THE LAW OF TORTS WEEK 3 Trespass to property Action on the case for Intentional Harm Defences to Intentional Torts

OTHER FORMS OF TRESPASS TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

TRESPASS TO PROPERTY LAND GOODS/CHATTELS

TRESPASS TO LAND The intentional act of D which directly interferes with the plaintiff’s exclusive possession of land The intentional act of D which directly interferes with the plaintiff’s 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 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 inferos Cujus est solum ejus est usque ad coelum et inferos – Bernstein of Leigh v Skyways & General Ltd – Kelson v Imperial Tobacco

The Nature of D’s 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)...[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 D’S ACT The act must constitute some physical interference which disturbs P’s exclusive possession of the land The act must constitute some physical interference which disturbs P’s exclusive possession of the land – Victoria Racing Co. v Taylor – Barthust City Council v Saban – Lincoln Hunt v Willesse

THE NATURE OF THE PLAINTIFF’S INTEREST IN THE LAND P must have exclusive possession of the land at the time of the interference exclusion of all others 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. Exclusive possession is distinct from ownership. Ownership refers to title in the land. Exclusive possession refers to physical holding of the land Ownership refers to title in the land. Exclusive possession refers to physical holding of the land Possession may be immediate or constructive Possession may be immediate or constructive The nature of possession depends on the material possessed 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 ) 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)¯ A co-possessor can maintain an action against a trespasser (Coles Smith v Smith and Ors)¯

THE POSITION OF TRESPASSERS AND SQUATTERS A trespasser/squatter in exclusive possession can maintain an action against any other trespasser A trespasser/squatter in exclusive possession can maintain an action against any other trespasser – – Newington v Windeyer (1985)

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

THE TRESPASSORY ACT Preventing P’s access Waters v Maynard) Preventing P’s access Waters v Maynard) The continuation of the initial trespassory act is a trespass continuing trespass The continuation of the initial trespassory act is a trespass continuing trespass Where D enters land for purposes different from that for which P gave a license, D’s conduct may constitute trespass a b initio (Baker v Crown) Where D enters land for purposes different from that for which P gave a license, D’s conduct may constitute trespass a b initio (Baker v Crown)

THE POSITION OF POLICE OFFICERS Unless authorized by law, police officers have no special right of entry into any premises without consent of P. But see Halliday v Neville Unless authorized by law, police officers have no special right of entry into any premises without consent of P. But see 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 ) 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 Position The 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. The 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 Ejectment Ejectment Self help: Self help: – Self redress is a summary remedy, which is justified only in clear and simple cases, or in an emergency…the courts have confined the remedy by way of self redress to simple cases such as an overhanging branch, or an encroaching root, which would not justify the expense of legal proceedings, and urgent cases which require an immediate remedy. ( – Self redress is a summary remedy, which is justified only in clear and simple cases, or in an emergency…the courts have confined the remedy by way of self redress to simple cases such as an overhanging branch, or an encroaching root, which would not justify the expense of legal proceedings, and urgent cases which require an immediate remedy. ( Burton v Winters [1993] 3 All ER 847)

REMEDIES Recovery of Possession Recovery of Possession Award of damages Award of damages – – Parramatta CC v Lutz (1988) 12 NSWLR 293 – – Campbelltown CC v Mackay (1989) 15 NSWLR 501 Injunction Injunction

TRESPASS TO PROPERTY LAND GOODS/CHATTELS

TRESPASS TO PROPERTY LAND GOODS/CHATTELSGOODS/CHATTELS Personal propertyPersonal property

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

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

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

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

ACTS OF CONVERSION Mere asportation is no conversion Mere asportation is no conversion – Fouldes v Willoughby The D’s conduct must constitute an unjustifiable denial of P’s rights to the property The D’s conduct must constitute an unjustifiable denial of P’s rights to the property – Howard E Perry v British Railways Board Finders of lost property Finders of lost property – Parker v British Airways Destruction of the chattel is conversion Destruction of the chattel is conversion – Atkinson v Richardson; ) Taking possession Taking possession Withholding possession Withholding possession

ACTS OF CONVERSION Misdelivery ( Ashby v Tolhurst (1937 2KB) ; Sydney City Council v West ) Misdelivery ( Ashby v Tolhurst (1937 2KB) ; Sydney City Council v West ) Unauthorized dispositions in any manner that interferes with P’s title constitutes conversion ( Penfolds Wines v Elliott ) Unauthorized dispositions in any manner that interferes with P’s 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) 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 conversion, damages usually take the form of pecuniary compensation In detinue, the court may in appropriate circumstances order the return of the chattel 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 Damages in conversion are calculated as at the time of conversion; in detinue it is as at the time of judgment – The Mediana – Butler v The Egg and Pulp Marketing Board – The Winkfield – General and Finance Facilities v Cooks Cars (Romford)

THE LAW OF TORTS Action on the Case for Indirect Injuries

INDIRECT INTENTIONAL INJURIES INDIRECT INTENTIONAL INJURIES ACTION ON THE CASE FOR PHYSICAL INJURIES OR NERVOUS SHOCK ACTION ON THE CASE FOR PHYSICAL INJURIES OR NERVOUS SHOCK ACTION ON THE CASE REFERS TO ACTIONS BASED ON INJURIES THAT ARE CAUSED INDIRECTLY OR CONSEQUENTIALLY ACTION 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) 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 ) The intentional may be deliberate and preconceived( Bird v Holbrook ) It may also be inferred or implied; the test for the inference is objective It may also be inferred or implied; the test for the inference is objective Wilkinson v Downton Wilkinson v Downton Janvier v Sweeney Janvier v Sweeney

Action on the Case for Indirect Intentional Harm: Elements 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 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 elements of this tort: The elements of this tort: – The act must be intentional – It must be one calculated to cause harm/damage – It must in fact cause harm/actual damage Where D intends no harm from his act but the harm caused is one that is reasonably foreseeable, D’s intention to cause the resulting harm can be imputed/implied Where D intends no harm from his act but the harm caused is one that is reasonably foreseeable, D’s 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 rule does not cover ‘pure’ mental stress or mere fright The act must be reasonably capable of causing mental distress to a normal* person: The act must be reasonably capable of causing mental distress to a normal* person: – Bunyan v Jordan – Stevenson v Basham – – Carrier v Bonham

IS THERE ROOM FOR EXTENDING THE SCOPE The normal person in Wilkinson v Downton The normal person in Wilkinson v Downton The normal/reasonable person: The gender/race debate The normal/reasonable person: The gender/race debate

The Scope of Intentional Torts to the Person Trespass: Trespass: – Battery, – False Imprisonment – Assault Action on the case ( Wilkinson v Downton ) Action on the case ( Wilkinson v Downton )

ONUS OF PROOF In Common Law, he who asserts proves 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 ) 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 injury 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 injury – Hackshaw v Shaw – Platt v Nutt – See Blay; ‘Onus of Proof of Consent in an Action for Trespass to the Person’ Vol. 61 ALJ (1987) 25 – But see McHugh J in See Secretary DHCS v JWB and SMB (Marion’s Case) CLR 218

IMPACT OF THE CIVIL LIABILITY ACT Section 3B Civil liability excluded from Act Section 3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability in respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct – the whole Act except Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death

THE LAW OF TORTS Defences to Intentional Torts

INTRODUCTION: The Concept of Defence Broader Concept: The content of the Statement of Defence- The response to the P’s Statement of Claim-The basis for non-liability Broader Concept: The content of the Statement of Defence- The response to the P’s Statement of Claim-The basis for non-liability Statement of Defence may contain: Statement of Defence may contain: – Denial –Objection to a point of law –Confession and avoidance:

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

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

VALID CONSENT To be valid, consent must be informed and procured without fraud or coercion: ( R v Williams ;) 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; R v Linekar (the Times, 1994) To invalidate consent, fraud must relate directly to the agreement itself, and not to an incidental issue: ( Papadimitropoulos v R (1957) 98 CLR 249; R v Linekar (the Times, 1994)

CONSENT IN SPORTS In contact sports, consent is not necessarily a defence to foul play ( McNamara v Duncan; Hilton v Wallace ) 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. 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 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 CONSENT Minors (Property and Contracts) Act 1970 ( NSW) ss 14, 49 Minors (Property and Contracts) Act 1970 ( NSW) ss 14, 49 Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW)

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 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) 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 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 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’ 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. Provocation is not a defence in tort law. It can only be used to avoid the award of exemplary damages: Fontin v Katapodis; Downham Ballett and Others It can only be used to avoid the award of exemplary damages: Fontin v Katapodis; Downham Ballett and Others

A Critique of the Current Position On Provocation To discourage vengeance and retributive justice To discourage vengeance and retributive justice The compensation theory argument The compensation theory argument The gender based thesis The gender based thesis

The Case for Allowing the Defence of Provocation The relationship between provocation and contributory negligence The relationship between provocation and contributory negligence The implication of counterclaims The implication of counterclaims Note possible qualifications Fontin v Katapodis to : Note 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

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 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 Williams The situation must pose a threat to life or property to warrant the act: Southwark London B. Council v Williams The defence is available in very strict circumstances R v Dudley and Stephens The defence is available in very strict circumstances R v Dudley and Stephens D’s act must be reasonably necessary and not just convenient Murray v McMurchy D’s act must be reasonably necessary and not just convenient Murray v McMurchy – In re F – Cope v Sharp

INSANITY INSANITY Insanity is not a defence as such to an intentional tort. 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 ) 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. 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 ) What is essential is whether the D understood the nature of his/her conduct ( Smith v Leurs; Hart v AG of Tasmania )

DISCIPLINE PARENTS 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)

DISCIPLINE TEACHERS TEACHERS CAPTAINS OF VESSELS CAPTAINS OF VESSELS SPOUSES SPOUSES

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. 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 Shine – Smith v Jenkins – Jackson v Harrison – Gala v Preston

TRESPASS & CLA 2002 s.3B(1)(a) Civil Liability Act (“CLA”) i.e. CLA does not apply to “intentional torts”, except Part 7 of the Act. s.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.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 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 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. 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.