Quotation
Australian law regarding intentional torts has lost its way. Reform opportunities to overcome two significant shortcomings continue to be missed. The coherency of trespass torts would be greatly enhanced if (1) the burden of proof always stayed with the party alleging unlawful interference (or as Kirby P succinctly put it: ‘those who assert must prove’ ) and (2) if the action in negligent trespass was abandoned. Regrettably, in Australia the defendant always has the burden of disproving fault in battery and the nonsensical negligent trespass action remains available despite the existence of the separate monolithic tort of negligence.
The famous torts scholar Professor John Fleming opined that the reluctance of judges to reform the long-established burden on defendants to disprove fault in trespass to the person actions is best explained by ‘a misplaced cult of historicism’. NSW Supreme Court justices are fond of clinging to old ways. For example, in 1972 Jacobs JA wrote:
Nothing more has ever been required in an action based on trespass than an allegation of the battery and it is too late in the day to change this now. … Can we … say that the play has [for centuries] been played wrongly and according to a bad script? I think not.
Yet long ago Lord Atkin told us what to do when old forms of action stand in the way of sensible and logical progress:
When these ghosts of the past stand in the path of justice, clanking their medieval chains, the proper course for the judge is to pass through them undeterred.
Your task (35 marks)
1. With reference to a NSW Supreme Court case, explain how the issue of fault currently operates in the tort of battery. (8 marks)
2. Responding critically to the assertions in the quotation, and drawing on an illustrative real or hypothetical case (for each of part a and b), provide your reasoned view about:
a. whether the plaintiff should bear the burden of proving fault in trespass torts; (12 marks) and
b. the merits of abandoning negligent battery as a course of action. (15 marks)
Note: Ensure you provide full citations for cases and literature.
Law of Torts 2022 Assignment assessment criteria
Poor Basic Good Very good Excellent
Criterion 1
Identification and understanding of relevant legal and theoretical issues
Fails to adequately identify the key issues
raised by the question
Misunderstands question or answers a different question Demonstrates basic understanding of important
concepts/issues
May stray off topic or miss some aspects Outlines a good understanding of most important concepts,
including legal material
Builds an argument in response Strong understanding of all important concepts
and cases evident
Responds strongly and clearly to set tasks Thorough understanding of all important concepts and cases evident
Responds to the tasks strongly and at a more sophisticated level
Criterion 2
Evidence of analysis and critical thinking in relation to the issues Difficulty in
developing ideas; fails to apply critical
thinking skills; does not respond adequately to set
tasks Some evidence of developing ideas; some effort to critically analyse material Demonstrates critical thinking skills in analysis of material and reasonable development of ideas Good development
of ideas;
demonstrates
competency in
critical analysis of material. Some arguments need more balance, or more depth in development Strong development of ideas; strong critical component to analysis of material; with appropriate
examples and reasoning utilised
Criterion 3
Quality and thoroughness of research Does not meet research expectations
Over-reliance on a limited number of sources;
inappropriate sources / non-scholarly sources Uses sources beyond the text, which are appropriate and scholarly
Some effort made at incorporating research Uses a range of appropriate and
scholarly sources
Uses the research to support arguments Incorporates a varied range of academic research; demonstrates engagement with the research to support and create solid arguments Incorporates extensive, relevant academic research; Clear demonstration of high level engagement with the research, reflected in the quality of arguments
Criterion 4
Appropriate referencing, including compliance with
AGLC Inadequate or incorrect referencing, poor compliance with
AGLC Basic use of AGLC, including proper
acknowledgment
of all sources but some
oversights/errors Generally accurate use of AGLC, including proper
acknowledgment of all sources Thorough knowledge of AGLC, including proper
acknowledgment of all sources Excellent use of AGLC, including proper acknowledgment of all sources
Criterion 5
Clear and concise written expression Writing skills not at expected standard. Answer may be unclear because of poor sentence construction, disjointed/ repetitive structure, wrong or inappropriate terminology, lacking specificity of detail Adequate writing
skills that
communicate answer. Some use of appropriate legal terminology. Some weaknesses eg in sentence structure
or structure of argument; repetition Competent writing
skills; correct use of legal terminology. Generally strong structure to answer Skills of a high standard. Clearly written and well structured. Confident use of legal terminology, although written in plain English Skills of a high standard: clearly written, well structured, sophisticated language with confident use of legal terminology, although written in plain
English
Criterion 6
Delivery of a persuasive argument in relation to the issues raised by the topic including quality of evidence, reasoning,
illustrations and examples Lacking any real argument in response to the topic. Content is mainly descriptive and/ or appears to be uninformed by readings, class discussion or research. Missed some key issues and arguments. Arguments not fully developed or supported; some arguments not clearly articulated. Lacking in persuasion. Most common arguments addressed, but room for improvement in their persuasiveness and level of depth of argument. Arguments generally persuasive and appropriately supported. Some arguments need more balance in perspectives, or more depth in development. Thoroughly persuasive argument, with appropriate egs and reasoning utilised. Understanding of different perspectives and issues cogently argued.
Criterion 7
Conformity with page length and formatting Fails to comply with formatting &/or page
length
Complies with specified requirements, as outlined in the set task and/or the School of Law General
Advice Guide
NOTE: criteria are not evenly weighted