LAW OF TORTSWeekend Lecture 1A Lecturer: Greg Young greg.young@lawyer.com Definition, aims & scope of tortsIntentional Torts

TEXT BOOKS*Baker, Blay et al Torts Law in Principle LBC 2005 4th Ed.*Blay, Torts in a Nutshell LBC 1999Sappideen, Vines, Grant & Watson, Torts: Commentary & Materials LBC (2006) 9th Ed.Balkin & Davis Law of Torts (2004) 3rd Ed. ButterworthsLuntz and Hambly Torts Cases and Commentary (2006) Revised 5th Ed. ButterworthsTrindade and Cane The Law of TortsFleming, The Law of Torts (1996)

LEC Torts Websitewww.usyd.edu.au/lec/subjects/torts//materials.htmPast exams & comments:www.library.usyd.edu.au/libraries/law/lpab.html#exams

WHAT IS A TORT?A tort is a civil wrongThat (wrong) is based a breach of a duty imposed by law Which (breach) gives rise to a (personal) civil right of action for for a remedy not exclusive to another area of law

THE DIFFERENCE BETWEEN A TORT AND A CRIMEA crime is public /community wrong that gives rise to sanctions usually designated in a specified code. A tort is a civil private wrong.Action in criminal law is usually brought by the state or the Crown. Tort actions are usually brought by the victims of the tort. The principal objective in criminal law is punishment. In torts, it is compensation

THE DIFFERENCE BETWEEN A TORT AND A CRIME Differences in Procedure: Standard of Proof Criminal law: beyond reasonable doubtTorts: on the balance of probabilities

THE AIMS OF TORT LAWLoss distribution/adjustment: shifting losses from victims to perpetratorsCompensation: Through the award of (pecuniary) damagesThe object of compensation is to place the victim in the position he/she was before the tort was committed.Punishment: through exemplary or punitive damages. This is a secondary aim.

INTERESTS PROTECTED IN TORT LAWPersonal securityTrespassNegligenceReputationDefamationPropertyTrespassConversionEconomic and financial interests

INTENTIONAL TORTS INTENATIONAL TORTSTrespassConversionDetinue

WHAT IS TRESPASS? Intentional or negligent act of D which directly causes an injury to the P or his /her property without lawful justificationThe Elements of Trespass:fault: intentional or negligent act- injury must be directinjury* may be to the P or to his/her property- No lawful justification

*INJURY IN TRESPASSInjury = a breach of right, not necessarily actual damageTrespass requires only proof of injury not actual damage

THE GENERAL ELEMENTS OF TRESPASSIntentional/negligent act

x elementDirect interference with person or propertyAbsence of lawfuljustification+++=A specificform of trespass

SPECIFIC FORMS OF TRESPASSTRESPASSPERSONPROPERTYBATTERYASSAULTFALSE IMPRISONMENT

BATTERY The intentional or negligent act of D which directly causes a physical interference with the body of P without lawful justificationThe distinguishing element: physical interference with Ps body

THE INTENTIONAL ACT IN BATTERY No liability without intention The intentional act = basic willful act + the consequences.

CAPACITY TO FORM THE INTENT D is deemed capable of forming intent if he/she understands the nature of (intended) his/her act -InfantsLunaticsMorris v MarsdenHart v A. G. of Tasmania ( infant cutting another infant with razor blade)

THE ACT MUST CAUSE PHYSICAL INTERFERENCEThe essence of the tort is the protection of the person of P. Ds act short of physical contact is therefore not a batteryThe least touching of another could be batteryCole v Turner (dicta per Holt CJ)The fundamental principle, plain and incontestable, is that every persons body is inviolate ( per Goff LJ, Collins v Wilcock)

The Nature of the Physical Interference

Rixon v Star City Casino (D places hand on Ps shoulder to attract his attention; no battery)Collins v Wilcock (Police officer holds Ds arm with a view to restraining her when D declines to answer questions and begins to walk away; battery)Platt v Nutt

THE INJURY MUST BE CAUSED DIRECTLYInjury should be the immediate:Scott v Shepherd ( Lit squib/fireworks in market place)Hutchins v Maughan (poisoned bait left for dog)Southport v Esso Petroleum(Spilt oil on Ps beach)

THE ACT MUST BE WITHOUT LAWFUL JUSTIFICATIONConsent is Lawful justificationConsent must be freely given by the P if P is able to understand the nature of the actLawful justification includes the lawful act of law enforcement officersWilson v. Marshall (D accused of assaulting police officer, held officers conduct not lawful)

TRESPASS:ASSAULT The intentional/negligent act or threat of D which directly places P in reasonable apprehension of an imminent physical interference with his or her person or of someone under his or her control

THE ELEMENTS OF ASSAULT There must be a direct threat:Hall v Fonceca (Threat by P who shook hand in front of Ds face in an argument) In general, mere words are not actionableBarton v Armstrong In general, conditional threats are not actionableTuberville v SavagePolice v Greaves Rozsa v Samuels

The apprehension must be reasonable; the test is objective The interference must be imminent

Rozsa v SamuelsPolice v GreavesHall v FoncecaZanker v Vartzokas (P jumps out of a moving van to escape from Ds unwanted lift)THE ELEMENTS OF ASSAULT

THE GENERAL ELEMENTS OF TRESPASSIntentional/negligent act

x elementDirect interference

Absence of lawfuljustification+++=A specificform of trespass

SPECIFIC FORMS OF TRESPASSTRESPASSPERSONPROPERTYBATTERYASSAULTFALSE IMPRISONMENT

FALSE IMPRISONMENT The intentional or negligent act of D which directly causes the total restraint of P and thereby confines him/her to a delimited area without lawful justification The essential distinctive element is the total restraint

THE ELEMENTS OF THE TORT It requires all the basic elements of trespass:Intentional/negligent actDirectnessabsence of lawful justification/consent , and total restraint

RESTRAINT IN FALSE IMPRISONMENTThe restraint must be totalBird v Jones (passage over bridge)The Balmain New Ferry Co v RobertsonTotal restraint implies the absence of a reasonable means of escapeBurton v Davies (D refuses to allow P out of car)Restraint may be total where D subjects P to his/her authority with no option to leaveSymes v Mahon (police officer arrests P by mistake)Myer Stores v Soo

FORMS OF FALSE IMPRISONMENTSee the following Cases: Cowell v. Corrective Services Commissioner of NSW (1988) Aust. Torts Reporter 81-197.Louis v. The Commonwealth of Australia 87 FLR 277.Lippl v. Haines & Another (1989) Aust. Torts Reporter 80-302; (1989) 18 NSWLR 620.

VOLUNTARY CASES In general, there is no FI where one voluntarily submits to a form of restraintHerd v Weardale (D refuses to allow P out of mine shaft)Robinson v The Balmain New Ferry Co. (D refuses to allow P to leave unless P pays fare)Lippl v Haines Where there is no volition for restraint, the confinement may be FI (Bahner v Marwest Hotels Co.)

WORDS AND FALSE IMPRISONMENTIn general, words can constitute FIsee Balkin & Davis pp. 55 to 56:restraint even by mere threat of force which intimidates a person into compliance without any laying on of hands may be false imprisonment-Symes v Mahon

KNOWLEDGE IN FALSE IMPRISONMENTThe knowledge of the P at the moment of restraint is not essential.Meering v Graham White AviationMurray v Ministry of Defense

WHO IS LIABLE? THE AGGRIEVED CITIZEN OR THE POLICE OFFICER?In each case, the issue is whether the police in making the arrest acted independently or as the agent of the citizen who promoted and caused the arrest Dickenson v Waters LtdBahner v Marwest Hotels Co

THE MENTALLY ILL AND FALSE IMPRISONMENTIn Common Law, the lawfulness of an act of detention of a person must depend on "overriding necessity for the protection of himself and others per Harvey J in In re Hawke (1923) 40 WN (NSW) 58 The situation under statute:Watson v Marshall and Cade (1971) 124 CLR 621The Vic Mental Health Act 1959:Any person may be admitted into and detained in a psychiatric hospital upon the production of (a) a request under the hand of some person in the prescribed form; (b) a statement of the prescribed particulars; and (c) a recommendation in the prescribed form of a medical practitioner based upon a personal examination of such person made not more than seven clear days before the admission of such person.

DAMAGES

False imprisonment is actionable per se The failure to prove any actual financial loss does not mean that the plaintiff should recover nothing. The damages are at large. An interference with personal liberty even for a short period is not a trivial wrong. The injury to the plaintiff's dignity and to his feelings can be taken into account in assessing damages (Watson v Marshall and Cade )

OTHER FORMS OF TRESPASSTRESPASSPERSONPROPERTYBATTERYASSAULTFALSE IMPRISONMENT

TRESPASS TO PROPERTYTRESPASS TO PROPERTYLANDGOODS/CHATTELS

TRESPASS TO LAND The intentional or negligent act of D which directly interferes with the plaintiffs exclusive possession of land

THE NATURE OF THE TORT Land includes the actual soil/dirt, the structures/plants on it and the airspace above it Cujus est solum ejus est usque ad coelum et inferosBernstein of Leigh v Skyways & General LtdKelson v Imperial Tobacco

STATUTORY EASEMENTSConveyancing Act 1919 s 88K (NSW)1. The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. 2. Such an order may be made only if the Court is satisfied that:(a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easementall reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful

RESTRICTIONS ON STATUTORY EASEMENTSProperty rights are valuable rights and the court should not lightly interfere with [such] property rights [the section] does not exist for people build right up to the boundary of their property [or] build without adequate access and then expect others to make their land available for access per Young J Hanny v Lewis (1999) NSW Conv. R 55-879 at 56-875Developers have a responsibility to act reasonably as do the proprietors of adjoining land and the developers should not just proceed as if they would automatically get what they seek without negotiations (per Windeyer J Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR)

The Issue of Compensation88K (2) Such an order may be made only if the Court is satisfied that: the owner of the land to be burdened by the easement and each other person having an estate or interest in that land can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easementAdequate compensation: (Wengarin Pty Ltd v Byron Shire Council [1999] NSWSC 485)the diminished market value of the servient landassociated costs that would be caused to the ownerloss of amenities such as peace and quitewhere assessment proves difficult, the court may assess compensation on a percentage of the profits that would be made from the use of the easement

Neighbouring land Access and Utility Service Orders The Access to Neighbouring Land Act 2000 ss11 and 13(1) A Local Court may make a neighbouring land access /utility service access order if it is satisfied that access to land is required for the purpose of carrying out work on or in connection with a utility service situated on the land and it is satisfied that it is appropriate to make the order in the circumstances of the case(2) The Court must not make a utility service access order unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with every person whose consent to access is required as to the access and carrying out of the work, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with [the Act]

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

THE NATURE OF DS ACT The act must constitute some physical interference which disturbs Ps exclusive possession of the landVictoria Racing Co. v TaylorBarthust City Council v SabanLincoln Hunt v Willesse

THE NATURE OF THE PLAINTIFFS INTEREST IN THE LAND P must have exclusive possession of the land at the time of the interference exclusion of all others

THE NATURE OF EXCLUSIVE POSSESSION Exclusive possession is distinct from ownership. Ownership refers to title in the land. Exclusive possession refers to physical holding of the land Possession may be immediate or constructive The nature of possession depends on the material possessed

EXCLUSIVE POSSESSION: CO-OWNERS In general, a co-owner cannot be liable in trespass in respect of the land he/she owns; but this is debatable where the trespassing co-owner is not in possession. (Greig v Greig)A co-possessor can maintain an action against a trespasser (Coles Smith v Smith and Ors)

THE POSITION OF LICENSEES A licensee is one who has the permission of P to enter or use land (belonging to P) A licensee is a party not in possession, and can therefore not sue in trespass A licensee for value however may be entitled to sue(E.R. Investments v Hugh)

THE TRESPASSORY ACT Preventing Ps access Waters v Maynard) The continuation of the initial trespassory act is a continuing trespass Where D enters land for purposes different from that for which P gave a license, Ds conduct may constitute trespass ab initio (Barker v R)

THE POSITION OF POLICE OFFICERS Unless authorized by law, police officers have no special right of entry into any premises without consent of P ( Halliday v Neville) A police officer charged with the duty of serving a summons must obtain the consent of the party in possession (Plenty v. Dillion )

Police Officers; The Common Law PositionThe poorest man may in his cottage bid defiance to all forces of the Crown. It may be frail- its roof may shake- the wind may blow through it- the rain may enter- but the King of England cannot enter- all his force dares not cross the threshold of the ruined tenement. So be it- unless he has justification by law. Southam v Smout [1964] 1QB 308, 320.

REMEDIES EjectmentRecovery of PossessionAward of damages InjunctionParramatta CC v LutzCampbelltown CC v MackayXL Petroleum (NSW) v Caltex Oil

TRESPASS TO PROPERTYTRESPASS TO PROPERTYLANDGOODS/CHATTELS

TRESPASS TO GOODS/CHATTEL The intentional/negligent act of D which directly interferes with the plaintiffs possession of a chattel without lawful justification The P must have actual or constructive possession at the time of interference.

DAMAGESIt may not be actionable per se (Everitt v Martin)

CONVERSION The act of D in relation to anothers chattel which constitutes an unjustifiable denial of his/her title

CONVERSION: Who Can Sue? Owners Those in possession or entitled to immediate possession Bailees*/ Bailors* Mortgagors*/Mortgagees*(Citicorp Australia v B.S. Stillwell)Finders (Parker v British Airways; Armory v Delmirie)

ACTS OF CONVERSION Mere asportation is no conversion Fouldes v Willoughby The Ds conduct must constitute an unjustifiable denial of Ps rights to the propertyHoward E Perry v British Railways Board [1980]Finders of lost propertyParker v British Airways [1982]The position of the auctioneerWillis v British Car Auctions [1978]Destruction of the chattel is conversion Atkinson v Richardson Taking possession Withholding possession Clayton v Le Roy [1911]

ACTS OF CONVERSION Misdelivery ( Ashby v Tolhurst (1937 2KB); Sydney City Council v West) Unauthorized dispositions in any manner that interferes with Ps title constitutes conversion ( Penfolds Wines v Elliott)

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

DAMAGES IN CONVERSION AND DETINUE In conversion, damages usually take the form of pecuniary compensation In detinue, the court may in appropriate circumstances order the return of the chattel Damages in conversion are calculated as at the time of conversion; in detinue it is as at the time of judgment The MedianalButler v The Egg and Pulp Marketing BoardThe WinkfieldGeneral and Finance Facilities v Cooks Cars (Romford)

THE LAW OF TORTSAction on the Case for Indirect Injuries

INDIRECT INTENTIONAL INJURIES ACTION ON THE CASE FOR PHYSICAL INJURIES OR NERVOUS SHOCKACTION ON THE CASE REFERS TO ACTIONS BASED ON INJURIES THAT ARE CAUSED INDIRECTLY OR CONSEQUENTIALLY

INDIRECT INTENTIONAL INJURIES: CASE LAW Bird v Holbrook (trap set in garden)D is liable in an action on the case for damages for intentional acts which are meant to cause damage to P and which in fact cause damage (to P)

THE INTENTIONAL ACT The intentional may be deliberate and preconceived(Bird v Holbrook ) It may also be inferred or implied; the test for the inference is objective Wilkinson v Downton [1897] Janvier v Sweeney [1919]

Action on the Case for Indirect Intentional Harm: ElementsD is liable in an action on the case for damages for intentional acts which are meant to cause damage to P and which in fact cause damage to PThe elements of this tort:The act must be intentionalIt must be one calculated to cause harm/damageIt must in fact cause harm/actual damageWhere D intends no harm from his act but the harm caused is one that is reasonably foreseeable, Ds intention to cause the resulting harm can be imputed/implied

THE SCOPE OF THE RULE The rule does not cover pure mental stress or mere fright The act must be reasonably capable of causing mental distress to a normal* person:Bunyan v Jordan (1937)Stevenson v Basham [1922]

ONUS OF PROOF In Common Law, he who asserts proves Traditionally, in trespass D was required to disprove fault once P proved injury. Depending on whether the injury occurred on or off the highway ( McHale v Watson; Venning v Chin) The current Australian position is contentious but seems to support the view that in off highway cases D is required to prove all the elements of the tort once P proves injuryHackshaw v ShawPlatt v NuttSee Blay; Onus of Proof of Consent in an Action for Trespass to the Person Vol. 61 ALJ (1987) 25But see McHugh J in See Secretary DHCS v JWB and SMB (Marions Case) 1992 175 CLR 218

THE LAW OF TORTSDefences to Intentional Torts

INTRODUCTION: The Concept of Defence Broader Concept: The content of the Statement of Defence- The response to the Ps Statement of Claim-The basis for non-liabilityStatement of Defence may contain: DenialObjection to a point of lawConfession and avoidance:

MISTAKE An intentional conduct done under a misapprehension Mistake is thus not the same as inevitable accident Mistake is generally not a defence in tort law ( Rendell v Associated Finance Ltd, Symes v Mahon)

CONSENT In a strict sense, consent is not a defence as such because in trespass, the absence of consent is an element of the tortSee: Blay; Onus of Proof of Consent in an Action for Trespass to the Person Vol. 61 ALJ (1987) 25But McHugh J in See Secretary DHCS v JWB and SMB (Marions Case) 1992 175 CLR 218

VALID CONSENT To be valid, consent must be informed and procured without fraud or coercion: ( R v Williams;) To invalidate consent, fraud must relate directly to the agreement itself, and not to an incidental issue: (Papadimitropoulos v R (1957) 98 CLR 249)

CONSENT IN SPORTS In contact sports, consent is not necessarily a defence to foul play (McNamara v Duncan; Hilton v Wallace) To succeed in an action for trespass in contact sports however, the P must of course prove the relevant elements of the tort.Giumelli v Johnston

THE BURDEN OF PROOF Since the absence of consent is a definitional element in trespass, it is for the P to prove absence of consent and not for the D to prove consent

STATUTORY PROVISIONS ON CONSENTMinors (Property and Contracts) Act 1970 (NSW) ss 14, 49Children & Young Persons (Care and Protection Act) 1998 (NSW) ss 174, 175

SELF DEFENCE, DEFENCE OF OTHERS A P who is attacked or threatened with an attack, is allowed to use reasonable force to defend him/herself In each case, the force used must be proportional to the threat; it must not be excessive. (Fontin v Katapodis) D may also use reasonable force to defend a third party where he/she reasonably believes that the party is being attacked or being threatened

THE DEFENCE OF PROPERTY D may use reasonable force to defend his/her property if he/she reasonably believes that the property is under attack or threatened What is reasonable force will depend on the facts of each case, but it is debatable whether reasonable force includes deadly force

PROVOCATION Provocation is not a defence in tort law. It can only be used to avoid the award of exemplary damages: Fontin v Katapodis; Downham v Bellette (1986) Aust Torts Reports 80-038

The Case for Allowing the Defence of Provocation The relationship between provocation and contributory negligence The implication of counterclaimsNote possible qualifications Fontin v Katapodis to: Lane v Holloway Murphy v Culhane See Blay: Provocation in Tort Liability: A Time for Reassessment,QUT Law Journal, Vol. 4 (1988) pp. 151-159.

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

Urgent Situations of Imminent Peril The situation must pose a threat to life or property to warrant the act: Southwark London B. Council v WilliamsThe defence is available in very strict circumstances R v Dudley and Stephens Ds act must be reasonably necessary and not just convenient Murray v McMurchy In re FCope v Sharp

INSANITY Insanity is not a defence as such to an intentional tort. What is essential is whether D by reason of insanity was capable of forming the intent to commit the tort. (White v Pile; Morris v Marsden)

INFANTS Minority is not a defence as such in torts. What is essential is whether the D understood the nature of his/her conduct (Smith v Leurs; Hart v AG of Tasmania)

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

ILLEGALITY:Ex turpi causa non oritur actio Persons who join in committing an illegal act have no legal rights inter se in relation to torts arising directly from that act.Hegarty v ShineSmith v JenkinsJackson v HarrisonGala v Preston

TRESPASS & CLA 2002s.3B(1)(a) Civil Liability Act (CLA) i.e. CLA does not apply to intentional torts, except Part 7 of the Act.s.52 (2) CLA subjective/objective test i.e. subjective ("believes" & "perceives")/ objective ("reasonable response") test.s.53(1)(a) & (b) CLA i.e. and = two limb test; "exceptional" and "harsh and unjust are not defined in the Act so s.34 of the Interpretation Act 1987.s.54(1) & (2) CLA i.e. "Serious offence" and "offence" are criminal terms so reference should be made to the criminal law to confirm whether P's actions are covered by the provisions.