A renewed interest in intentional torts following legislative changes to the law of negligence?

Cockburn, Tina & Madden, Bill (2006) A renewed interest in intentional torts following legislative changes to the law of negligence? The Tort Law Review, 14(3), pp. 161-168.

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Intentional torts to the person are those torts which involve "intentional or wilful invasions of the physical and mental integrity of the person", such as intentional trespass to the person (battery, assault and false imprisonment), and can be distinguished from "negligent or careless invasions".1 Although the historical distinction between negligence and trespass is based upon whether the defendant's act is direct or indirect, a trend towards fault-based categorisation of the law of torts has been recognised by a majority of the High Court in Northern Territory v Mengel (1995) 185 CLR 307 at [18]; see also Brennan J at [52]. Given the legislative changes to the law of negligence following the review of the law of negligence,2 and particularly the damages restrictions which have been imposed, there has been renewed interest in the ancient trespass actions.

Although difficult issues may arise in intentional tort claims such as proof of intention,3 the extent to which insurance is available,4 and whether vicarious liability will be imposed,5 there may be advantages for plaintiffs who plead intentional torts, particularly trespass to the person. Some of the key legal advantages are that trespass is actionable per se; the defendant bears the onus of proof; the rules of causation and remoteness which relate to negligence actions may not apply to trespass actions; and exemplary and aggravated damages may be awarded.6 In particular, the provisions of the Civil Liability Acts may not apply.

Impact and interest:

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ID Code: 18762
Item Type: Journal Article
Refereed: Yes
ISSN: 1039-3285
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Research Centres > Australian Centre for Health Law Research
Current > Schools > School of Law
Copyright Owner: Copyright 2006 Lawbook Co.
Deposited On: 13 Mar 2009 06:24
Last Modified: 12 Feb 2015 00:34

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