Clouds are cobwebbed across the sky and the air fizzes with Friday-afternoon relief. The parents stand in circles, supervising from a distance.
I follow the other girls to the red clothing bin. I watch as Saanvi* and Charlie* manoeuvre
themselves to the top. I follow behind, evaluating every foothold. The bin clangs and echoes as I dangle my legs over the side.
At the other end of the grass, two boys are playing. The older boy, Tim*, is in my year. The
younger is my brother, Elijah. He is six-years-old, still with baby cheeks and frantic limbs. He delights in Tim’s brotherly attention, and shrieks with the release of suppressed energy.
Charlie goes to jump from the clothing bin. I lean over the edge. “I’m not sure,” I tell her.
The ground stretches out about a metre from the top of the bin. “Don’t be scared,” Charlie says.
At the other end of the grass, Elijah tells Tim to race him to the clothing bin. Charlie looks at me directly. I see her pale blue eyes, the small scar above her eyebrow.
“Don’t think. Just do.”
Charlie jumps off the clothing bin, just as Elijah sprints past. He is knocked to the ground
“It felt … crushing,” he tells me now. We sit in my bedroom, seven years after the incident.
Elijah tells me that he remembers collapsing in pain, then looking up to see a circle of faces
crowding around him.
He was taken to Westmead Children’s Hospital. I remember sitting in a doctor’s room with
him. My sister and I sat on the bed, Elijah lay on our mother’s lap. I remember the doctor pointing to the X-Ray on the screen. A thin line curved around Elijah’s lower leg. A spiral fracture.
“I should have sued her,” he tells me now, with a laugh. He looks at me for confirmation. I
have explained to him how this incident is an example of the tort of battery, a concept I have learned in the first year of my law degree at the University of Sydney.
The law that governs civil interactions––tort law––has developed through a combination of
legislation and judicial decisions. There are various kinds of torts, each dealing with a different type of harm that occurs outside of criminal wrongdoing or breach of contract.
I find that law, particularly tort law, represents a formal recognition of what most people
would regard as obvious standards of conduct. For example, battery recognises that one cannot violate another person’s bodily autonomy by touching them without consent.
Law is not merely concerned with stating these seemingly common sense rules; it is
concerned with identifying the underlying principles of social conduct, and articulating them in the form of a legal test or concrete rule.
It was once held that to establish a battery there had to be an element of hostility. However, in a 2001 case called Rixon v Star City, Justice Sheller outlined a number of situations that would be unlawful without being hostile: “a prank that gets out of hand; an over-friendly slap on the back; surgical treatment by a surgeon who mistakenly thinks that the patient has consented to it”.
In this case, he articulated that the rule for determining whether an action is a battery is whether it is a nonconsensual, direct touch which falls outside of what is “generally acceptable in the ordinary conduct of daily life”.
Jumping off a clothing bin onto someone is obviously not conduct acceptable in daily life.
Of course, Charlie did not mean to injure my brother. She was an eleven-year-old at a park, who made an ill-timed decision.
The fact that Charlie did not intend to break my brother’s leg would once have meant she
couldn’t have been held responsible for his injury. However, in a 2016 case called Croucher v Cachia, the court recognised that a battery can occur where the defendant has been negligent; that is, where they have failed to exercise reasonable care.
If Charlie had paused to look at the ground before leaping from the bin, the accident may well have been avoided. Technically, she could be sued. However, given that tort law is primarily concerned with awarding compensation, pursuing a claim against her would be pointless.
The situation with Charlie is a perfect example of how the theoretical application of the law often conflicts with its practical implications. It is unlikely that an 11-year-old would be able to provide any substantial compensation, and legal fees would most likely dwarf any payout.
When I got home from university my father introduced me to his friend. The man makes small talk in between taking shots on the pool table. He forms a triangle with his legs, holding the cue vertically. He asks me what I’m doing now I’ve finished school. I tell him about the law degree.
“My daughter’s doing law,” he says. “What topic are you studying right now?”
“Torts,” I answer.
“Ahh, the one that everybody hates.”
I laugh, and tell him I find this topic quite interesting. “I like that you can see the real world application of it everywhere.”
Indeed, it seems now, torts are everywhere I look. On the news, on the road, in everyday
conversation. One of the most commonly talked about torts is negligence. It is important to distinguish between the tort of negligence, and doing something negligently. The former is a defined tort, the latter describes how someone may do something carelessly.
I learn that there are three elements to the tort of negligence: duty of care, breach, and
causation. I find duty of care the most interesting. I am fascinated by the way the law recognises and classifies the relationships we form in our daily lives.
“I didn’t order Nacho fries, and at any rate, I didn’t order a hair!”
It is a Friday night at the end of semester. My sister is on the phone to the manager. Her
take-away order sits uneaten on the dining table. Amongst the chicken and the clumpy green guacamole glisten three thin, dark hairs.
“Duty of care!” I cry. “Donoghue v Stevenson!”
This is one of the most famous cases when it comes to duty of care. In 1932 a woman drank from a bottle of ginger beer which contained the remnants of a decomposed snail. She became violently ill.
In the subsequent legal action, the court established that the manufacturer of the ginger
beer owed her a duty of care. This case laid the foundation for a body of law that recognises a duty to people so ‘closely and directly’ related to one’s conduct that it should be foreseeable that they would be affected by one’s actions.
In my sister’s case, the restaurant owed her a duty of care because as a customer, she is easily identifiable as one of a ‘class of persons’ who would be affected by poor food safety measures.
The manager offers my sister a complimentary meal and their sincerest apologies. A week
later she comes home vindicated and enjoys her hairless meal.
Often, torts can be dealt with outside of court, with an apology or some simple form of
compensation. But where this fails, I find it reassuring to know how tort law provides a framework for organising social responsibility.
I remember the drive home from the hospital. Traffic lights and neon signs illuminated the
quiet streets. It was after 10pm. Elijah’s leg was stretched out across the back seat. Salt tingled on my bottom lip as I shovelled McDonald’s chips into my mouth.
“What a way to end the week!” my mother sighed.
“I was not expecting that to happen today!” my sister said.
“No,” said my mother, “but I suppose no one ever expects to end up in the emergency room.”
Tort law is like that emergency room; a legal safety net for the inevitable but unpredictable
incidents of daily life.