The following information explains what a tort is and deals with the specific torts of negligence, nuisance, defamation and passing off. It also deals with criminal liability, in particular criminal nuisance.
Torts generally
What is a “tort” or “civil wrong”?
A tort, or civil wrong, is where a person (or organisation) causes injury or damage (whether physical or monetary) to another person (or organisation), in breach of one of the legal duties that private citizens owe each other. The remedy is usually monetary compensation.
Organisations need to take care, for example, that they do not cause damage or injury to another person or their property (the tort of negligence); another person’s land (private nuisance); their reputation (defamation); or their intellectual property rights (passing off). Those torts are explained below.
The law of torts is separate from the criminal law. A tort is also different from a breach of contract, which is another key area of civil (as opposed to criminal) liability. A breach of contract is a breach of a duty created by a private agreement between named parties, rather than, as is the case with torts, a duty created by law and applying to all other citizens.
Types of damages available
Usually the amount of money awarded in damages for a tort is the amount required to put the plaintiff (the person who has been wronged) in the same position he or she would have been in had the wrongful act or omission not happened. These are called “compensatory damages”.
Sometimes the Court will award “exemplary” (or punitive) damages. These are over and above the amount required to compensate the plaintiff, and are intended to punish the defendant.
If both the plaintiff and the defendant were at fault, the Court will reduce the damages recoverable from the defendant to reflect the plaintiff’s share in the responsibility for the damage.
Negligence
The key elements of negligence
Negligence is the failure to exercise reasonable care to avoid reasonably foreseeable damage to people or property. There are four elements:
- The defendant must owe the plaintiff a duty of care.
- The defendant must have breached this duty of care.
- The plaintiff must have suffered damage that was caused by the defendant’s breach of duty.
- The damage suffered must have been a reasonably foreseeable consequence.
Breaching the duty of care
In a negligence case, the test for whether the defendant breached a duty of care is whether the defendant did something or failed to do something that a “reasonable person” would not have done or omitted to do.
The degree of care required depends on the circumstances. It varies according to the degree of risk involved, the consequences of the breach, and the standard of care that the defendant has undertaken to exercise.
Effect of the ACC scheme: No right to sue for personal injury
In New Zealand, a person cannot sue another person for negligence if they suffer a personal injury that is covered by the ACC scheme. For more information, see other topics on this site: People: Volunteers, employees and contractors. An exception is that the injured person can sue for exemplary (punitive) damages, rather than compensatory damages.
Limitation of proceedings: How long after can a person sue?
The person who suffered the damage must bring the case within six years of the date on which the cause of action arose, unless the fact that they had a cause of action against the defendant was concealed by fraud or mistake.
Defences in negligence cases
Illegality
If the plaintiff (the person suing) was engaged in an illegal activity when they suffered the damage, the defendant will not be liable for the damage.
Consent
If the plaintiff consented to the damage being done, the defendant is not liable for the damage.
Remedies the Court can impose for negligence
Damages
The amount of money awarded in negligence cases is usually the amount required to put the plaintiff in the same position he or she would have been in had the defendant not been negligent. Exemplary (or punitive) damages may also be available.
If both the plaintiff and the defendant are at fault this will give rise to “contributory negligence”. If a finding of contributory negligence is made, the Court will reduce the damages awarded against the defendant to reflect the plaintiff’s share in the responsibility for the damage.
Injunction
This is a Court order requiring the defendant to do something or not do something.
Meeting your duty of care when organising events
When an organisation holds an event, the organisation and the people holding positions of responsibility within it must take reasonable care.
If the organisation is an employer, the normal duties imposed by the Health and Safety in Employment Act 1992 also apply to ensure that:
- employees and volunteers are safe
- the workplace (including the event course and facilities) is free from hazards
- all practical steps are taken to prevent employees from harming others.
The steps below are best practice advice for providing a safe and successful event:
- Take reasonable care to make the event safe for participants and the public.
- Make all instructions (written and verbal) clear, precise, unambiguous and consistent.
- Consider obtaining a waiver of liability from participants or at least an acknowledgement that the participants are aware of the risks.
- Comply with the terms of road closure permits and any other regulatory matters an organisation may be required to comply with for the event.
- Follow the Guidelines for Sport and Risk Management in New Zealand developed by Sport and Recreation New Zealand (SPARC) and Standards New Zealand, and any codes of practice and standards issued by the association governing the particular activity or sport. However, complying with these guidelines alone may not totally absolve an organiser from responsibility.
- Take into account that, while participants in inherently risky activities must assume responsibility for their own safety, this depends on their understanding of the likely risks involved, based on the information provided to them.
- Seek expert advice to identify and minimise risks if you’re in any doubt about the potential risks.
Road or footpath closures or restrictions require a council permit, and their requirements vary between councils. Organisers may also need increased insurance cover, a traffic management plan, more marshals and signs and qualified supervisors on site.
Because of New Zealand’s ACC scheme, claims for negligence resulting in death or injury are barred except where the event organiser has shown gross (as opposed to ordinary) negligence. In those cases, exemplary (or “punitive”) damages are available.
Negligent advice
In some circumstances, a person can be liable for giving negligent advice. When there is a “special relationship” between the parties, the adviser may be liable for financial or other loss that they have caused through making a negligent misstatement. The plaintiff will have to prove the four elements of negligence explained - see above section on elements of negligence.
A “special relationship” exists where:
- the person seeking information or advice is relying on the other person to exercise reasonable care when giving it
- it is reasonable for the first person to rely on the information or advice
- the person giving the information or advice knew, or should have known, that the information or advice was being relied on.
The duty is not limited to those to whom information or advice is given directly, but extends to all those whom the defendant should reasonably have foreseen as being likely to rely on it and as being likely to suffer a loss if the information or advice was incorrect.
If an organisation offers counselling or advisory services, usually it will be liable if it or its staff give negligent advice and the person who received the advice suffers harm. The organisation should ensure that its advisers and counsellors are properly trained and that any advice they give is within their area of expertise.
Nuisance
Private nuisance
A private nuisance is one that interferes with a person’s use or enjoyment of land, or some right connected with land. The basis of a defendant’s responsibility is usually that they have possession or control of the land from which the nuisance arises.
Key elements of private nuisance
There are two essential elements of private nuisance:
- The plaintiff must have suffered actual damage, or there must be prospective damage.
- The activity or state of affairs that caused the damage must be something that the law says can be a basis for suing in private nuisance.
Relevant factors for determining whether the defendant is liable include the severity of the damage; whether the damage is occasional or continuous; the reasonable expectations of the parties; the time of day; the locality; the activities usually carried on in the area; the kinds of disturbances that existed before the nuisance; and whether the land has been used in an ordinary or natural way.
For example, damage to an organic farm due to chemical spraying on a neighbouring farm is a private nuisance. However, using industrial land for a scrap yard is not a private nuisance.
Public nuisance
A public nuisance is one that inflicts damage, injury, discomfort or inconvenience on all members of the public who come within its sphere of operation.
There are two elements:
- The nuisance must interfere significantly with a common right of the public.
- The interference must be unreasonable, given all the relevant circumstances and conflicting rights.
Examples of public nuisance include blocking a public highway and smoke pollution.
Nuisances caused by third parties
A person occupying land may be liable for a nuisance caused by a third party if the third party is someone for whose actions the occupier is responsible – for example, an organisation may be liable for the acts of people under its care.
Limitation of proceedings: How long after can a person sue?
A person cannot sue for nuisance if the nuisance happened more than six years before they filed the proceedings.
Defences in nuisance cases
Statutory defences
A statute may permit a nuisance to be created in particular situations and therefore, provides a defence to the particular nuisance in the circumstances contemplated by the statute.
Act of God
If the nuisance is substantially caused by an Act of God (such as high winds), the defendant is not liable for the damage.
Remedies for nuisance
Damages
Usually the amount of money awarded in damages for a nuisance is the amount required to put the plaintiff in the same position he or she would have been in had the nuisance not occurred. Exemplary (or punitive) damages may also be available.
If both the plaintiff and the defendant were at fault, the Court will reduce the damages recoverable from the defendant to reflect the plaintiff’s share in the responsibility for the damage.
Injunction
This is a Court order requiring the defendant to do something or not do something.
Abatement
Abatement is a self-help remedy that in certain (limited) situations allows the person suffering the harm to enter another person’s land to eliminate the source of an actionable nuisance.
Defamation
The law of defamation protects a person’s reputation against attack in certain cases. In New Zealand, under the Defamation Act 1992, it is not necessary to distinguish between libel (written words) and slander (spoken words).
The key elements of defamation
The plaintiff must prove that:
- the defendant used defamatory words
- the defendant’s words referred to the plaintiff
- the words were published
- the defendant was responsible for publishing them.
Defamatory statements tend to lower the plaintiff in the estimation of “right thinking” members of society. Examples include allegations of anti-social behaviour, fraud or dishonesty, or criminal conduct. Whether a statement is defamatory also depends on the time and place at which the statement is made.
Defences in defamation cases
Truth
A defendant is not liable if he or she can show that the allegedly defamatory statement is true.
Honest opinion
A person has the right to express an opinion on a matter of public interest, provided the opinion is honestly held and the facts on which the person bases their opinion are true.
Absolute privilege
A person is protected from liability for defamation for statements made in judicial proceedings.
Qualified privilege
If a person, who makes a defamatory statement, has a duty to make the statement to the person to whom it is made, the statement will in some circumstances be protected by the defence of qualified privilege. For example, the media is exempt because of its duty to disseminate information to the public, except when the media acts in bad faith.
Remedies in defamation cases
Damages
Usually the amount of money awarded in damages for defamation is the amount required to put the plaintiff in the same position he or she would have been in had the defamatory statement not been made. Exemplary (or punitive) damages may also be available.
A voluntary correction, retraction or apology by the defendant is not generally a defence, but the Court will take it into account when assessing damages.
Injunction
This is a Court order requiring the defendant to do something or not do something. One can be made here to prevent the publication, or continuing publication, of defamatory material.
Correction, retraction or apology
The Court can order the defendant to publish a correction, retraction or apology.
Passing off
The law of passing off protects traders from unfair competition in the marketplace and also protects the consumer from misleading marketing. Using another trader’s name, product get-up or style is considered to be passing off if it causes confusion in the minds of consumers, with a resulting loss of trade or goodwill to the injured party.
Key elements of passing off
The elements of passing off are that:
- the plaintiff must be entitled to the goodwill attached to certain goods or services
- the defendant must have made a misrepresentation in trade
- the misrepresentation must be likely to cause harm to the plaintiff by misappropriating the plaintiff’s goodwill.
An organisation is generally entitled to the goodwill in the goods or services that it produces or supplies.
In the context of passing off, the defendant’s misrepresentation may include the use of the plaintiff’s name, product get-up or style (for example, if another person uses another organisation’s name or logo for its own goods or services). People and organisations making misleading claims that another organisation endorses their products often commit the tort of passing off.
Diversion of custom, prejudice to reputation, loss of opportunity to expand and loss of licensing opportunity are a few examples of potential damage.
The plaintiff does not have to prove that the defendant intended to mislead in order to obtain a remedy in passing off. However, this is a factor that the Court takes into account in deciding whether or not to grant a remedy.
When the plaintiff and defendant have concurrent rights
A defendant is not liable if it can establish that it has some pre-existing goodwill in the name or mark in question.
However, it is not legitimate for a defendant to expand its business into a different field already occupied by the plaintiff, or to restart an abandoned business under a name or mark that has meanwhile become distinctive of the plaintiff.
Acquiescence
A plaintiff cannot succeed in a claim for passing off if it was aware that the defendant was using its name or mark and directly or indirectly encouraged the defendant to do so.
Remedies for passing off
Damages
Usually the amount of money awarded in damages for passing off is the amount required to put the plaintiff in the same position he or she would have been in had the passing off not happened. Exemplary (or punitive) damages may also be awarded.
Usually damages will not be awarded if the defendant can establish that the passing off was not intentional.
Account of profits
This is a monetary award similar to damages, but requires the defendant to pay the plaintiff the profits that the defendant has made as a result of the passing off. The plaintiff cannot claim both damages and account of profits and must usually make a choice about which remedy to pursue. If the defendant can establish that the passing off was not intentional, an account of profits will not be awarded.
Injunction
This is a Court order requiring the defendant to do something or not do something. Often the defendant will be required to hand over to the Court any offending articles, such as advertising material or goods bearing the infringing name or mark.
Criminal offences
The general criminal law
All organisations are subject to the general criminal law. Criminal offences arise from a large number of Acts of Parliament and the common law. Organisations must not do things that, if done by an individual, would amount to a criminal offence. If they do, the organisation and possibly people in positions of responsibility within it can be held criminally liable.
Criminal nuisance
When organising a public event, organisations must understand the potential liabilities they face for prosecution under the Crimes Act for criminal nuisance.
A person can be prosecuted for a criminal nuisance if:
- they commit an unlawful act (whether it’s a breach of the civil or criminal law) or omit to perform a legal duty, and
- they know that, or are reckless about whether their act or omission would endanger the lives, safety or health of any individual or the public.
In New Zealand, two cases highlight the potential for prosecution for criminal nuisance:
- Motor Sport New Zealand was prosecuted after a crash during a Queenstown motor race in which two spectators were killed. Motor Sport had issued a permit for the event even though it did not comply with motor sport rules.
- Astrid Anderson, organiser of Le Race 2001 (a cycle race) on Banks Peninsula, was prosecuted after a participant was killed. The Crown claimed she had failed to take the reasonable precautions expected of an event organiser and use reasonable care to avoid danger to participants. The conviction was overturned on appeal.
Resources
Other topics on this site
Websites
- www.lawaccess.lsa.govt.nz
This website offers a catalogue of law-related information resources, with over 140 New Zealand organisations listing their resources on the site.
Article printed from Keeping It Legal E Ai Ki Te Ture
URL to article: http://www.keepingitlegal.net.nz/learn-more/torts-criminal-offences/