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

TEXT BOOKSTEXT BOOKS

• Dominic Villa Dominic Villa Annotated Civil Liability Act Annotated Civil Liability Act Lawbook Co. (2013)Lawbook Co. (2013)

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

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

• Stewart and Stuhmcke, Australian Principles of Torts Law Federation Press, 3rd Ed

• Davies and Malkin, Torts LexisNexis 6th Ed

• Blay, Blay, Torts in a Nutshell Torts in a Nutshell LBCLBC

DEFINITION: THE NATURE DEFINITION: THE NATURE OF TORTSOF TORTS

WEEK 1WEEK 1

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

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

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 breach of promise(s) from breach of promise(s) made by the parties made by the parties themselves.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

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

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

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

Particular tortsParticular torts

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

*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.

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

Battery :Battery :

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

Platt v NuttPlatt v Nutt

In Re FIn Re F

• Per Lord Goff: It is well established that, as a general rule, the performance of a medical operation upon a person without his or her consent is unlawful, as constituting both the crime of battery and the tort of trespass to the person.

Dean v Phung [2012] Dean v Phung [2012] NSWCA 223,NSWCA 223,

Dean v Phung Dean v Phung

• Plaintiff was injured at work causing Plaintiff was injured at work causing minor injuries to his front teeth. His minor injuries to his front teeth. His employer arranged for him to see the employer arranged for him to see the defendant, a dental surgeon. Over a 12-defendant, a dental surgeon. Over a 12-month period, the defendant carried out month period, the defendant carried out root-canal therapy and fitted crowns on root-canal therapy and fitted crowns on all the plaintiff’s teeth at a cost of all the plaintiff’s teeth at a cost of $73,640. D accepted liability in $73,640. D accepted liability in negligence but denied liability for negligence but denied liability for trespass.trespass.

• Issue whether the action lay in trespass Issue whether the action lay in trespass and was excluded by s3B of the CLAand was excluded by s3B of the CLA

Dean v Phung 2 Dean v Phung 2

• P argued that Advice that the P argued that Advice that the treatment was necessary must treatment was necessary must have been fraudulent, have been fraudulent, consequently the fraud vitiated consequently the fraud vitiated any consent given to the any consent given to the procedure. Accordingly, the procedure. Accordingly, the plaintiff argued, the dentist was plaintiff argued, the dentist was liable for battery in treating him liable for battery in treating him without a valid consent without a valid consent

Dean v Phung 3Dean v Phung 3

• Basten JA held that the dentist’s Basten JA held that the dentist’s concessions were sufficient to show that concessions were sufficient to show that the appellant did not consent to the the appellant did not consent to the treatment because it was not necessary for treatment because it was not necessary for his particular condition. As a result, the his particular condition. As a result, the treatment constituted a trespass to the treatment constituted a trespass to the person and s 3B operated to exclude the person and s 3B operated to exclude the defendant’s liability from the operation of defendant’s liability from the operation of the Act.the Act.

• Macfarlan JA: The practitioner had Macfarlan JA: The practitioner had performed the treatment to generate performed the treatment to generate income for himself. This enabled a income for himself. This enabled a conclusion that consent was vitiated and a conclusion that consent was vitiated and a trespass had occurredtrespass had occurred

X v The Sydney Children’s X v The Sydney Children’s Hospitals Network (2013) 85 Hospitals Network (2013) 85

NSWLR 294NSWLR 294

X v The Sydney Children’s X v The Sydney Children’s Hospitals Network Hospitals Network

• X— only a few months away from his 18th X— only a few months away from his 18th birthday — had refused to receive his own birthday — had refused to receive his own treated blood products. The treatment was treated blood products. The treatment was necessary to preserve his life. He had provided necessary to preserve his life. He had provided cogent reasons for his refusal, based on his cogent reasons for his refusal, based on his religious beliefs. His refusal was fully religious beliefs. His refusal was fully supported by his parents who were of the same supported by his parents who were of the same religious persuasionreligious persuasion

• The court, exercising its “parens patriae” The court, exercising its “parens patriae” jurisdiction, essentially overrode these genuine jurisdiction, essentially overrode these genuine beliefs, holding that the welfare of the patient beliefs, holding that the welfare of the patient required that the primary judge make the required that the primary judge make the order permitting the treatment. order permitting the treatment.

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

THE LAW OF TORTSTHE LAW OF TORTSWEEK 2WEEK 2

ASSAULTASSAULT

FALSE IMPRISONMENTFALSE IMPRISONMENT

TRESSPASS TO LANDTRESSPASS TO LAND

assaultassaultTRESPASS TO THE PERSON TRESPASS TO THE PERSON

TRESPASS:ASSAULTTRESPASS:ASSAULT

• The The intentional act or threatintentional act or threat of D which of D which directlydirectly places P in places P in reasonable apprehension of reasonable apprehension of an imminent physical an imminent physical interferenceinterference with his or her with his or her person or of someone under person or of someone under his or her controlhis or her 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 — by which a person person intentionallyintentionally — or — or recklesslyrecklessly — causes another — causes another to apprehend immediate and to apprehend immediate and unlawful violence: unlawful violence:

State of New South Wales State of New South Wales v Ibbett (2005) 65 NSWLR v Ibbett (2005) 65 NSWLR

168 168 • Two policemen gave chase to Mr Ibbett, Two policemen gave chase to Mr Ibbett,

suspecting that he may have been involved in a suspecting that he may have been involved in a criminal offence. They pursued him to a house criminal offence. They pursued him to a house where he lived with his mother, Mrs Ibbett. where he lived with his mother, Mrs Ibbett. Without legal justification, one of the policemen Without legal justification, one of the policemen entered the property and arrested Mr Ibbett. His entered the property and arrested Mr Ibbett. His mother came into the garage where these mother came into the garage where these events occurred. The police officer produced a events occurred. The police officer produced a gun and pointed it at Mrs Ibbett sayinggun and pointed it at Mrs Ibbett saying: :

• ““Open the bloody door and let my mate Open the bloody door and let my mate in”.in”.

• Mrs Ibbett, who was an elderly woman, Mrs Ibbett, who was an elderly woman, had never seen a gun before and was, not had never seen a gun before and was, not unnaturally, petrified.unnaturally, petrified.

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)

‘‘Correctional Cases’Correctional Cases’

• In State of New South Wales v TD (2013) 83 NSWLR 566,In State of New South Wales v TD (2013) 83 NSWLR 566,– Respondent suffering from mental illness was found Respondent suffering from mental illness was found

guilty and sentenced to 20 months. Following a guilty and sentenced to 20 months. Following a determination by the Mental Health Tribunal, the determination by the Mental Health Tribunal, the District Court was ordered that she be detained in a District Court was ordered that she be detained in a hospital. Contrary to this order, for some 16 days, the hospital. Contrary to this order, for some 16 days, the appellant was detained in a cell at Long Bay Goall in appellant was detained in a cell at Long Bay Goall in an area which was not gazetted as a hospital. an area which was not gazetted as a hospital.

• In State of New South Wales v Kable (2013) 87 ALJR 737, In State of New South Wales v Kable (2013) 87 ALJR 737, – the High Court of Australia held that a detention order the High Court of Australia held that a detention order

which had been made by the Supreme Court (but which had been made by the Supreme Court (but under legislation which was later held invalid) under legislation which was later held invalid) provided lawful authority for Mr Kable’s detention.provided lawful authority for Mr Kable’s detention.

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