1. LAW OF TORTS LECTURE 3 Intentional torts to Chattels Action on the case for Wilful Injury Defences to Intentional Torts Greg Young greg.young@lawyer.com

2. TRESPASS TO PROPERTY LAND GOODS/CHATTELS

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

4. 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.

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

6. 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

7. 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 )

8. 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 The position of the auctioneer The position of the auctioneer – Willis v British Car Auctions Destruction of the chattel is conversion Destruction of the chattel is conversion – Atkinson v Richardson; ) Taking possession Taking possession Withholding possession Withholding possession – Clayton v Le Roy

9. 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 )

10. 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)

11. 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)

12. THE LAW OF TORTS Action on the Case for Indirect Injuries

13. 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

14. 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)

15. 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

16. 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

17. 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

18. 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

19. 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 )

20. 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) 1992 175 CLR 218

21. 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

22. THE LAW OF TORTS Defences to Intentional Torts

23. 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:

24. 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

25. 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) 1992 175 CLR 218

26. 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)

27. 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

28. 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

29. 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)

30. 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

31. 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’

32. 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

33. 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

34. 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. 151-159.

35. 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

36. 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

37. 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 )

38. 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 )

39. 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)

40. DISCIPLINE TEACHERS TEACHERS CAPTAINS OF VESSELS CAPTAINS OF VESSELS SPOUSES SPOUSES

41. 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

42. 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 1987. 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. 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.