THE LAW OF TORTSTHE LAW OF TORTS

WEEK 1WEEK 1

THE LECTURE STRUCTURETHE LECTURE STRUCTURE

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

•Intentional torts•The tort of negligence

–Duty of care

TEXT BOOKSTEXT BOOKS

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

• Blay, Blay, Torts in a Nutshell Torts in a Nutshell LBC 2010LBC 2010• Richards, Ludlow and Gibson, Torts Law in

Principle, 5th ed. Thomson Reuters• Sappideen et al Sappideen et al Torts Cases Commentary Torts Cases Commentary

LBC LBC • Balkin and Davies, Balkin and Davies, The Law of TortsThe Law of Torts• Stuhmcke, Stuhmcke, Principles of Australian Tort Law Principles of Australian Tort Law • Luntz and Hambly Luntz and Hambly Torts Cases and Torts Cases and

Commentary Commentary ButterworthsButterworths

THE LAW OF TORTSTHE LAW OF TORTS

DEFINITION: THE NATURE OF TORTSDEFINITION: THE NATURE OF TORTS

INTRODUCTIONINTRODUCTION

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

Discussion/QuestionDiscussion/Question

•Tort and CrimeTort and Crime–How does a tort How does a tort differ from a differ from a CrimeCrime??

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

QuestionQuestion

•Are there any Are there any similarities similarities between a between a tort and a crime?tort and a crime?

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.

TORT and CRIMETORT and CRIME

• The "roots of tort and crime" are "greatly The "roots of tort and crime" are "greatly intermingled". And it is not only the roots of intermingled". And it is not only the roots of tort and crime that are intermingled. The tort and crime that are intermingled. The increasing frequency with which civil penalty increasing frequency with which civil penalty provisions are enacted, the provisions made provisions are enacted, the provisions made for criminal injuries compensation, the for criminal injuries compensation, the provisions now made in some jurisdictions for provisions now made in some jurisdictions for the judge at a criminal trial to order restitution the judge at a criminal trial to order restitution or compensation to a person suffering loss or or compensation to a person suffering loss or damage (including pain and suffering) as a damage (including pain and suffering) as a result of an offence all deny the existence of result of an offence all deny the existence of any "sharp cleavage" between the criminal and any "sharp cleavage" between the criminal and the civil law. ( Per the civil law. ( Per GLEESON CJ, McHUGH, GUMMOW GLEESON CJ, McHUGH, GUMMOW AND HAYNE JJ. In AND HAYNE JJ. In Gray v Motor Accident CommissionGray v Motor Accident Commission ) )

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.

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

QuestionsQuestions

•What are the What are the objectives of tort objectives of tort law?law?

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.

QuestionQuestion

•What What interests interests are are protected by the Law of protected by the Law of TortsTorts, and how are these , and how are these interests protected?interests protected?

INTERESTS PROTECTED IN INTERESTS PROTECTED IN TORT LAWTORT LAW

• Personal securityPersonal security– TrespassTrespass– NegligenceNegligence

• ReputationReputation– DefamationDefamation

• PropertyProperty– TrespassTrespass– ConversionConversion

• Economic and financial interestsEconomic and financial interests

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 Requires no proof of damagedamage

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

THE DOMAIN OF TORTSTHE DOMAIN OF TORTS

TrespassNegligence

Nuisance Defences

Financial loss

Conversion

Defamation

Breach of statutory duty Particular Duty

Areas

Concurrent liability

Product liabilityLiability of public authorities

Vicarious liability

INTENTIONAL TORTSINTENTIONAL TORTS

• INTENATIONAL 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

*INJURY IN TRESPASS*INJURY IN TRESPASS

• Injury = a breach of right, not Injury = a breach of right, not necessarily actual damagenecessarily actual damage

• Trespass requires Trespass requires onlyonly proof of proof of injury injury not actual damagenot actual damage

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.

CAPACITY TO FORM THE CAPACITY TO FORM THE INTENTINTENT

• D is deemed capable of D is deemed capable of forming intent if he/she forming intent if he/she understands the nature of understands the nature of (‘intended’) his/her act(‘intended’) his/her act

• -Infants-Infants»Hart v A. G. of TasmaniaHart v A. G. of Tasmania ( infant cutting another ( infant cutting another infant with razor blade)infant with razor blade)

– LunaticsLunatics»Morris v MasdenMorris v Masden

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)

The Nature of the The Nature of the Physical InterferencePhysical Interference

• Rixon v Star City Casino Rixon v Star City Casino (D (D places hand on P’s shoulder to places hand on P’s shoulder to attract his attention; no battery)attract his attention; no battery)

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

THE LAW OF TORTSTHE LAW OF TORTSWEEK 2WEEK 2

ASSAULTASSAULT

FALSE IMPRISONMENTFALSE IMPRISONMENT

TRESSPASS TO LANDTRESSPASS TO LAND

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)

FORMS OF FALSE FORMS OF FALSE IMPRISONMENTIMPRISONMENT

• See the following Cases: See the following Cases: – Cowell v. Corrective Services Cowell v. Corrective Services Commissioner of NSWCommissioner of NSW (1988) (1988) Aust. Torts Reporter ¶81-197.Aust. Torts Reporter ¶81-197.

– Louis v. The Commonwealth of Louis v. The Commonwealth of Australia Australia 87 FLR 277. 87 FLR 277.

–Murray v Ministry of Defence – Lippl v. Haines & Another Lippl v. Haines & Another (1989) (1989) Aust. Torts Reporter ¶80-302; Aust. Torts Reporter ¶80-302; (1989) 18 NSWLR 620.(1989) 18 NSWLR 620.

– Dickenson WatersDickenson Waters

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.)

WORDS AND FALSE WORDS AND FALSE IMPRISONMENTIMPRISONMENT

• In general, words can In general, words can constitute FIconstitute FI

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

OTHER FORMS OF OTHER FORMS OF TRESPASSTRESPASS

TRESPASSTRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT

TRESPASS TO TRESPASS TO PROPERTYPROPERTY

TRESPASS TO PROPERTYTRESPASS TO PROPERTY

LAND GOODS/CHATTELS

TRESPASS TO LANDTRESPASS TO LAND

• The The intentional actintentional act of D which of D 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 in A trespasser/squatter in exclusive possession can exclusive possession can maintain an action maintain an action against any other against any other trespassertrespasser–Newington v Windeyer (1985)

• 

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.

REMEDIESREMEDIES

• EjectmentEjectment•Self help:Self help:

– Self redress is a summary remedy, Self redress is a summary remedy, which is justified only in clear and which is justified only in clear and simple cases, or in an emergency…the simple cases, or in an emergency…the courts have confined the remedy by courts have confined the remedy by way of self redress to simple cases such way of self redress to simple cases such as an overhanging branch, or an as an overhanging branch, or an encroaching root, which would not encroaching root, which would not justify the expense of legal justify the expense of legal proceedings, and urgent cases which proceedings, and urgent cases which require an immediate remedy. (require an immediate remedy. (Burton v Winters [1993] 3 All ER 847)

REMEDIESREMEDIES

•Recovery of PossessionRecovery of Possession•Award of damagesAward of damages

–Parramatta CC v Lutz (1988) 12 NSWLR 293

–Campbelltown CC v Mackay (1989) 15 NSWLR 501

• InjunctionInjunction

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

• 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

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 deliberate and preconceived(preconceived(Bird v Holbrook )Bird 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

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 in to P and which 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 It must in fact cause harm/actual damagedamage

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

THE SCOPE OF THE THE SCOPE OF THE RULERULE

• The rule does not cover ‘pure’ The rule does not cover ‘pure’ mental stress or mere fright mental stress or mere fright

• 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–Carrier v Bonham

IS THERE ROOM FOR IS THERE ROOM FOR EXTENDING THE EXTENDING THE

SCOPESCOPE• The normal person in The normal person in Wilkinson v DowntonWilkinson v Downton

•The normal/reasonableThe normal/reasonable person: The gender/race person: The gender/race debatedebate

The Scope of Intentional The Scope of Intentional Torts to the PersonTorts to the Person

•Trespass:Trespass:– Battery, Battery, – False ImprisonmentFalse Imprisonment– AssaultAssault

•Action on the case Action on the case ((Wilkinson v DowntonWilkinson v Downton))

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