THE LAW OF TORTSTHE LAW OF TORTS

WEEKEND SCHOOL 1WEEKEND SCHOOL 1

THE LECTURE STRUCTURETHE LECTURE STRUCTURE

•Texts•Definition, aims and scope of law of torts

•Intentional torts

TEXT BOOKSTEXT BOOKS

• Dominic Villa Dominic Villa Annotated Civil Liability Act Annotated Civil Liability Act Lawbook Co.Lawbook Co.

• Balkin and Davis Balkin and Davis The Law of Torts The Law of Torts 5 5thth Ed Ed LexisNexis (2013)LexisNexis (2013)

• Luntz & Hambly, Torts - Cases and Commentary, 7th ed. LexisNexis, (2013)

• Blay, Blay, Torts in a Nutshell Torts in a Nutshell LBC (2010)LBC (2010)

WHAT IS A TORT?WHAT IS A TORT?

•A tort is a A tort is a civilcivil wrong wrong•That (wrong) is based a That (wrong) is based a breach of a duty breach of a duty imposed by imposed by lawlaw

•Which (breach) gives rise to a Which (breach) gives rise to a (personal) civil right of action (personal) civil right of action for for for a remedy not for a remedy not exclusiveexclusive to another area of to another area of lawlaw

THE THE DIFFERENCE DIFFERENCE BETWEEN A TORT AND A BETWEEN A TORT AND A

CRIMECRIME•A crime is A crime is public /communitypublic /community wrong that wrong that

gives rise to sanctions usually gives rise to sanctions usually designated in a specified code. A tort is a designated in a specified code. A tort is a civil civil ‘‘privateprivate’’ wrong. wrong.

•Action in criminal law is Action in criminal law is usually brought usually brought by the state or the Crownby the state or the Crown. Tort actions . Tort actions are usually brought by the victims of the are usually brought by the victims of the tort.tort.

• The principal objective in criminal law The principal objective in criminal law is is punishmentpunishment. In torts, it is. In torts, it is compensationcompensation

THE THE DIFFERENCE DIFFERENCE BETWEEN A TORT AND A BETWEEN A TORT AND A

CRIMECRIME• Differences in Procedure:Differences in Procedure:

– Standard of ProofStandard of Proof» Criminal law: beyond Criminal law: beyond reasonable doubtreasonable doubt

»Torts: on the balance of Torts: on the balance of probabilitiesprobabilities

TORTS and CRIMETORTS and CRIME

TORTSTORTS

• A civil action A civil action • Brought by the Brought by the

victim victim • To provide a remedyTo provide a remedy

• Remedy: Remedy: compensationcompensation

• Proof: balance of Proof: balance of probabilitiesprobabilities

CRIMECRIME

• A criminal actionA criminal action• Brought by the Brought by the

CrownCrown• To punish the To punish the

perpetratorperpetrator• Remedy: Remedy:

punishmentpunishment• Proof: beyond Proof: beyond

reasonable doubtreasonable doubt

SIMILARITIES BETWEEN SIMILARITIES BETWEEN TORTS AND CRIMETORTS AND CRIME

• They both arise from wrongs They both arise from wrongs imposed by lawimposed by law

• Certain crimes are also actionable Certain crimes are also actionable torts; eg trespass: assaulttorts; eg trespass: assault

• In some cases the damages in torts In some cases the damages in torts may be punitivemay be punitive

• In some instances criminal law may In some instances criminal law may award compensation under award compensation under criminal injuries compensation criminal injuries compensation legislation.legislation.

TORTS DISTINGUISHED FROM TORTS DISTINGUISHED FROM BREACH OF CONTRACTBREACH OF CONTRACT

•A breach of contract arises A breach of contract arises from promises made by the from promises made by the parties themselves.parties themselves.

TORTS and CONTRACTTORTS and CONTRACT

TORTSTORTS• Duty owed generallyDuty owed generally• Duty imposed by Duty imposed by

lawlaw•   promises or promises or

agreementagreement• Protects what is Protects what is

already owned or already owned or possessedpossessed

• Damages Damages unliquidatedunliquidated

CONTRACTCONTRACT• Duty to other Duty to other

contracting partycontracting party• Duty arises from Duty arises from

parties'parties'• Protects Protects

expectation of expectation of future benefitsfuture benefits

• Damages often Damages often liquidatedliquidated

SIMILARITIES BETWEEN TORT SIMILARITIES BETWEEN TORT AND CONTRACTAND CONTRACT

•Both tort and breach of Both tort and breach of contract give rise to civil contract give rise to civil suitssuits

•In some instances, a breach In some instances, a breach of contract may also be a of contract may also be a tort: eg an employertort: eg an employer’’s s failure to provide safe failure to provide safe working conditionsworking conditions

THE OBJECTIVES OF TORT THE OBJECTIVES OF TORT LAWLAW

• Loss distribution/adjustment: shifting Loss distribution/adjustment: shifting losses from victims to perpetratorslosses from victims to perpetrators

• Compensation: Through the award of Compensation: Through the award of (pecuniary) damages(pecuniary) damages–The object of compensation is to place The object of compensation is to place the victim in the position he/she was the victim in the position he/she was before the tort was committedbefore the tort was committed..

• Punishment: through exemplary or Punishment: through exemplary or punitive damages. This is a secondary punitive damages. This is a secondary aim.aim.

INTEREST PROTECTED AND INTEREST PROTECTED AND

RELEVANT ACTIONSRELEVANT ACTIONSINTERESTINTEREST• Personal SecurityPersonal Security

• ReputationReputation• PropertyProperty

• LibertyLiberty• Mental tranquilityMental tranquility• Abuse of Abuse of

legal processlegal process• Financial InterestFinancial Interest

TORTTORT• Trespass, NegligenceTrespass, Negligence

• DefamationDefamation• Trespass, Negligence, Trespass, Negligence,

Conversion, DetinueConversion, Detinue• False ImprisonmentFalse Imprisonment• Nervous shock, Nervous shock,

Wilkinson v DowntownWilkinson v Downtown• Malicious prosecutionMalicious prosecution• Negligence ( pure Negligence ( pure

financial loss)financial loss)

SOURCES OF TORT LAWSOURCES OF TORT LAW

•Common Law:Common Law:– The development of torts by precedent The development of torts by precedent

through the courtsthrough the courts» Donoghue v StevensonDonoghue v Stevenson

•Statute:Statute:– Thematic statutes: eg Motor Accidents Thematic statutes: eg Motor Accidents

legislationlegislation» Motor Accidents Compensation Act 1999Motor Accidents Compensation Act 1999

– General statutes: eg Civil Liability legislationGeneral statutes: eg Civil Liability legislation» The Civil Liability Act (NSW) 2002The Civil Liability Act (NSW) 2002

LIABILITY IN TORT LAWLIABILITY IN TORT LAW

• Liability = responsibilityLiability = responsibility• Liability may be based on Liability may be based on faultfault or it may or it may

be be strictstrict• Fault liability: the failure to live up to a Fault liability: the failure to live up to a

standard through an act or omission .standard through an act or omission .• Types of fault liability:Types of fault liability:

NEGLIGENCE INTENTION

FAULT LIABILITY

Intention in TortsIntention in Torts

•Deliberate or wilful conductDeliberate or wilful conduct• ‘‘ConstructiveConstructive’’ intent: where intent: where

the consequences of an act the consequences of an act are substantially certain: the are substantially certain: the consequences are intendedconsequences are intended

•Where conduct is recklessWhere conduct is reckless•Transferred intent: where D Transferred intent: where D

intends to hit intends to hit ‘‘BB ’’ but misses but misses and hits and hits ‘‘PP ’’

Negligence in TortsNegligence in Torts

•When D is When D is carelesscareless in in his/her conducthis/her conduct

•When D fails to take When D fails to take reasonable carereasonable care to avoid to avoid a a reasonably foreseeable reasonably foreseeable injuryinjury to another and to another and that party suffers that party suffers damage.damage.

STRICT LIABILITYSTRICT LIABILITY

•No No faultfault is required for is required for strict liabilitystrict liability

ACTIONS IN TORT LAWACTIONS IN TORT LAW

• TrespassTrespass–Directly caused injuriesDirectly caused injuries–Requires no proof of damage Requires no proof of damage ( actionable ( actionable per seper se))

•Action on the Case/NegligenceAction on the Case/Negligence– Indirect injuriesIndirect injuries–Requires proof of damageRequires proof of damage

INTENTIONAL TORTSINTENTIONAL TORTS

• INTENTIONAL TORTS

Trespass Conversion Detinue

WHAT IS TRESPASS?WHAT IS TRESPASS?

• Intentional Intentional act of D which act of D which directlydirectly causes an injury to causes an injury to the the P or his /her propertyP or his /her property without lawful justificationwithout lawful justification

•The Elements of Trespass:The Elements of Trespass:– fault: fault: intentional intentional actact– injuryinjury* must be caused * must be caused directlydirectly– injury* may be to the P or to his/her injury* may be to the P or to his/her

propertyproperty– No No lawful justificationlawful justification

THE GENERAL ELEMENTS THE GENERAL ELEMENTS OF TRESPASS: The ‘DNA’OF TRESPASS: The ‘DNA’

Intentionalact

“x” element

Direct interference with person or property

Absence of lawfuljustification+ +

+=

A specificform of trespass

SPECIFIC FORMS OF SPECIFIC FORMS OF TRESPASSTRESPASS

TRESPASSTRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT

BATTERYBATTERY

• TheThe intentional act intentional act of D of D which which directlydirectly causes a causes a physical interferencephysical interference with with the body of P the body of P without lawful without lawful justificationjustification

•The distinguishing element: The distinguishing element: physical interference physical interference with with P’s bodyP’s body

THE INTENTIONAL ACT IN THE INTENTIONAL ACT IN BATTERYBATTERY

• No liability No liability without without intentionintention

• The intentional act = basic The intentional act = basic willful act + the willful act + the consequences.consequences.

THE ACT MUST CAUSE THE ACT MUST CAUSE PHYSICAL INTERFERENCEPHYSICAL INTERFERENCE

• The essence of the tort is the protection The essence of the tort is the protection of the person of Pof the person of P. D’s act short of . D’s act short of physical contact is therefore not a batteryphysical contact is therefore not a battery

•The least touching of another could The least touching of another could be batterybe battery– Cole Cole vv Turner Turner (dicta per Holt CJ)(dicta per Holt CJ)

• ‘‘The fundamental principle, plain The fundamental principle, plain and incontestable, is that every and incontestable, is that every person’s body is inviolate’ ( per Goff person’s body is inviolate’ ( per Goff LJ, LJ, Collins v Wilcock)Collins v Wilcock)

Rixon v Star City Casino Rixon v Star City Casino

•D places hand on P’s shoulder D places hand on P’s shoulder to attract his attention; no to attract his attention; no batterybattery

Collins v Wilcock Collins v Wilcock

• Police officer holds D’s arm with a Police officer holds D’s arm with a view to restraining her when D view to restraining her when D declines to answer questions and declines to answer questions and begins to walk away; batterybegins to walk away; battery

SHOULD THE PHYSICAL SHOULD THE PHYSICAL INTERFERENCE BE HOSTILE?INTERFERENCE BE HOSTILE?

•Hostility may establish a Hostility may establish a presumption of battery; butpresumption of battery; but

•Hostility is not material to Hostility is not material to proving batteryproving battery

•The issue may revolve on how The issue may revolve on how one defines ‘hostility’one defines ‘hostility’

THE INJURY MUST BE THE INJURY MUST BE CAUSED DIRECTLYCAUSED DIRECTLY

• Injury should be the immediateInjury should be the immediate The Case Law:The Case Law:– Scott Scott v v Shepherd Shepherd ( Lit ( Lit

squib/fireworks in market place)squib/fireworks in market place)

– Hutchins Hutchins vv Maughan Maughan( poisoned ( poisoned bait left for dog)bait left for dog)

– Southport Southport vv Esso Esso PetroleumPetroleum(Spilt oil on P’s beach)(Spilt oil on P’s beach)

THE ACT MUST BE THE ACT MUST BE WITHOUT LAWFUL WITHOUT LAWFUL

JUSTIFICATIONJUSTIFICATION• Consent is Lawful justificationConsent is Lawful justification• Consent must be freely given by Consent must be freely given by

the P if P is able to understand the P if P is able to understand the nature of the actthe nature of the act– Allen v New Mount Sinai HospitalAllen v New Mount Sinai Hospital

• Lawful justification includes the Lawful justification includes the lawful act of law enforcement lawful act of law enforcement officersofficers

TRESPASS:ASSAULTTRESPASS:ASSAULT

• The The intentional act or intentional act or threatthreat of D which of D which directlydirectly places P in places P in reasonable reasonable apprehension of an apprehension of an imminent physical imminent physical interferenceinterference with his or with his or her person or of someone her person or of someone under his or her control under his or her control

TRESPASS:ASSAULTTRESPASS:ASSAULT

• The The intentional act or threatintentional act or threat of D of D which which directlydirectly places P in places P in reasonable reasonable apprehension of an imminent apprehension of an imminent physical interferencephysical interference with his or her with his or her person or of someone under his or person or of someone under his or her controlher control

• It is any act — It is any act — and not a mere and not a mere omission to act omission to act — by which a person — by which a person intentionallyintentionally — or — or recklesslyrecklessly — causes — causes another to apprehend immediate and another to apprehend immediate and unlawful violence: unlawful violence:

The Gist of the ActionThe Gist of the Action

• ……Assault necessarily involves the Assault necessarily involves the apprehension of injury or the apprehension of injury or the instillation of fear or frightinstillation of fear or fright. It . It does not necessarily involve does not necessarily involve physical contact with the person physical contact with the person assaulted: nor is such physical assaulted: nor is such physical contact, if it occurs, an element contact, if it occurs, an element of the assault. (Barwick CJ in of the assault. (Barwick CJ in The The Queen v PhillipsQueen v Phillips (1971) 45 ALJR (1971) 45 ALJR 467 at 472 467 at 472

THE ELEMENTS OF THE ELEMENTS OF ASSAULTASSAULT

• There must be a direct threat:There must be a direct threat:– Hall v Fonceca (Hall v Fonceca (Threat by P who shook hand in Threat by P who shook hand in

front of D’s face in an argument)front of D’s face in an argument)– Barton v DavisBarton v Davis

• In general, In general, mere wordsmere words are may not actionable are may not actionable– Barton Barton v v Armstrong Armstrong

• But mere silence as in silent telephone calls, But mere silence as in silent telephone calls, may constitute an assault: may constitute an assault: R v Burstow; R v Burstow; R v IrelandR v Ireland [1998] AC 147. [1998] AC 147.

• In general, conditional threats are not actionableIn general, conditional threats are not actionable– Tuberville Tuberville v v SavageSavage– Police Police v v Greaves Greaves

• The apprehension must be The apprehension must be reasonable; the test is objectivereasonable; the test is objective

• The interference must be The interference must be imminentimminent– -Police-Police vv Greaves Greaves– Barton Barton v v Armstrong Armstrong

Zanker v Vartzokas (Zanker v Vartzokas (P jumps out of a P jumps out of a moving van to escape from D’s moving van to escape from D’s unwanted lift)unwanted lift)

THE ELEMENTS OF ASSAULTTHE ELEMENTS OF ASSAULT

Zanker v Vartzokas Zanker v Vartzokas and and the issue of the issue of

imminence/immediacy imminence/immediacy • The Facts:The Facts:

– Accused gives a lift to victim and Accused gives a lift to victim and offers money for sex; victim refuses.offers money for sex; victim refuses.

– Accused responds by accelerating Accused responds by accelerating car, Victim tries to open door, but car, Victim tries to open door, but accused increases accelerationaccused increases acceleration

– Accused says to victim: I will take you Accused says to victim: I will take you to my mates house. He will really fix to my mates house. He will really fix you upyou up

– Victim jumps from car then travelling Victim jumps from car then travelling 60km/h 60km/h

ZZaanker v Vartzokasnker v Vartzokas: The : The IssuesIssues

• Was the victim’s fear of Was the victim’s fear of sexual assault sexual assault in the in the futurefuture reasonable? reasonable?

•Was the feared harm Was the feared harm immediate enough to immediate enough to constitute assault? constitute assault?

Zanker v VartzokasZanker v Vartzokas: The : The ReasoningReasoning

• Where the victim is held in place and Where the victim is held in place and unable to escape the immediacy unable to escape the immediacy element may be fulfilled.element may be fulfilled.

• The essential factor is imminence The essential factor is imminence not contemporaneitynot contemporaneity

• The exact moment of physical harm The exact moment of physical harm injury is known to the aggressorinjury is known to the aggressor

• It remains an assault where victim It remains an assault where victim is powerless to stop the aggressor is powerless to stop the aggressor from carrying out the threatfrom carrying out the threat

THE GENERAL ELEMENTS THE GENERAL ELEMENTS OF TRESPASSOF TRESPASS

Intentional act

“x” element

Direct interference Absence of lawfuljustification+ +

+=

A specificform of trespass

SPECIFIC FORMS OF SPECIFIC FORMS OF TRESPASSTRESPASS

TRESPASSTRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT

FALSE FALSE IMPRISONMENTIMPRISONMENT

• The The intentionalintentional actact of D of D which which directly directly causes the causes the total restraint total restraint of P and of P and thereby confines him/her to thereby confines him/her to a delimited area a delimited area without without lawful justificationlawful justification

• The essential distinctive The essential distinctive element is the element is the total restrainttotal restraint

THE ELEMENTS OF THE ELEMENTS OF THE TORT THE TORT

• It requires all the basic It requires all the basic elements of trespass:elements of trespass:– Intentional actIntentional act– DirectnessDirectness

– absence of lawful absence of lawful justification/consent justification/consent , , andand

• total restrainttotal restraint

RESTRAINT IN FALSE RESTRAINT IN FALSE IMPRISONMENTIMPRISONMENT

• The restraint must be The restraint must be totaltotal– Bird Bird v v Jones Jones (passage over bridge(passage over bridge))

– Rudduck v VadarlisRudduck v Vadarlis– The Balmain New Ferry Co v RobertsonThe Balmain New Ferry Co v Robertson

• Total restraint implies the absence of a Total restraint implies the absence of a reasonable means of escapereasonable means of escape– Burton Burton v v Davies Davies (D refuses to allow P out of car)(D refuses to allow P out of car)

• Restraint may be total where D subjects P to Restraint may be total where D subjects P to his/her authority with no option to leavehis/her authority with no option to leave– Symes Symes v v Mahon Mahon (police officer arrests P by (police officer arrests P by

mistake)mistake)

VOLUNTARY CASESVOLUNTARY CASES

• In general, there is no FI where one In general, there is no FI where one voluntarily submits to a form of voluntarily submits to a form of restraintrestraint– HerdHerd v v Werdale Werdale (D refuses to allow P out (D refuses to allow P out

of mine shaft)of mine shaft)– Robison Robison v v The Balmain New Ferry Co. The Balmain New Ferry Co. (D (D

refuses to allow P to leave unless P pays refuses to allow P to leave unless P pays fare)fare)

– Lippl Lippl v v HainesHaines

• Where there is no volition for Where there is no volition for restraint, the confinement may be FI restraint, the confinement may be FI ((Bahner Bahner v v Marwest Hotels Co.)Marwest Hotels Co.)

KNOWLEDGE IN KNOWLEDGE IN FALSE FALSE

IMPRISONMENTIMPRISONMENT•The knowledge of the P The knowledge of the P at the moment of at the moment of restraint is not essential.restraint is not essential.–Merring Merring v v Graham Graham White AviationWhite Aviation

–Murray Murray v v Ministry of Ministry of DefenseDefense

THE BURDEN OF PROOF IN THE BURDEN OF PROOF IN TRESPASSTRESPASS

•The traditional position in The traditional position in Common Law: Common Law: – The D bears the burden of disproving The D bears the burden of disproving

faultfault

•The Highway exceptionThe Highway exception– Off highway: D disproves faultOff highway: D disproves fault– In highway trespass: P proves faultIn highway trespass: P proves fault

TRESPASS TO TRESPASS TO PROPERTYPROPERTY

TRESPASS TO PROPERTYTRESPASS TO PROPERTY

LAND GOODS/CHATTELS

TRESPASS TO LANDTRESPASS TO LAND

• The The intentionalintentional of D of D which which directly directly interferes interferes with the with the plaintiff’s plaintiff’s exclusive exclusive possession of landpossession of land

THE NATURE OF THE THE NATURE OF THE TORTTORT

• Land includes the actual Land includes the actual soil/dirt, the soil/dirt, the structures/plants on it and structures/plants on it and the airspace above itthe airspace above it

• Cujus est solum ejus est Cujus est solum ejus est usque ad coelum et inferosusque ad coelum et inferos–Bernstein of LeighBernstein of Leigh v v Skyways & Skyways & General LtdGeneral Ltd

–Kelson v Imperial Tobacco Kelson v Imperial Tobacco

The Nature of D’s Act: A The Nature of D’s Act: A General NoteGeneral Note

• ...[E]very invasion of private property, ...[E]very invasion of private property, be it ever so minute, is a trespass. No be it ever so minute, is a trespass. No man can set his foot upon my ground man can set his foot upon my ground without my license, but he is liable to without my license, but he is liable to an action, though the damage be an action, though the damage be nothing.... If he admits the fact, he is nothing.... If he admits the fact, he is bound to show by way of justification, bound to show by way of justification, that some positive law has that some positive law has empowered or excused him ( empowered or excused him ( Entick v Entick v CarringtonCarrington (1765) 16 St Tr 1029, 1066) (1765) 16 St Tr 1029, 1066)

THE NATURE OF D’S ACTTHE NATURE OF D’S ACT

• The act must constitute The act must constitute some physical some physical interference which interference which disturbs P’s exclusive disturbs P’s exclusive possession of the landpossession of the land–Victoria Racing Co. v TaylorVictoria Racing Co. v Taylor–Barthust City Council v SabanBarthust City Council v Saban–Lincoln Hunt v WillesseLincoln Hunt v Willesse

THE NATURE OF THE THE NATURE OF THE PLAINTIFF’S INTEREST IN THE PLAINTIFF’S INTEREST IN THE

LANDLAND

• P must have P must have exclusive exclusive possession possession of the land of the land at the time of the at the time of the interference interference exclusion exclusion of all othersof all others

THE NATURE OF THE NATURE OF EXCLUSIVE EXCLUSIVE

POSSESSIONPOSSESSION• Exclusive possession is distinct Exclusive possession is distinct

from ownership. from ownership. • Ownership refers to Ownership refers to titletitle in the in the

land. Exclusive possession refers land. Exclusive possession refers to to physicalphysical holding of the land holding of the land

• Possession may be Possession may be immediateimmediate or or constructive constructive

•The nature of possession depends The nature of possession depends on the material possessedon the material possessed

EXCLUSIVE EXCLUSIVE POSSESSIONPOSSESSION: CO-: CO-

OWNERSOWNERS• In general, a co-owner In general, a co-owner cannot be liable in trespass in cannot be liable in trespass in respect of the land he/she respect of the land he/she owns; but this is debatable owns; but this is debatable where the ’trespassing’ co-where the ’trespassing’ co-owner is not in possession. owner is not in possession. ((Greig Greig v v GreigGreig))

•A co-possessor can maintain A co-possessor can maintain an action against a trespasser an action against a trespasser (Coles Smith v Smith and (Coles Smith v Smith and Ors)¯Ors)¯

THE POSITION OF THE POSITION OF TRESPASSERS AND TRESPASSERS AND

SQUATTERSSQUATTERS

• A trespasser/squatter A trespasser/squatter in exclusive possession in exclusive possession can maintain an action can maintain an action against any other against any other trespassertrespasser

THE POSITION OF THE POSITION OF LICENSEESLICENSEES

• A licensee is one who has the A licensee is one who has the permission of P to enter or permission of P to enter or use land (belonging to P)use land (belonging to P)

• A licensee is a party not in A licensee is a party not in possession, and can therefore possession, and can therefore not sue in trespass not sue in trespass

• A licensee for value however A licensee for value however may be entitled to suemay be entitled to sue(E.R. (E.R. Investments v Hugh) Investments v Hugh)

THE TRESPASSORY THE TRESPASSORY ACTACT

• Preventing P’s access Preventing P’s access Waters Waters v v Maynard)Maynard)

• The continuation of the initial The continuation of the initial trespassory act is a trespass trespassory act is a trespass ccontinuing trespassontinuing trespass

• Where D enters land for Where D enters land for purposes different from that purposes different from that for which P gave a license, for which P gave a license, D’s conduct may constitute D’s conduct may constitute ttrespass arespass ab initio b initio (Baker v (Baker v Crown)Crown)

THE POSITION OF THE POSITION OF POLICE OFFICERSPOLICE OFFICERS

• Unless authorized by law, Unless authorized by law, police officers have no police officers have no special right of entry into any special right of entry into any premises without consent of premises without consent of P. But see P. But see Halliday v NevilleHalliday v Neville

• A police officer charged with A police officer charged with the duty of serving a the duty of serving a summons must obtain the summons must obtain the consent of the party in consent of the party in possession (possession (Plenty v. Dillion Plenty v. Dillion ))

Police Officers; The Police Officers; The Common Law PositionCommon Law Position

•The poorest man may in his cottage The poorest man may in his cottage bid defiance to all forces of the bid defiance to all forces of the Crown. It may be frail- its roof may Crown. It may be frail- its roof may shake- the wind may blow through shake- the wind may blow through it- the rain may enter- but the King it- the rain may enter- but the King of England cannot enter- all his of England cannot enter- all his force dares not cross the threshold force dares not cross the threshold of the ruined tenement. So be it- of the ruined tenement. So be it- unless he has justification by law’. ( unless he has justification by law’. ( Southam v SmoutSoutham v Smout [1964] 1QB 308, [1964] 1QB 308, 320.320.

TRESPASS TO TRESPASS TO PROPERTYPROPERTY

TRESPASS TO PROPERTYTRESPASS TO PROPERTY

LAND GOODS/CHATTELS

TRESPASS TO TRESPASS TO PROPERTYPROPERTY

TRESPASS TO PROPERTYTRESPASS TO PROPERTY

LAND

• GOODS/CHATTELSGOODS/CHATTELS• Personal propertyPersonal property

TRESPASS TO TRESPASS TO GOODS/CHATTELGOODS/CHATTEL

• The The intentional/negligent intentional/negligent act of act of D which D which directly interferesdirectly interferes with with the plaintiff’s the plaintiff’s possessionpossession of a of a chattel chattel without lawful without lawful justificationjustification

• The P must have actual or The P must have actual or constructive possession at the constructive possession at the time of interference.time of interference.

•

DAMAGESDAMAGES

• It may not be actionable per It may not be actionable per se se (Everitt v Martin)(Everitt v Martin)

CONVERSIONCONVERSION

• The act of D in The act of D in relation to another’s relation to another’s chattel which chattel which constitutes an constitutes an unjustifiable denial of unjustifiable denial of his/her title his/her title

CONVERSION: Who CONVERSION: Who Can Sue?Can Sue?

• OwnersOwners• Those in possession or entitled Those in possession or entitled

to immediate possessionto immediate possession– Bailees*Bailees*– Bailors*Bailors*– Mortgagors* and Mortgagors* and Mortgagees*(Mortgagees*(Citicorp Australia Citicorp Australia v B.S. Stillwell)v B.S. Stillwell)

– Finders (Finders (Parker v British Parker v British Airways; Armory v DelmirieAirways; Armory v Delmirie))

ACTS OF ACTS OF CONVERSIONCONVERSION

• Mere asportation is no conversionMere asportation is no conversion– Fouldes v WilloughbyFouldes v Willoughby

• The D’s conduct must constitute an The D’s conduct must constitute an unjustifiable denial of P’s rights to the unjustifiable denial of P’s rights to the propertyproperty– Howard E Perry v British Railways BoardHoward E Perry v British Railways Board

• Finders of lost propertyFinders of lost property– Parker v British AirwaysParker v British Airways

• The position of the auctioneerThe position of the auctioneer– Willis v British Car AuctionsWillis v British Car Auctions

• Destruction of the chattel is conversion Destruction of the chattel is conversion – Atkinson v Richardson;Atkinson v Richardson;))

• Taking possessionTaking possession• Withholding possession Withholding possession

– Clayton v Le RoyClayton v Le Roy

ACTS OF CONVERSIONACTS OF CONVERSION

• Misdelivery ( Misdelivery ( Ashby v Ashby v Tolhurst Tolhurst (1937 2KB)(1937 2KB); Sydney ; Sydney City CouncilCity Council v v WestWest))

• Unauthorized dispositions Unauthorized dispositions in any manner that in any manner that interferes with P’s title interferes with P’s title constitutes conversion constitutes conversion ((Penfolds Wines v ElliottPenfolds Wines v Elliott))

DETINUEDETINUE

• Detinue: The wrongful Detinue: The wrongful refusal to tender goods refusal to tender goods upon demand by P, who is upon demand by P, who is entitled to possession It entitled to possession It requires a demand coupled requires a demand coupled with subsequent refusal with subsequent refusal ((General and Finance General and Finance Facilities v Cooks Cars Facilities v Cooks Cars (Romford)(Romford)

DAMAGES IN CONVERSION DAMAGES IN CONVERSION AND DETINUEAND DETINUE

• In conversion, damages In conversion, damages usuallyusually take the form of take the form of pecuniary compensationpecuniary compensation

• In detinue, the court may in appropriate In detinue, the court may in appropriate circumstances order the return of the chattelcircumstances order the return of the chattel

• Damages in conversion are calculated as at the Damages in conversion are calculated as at the time of conversion; in detinue it is as at the time of time of conversion; in detinue it is as at the time of judgment judgment – The MedianaThe Mediana– Butler v The Egg and Pulp Marketing BoardButler v The Egg and Pulp Marketing Board– The WinkfieldThe Winkfield– General and Finance Facilities v Cooks Cars General and Finance Facilities v Cooks Cars

(Romford)(Romford)

THE LAW OF TORTSTHE LAW OF TORTS

Action on the Case Action on the Case for Indirect Injuriesfor Indirect Injuries

INDIRECT INDIRECT INTENTIONAL INTENTIONAL

INJURIESINJURIES• ACTION ON THE CASEACTION ON THE CASE FOR PHYSICAL INJURIES FOR PHYSICAL INJURIES OR NERVOUS SHOCKOR NERVOUS SHOCK

•ACTION ON THE CASE ACTION ON THE CASE REFERS TO ACTIONS REFERS TO ACTIONS BASED ON INJURIES THAT BASED ON INJURIES THAT ARE CAUSED INDIRECTLY ARE CAUSED INDIRECTLY OR CONSEQUENTIALLYOR CONSEQUENTIALLY

INDIRECT INTENTIONAL INDIRECT INTENTIONAL INJURIES: CASE LAWINJURIES: CASE LAW

• Bird v Holbrook Bird v Holbrook (trap set (trap set in garden)in garden)–D is liable in an action on D is liable in an action on the case for damages for the case for damages for intentional acts which are intentional acts which are meant to cause damage to meant to cause damage to P and which in fact cause P and which in fact cause damage (to P)damage (to P)

THE INTENTIONAL THE INTENTIONAL ACTACT

• The intentional may be The intentional may be deliberate and preconceived(deliberate and preconceived(Bird Bird v Holbrook )v Holbrook )

• It may also be inferred or It may also be inferred or implied; the test for the implied; the test for the inference is objectiveinference is objective

• Wilkinson v DowntonWilkinson v Downton• Janvier v SweeneyJanvier v Sweeney•Nationwide News v NaiduNationwide News v Naidu

Action on the Case for Action on the Case for Indirect Intentional Harm: Indirect Intentional Harm:

ElementsElements• D is liable in an action on the case for D is liable in an action on the case for

damages for damages for intentional acts intentional acts which which are are meant to cause damage meant to cause damage to P and which to P and which in in fact cause damage fact cause damage to Pto P

• The elements of this tort:The elements of this tort:– The act must be intentionalThe act must be intentional– It must be one calculated to cause It must be one calculated to cause

harm/damageharm/damage– It must in fact cause harm/actual damageIt must in fact cause harm/actual damage

• Where D intends no harm from his act Where D intends no harm from his act but the harm caused is one that is but the harm caused is one that is reasonably foreseeable, D’s intention to reasonably foreseeable, D’s intention to cause the resulting harm can be cause the resulting harm can be imputed/impliedimputed/implied

THE SCOPE OF THE THE SCOPE OF THE RULERULE

• The rule does not cover The rule does not cover ‘pure’ mental stress or mere ‘pure’ mental stress or mere fright fright –Wainright v Home OfficeWainright v Home Office

• The act must be reasonably The act must be reasonably capable of causing mental capable of causing mental distress to a normal* person:distress to a normal* person:– Bunyan Bunyan vv Jordan Jordan– Stevenson Stevenson vv Basham Basham

The Future of the The Future of the Wilkinson v DowntownWilkinson v Downtown

• The High Court obiter dicta The High Court obiter dicta Magill v Magill v MagillMagill

– Subsequent developments in Anglo-Australian Subsequent developments in Anglo-Australian law recognise these cases as early examples of law recognise these cases as early examples of recovery by reference to imputed intention to recovery by reference to imputed intention to cause physical harm ; a cause of action later cause physical harm ; a cause of action later subsumed under the unintentional tort of subsumed under the unintentional tort of negligence ( Per Gummow, Kirby and Crennan JJ)negligence ( Per Gummow, Kirby and Crennan JJ)

– Wilkinson v DowntonWilkinson v Downton, decided in 1987 and , decided in 1987 and Janvier v Sweeney Janvier v Sweeney decided in 1919, which were decided in 1919, which were cases of deception causing nervous shock, would cases of deception causing nervous shock, would probably now be explained either on the basis of probably now be explained either on the basis of negligence or intentional infliction of personal negligence or intentional infliction of personal injury ( per Gleeson CJ)injury ( per Gleeson CJ)

ONUS OF PROOFONUS OF PROOF

• In Common Law, he who asserts provesIn Common Law, he who asserts proves• Traditionally, in trespass D was required to Traditionally, in trespass D was required to

disprove fault once P proved injury. Depending disprove fault once P proved injury. Depending on whether the injury occurred on whether the injury occurred onon or or offoff the the highway highway ( McHale v Watson; ( McHale v Watson; Venning v ChinVenning v Chin))

• The current Australian position is contentious The current Australian position is contentious but seems to support the view that in off but seems to support the view that in off highway cases D is required to prove all the highway cases D is required to prove all the elements of the tort once P proves injuryelements of the tort once P proves injury– Hackshaw v ShawHackshaw v Shaw– Platt v NuttPlatt v Nutt– See Blay; ‘Onus of Proof of Consent in an Action for See Blay; ‘Onus of Proof of Consent in an Action for

Trespass to the Person’ Vol. 61 ALJ (1987) 25Trespass to the Person’ Vol. 61 ALJ (1987) 25– But see McHugh J in See But see McHugh J in See Secretary DHCS v JWB and Secretary DHCS v JWB and

SMB (Marion’s Case) SMB (Marion’s Case) 1992 175 CLR 2181992 175 CLR 218

IMPACT OF THE CIVIL IMPACT OF THE CIVIL LIABILITY ACTLIABILITY ACT

• Section 3B Civil liability excluded from ActSection 3B Civil liability excluded from Act(1) The provisions of this Act do not apply (1) The provisions of this Act do not apply to or in respect of civil liability (and to or in respect of civil liability (and awards of damages in those proceedings) awards of damages in those proceedings) as follows:as follows:

(a) civil liability in respect of an (a) civil liability in respect of an intentional intentional act that is done with act that is done with intent to cause injury intent to cause injury or death or that or death or that is sexual assault or other is sexual assault or other sexual sexual misconduct – the whole Act except misconduct – the whole Act except Part Part 7 (Self-defence and recovery by 7 (Self-defence and recovery by criminals) in respect of civil liability in criminals) in respect of civil liability in respect of an intentional act that is done respect of an intentional act that is done with intent to cause injury or deathwith intent to cause injury or death

THE LAW OF TORTSTHE LAW OF TORTS

Defences to Intentional Defences to Intentional TortsTorts

INTRODUCTION: The INTRODUCTION: The Concept of DefenceConcept of Defence

• Broader Concept: The Broader Concept: The content of the Statement of content of the Statement of Defence- The response to Defence- The response to the P’s Statement of Claim-the P’s Statement of Claim-The basis for non-liabilityThe basis for non-liability

•Statement of Defence may Statement of Defence may contain:contain:

– DenialDenial– Objection to a point of lawObjection to a point of law– Confession and avoidance:Confession and avoidance:

MISTAKEMISTAKE

• An intentional conduct done An intentional conduct done under a misapprehensionunder a misapprehension

• Mistake is thus not the same Mistake is thus not the same as inevitable accidentas inevitable accident

• Mistake is generally not a Mistake is generally not a defence in tort law (defence in tort law ( Rendell v Rendell v Associated Finance Ltd, Symes Associated Finance Ltd, Symes v Mahonv Mahon) )

• ‘ ‘Mistake’ may go to proveMistake’ may go to prove

CONSENTCONSENT

• In a strict sense, consent is In a strict sense, consent is not a defence as such not a defence as such because in trespass, the because in trespass, the absence of consent is an absence of consent is an element of the tortelement of the tort– See: Blay; ‘Onus of Proof of Consent See: Blay; ‘Onus of Proof of Consent in an Action for Trespass to the in an Action for Trespass to the Person’ Vol. 61 ALJ (1987) 25Person’ Vol. 61 ALJ (1987) 25

– But McHugh J in See But McHugh J in See Secretary Secretary DHCS v JWB and SMB (Marion’s DHCS v JWB and SMB (Marion’s Case) Case) 1992 175 CLR 2181992 175 CLR 218

VALID CONSENTVALID CONSENT

• To be valid, consent must be To be valid, consent must be informed and procured without informed and procured without fraud or coercion: ( fraud or coercion: ( R R vvWilliamsWilliams;);)

• To invalidate consent, fraud To invalidate consent, fraud must relate directly to the must relate directly to the agreement itself, and not to an agreement itself, and not to an incidental issue: incidental issue: ((Papadimitropoulos v R Papadimitropoulos v R (1957) (1957) 98 CLR 249; 98 CLR 249; R v LinekarR v Linekar (the (the Times, 1994)Times, 1994)

CONSENT IN SPORTSCONSENT IN SPORTS

•http://www.youtube.com/watch?v=VgtKW5PLso4

•http://www.youtube.com/watch?v=W-BmKXU12yE

• Alex McKinnon has been diagnosed as Alex McKinnon has been diagnosed as a quadriplegic and warned by doctors a quadriplegic and warned by doctors he may never walk again after this he may never walk again after this tackle.tackle.

Jordan McLean was suspended for Jordan McLean was suspended for seven weeks after being found guilty seven weeks after being found guilty of a 'dangerous throw' on Newcastle of a 'dangerous throw' on Newcastle Knights player Alex Knights player Alex

• In contact sports, consent is In contact sports, consent is not necessarily a defence to not necessarily a defence to foul play (foul play (McNamara v McNamara v Duncan; Hilton v WallaceDuncan; Hilton v Wallace))

• To succeed in an action for To succeed in an action for trespass in contact sports trespass in contact sports however, the P must of however, the P must of course prove the relevant course prove the relevant elements of the tort.elements of the tort.– Giumelli v JohnstonGiumelli v Johnston

THE BURDEN OF THE BURDEN OF PROOFPROOF

• Since the absence of Since the absence of consent is a consent is a definitional element in definitional element in trespass, it is for the P trespass, it is for the P to prove absence of to prove absence of consent and not for consent and not for the D to prove consentthe D to prove consent

SELF DEFENCE, SELF DEFENCE, DEFENCE OF OTHERSDEFENCE OF OTHERS

• A P who is attacked or threatened A P who is attacked or threatened with an attack, is allowed to use with an attack, is allowed to use reasonable forcereasonable force to defend to defend him/herselfhim/herself

• In each case, the force used must In each case, the force used must be proportional to the threat; it be proportional to the threat; it must not be excessive. (Fontin v must not be excessive. (Fontin v Katapodis)Katapodis)

• D may also use reasonable force to D may also use reasonable force to defend a third party where he/she defend a third party where he/she reasonably believes that the party is reasonably believes that the party is being attacked or being threatened being attacked or being threatened

THE DEFENCE OF THE DEFENCE OF PROPERTYPROPERTY

• D may use D may use reasonable forcereasonable force to to defend his/her property if he/she defend his/her property if he/she reasonably believes that the reasonably believes that the property is under attack or property is under attack or threatenedthreatened

• What is reasonable force will What is reasonable force will depend on the facts of each depend on the facts of each case, but it is debatable whether case, but it is debatable whether reasonable force includes reasonable force includes ‘deadly force’ ‘deadly force’

PROVOCATIONPROVOCATION

• Provocation is not a Provocation is not a defence in tort law.defence in tort law.

• It can only be used to avoid It can only be used to avoid the award of exemplary the award of exemplary damages: damages: Fontin v Fontin v Katapodis; Downham Ballett Katapodis; Downham Ballett and Othersand Others

A Critique of the Current A Critique of the Current Position On ProvocationPosition On Provocation

• To discourage vengeance To discourage vengeance and retributive justiceand retributive justice

• The compensation The compensation theory argumenttheory argument

• The gender based thesisThe gender based thesis

The Case for Allowing The Case for Allowing the Defence of the Defence of

ProvocationProvocation• The relationship between The relationship between provocation and contributory provocation and contributory negligencenegligence

• The implication of counterclaimsThe implication of counterclaims•Note possible qualifications Note possible qualifications Fontin v KatapodisFontin v Katapodis to to: : – Lane v HollowayLane v Holloway– Murphy v CulhaneMurphy v Culhane– See Blay: See Blay: ‘‘Provocation in Tort Liability: A Provocation in Tort Liability: A Time for ReassessmentTime for Reassessment’’,QUT Law ,QUT Law Journal, Journal, Vol. 4 (1988) pp. 151-159.Vol. 4 (1988) pp. 151-159.

NECESSITYNECESSITY

• The defence is allowed The defence is allowed where an act which is where an act which is otherwise a tort is done otherwise a tort is done to save life or property: to save life or property: urgent situations of urgent situations of imminent perilimminent peril

Urgent Situations of Urgent Situations of Imminent PerilImminent Peril

• The situation must pose a threat to The situation must pose a threat to life or property to warrant the act: life or property to warrant the act: Southwark London B. Council v Southwark London B. Council v WilliamsWilliams

• The defence is available in very The defence is available in very strict circumstances R v Dudley and strict circumstances R v Dudley and StephensStephens

• D’s act must be reasonably D’s act must be reasonably necessary and not just convenient necessary and not just convenient Murray v McMurchyMurray v McMurchy – In re FIn re F– Cope v SharpCope v Sharp

INSANITYINSANITY

• Insanity is not a defence as Insanity is not a defence as such to an intentional tort. such to an intentional tort.

• What is essential is whether What is essential is whether D by reason of insanity was D by reason of insanity was capable of forming the capable of forming the intent to commit the tort. intent to commit the tort. ((White v Pile; Morris v White v Pile; Morris v MarsdenMarsden))

INFANTSINFANTS

• Minority is not a defence as Minority is not a defence as such in torts. such in torts.

•What is essential is whether What is essential is whether the D understood the nature the D understood the nature of his/her conduct (of his/her conduct (Smith v Smith v Leurs; Hart v AG of Leurs; Hart v AG of TasmaniaTasmania) )

DISCIPLINEDISCIPLINE

• PARENTSPARENTS– A parent may use reasonable A parent may use reasonable and moderate force to and moderate force to discipline a child. What is discipline a child. What is reasonable will depend on the reasonable will depend on the age, mentality, and physique age, mentality, and physique of the child and on the means of the child and on the means and instrument used. (R v and instrument used. (R v Terry)Terry)

ILLEGALITY:Ex turpi ILLEGALITY:Ex turpi causa non oritur actiocausa non oritur actio

• Persons who join in Persons who join in committing an illegal act committing an illegal act have no legal rights inter se have no legal rights inter se in relation to torts arising in relation to torts arising directly from that act.directly from that act.– Hegarty v ShineHegarty v Shine– Smith v JenkinsSmith v Jenkins– Jackson v HarrisonJackson v Harrison– Gala v PrestonGala v Preston