LAW OF TORTS Weekend Lecture 1A Lecturer: Greg Young Definition, aims & scope of torts Intentional Torts

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

LEC Torts Website /materials.htm Past exams & comments: w/lpab.html#exams

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

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

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

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

INTERESTS PROTECTED IN TORT LAW Personal security –Trespass –Negligence Reputation –Defamation Property –Trespass –Conversion Economic and financial interests

INTENTIONAL TORTS INTENATIONAL TORTS Trespass ConversionDetinue

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

*INJURY IN TRESPASS Injury = a breach of right, not necessarily actual damage Trespass requires only proof of injury not actual damage

THE GENERAL ELEMENTS OF TRESPASS Intentional/ negligent act “x” element Direct interference with person or property Absence of lawful justification = A specific form of trespass

SPECIFIC FORMS OF TRESPASS TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

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

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

CAPACITY TO FORM THE INTENT D is deemed capable of forming intent if he/she understands the nature of (‘intended’) his/her act -Infants –Lunatics –Morris v Marsden –Hart v A. G. of Tasmania ( infant cutting another infant with razor blade)

THE ACT MUST CAUSE PHYSICAL INTERFERENCE The essence of the tort is the protection of the person of P. D’s act short of physical contact is therefore not a battery The least touching of another could be battery –Cole v Turner (dicta per Holt CJ) ‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate’ ( per Goff LJ, Collins v Wilcock)

The Nature of the Physical Interference Rixon v Star City Casino (D places hand on P’s shoulder to attract his attention; no battery) Collins v Wilcock (Police officer holds D’s arm with a view to restraining her when D declines to answer questions and begins to walk away; battery) Platt v Nutt

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

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

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

THE ELEMENTS OF ASSAULT There must be a direct threat : –Hall v Fonceca (Threat by P who shook hand in front of D’s face in an argument) In general, mere words are not actionable –Barton v Armstrong In general, conditional threats are not actionable –Tuberville v Savage –Police v Greaves –Rozsa v Samuels

The apprehension must be reasonable; the test is objective The interference must be imminent –Rozsa v Samuels –P olice v Greaves –Hall v Fonceca –Zanker v Vartzokas (P jumps out of a moving van to escape from D’s unwanted lift) THE ELEMENTS OF ASSAULT

THE GENERAL ELEMENTS OF TRESPASS Intentional/ negligent act “x” element Direct interference Absence of lawful justification = A specific form of trespass

SPECIFIC FORMS OF TRESPASS TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

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

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

RESTRAINT IN FALSE IMPRISONMENT The restraint must be total –Bird v Jones (passage over bridge) –The Balmain New Ferry Co v Robertson Total restraint implies the absence of a reasonable means of escape –Burton v Davies (D refuses to allow P out of car) Restraint may be total where D subjects P to his/her authority with no option to leave –Symes v Mahon (police officer arrests P by mistake) –Myer Stores v Soo

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

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

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

KNOWLEDGE IN FALSE IMPRISONMENT The knowledge of the P at the moment of restraint is not essential. –Meering v Graham White Aviation –Murray v Ministry of Defense

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

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

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

OTHER FORMS OF TRESPASS TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

TRESPASS TO PROPERTY LAND GOODS/CHATTELS

TRESPASS TO LAND The intentional or negligent 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 Cujus est solum ejus est usque ad coelum et inferos –Bernstein of Leigh v Skyways & General Ltd –Kelson v Imperial Tobacco

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

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

The Issue of Compensation 88K (2) Such an order may be made only if the Court is satisfied that: the owner of the land to be burdened by the easement and each other person having an estate or interest in that land …can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement Adequate compensation: (Wengarin Pty Ltd v Byron Shire Council [1999] NSWSC 485) –the diminished market value of the servient land –associated costs that would be caused to the owner –loss of amenities such as peace and quite –where assessment proves difficult, the court may assess compensation on a percentage of the profits that would be made from the use of the easement

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

The Nature of 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)

THE NATURE OF D’S ACT 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

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

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

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

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

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

Police Officers; The Common Law 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.

REMEDIES Ejectment Recovery of Possession Award of damages Injunction Parramatta CC v Lutz Campbelltown CC v Mackay XL Petroleum (NSW) v Caltex Oil

TRESPASS TO PROPERTY LAND GOODS/CHATTELS

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

DAMAGES 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

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

ACTS OF CONVERSION Mere asportation is no conversion – Fouldes v Willoughby The D’s conduct must constitute an unjustifiable denial of P’s rights to the property –Howard E Perry v British Railways Board [1980] Finders of lost property –Parker v British Airways [1982] The position of the auctioneer –Willis v British Car Auctions [1978] Destruction of the chattel is conversion –Atkinson v Richardson Taking possession Withholding possession –Clayton v Le Roy [1911]

ACTS OF CONVERSION Misdelivery ( Ashby v Tolhurst (1937 2KB); Sydney City Council v West) Unauthorized dispositions in any manner that interferes with 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)

DAMAGES IN CONVERSION AND DETINUE In conversion, damages usually take the form of pecuniary compensation In detinue, the court may in appropriate circumstances order the return of the chattel Damages in conversion are calculated as at the time of conversion; in detinue it is as at the time of judgment –The Medianal –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 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

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

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

Action on the Case for Indirect Intentional Harm: 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 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

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

ONUS OF PROOF In Common Law, he who asserts proves Traditionally, in trespass D was required to disprove fault once P proved injury. Depending on whether the injury occurred on or off the highway ( McHale v Watson; Venning v Chin) The current Australian position is contentious but seems to support the view that in off highway cases D is required to prove all the elements of the tort once P proves 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

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 Statement of Defence may contain: – Denial –Objection to a point of law –Confession and avoidance:

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

CONSENT In a strict sense, consent is not a defence as such because in trespass, the absence of consent is an element of the 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 invalidate consent, fraud must relate directly to the agreement itself, and not to an incidental issue: (Papadimitropoulos v R (1957) 98 CLR 249)

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

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

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

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

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

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

The Case for Allowing the Defence of Provocation The relationship between provocation and contributory negligence The implication of counterclaims 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

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 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 –In re F –Cope v Sharp

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

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

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

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