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Documentation:Torts/Defences

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Intimate partner violence • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Relational theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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Defences

A defendant can avoid civil liability by establishing a defence to the tortious conduct alleged against them by the plaintiff. Some defences, such as that the plaintiff consented to the alleged wrong, are relevant to all kinds of torts. Some defences are associated with specific torts, such as the defences particular to the tort of defamation.

Defences that justify the defendant's conduct negate liability entirely and so operate as complete defences. Arguments that merely serve to lessen the scope of a defendant's liability or that reduce the damages owing may be characterised as partial defences or excuses.[1]

Foundational concepts

Distinguishing between denials, justifications, and excuses
For an illustration of the difference between denials, justifications, and excuses, see 21:55 in this lecture by Professor John Goldberg.[2]


Professor John Goldberg explains how a defendant might respond to a plaintiff's cause of action in different ways: by pleading a denial, a justification, an excuse, or that they lacked capacity to commit the tort.[3] These concepts play distinct roles.

Denials refer to situations in which the defendant disputes that an element of an alleged tort has been established. They claim they have "not committed the wrong(s) [they are] alleged to have committed."[4]

A claim of general incapacity may be made if the defendant was too young or too mentally incapacitated understand their actions. It "is an effort to establish that the alleged wrongdoer is not an appropriate candidate for legal accountability even though her behavior meets the definition of the alleged wrong."[5]

Both justifications and excuses "assume or concede that one’s conduct meets the definition of a specified wrong, and that one is eligible to be held responsible for one’s wrongs."[5] In pleading a justification, the defendant claims that their "conduct was permissible, all things considered."[5] Thus, a defence like self-defence is considered to be a justification.[5] Conversely, in pleading an excuse, the defendant accepts that the conduct was wrongful, but that the circumstances perhaps warrant lessening (but not eliminating) the scope of their liability.[6]

Topics in the law of defences

Common tort defences include:

Defences to intentional torts
In this episode of the Australian podcast Just Torts, host Brent Liang discusses defences in tort law with Nam Kiet Nguyen and Patrick Hendy.[7]

Apportionment of liability is a doctrine that allows defendants to lessen their own liability by sharing liability with co-defendants (who may be jointly and severally liable) or with the plaintiff (who may have contributed to their own damage).

Consent is a defence that applies when the plaintiff has agreed to the defendant's conduct or to the risk of the type if harm that eventuates.

Defamation defences such as truth, honest opinion, and qualified privilege negate a defendant's liability for statements that are allegedly defamatory.

Defence of property is engaged when a defendant is justified in interfering with another person or their property in order to protect their own property.

Illegality may bar a plaintiff from recovering damages if they seek to profit from their illegal or immoral acts.

Legal authority justifies a defendant's conduct toward a plaintiff when it is authorized and privileged by law.

Limitation periods are public policy defences that bar the litigation of causes of action after a statutorily prescribed period of time.

Necessity may justify or excuse a defendant's conduct taken in emergency circumstances.

Self-defence justifies the use of force against a plaintiff who poses a threat to the defendant or another person.



  1. ↑ "Defences and Limitation of Liability Lecture". Law Teacher. November 2018.
  2. ↑ Harvard Law School (13 December 2013). "Prof John Goldberg on 'Inexcusable Wrongs'". YouTube.
  3. ↑ See e.g. Goldberg, JCP (2015). "Inexcusable Wrongs". California L Rev. 103: 470–73. (§6.1).
  4. ↑ Goldberg, JCP (2015). "Inexcusable Wrongs". California L Rev. 103: 470. (§6.1).
  5. ↑ 5.0 5.1 5.2 5.3 Goldberg, JCP (2015). "Inexcusable Wrongs". California L Rev. 103: 471. (§6.1).
  6. ↑ Goldberg, JCP (2015). "Inexcusable Wrongs". California L Rev. 103: 472. (§6.1).
  7. ↑ Liang, Brent (27 Oct 2017). "Defences to Intentional Torts". Just Torts – via SoundCloud.