70311 Torts
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particular session, location and mode of offering is the authoritative source
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Subject handbook information prior to 2024 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 OR 70120c Legal Method and Research OR 70102 Foundations of Law OR 70102 Foundations of Law
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.
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; trespass to land; negligence; and nuisance. Negligence has become 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 and legislation, particularly the Civil Liability Act 2002 (NSW). Critical and contextual understanding of the subject is developed through working with journal articles and other sources.
Torts is required for admission as a legal practitioner in all Australian jurisdictions. The 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 subjects in the law degree. Many subjects studied later in the degree 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; and to complete assessment tasks with attention to due dates and required criteria. |
Course intended learning outcomes (CILOs)
This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes:
- Legal Knowledge
A coherent understanding of fundamental areas of legal knowledge including:
a. The Australian colonial and post-colonial legal system, international and comparative contexts, theoretical and technical knowledge;
b. The broader contexts within which legal issues arise and the law operates including cultural awareness, social justice and policy;
c. The impact of Anglo-Australian laws on Indigenous peoples, including their historical origins in the process of colonisation and ongoing impact; and
d. The principles and values of justice and ethical practices in lawyers' roles. (LAW.1.1) - Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively, including the ability to:
a. Identify and articulate legal issues in context, including the skill of critical reading and writing;
b. Apply reasoning and research to generate appropriate responses;
c. Engage in critical analysis and make a reasoned choice amongst alternatives; and
d. Think creatively in approaching legal issues and generating appropriate responses. (LAW.3.1) - Communication
Effective and appropriate communication skills including:
a. Highly effective use of the English language to convey legal ideas and views to different and diverse audiences and environments;
b. An ability to communicate to inform, analyse, report and persuade;
c. An ability to strategically select an appropriate medium and message;
d. An ability to assess how messages are received and alter communication strategies accordingly; and
e. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.5.1) - Collaboration
Effective and appropriate collaboration skills in working together to achieve a common goal in a group learning environment or the workplace including:
a. An ability to give and receive feedback;
b. Appropriate professional and interpersonal skills in working collaboratively;
c. A capacity to develop strategies to successfully negotiate group challenges; and
d. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.6.1) - Self management
The ability to implement appropriate self-management and lifelong learning strategies including:
a. An ability to undertake and initiate self-directed work and learning;
b. Well-developed judgment and responsibility as a legal professional in a broader social context;
c. The ability to support personal and professional development by:
(i). Reflecting on and assessing their own capabilities, wellbeing and performance;
(ii). Making use of feedback as appropriate;
(iii). Identifying and accessing appropriate resources and assistance; and
(iv). Making use of resources and support in developing resilience; and
d. A capacity to adapt to and embrace change and a commitment to ongoing learning. (LAW.8.1)
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 Canvas. 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, causes 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. During the session, students may be asked to self assess their class participation performance in order to receive informal feedback from their teacher about opportunities for improvement.
Strategy 5: Independent Learning
Students will need to manage their study time over the session. 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 Canvas modules.
Subject Delivery
This subject will be delivered through 2 x 2 hour seminars each week. These will either be online or on campus.
Content (topics)
- Introduction to Tort law & Trespass to Person: What is a Tort? Trespass to the Person - assault; battery; false imprisonment.
- Trespass to Land, Defences to Intentional Torts, & Wilkinson v Downton
- Nuisance
- Negligence I Introduction & Duty of Care
- Negligence II Breach of Duty of Care
- Negligence III Proof & Causation
- Negligence IV Scope of Liability: Remoteness of Damage; Egg Shell Skull Cases
- Negligence V: Re-examining Negligence & False Imprisonment Through Trevorrow [2010]
- Negligence VI: Defences to Negligence: Contributory Negligence; Voluntary assumption of risk; Civil Liability Act defences including intoxication; dangerous recreational activities; obvious & inherent risks; risk warnings.
- Negligence VII: Categories of Duty of Care: With a particular focus on pre-natal harm and psychiatric injury.
- Negligence VIII: Pure Economic Loss: Negligent Acts causing pure economic loss & Negligent Misstatement; Part 4 Civil Liability Act 2002 (NSW)
- Negligence IX: Strict Liability & Multiple Defendants: Vicarious Liability; Non-Delegable Duties; Concurrent & Proportionate Liability
- Liability of Public and Other Authorities
Assessment
Assessment task 1: Participation in Online and Class Activities
| 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: LAW.1.1, LAW.3.1, LAW.6.1 and LAW.8.1 |
| Weight: | 15% |
| 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: 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 and 4 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1, LAW.5.1 and LAW.8.1 |
| Weight: | 25% |
| Length: | 1500 words maximum. There is NO leeway. (see Further Information) |
| Criteria: | 1. Understanding and application of Torts law and issues:
2. Critical Analysis and evaluation
3. Appropriate communication of critical analysis in essay format, including:
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Assessment task 3: Exam
| 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, 2, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1, LAW.5.1 and LAW.8.1 |
| Weight: | 60% |
| Length: | The exam has an expected working time of 3 hours. The standard exam availability window will be 4 hours. |
| 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
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Minimum requirements
Completing the Avoiding Plagiarism tutorials and quiz on Canvas is a minimum requirement in this subject. Failure to pass the quiz means that you will fail the subject irrespective of successful completion of the assessment tasks in the subject. The pass mark for the quiz is 80% and must be completed before the end of Week 3. Subsequent modules can only be accessed once the Quiz has been completed.
This module mark is not included in the final subject mark. Students are able to make multiple attempts of the module until they pass. The tutorial and quiz can be found in the Avoiding Plagiarism tab on Canvas.
Required texts
There are TWO prescribed sources used in this subject:
- Stewart P & Stuhmcke A, Australian Principles of Tort law, 5th ed, Federation Press, 2022 (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.
Recommended texts
The following editions are highly recommended and are particularly useful:
- Paine, Timothy. Torts - Questions and Answers, 6th ed, LexisNexis Butterworths, 2023.
- Luntz, Hambly, Burns, Dietrich, Foster, Grant & Harder, Torts: Cases and Commentary, 9th ed, LexisNexis Butterworths, 2021.
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
The New South Wales Court of Appeal has created an annotated Civil Liability Act database, available at:
https://nswca.judcom.nsw.gov.au/annotated-civil-liability-act/
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/