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

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 Conversion Nuisance Economic and financial interests

INTENTIONAL TORTS INTENTIONAL TORTS Trespass Conversion Detinue

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 Direct interference with person or property Absence of lawful justification + + + A specific form of trespass “x” element =

SPECIFIC FORMS OF TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

BATTERY

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

1. INTENTION Intention to act or injure? “Meant to do it”- McNamara v Duncan (1979) Hostility? Cole v Turner (1704): “The least touching of another in anger is battery.” Wilson v Pringle [1987]

CAPACITY TO FORM INTENT D is capable of forming intent if he/she understands the nature of his/her act Involuntary acts- epilepsy? Stokes v Carlson (1951) “A contraction of muscles which is purely a reaction to some outside force, convulsive movements of an epileptic… are not ‘acts’ of the person, and the person will not be responsible for injuries inflicted thereby, since such movements are without volition.” (at 131) Infants Hart v A. G. of Tasmania (1959) Hogan v Gill (1992)

2. DIRECTNESS Scott v Shepherd (1773) Hutchins v Maughan (1947) Immediate v consequential Injury should be immediate: Scott v Shepherd (1773) Hutchins v Maughan (1947)

3. 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)

4. WITHOUT LAWFUL JUSTIFICATION Consent is Lawful justification Where do you draw the line? Did contact go beyond the ‘generally acceptable standards of conduct’ in everyday life? Collins v Wilcock Lawful justification includes the lawful act of law enforcement officers Wilson v. Marshall

The Nature of the Physical Interference Rixon v Star City Casino Collins v Wilcock

ASSAULT

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: Stephens v Myers (1830) In general, mere words are not actionable Barton v Armstrong (1969) Conditional threats Tuberville v Savage (1669) Police v Greaves (1964) Rozsa v Samuels (1969) Zanker v Vartsokas (1988)

So main issues with Assault Threat possible to be carried out? Future threats? Conditional threats: Not assault if its lawful (except will be if it is excessive) Must be possible to carry out

FALSE IMPRISONMENT

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

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

“A prison may have its boundary large or narrow, visible and tangible, or, though real, still in the conception only; it may in itself be moveable or fixed; but a boundary it must have; and that boundary the party imprisoned must be prevented from passing… Some confusion seems to me to arise from the confounding imprisonment of the body with mere loss of freedom; it is one part of the definition of freedom to be able to go whithersoever one so pleases; but imprisonment is something more than the mere loss of this power; it includes the notion of restraint within some limits defined by a will or power exterior to our own.” Coleridge J in Bird v Jones (1845) at 744.

RESTRAINT The restraint must be total Bird v Jones ((1845) Total restraint implies the absence of a reasonable means of escape “If I lock a person in a room with a window from which he may jump to the ground at the risk of life or limb, I cannot be heard to say that he was not imprisoned because he was free to leap from the window.” Burton v Davies (1953) Barrier need not be physical Symes v Mahon (1922) Myer Stores v Soo

VOLUNTARY CASES In general, there is no FI where one voluntarily submits to a form of restraint Herd v Weardale (1913) Robinson v The Balmain New Ferry Co. (1904) Where there is no volition for restraint, the confinement may be FI Bahner v Marwest Hotels Co. (1970)

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 (1919) Murray v Ministry of Defense (1988)

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 (1931) Bahner v Marwest Hotels Co (1970)

DAMAGES False imprisonment is actionable per se The failure to prove any actual financial loss does not mean that the plaintiff should recover nothing. 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 PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

TRESPASS TO PROPERTY TRESPASS TO PROPERTY LAND GOODS/CHATTELS

Trespass to land- Overview Understanding ‘land’ Act of defendant Unlawful entry Withdrawing permission to be on land Exclusive possession Remedies

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

Land Land includes the actual soil/dirt, the structures/plants on it and the airspace above it Kelsen v Imperial Tobacco (1957) Test from LJP Investments v Howard Chia Investments (1989) Anchor Brewhouse Developments v Berkley House (1987)

Types of Trespass to land Unlawful Entry Withdrawing permission to be on land

Unlawful Entry ...[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)

Withdrawing permission for entry Cowell v Rosehill Racecourse (1937)

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

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

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 Jones v Shire of Perth (1971) Injunction Graham Roberts Pty Ltd v Maurbeth Investments (1974) Graham v KD Morris (1974) Lincoln Hunt Australia v Willesee (1986)

TRESPASS TO PROPERTY TRESPASS TO PROPERTY LAND GOODS/CHATTELS

Torts to Chattels Trespass to goods Conversion Detinue

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. Penfolds Wines v Elliott (1946) There must be direct interference

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 Lord v Price (1847) Those in possession or entitled to immediate possession “possession is not merely evidence of absolute title; it confers a title of its own, which is called possessory title. This possessory title is as good as the absolute title as against, it is usually said, every person except the absolute owner.” Russell v Wilson (1923)

Finders Armory v Delamirie (1722) South Staffordshire Water Company v Sharman (1896) Parker v British Airways Board (1982)

Types of Conversion Disposession Destruction Refusal to return Fouldes v Willoughby (1841) Destruction Refusal to return Purported dealing in title Hollins v Fowler (1875)

DETINUE Demand and refusal 3 main types Lilley v Doubleday (1881)

Comparing Trespass, Conversion and Detinue

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

Defences to Intentional Torts THE LAW OF TORTS Defences to Intentional Torts

MISTAKE An intentional conduct done under a misapprehension Mistake is generally not a defence in tort law Basely v Clarkson (1682) Cowell v Corrective Services Commission (1988)

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) 1992 175 CLR 218

VALID CONSENT Must be given to act complained of Mullloy v Hop Sang [1935] Must be no vitiating factors to nullify consent Hegarty v Shine (1878) Consent must be genuine Gillick v West Norfolk Health Authority (1986) Re F (1990)

CONSENT IN SPORTS McNamara v Duncan; Hilton v Wallace People who pursue recreational activities regarded as sports often do so in hazardous circumstances; the element of danger may add to the enjoyment of the activity Accepting risk, sometimes to a high degree, is part of many sports. A great deal of public money and private effort, and funding, is devoted to providing facilities for people to engage in individual or team sport. This reflects a view, not merely of the importance of individual autonomy, but also the public benefit of sport. Sporting injuries that result in physical injury are not only permitted: they are encouraged (Gleeson CJ in Agar v Hyde (2000) ) McNamara v Duncan; Hilton v Wallace Giumelli v Johnston McCracken v Melbourne Storm (2005)

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 McLelland v Symons (1951) In each case, the force used must be proportional to the threat; it must not be excessive. 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’ Hackshaw v Shaw (1984)

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 Mouse’s Case (1609) Leigh v Gladstone (1909)

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 (1951) Morris v Marsden (1952)

INFANTS Minority is not a defence as such in torts. What is essential is whether the D understood the nature of his/her conduct Hart v AG of Tasmania (1979) Hogan v Gill (1992)

DISCIPLINE PARENTS R v Terry 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. Smith v Jenkins (1970)

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 1987. s.54(1) & (2) CLA i.e. "Serious offence" and "offence" are criminal terms so reference should be made to the criminal law to confirm whether P's actions are covered by the provisions.