortious liability, as they would be required to do in legal practice. Throughout this process of applying substantive law to real world Tort law scenarios we also consider the professional and ethical responsibilities of a litigation lawyer. By the end of this subject students are able to analyse complex problems (complicated facts, multiple plaintiffs, defendants, courses of action and possible defences) and advise each party on their rights and liabilities.
Strategy 4: Feedback and Self Assessment
Students have the opportunity in each class to ask questions of the teacher about any aspect of the material under consideration and receive ongoing feedback and guidance as to their progress and level of class participation. By seeking feedback on their developing understanding in classes students are able to develop their capacity to apply the law of torts to increasingly complex problems. At the half-way point in the semester students are asked to self-assess their class participation performance. In response to their self-assessment, students receive written or oral individual feedback on their performance to date from their teacher. This enables them to review and remedy any gaps and to work toward a higher mark for the class participation element of assessment in the subject. Students are also asked to self-assess their essay
Students complete an online quiz available on UTS Online. The week 3 quiz provides formative feedback on students’ understanding of the intentional trespass torts addressed in the first 2 weeks of the subject. Although this quiz is not compulsory it is an important part of learning and feedback in Torts.
Strategy 5: Independent Learning
Two Self Learning Modules have been developed for discrete areas of Tort law relevant to law graduates. The self-learning modules are extensions to the Tort law causes of action covered in class. Classes focus on the fundamental torts of trespass and negligence whereas the self-learning modules deal with torts that provide other remedies.
Students will need to study these modules independently and manage their study time over the semester to ensure completion of the modules, bearing in mind that they are assessed in class problem solving exercises and the exam. Self-management strategies and independent learning are crucial to continuing development as legal professionals and in this subject students will develop strategies to proactively manage their time. Self-directed work and learning, judgment, responsibility and self assessment are the specific skills which students practice as they prepare for each class and work through the self learning modules. This requirement for pre-preparation and self-instruction mirrors the requirements legal practice. The modules form part of class discussion where relevant to the weekly problem under consideration. There are opportunities for students to ask questions to test their understanding of the self-learning materials during class time and the problems discussed in class will raise issues that are dealt with in the self-learning material. Students are NOT expected to read outside the subject materials included in the Self Learning Module notes.
Subject Delivery
Small Group Classes: This subject comprises two ‘small group’ classes per week, each of 2 hours duration (4 hours per week). Students are assigned to a group and must stay in their assigned group throughout the subject. These interactive classes are not tape-recorded.
Student Reading, Preparation and Participation: Because Torts classes run as discussion groups, students need to complete all essential reading for each week before classes. Students need to timetable sufficient time for the amount of reading required as understanding the required reading is essential for succeeding in this subject.
Two Self Learning Modules: Students complete two modules independently during this subject and these are assessed in the final exam.
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
Content (topics)
- Introduction to Tort law and Trespass to Person: What is a Tort? Trespass to the Person - assault; battery; false imprisonment.
- Trespass to Land and Defences to Intentional Torts and Wilkinson v Downton
- Introduction to Negligence: Duty of Care and Public Policy; Legal ethics – lawyers and negligence: the duty to the client.
- Negligence I Breach of Duty of Care
- Negligence II Proof & Causation
- Negligence III Scope of Liability: Remoteness of Damage; Egg Shell Skull Cases
- Negligence IV Defences to Negligence: Contributory Negligence; Voluntary assumption of risk; Civil Liability Act defences including intoxication; dangerous recreational activities; obvious & inherent risks; risk warnings.
- Negligence V Categories of Duty of Care including Atypical Plaintiffs; Manufacturers; Employers; Motorists; Unborn Children; Rescuers; Occupiers; Mental Harm/psychiatric injury: Part 3 Civil Liability Act 2002 (NSW)
- Negligence VI Pure Economic Loss: Negligent Acts causing pure economic loss & Negligent Misstatement; Part 4 Civil Liability Act 2002 (NSW)
- Negligence VII Statutory Authorities; Part 5 Civil Liability Act 2002 (NSW); Omissions
- Negligence VIII Strict Liability & Multiple Defendants: Vicarious Liability; Non-Delegable Duties; Concurrent & Proportionate Liability
Self-Learning Modules:
- Nuisance
- Death Claims
Assessment
Assessment task 1: Class participation - Oral collaboration and team problem solving
| Intent: | The value placed on this assessment task emphasises the importance of consistent and active class participation based on your preparation. |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: 2.0, 3.0 and 6.0 |
| Weight: | 20% |
| Criteria: | Class participation will be assessed according to the following criteria: 1. Understanding and application of Torts law and issues discussed, including:
2. Engagement with materials and activities, including:
3. Critical analysis and evaluation of torts, including:
4. Application of problem solving skills, including:
5. Collaboration with class members, including:
6. Self management demonstrated in quality and consistency of participation in class discussion and activities, including:
7. Ethics and Professional Responsibility:
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Assessment task 2: Analytical Torts Essay
| Intent: | Completing this essay will enable students to practise and get feedback on their analytical skills and communicating their analysis in written form. It will assist students to develop their capacity to think critically, strategically and creatively as they apply legal reasoning and draw on legal research |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: 2.0, 3.0 and 6.0 |
| Weight: | 20% |
| Length: | 2000 words maximum (see Further Information) |
| Criteria: | 1. Understanding and application of Torts law and issues:
2. Critical Analysis and evaluation
3. Ethics and Professional Responsibility
4. Self-Management demonstrated in quality of essay, including:
5. Appropriate communication of critical analysis in essay format, including:
|
Assessment task 3: Exam: legal analysis and recommendations for advice
| Intent: | The legal problems in the exam are designed to mirror the types of complex legal and factual issues that arise in legal practice and build on the problems and approaches that have been discussed in classes throughout the semester. |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: 2.0, 3.0 and 6.0 |
| Weight: | 60% |
| Criteria: | 1. Application of knowledge of substantive law to complex factual situations, including:
2. Critical analysis & problem solving to provide legal advice, including:
3. Legal problem solving skills, including:
4. Ethics and Professional Responsibility
5. Self-management
|
Required texts
There are TWO prescribed sources used in this subject:
- Stewart P & Stuhmcke A, Australian Principles of Tort law, 3rd ed, Federation Press, 2012 (Stewart & Stuhmcke). Do not purchase previous editions.
- You will need to acquire a consolidated copy (or relevant extracts) of the Civil Liability Act 2002 (NSW)
The Act can be located on NSW Legislation through the UTS Library Law Databases or from the NSW Lawlink website at http://www.lawlink.nsw.gov.au/.
The Parts of the Civil Liability Act which are covered in the Torts course are Parts 1, 1A, 2, 3, 4, 5, 6, 7, 8 and 11.
In addition, the following text is highly recommended and is referred to throughout the Torts Learning Guide:
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 which are available online (case citations are included in the prescribed reading for each week).
Recommended texts
The following editions are highly recommended and are particularly useful:
- Paine, Timothy. Torts - Questions and Answers, 4th ed, LexisNexis Butterworths, 2015.
- Stuhmcke, Anita. Essential Tort law, 5th ed, Zortonomy, 2014.
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
- Trindade and Cane, The Law of Torts in Australia, OUP on Torts, FP
References
Report of the Panel for the Review of the Law of Negligence (the Ipp Report) available at: http://www.amatas.com.au/assets/ipp_report.pdf
The New South Wales Court of Appeal has created an annotated Civil Liability Act database, available at: http://nswca.jc.nsw.gov.au/courtofappeal/Other/Civil_Liability_Act_Annotations/Civil_Liability_Act_Annotation.ht
The LexisNexis Au database (UTS library) contains Civil Liability Australia, and the IntelliConnect (CCH) database contains the Torts and Personal Injury Law Library.
There are two very useful dedicated Australian Tort law journals: Torts Law Journal (LexisNexis Au) and Tort law Review (Westlaw Au) both available via UTS library law databases.
Free online legal databases:
- AUSTLII (Australia) www.austlii.edu.au
- BAILII (Britain and Ireland) http://www.bailii.org/
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. 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.
