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200008 Torts Law Legal Problem Solving Assessment

Identify and discuss the key principles of Australian torts law prescribed by accrediting authorities. Use the principles and processes of legal reasoning in a torts context to:

a.Analyse cases and identify legal principles, policies and authority;

b.Identify and apply relevant statutory provisions and discuss their impact on the common law;

c.Analyse and resolve legal problems.

Answer:

Introduction

Might Alfie and Ben’s actions in Part A of the problem question satisfy the conduct element of any trespass to the person? Name the relevant trespass to the person. Explain why the conduct element is or is not satisfied.

The trespass to person involves different categories such as threats to a person, assault to victim, battery, wounding, mayhem (or maiming), and false imprisonment. Under this case, both Alfie and Ben threatened Cindy and thus their actions qualify to trespass to person. The use of false character in order to threaten Cindy makes their actions to qualify in this category. In addition, Alfie and Ben are using threats to terrify Cindy so that she can agree to their demands of going out with Ben


. In addition, psychological assaults can be another form under which their actions may be classified as trespass to person. Their actions are able to cause psychological torture to Cindy. This is an assault and thus qualifying their actions as trespass to person.

Might Alfie and Ben’s actions in Part A of the problem question satisfy the fault element of the trespass to the person cause of action identified in question 1? Explain why or why not.

The fault element of intention is able to comprise of a conscious purpose which is meant to achieve a result which is proscribed by law. Ben and Alfie’s action to distort the image and character of Cindy qualifies and satisfies the fault of element of trespass of person. Their action to Cindy are not justified by law and thus they amount to results which are not pro prescribed by law. In addition, their actions are meant to forcefully meant to lead to Cindy agreeing to Ben's offer out of her will. This is simply against the law and thus the actions satisfy the fault of element of trespass to person under the tort law. In case Cindy agrees to their will, this would be out of her protecting her image out of the threats Ben and Alfie issued. In addition, the tort law is against the assault which in this case may be inform of character defamation. Both Ben and Alfie are threatening to post the nude pictures without Cindy's will to do so. This action is against the law and thus qualifies Ben's and Alfie's action to be able to satisfy the trespass to the person.

Explain whether any defences might be available to Alfie and Ben.

Yes, there might be some defense who will be available to defend Alfie and Ben. First, Ben and Alfie did not use their real accounts to offer the threats to Cindy. Under this their defense can argue that they also learnt the same from the media and only commented with the information they had obtained. They can argue that they do not know the account owners and since they lack their information, their defense will have a strong case. In addition, they can be represented by defense which will argue that their client was forcefully assaulted by Cindy. Cindy did not have a right to assault either Ben or Alfie even if they are the owners of the said accounts. Assault is not allowed on the tort law and thus Ben and Alfie will get defense which may be willing to support them in their case. The fact that their no direct evidence implicating both Ben and Alfie to the crimes intended qualifies to them getting some defense who will represent them, in their case.

Do Cindy’s actions in the moot court (Part B of the problem question) constitute a battery against Alfie?

Yes, Cindy’s action in the moot court qualifies to crime on Battery against Alfie which is a crime according to tort law. The law does not reward an attack to someone even not under self-defense. Under this case, Alfie was not threatening to harm or hurt Cindy and this will be able to amount to battery. Addition, the action acted by Cindy was not under any self-defense and therefore able to battery according to tort law. Addition, it is clear that Alfie did not threaten to harm Cindy and therefore her action were able to battery. The object used by Cindy to harm Alfie shows a threat and this qualifies the action to amount to battery. The fact that Alfie was hurt by the action carried out by Cindy was able to amount to battery. In addition, the tort law does not allow anyone to take law on their own hands. Her action was against the law and therefore she was able to threaten Alfie. Moreover, the Alfie was harmed until she needed some stiches, six in specific due to the threat posed to him by Cindy. This is action was able to amount to battery and this qualifies Cindy’s action to battery.

Explain whether any defences might be available to Cindy.

Yes, there should be some defense which may be available to represent Cindy in her case. Under her case, it is clear that some defamation and threat of her character was posed to her due to the actions by Ben and Alfie. From the knowledge they had about her insult and intend to defame her character, it can be argued that the two had some case to answer. This is against the law and therefore Cindy’s defense would have a strong case. In addition, her defense may argue that both Ben and Alfie were stalking her and that is the reason they were available in the moot court early. They can be able to argue that the two were the authors of the said accounts and therefore were able to create the accounts to hit back on her for failing to go out with Ben. The defense will therefore have several areas where they can be able to implicate Ben and Alfie of character defamation to Cindy. Most importantly, they can argue that Alfie started the insult at moot court and therefore Cindy was reacting to the insult. This will be able to offer a strong defense on the issues identified.

References

Christian Witting, ‘Breach of the Non-Delegable Duty: Defending Limited Strict Liability in Tort’ (2006) 29 University of New South Wales Law Journal 33, 52–3. Such a view recognises that ‘responsibility in law … is a three-way relationship between agents, “victims” and the wider community’: Peter Cane, Responsibility in Law and Morality (2002) 56.

Civil Liability Act 2002 (NSW) pt 3; Wrongs Act 1958 (Vic) pt XI.

Civil Liability Act 2002 (NSW) pt 3; Wrongs Act 1958 (Vic) pt XI.

Civil Liability Act 2002 (NSW) s 71; Civil Liability Act 2003 (Qld) s 49A; Civil Liability Act 1936 (SA) s 67.

John Goldberg, ‘Tort’ in Peter Cane and Mark Tushnet (eds), The Oxford Handbook of Legal Studies (2003) 21, 23–4, summarising the widely-accepted views of Holmes, above n 60. See also Weinrib, The Idea of Private Law, above n 63, 127–8, 181; Coleman, above n 63, 325.

Tame v New South Wales (2002) 211 CLR 317, 357–8 (McHugh J). See also Stephen Perry, ‘Risk, Harm and Responsibility’ in David Owen (ed), Philosophical Foundations of Tort Law (1995) ch 14.

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