Exam Lecture Notes
Anything that has been done in this semester is examinable.
Two questions, un evenly weighted. Problem style question, the other essay.
Essay in one or more areas.
Set aside time for the second question.
All the stuff said regarding first exam still applies.
IRAC on an individual basis. So three torts. One irac each tort.
Each question in a different book.
Perusal can only write on blank sheet.
Bring student card.
Abbreviations allowed. Say duty of care (DOC).
Plaintiff and defendant (P and D)
Completely unannotated copy of CLA.
Principles of Torts Summary
Traditional principle
Direct: No break in time between the action and incident occurring. i.e. throwing
a log and in its flight through the air it hits someone.
(Scott v Shepherd)
Indirect: There is a time gap between the action and incident occurring.
Battery
- Direct (Scott v Shepherd)
- Positive Act (Innes v Wylie)
- Intentional (Gray v Barr)
- Interference (Rixon v Star City Pty Ltd)
Direct
Break in time between the action and incident occurring. Scott v Shepherd
Positive Act
Must be a positive act. A defendant cannot be liable for battery by ommitting to
do something unless the defendant was under a positive duty to undertake the
act. Innes v Wylie
Intentional
It is the action of the defendant which must be intended, not the harm which
results. Gray v Barr
- Did you do the action voluntary?
- Do not have to prove intent to cause harm
Interference
Queensland: Does not have to be hostile touching. Rixon v Start City Pty Ltd.
English: Slightest touching in anger can amount to battery. Cole v Turner.
Contact normally involves contact with some part of the plaintiff’s body, but this
is not always required. Contact with some object the plaintiff is holding, such as a
book or a plate, could also constitute a battery. Kress v Bashier.
Consent (Seen as a defence not an element)
Can be express or implied. Marions case.
By agreeing to participate in a bodily contact sport, you have agreed to a specific
level of contact. If the contact exceeds the rules of the gae than the consent is
invalid as you do not give implied consent to actions outside the rules of the
game. McNamara v Duncan
Ordinary Conduct of everyday life situations. No action in battery will rely on
these circumstances as there is a general exception in regards to physical contact
in the happenings of everyday life. Colins v Wilcock
Knowledge of the Contact
Knowledge of the contact by the plaintiff (at least at the time of contact) is not a
necessary requirement for the tort of battery. No case provided.
Assault
Assault is a threat to apply force to another, whereas battery is the application of
force to another.
Assault is stage one, battery is stage two. (class room demonstration)
Elements of Assault:
- Direct threat (Stephens v Myers)
- Reasonable apprehension (Brady v Schatzel)
- Some imminent contact (Zanker v Vartzokas)
- With his or her person (Hall v Fonceca)
Direct Threat
The threat of harm must directly result from the conduct of the person making
the threat. Stephens v Myers (check case)
Section 245
For there to be an assault, there must be a bodily act or gesture.
Reasonable apprehension
The test is now, did the plaintiff reasonably apprehend that violence was to
ensue. Brady v Shatzel
Imminent Contact
Conditional threat does not amount to assault. Tuberville v Savage
How immediate does the threat of physical violence have to be after the
utterance of the threat that creates fear? Put this way, it can be readily
appreciated that the fear is continuing in the mind of the victim the utterance
may have the same affect in an hour as at the time of utterance. Zanker v
Vartzokas
Intention
The required intention in the tort of assualt is an intention to cause an
apprehension in the plaintiff that a battery will ensue. It is not necessary that the
defendant actually intended to carry through with his/her threat. Hall v Fonceca
False Imprisonment
- Direct Act (Dickenson v Waters)
- Intentional (Ruddock v Taylor)
- Total deprivation of Liberty (Bird v Jones)
Direct Act
The defendant must directly cause the imprisonment. (Dickenson v Waters)
Intentional
The act must be intentional, in that the defendant must have intended to cause
the imprisonment. (Ruddock v Taylor)
Totally Deprives the Plaintiff
The restraint of liberty must be total. Total means that there is no reasonable
means of escape. Bird v Jones
The plaintiff does not have to be physically imprisoned. Murray CJ states that in a
case such as this ‘there must be evidence of complete submission by him to
control of the other party….reasonably think that he had no way of escape which
could be reasonably taken by him. Symes v Mahon
Conditional Entry: The means by which the plaintiff entered the defendants
premises were condition. If a plaintiff is free to leave the premises in one
direction, she is not falsely imprisoned. Balmain New Ferry Co Ltd. v Robertson
Awareness: A person does not need to be aware that they have been falsely
imprisoned at the time. Murray v Ministry of Defence.
- Only nominal damages will be awarded unless plaintiff can otherwise
prove damage was suffered.
Knowledge of imprisonment: The gist of the action for false imprisonment is the
mere imprisonment and the respondent carried the burden of establishing the
imprisonment. It is enough to prove there was a constraint upon the
respondents will so great as to induce them to submit to deprivation of liberty.
Actual physical force does not need to be proven. Myer stores v Soo
Defences for trespass to person torts
Necessity
Interference is reasonably necessary as a means of protecting persons from the
threat of real and imminent harm. Southwark London Borough Council v
Williams.
The second is where a person is unable to consent to medical treatment by virtue
of some permanent or temporary treatment. It is clear that necessity cannot
justify treatment which is against the will of a person of full capacity, even if the
treatment is to keep the person alive for repsect for the right of personal
autonomy requires that effect be given to the refusal of consent.
- Treatment to save life where consent cannot be given.
- cannot use lethal force in order to save your life when claiming necessity.
Insanity
“By reason of insanity, a person is incapable of appreciating the nature and
quality of his or her acts, insanity would be available as a defence on the ground
that the act could not be described as voluntary.” (64)
Insanity is not a defence in trespass torts. (White v Pile). Rather it would be
considered as a factor in mitigation damages. E C E Todd (1952)
Defence of self, others or property
Limits
A person who is threatened or attacked by another
Who reasonably believes that he or she
A person who on reasonably grounds thinks that they are likely to be the
subject of an imminent attack
Which will place them in danger of death or serious injury
(See Hall v Fonceca)
o The act that is done in self-defence, however, must be reasonably
necessary to counter the perceived threat and must not be
excessive. (Fontin v Katapodis)
Provocation
Generally accepted that provocation is not a defence to trespass torts. Rather can
result in reduced damages. (Fontin v Katapodis)
Illegality
- First is unlikely to appear on test. See extensive notes.
-
Second, the defence may be available where, at the time P suffered the
injury P was engaged in an illegal activity but D was not. Outside the joint
illegal enterprises cases discussed above, the fact that P was engaged in
an illegal activity at the time of the injury has rarely provided D with a
defence, the appropriate course being seen as reducing P’s damages for
contributory negligence.
o Revill v Newberry (1996)
Consent
- For consent to be valid:
o Must be real and freely given (P needs to be informed in broad terms
the nature of the physical contact, but not the exact nature; consent
under duress is not freely given).
- Any consent given must not be exceeded (Murray v McMurchy)
- Withdrawal of consent
o It is quite clear that in most cases a plaintiff who has given consent
is free to revoke that consent. Consent however, cannot be
retrospectively revoked. If the tortious interference has not yet
occurred in the above example, consent can be revoked. (Klovis
Njareketa v The Director of Medical Services, Entebbe)
o A person who revokes consent to a deprivation of liberty is
entitled to liberty as soon as it is reasonably convenient for the
other party to release them – that is, without significant
inconvenience, substantial expense or grave risk.
Lawful Arrest
 Citizens arrest, s545 A
o Doesn’t apply to police officers.
 S546
o Lawful if Assisting police officer
o Find another committing an offence
o Believe on reasonable ground offence has been committed
CRIMINAL CODE 1899
545A Chapter does not apply to police officers
This chapter does not apply to a police officer.
546 Arrest without warrant generally
When an offence is such that the offender may be arrested without warrant
generally-(b) it is lawful for any person who is called upon to assist a police officer in the
arrest of a person suspected of having committed the offence, and who knows
that the person calling upon the person to assist is a police officer, to assist the
officer, unless the person knows that there is no reasonable ground for the
suspicion;
(c) it is lawful for any person who finds another committing the offence to arrest
the other person without warrant;
(d) if the offence has been actually committed--it is lawful for any person who
believes on reasonable ground that another person has committed the offence to
arrest that person without warrant, whether that other person has committed
the offence or not;
(e) it is lawful for any person who finds another by night, under such
circumstances as to afford reasonable grounds for believing that the other
person is committing the offence, and who does in fact so believe, to arrest the
other person without warrant.
Tresspass to Land
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unjustifiable (Halliday v Nevill),
intentional (Public Transport Commission of New South Wales v Perry),
direct (Esso Petroleum Co v Southport Corporation),
interference with land (Kelsen v Imperial Tobacco Company)
in the lawful possession of another (Delaney v TP Smith).
Real Property
- Anything that deals with land.
- Under the principles of land law, anything which is attached to land
becomes part of it.
Personal Property
- Things which are not land are considered personal property, i.e. books,
cars.
Trespass to land
- Protects the right to lawful possession.
Trespass to land is any unauthorised, direct interference with another person’s
lawful possession of land.
Five elements of trespass to land:
1. The interference must be with land in the lawful possession of the
plaintiff.
2. Must be a positive act and a direct interference.
3. The interference with or entry on must relate to land.
4. There must be fault.
5. There must be a lack of consent.
Interference must be with land in the lawful possession of the plaintiff
Trespass to land is available only as a remedy for someone who is in possession
of land pursuant to some form of proprietary right. (Delaney v T.P. Smith Ltd)
Who then has a proprietary right in land? (Delaney v T.P. Smith Ltd, LG 18)
In Delaney v T.P. Smith Ltd, it can be established that when there is contention
between one party who has possession of the land in fact and someone who has
the legal right to exclusive possession, the latter party would be successful.
-
Under the English Law of Property Act – Tenancy is not enforceable
unless it is in writing.
There must be a positive act and a direct interference
To amount to a trespass to land an interference with the land must be direct. All
that is necessary is some form of direct contact with the land (Esso Petroleum Co
Ltd v Southport Corporation).
Intention in trespass to land is the same as trespass to the person. All that be
required for intention is that the action be intended, not the harm that results.
(Gray v Barr? Or Watson v Cowen).
The plaintiff does not commit an actionable trespass by going on to a plaintiff’s
land involuntarily (Public Transport Commission (NSW) v Perry).
The interference with or entry upon must relate to ‘land’
Although the interference must be in respect of ‘land’, liability can arise where
there is permanent intrusion into the airspace above another person’s land.
(Kelsen v Imperial Tobacco Co Ltd)
The rights of an owner to airspace above his or her land is restricted to such a
height as is necessary to the ordinary use and enjoyment of the land. (Bernstein
of Leigh v Skyviews and General Ltd…..Bernstein v Skyviews)
Reasonable ordinary use and enjoyment of the land.
- ordinary use of the normal person
Can transient intrusions amount to trespass to land?
In my opinion, the invasion of the plaintiff’s airspace by the projection of the
crane jib is a trespass by the defendant and not a mere nuisance. I am not
prepared to take a view of this issue which differs from that expressed by
McNair J in Kelsen v Imperial Tobacco Co Ltd [1957] 2 KB 334. I am persuaded
that the over-hanging crane which, as the plaintiff says and I accept, is both
an unsightly feature of her land and cause of nervousness and apprehension
to her, interferes with that part of the airspace above her land which is
requisite for the proper use and enjoyment of that land.
(Graham v K.D. Morris)
Court held that transient intrusions could amount to trespass to land.
Section 180 Property Law Act
An application can be made to the Supreme Court for the right to intrude. The
right to intrude needs to be in the public interest, the servient (interfered land)
land can be recompensated for any loss or damage or disadvantage that may
occur due to the interference. The servient land owner in this case needs to
refuse access and no alternative owner who can allow access may be unable to
be found.
Occupiers Liability
The Occupier owed a duty to the person entering the land. This liability was
higher for an invitee, and a low duty of care was owed to a trespasser.
(Public Transport Commission (NSW) v Perry) see LG 23
Unjustifiable entry or interference - Lack of Consent
Consent is seen as a defence. Defendant has onus.
If there is consent to the defendants presence there can be no trespass as the
entry is justified. In such circumstances the defendant has a licence to be on the
property. Consent can either be express or implied. When would a person have
an implied licence to enter upon property and how far could that licence extend?
There is an implied licence for members of the public to enter a private abode for
a legitimate purpose such as making contact with the occupier or possessor of
the dwelling. (Halliday v Nevill)
A licensee may commit trespass after lawful entry in some cases such as where a
licence is given for one purpose, but the licensee enters the property for a
different purpose. (Barker v R)
Withdrawal of Consent/Forcible Removal
The landholder can revoke the licence or consent to enter onto land at any time.
If this happens, the entrant must leave the land within a reasonable time. Cowell
v Rosehill Race Course
If the licensee refuses to leave, the occupier can forcibly remove him or her
without being liable for trespass to the person. Cowell v Rosehill Race Course
Remedies
Damages
Even though the cause of action is for trespass to land, if that trespass results in
damage in the sense of personal injury, or damage to property or financial loss
then the defendant may be liable for this. This is because any assessment of
damages in a trespass case is made upon the rule of whether the damage
sustained was the natural or reasonable consequences of the original wrongful
act. As with trespass to the person, nominal damages will be awarded if there is
no proof of damage and aggravated damages to compensate the plaintiff for
injuries to their feelings caused by tortious conduct which was particularly
officious, abusive, insulting or humiliating.
(Hogan v Wright)
Injunction
This form of relief may be granted if it appears that the defendant is merely
threatening to trespass on the plaintiffs land. Case law has established that a
prohibitory injunction will apply to most circumstances where there has been a
trespass.
Defences
There is a defence of necessity to a claim for trespass to land if the interference
was reasonably necessary to protect persons or property from the threat of real
and imminent harm. (Cope v Sharpe)
-
The defendant must prove imminent peril as actual and not merely a
belief.
Re-entry to land
A person who is exclusively entitled to possession of the land is allowed to reenter the land and evict the person who is no longer in lawful possession of the
land without being liable in torts, if no more force is used than is reasonably
necessary. Aglionby v Cohen
Inevitable accident

A defendant who succeeds in showing that the act was not done intentionally
and that it was done without negligence or carelessness (Public Transport
Commission of NSW v Perry).
Lawful Authority
It is a defence to trespass to land that the defendant has lawful authority to
interfere with the plaintiff’s possession. Police have important statutory and
common law powers.
The question for determination is whether the otherwise tortious conduct of the
defendant falls within the scope of lawful authority.
Consent
See above.
Nuisance
The general rule is that the law requires ‘give and take’ and ‘live and let live’
between neighbours. (Bamford v Turnley)
The plaintiff, in nuisance, must show that the defendants interference was
serious and unreasonable.
Private Nuisance is an:
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Unreasonable (Clarey v Principle and Council of the Womens College)
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Indirect interference (St Helens Smelting v Tipping)
Causing physical damage to land or substantial interference with the
reasonable enjoyment of the land (Walter v Selfe)
Plaintiff must have an interest in the land. (Hunter v Canary Wharf Ltd)
In order to be successful in a nuisance claim you do have to prove damage. Two
types of damage, actual damage (interference with property) and interference
with comfort or amenity (in other words, interference with the enjoyment of the
land). Could include interference through smells, lights, noise or rights to the
land.
To have standing to sue in negligence the plaintiff must be the free holder or licensed
tenant (hunter v canary wharf)
Unreasonable Interference
An interference with the use and enjoyment of land is not actionable unless it is
‘unreasonable’. The most important feature of the concept is that, for the most part, it
focuses upon the effect of the defendants activity upon the plaintiff’s use and
enjoyment of the land, not upon the quality of the defendants conduct. The tort of
nuisance is distinct from liability in the tort of negligence, operating as it does to
protect particular (reasonable) levels of entitlement to the enjoyment of land
regardless of the level of precaution a defendant has taken in relation to its activity.
Give and Take (Unreasonableness)
When people live in close proximity to one another they have to be prepared, to
some extent, to allow others to do things that annoy them at times when they
would prefer to be left in peace and quiet, if they whish to behave in a similar
way. The notion of ‘give and take, live and let live’ can be used to decide whether
an action is unreasonable. A minor interference that constitutes the ordinary use
of land is reasonable. (Clarey v Principle and Council of the Women’s College –
Case involve uni students and landlord living on same land).
Triviality
In nuisance there must be a substantial interference. The interference with use and
enjoyment of land must be more than trivial to constitute nuisance. Walter v
Selfe (smell and cinders resultant from brick making) The matter has to be
judged in accordance to the standards of reasonable people.
Hypersensitivity
The question of reasonableness is judged according to the standards of the normal
person; an abnormally sensitive person is not entitled to additional protection by
reason of his or her sensitivity. Robinson v Kilvert (Brown paper bag case)
-
A man who carries on an exceptionally delicate trade cannot complain because
it is injured by his neighbour doing something lawful on his property, if it is
something which would not injure anything but an exceptionally delicate
trade.
Duration,
The longer something goes on the more likely something is to amount to nuisance.
That is not to say that the shorter something goes on doesn’t mean it can’t amount to
nuisance.
Timing
Something that is unjustifiable at night, might be perfectly acceptable during the day.
Locality
If someone is living in an industrial zone, they should expect some sort of noise, but
could not expect the fragrances of an orchard. The reasonable enjoyment and ordinary
use should be put in place to the locality of the nuisance. St Helen;s Smelting v
Tipping
Planning permission of a particular use of land is not a defence. However, if it has
public interest than it might make a difference.
The levels of peace and quiet expected changes with the neighbourhood itself. So
what is reasonable in one neighbourhood might be unreasonable in another.
Who can be sued?
A lessor is not responsible for a nuisance created by a tenant unless the lessor let the
premises for a purpose calculated to cause a nuisance, that is, by express authorisation
of the nuisance or in circumstances where the nuisance was certain to result from the
purposes for which the property was let. (Peden v Bortolazzo)
Defence
Moved to the nuisance: If someone sets himself up next to the nuisance, than there is
an implied consent to the nuisance. It is no defence to say that the plaintiff moved to
the area knowing of the nuisance (Chalin v McCloud’s Country Golf Club).
Public Nuisance
Public nuisance is not about interference with private rights to land, but with
interferences with ‘public’ rights we all enjoy, such as rights to health to use a
public highway or footpath. It requires an “act or omission which materially
affects the reasonable comfort and convenience of a class of Her Majesty’s
subjects”: AG v PYA Quarries Ltd
Public Nuisance is a crime: An individual however, can have an action in tort if he or
she has suffered a particular damage over and above that suffered by the public in
general – that is if the damage is different in nature (Benjamin v Storr) or greater in
extent (Walsh v Ervin).
Highway Authorities and Nuisance
Two appeals: Brodie Singleton Shire Council, Ghantous v Hawkesbury City Council
First case plaintiff was injured when he was travelling across a bridge maintained by
the defendants, and the bridge collapsed. Second case, the plaintiff was injured when
she tripped and fell on a footpath which had eroded away in part.
Where the local authorities liable for failing to maintain and repair? Traditionally,
local authorities had been granted an immunity from suit in such cases.
Public Authorities vested with powers for construction, maintenance and repair of
roads, bridges and footpaths may be liable in nuisance if they fail to inspect, maintain
and repair, irrespective of whether they originally constructed the items or not.
Note that the liability of a road authority in public nuisance is now governed
by the Civil Liabilities Act or Wrongs Act in each jurisdiction except NT. The
legislation either reverses, or greatly modifies the law in Brodie.
Intentional Torts to Chattels
Trespass to Goods
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Direct (Hutchins v Maughan)
Intentional (Colwill v Reeves)
Interference with goods (Kirk v Gregory)
In the possession of another (Penfolds Wines Pty Ltd v Elliot)
Direct
Acts of the defendant that make immediate contact with Ps goods without any
voluntary human intervention are regarded as ‘direct’. i.e. smashing car window with
hammer, shooting with pistol Ps cats and dogs.
Locking a room in which P has left some of the Plaintiff’s goods is not a trespass, as
there is not direct context with P’s goods. (Hartley v Moxham) – Rather detinue.
Any act that sets in motion an unbroken series of continuing consequences, the last of
which ultimately causes contact with the goods of the plaintiff, will be regarded as
sufficiently ‘direct’ for the purposes of the tort of trespass to goods. In (Hutchins v
Maughen) it was thought that trespass would like against the defendant who threw
poisoned meat to a dog, which subsequently ate it. The damage to the dog would be
properly occasioned by the act of the defendant.
- Leaving poisoned meat on your land is not trespass as the contact with the
animal is brought about through an indirect means.
- Another instance is where P is carrying a decanter, D pushes P, P drops the
decanter due to the push, therefore P can sue D for trespass to goods, even
though D did not touch the decanter.
Intentional
It is not necessary that D intends to interfere unlawfully with Ps Possession of goods.
(Colwill v Reeves) All that is required is that D intends the interference with
possession.
- Was the act voluntary? i.e. If A takes Bs hand and grabs Cs books, B is not liable as
the act was not voluntary. However, A may be liable in trespass. (Beals v Hayward)
Interference with Goods
Any act which involves the moving or taking of goods (sometimes referred to
‘asportation’ of goods), or any unlawful contact with goods, can suffice to found
trespass to goods. Acts that constitute a trespass to goods are many and varied and can
include moving objects from one place to another in the same house (Kirk v Gregory)
etc. see 103.
In the possession of another
To succeed in an action for trespass to goods the plaintiff must be able to show that
they were in possession of the goods at the time of the act of interference by the
defendant.
In determining who has the possession of goods relevant factors include who has the
physical control of the goods and whether the person in physical control has displayed
an intention to exercise that control on his or her own behalf.
Possession can be actual or constructive. Actual is when a watch is on ones wrist.
Constructive possession is when the watch slips off your wrist and one is no longer in
actual contact but is still in constructive possession. One must be in one of these two
possessions to be able to sue in trespass to goods.
Bailment
Is where you retain ownership of goods but part with possession of them. The person
who retains ownership is called the bailor. The person granted possession is the
Bailey. Bailments com in different varieties:
- Irrevocable bailment (bailment of will)
- Bailment for a fixt term.
Where goods are in the physical control of the bailee under bailment at will (one that
can be terminated at any time by the bailor), legal possession of the goods remains in
the bailor.
Legal possession remains with the bailor. For there to be an action in trespass to
goods, D’s act must be wrongful against the bailee. Thus, in (Penfolds Wines Pty Ltd
v Elliot), the majority of the HC held that there was no trespass to goods when the
defendant filled the plaintiffs’ bottles with bulk wines produced by another vigneron,
because the bottles had been given to the defendant by the plaintiffs bailee. As the act
of the defendant was not wrongful as against the bailee, there was no trespassory
interference with possession which would allow the plaintiff, the bailor, to sue for
trespass to the bottles.
A right to gain immediate possession is not generally sufficient:
Exceptions:
1. A trustee may sue for direct interference to goods in the possession of a
beneficiary. (Barkers case) – A trustee is someone entrusted with the
possession of an object.
2. An executor or administrator may sue for trespass to goods of a deceased
prior to the executor or administrator taking actual possession. (Tharphe)
– If you die and make a will there is a person called an executor. When
there is a will there is a relative. The role of the executor is to carry out
the wishes of the will.
3. Franchises. (beyond the scope of the course)
4. A person with a right to immediate possession may sue in trespass to
chattels where the direct interference by a third person is to possession of
a servant, agent or bailey holding under irrevocable bailment. (Penfolds
wines v Elliot)
Conversion
D’s conduct must be inconsistent with the rights of the person in possession or
entitled to possession of the goods; that the conduct must be intentional, not
accidental; and that the conduct must be so extensive an encroachment on the rights
of the person in possession or entitled to possession as to exclude them from use and
possession of the goods.
What can be converted?
- A thing which is incapable of being property cannot be the subject matter of
conversion. i.e. extent to which body parts and emanations of the body can be
property has been subject to dispute: Sperm, blood etc.
- Any tangible, movable object that is in, or is capable of being in, the actual
possession of a person can be the subject matter of conversion. i.e. bottles,
motor cars etc.
- Domesticated animals. Ie. Birds, cats, etc. Wild animals cannot, unless
someone has taken possession of them, for instance, a zoo.
- Money can be the subject matter of conversion, provided the money in
question was a specific tangible, movable object and not simply money as
currency. Ie. This will usually require that P is able to identify the particular
notes and coins in Ds possession as her own, and this will only occur if there
is something distinctive about the money or if it ahs been serparated out and
kept separately from other money held by D.
- Fourth, in the case of negotiable instruments such as cheques, insurance
policies and shares etc. are not tangible, but can be converted…ie. The
documents that are the evidence of these rights can be converted.
Seven things that would amount to conversion:
1. Wrongful destruction or alteration. (Hollins v Fowler)
2. Wrongful taking of an item with intent to exercise temporary or
permanent dominion over it. (Schemmel v Pomeroy)
3. Wrongful delivery. If a person has lawfully obtained the possession of a
chattel, than transfers that chattel to a person with no authority to receive
it, a conversion may be committed. (Glass v Hollander)
4. Wrongful detention. If I lend you my car for seven days, that act of
keeping it beyond the time for keeping it can amount to conversion.
(Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd)
5. Wrongful use of goods. An unjustified use of goods will amount to a
conversion provided there is an intention to exercise the appropriate
dominion over the goods. (Penfolds Wines v Elliot)
6. Wrongful disposition. If you give someone else lawful title to the goods
this can be an act of conversion. (Douglas Valley Finance)
7. Representations of possession. Arises out of a branch of law called
estoppel. (NOT NECESSARY FOR EXAM)
Requirements:
 Plaintiff must have possession or right of immediate possession of the goods
(Penfold’s Wines v Elliot).
 Intentional dealing with goods (Ashby v Tolhurst).
 Seriously inconsistent with the P’s possession or right to possession (Fouldes
v Willoughby).
Possession or right of immediate possession of the goods
The plaintiff must have either actual or constructive possession of the goods or the
immediate right to possession of the goods at the time of conversion. (Penfolds Wines
v Elliot)
As in trespass to goods, it is not necessary for the plaintiff to have the right to
possession of the goods, actual possession of the goods being sufficient title to sue in
conversion. (Amery v Delamirrie)
Intentional Dealing with the goods
There msut be a positive act of misconduct to constitute conversion. That is the act
must be intentional and not simply negligent. That is not to say that to constitute
conversion the act must be direct, the act can still be indirect to occasion conversion.
The defendant must intentionally deal with goods in a way that was inconsistent with
the plaintiff’s right to immediate possession. (Ashby v Tolhurst)
Seriously inconsistent with the P’s possession or right to immediate possession
The extent to which the taking encroaches on P’s rights in the goods will affect
whether a specific act does or does not constitute conversion. The conduct must be so
extensive an encroachment on the rights of the person in possession or entitled to
possession as to exclude them from use and possession of the goods. (Fouldes v
Willoughby)
Detinue
Detinue is the detention of goods after a proper demand for their return has been made
by the person who has immediate right to their possession.
Detinue offers an advantage over, conversion and trespass. As one of the remedies
available in detinue is the order for the defendant to return the goods. No such remedy
is available in the others.
Requirements:
- Defendant has wrongfully detained goods (Jones v Dowle)
- After a proper demand for their return (Clayton v Le Roy)
- By the plaintiff who has an immediate right to possession (Penfolds Wines v
Elliot)
Defendant has wrongfully detained goods
The goods must have been in D’s possession at some time, even though they may not
be in D’s possession at the time the action is brought. (Jones v Dowle)
A claim in detinue cannot be defeated simply because the defendant was unable to
return the goods. (Goulding Pty Ltd v Victorian Railways)
After a proper demand for their return
There must be a demand made by P for the return of P’s goods and a clear refusal by
D to return them. (Clayton v Le Roy)
It is not necessary that a specific place of delivery be specified: it is sufficient fo P to
say that P will arrange for recovery of the goods. (Quality Bakers Australia Pty Ltd v
Yassin Modern Bakery Pty Ltd)
If a proper demand has been made, taking no notice of it by failing to respond to it
within a reasonable time may be regarded as a refusal. (Lloyd v Osborne)
By the plaintiff who has an immediate right to possession
The plaintiff must have the immediate right to possession of the goods at the time of
conversion. (Penfolds Wines v Elliot)
-
Application:
o The P was not in complete control of the goods at the time at which the
unlawful interference occurred, but he/she does have a legal right to
the immediate possession of the goods acting as the bailor (Penfold’s
Wines v Ellioti).
Damage to Reversionary Interest in Goods
The action will be available where the trespass, conversion or detinue results in
‘permanent’ damage to the goods, so that when the owner gets them back they will be
worth less. (Penfolds Wines Pty Ltd v Elliott)
The most common example is destruction of goods, or damage done to them, while
out of the owner’s possession, of a kind that will remain when possession returns to
the owner.
It appears that the mere presence of a contractual right for a bailee of goods to repair
or make good the damage does not prevent the action from being brought by a bailor
against a third party who is responsible for the damage. (The Dee Trading Co Pty Ltd
v Baldwin) But if the Bailee has in fact repaired or replaced the goods there can be no
claim.
Defences to torts of interference with goods
Necessity
The defence of necessity may be available if intereference with the goods was
reasonably necessary to protect goods or persons from the threat of real or imminent
harm. (Southwark Borough Council v Williams)
It has been said that the defendant must also prove that such an urgen situation of
imminent peril ‘existed actually, and not merely in the belief of the defendant’. (Cope
v Sharpe)
Illegality
The defence of Illegaliy has a limited role.
If P’s possession of goods is unlawful not becase fo the way they were acquired (e.g.
by theft) but because of the nature of the goods, it may be that defence of illegality
will succeed. (Gollan v Nugent – Australia Paedophile Support Group case)
If P’s claim is based not on factual possession but on an immediate right to
possession, and P is required to plead an illegal contract as the basis of the right to
possession, D can rely on that illegality as a defence of the claim. (Bowmakers Ltd v
Barnet Instruments Ltd)
Distress
The common law right of distress allows a person, in certain circumstances, to seize
and detain goods of another person in order to force the other to perform some
obligation or to punish the other for the non-performance of an obligation. (Wood v
Fetherson)
Where the right exists the distrainor (the person exercising the right of distress) can
enter the plaintiff’s premises and commit what would otherwise be a trespass both to
land and goods – and perhaps conversion and detinue – without incurring any liability
in tort. So, where the right of distress exists, and is properly exercised, it will provide
the distrainor with immunity from any action in tort that might be brought in respect
of acts committed while the defendant was distraining on the goods of the plaintiff.
(NOTE SOME STATES HAVE REMOVED THIS RIGHT FOR RENT PURPOSES)
Distress damage feasant now abolished in queensland. Where one can take control of
an animal until owner of said animal pays compensation for damage the animal
caused.
Consent
Consent to the interference is a defence to all torts considered. Consent can be express
(terms by parties) or implied by conduct (as when a person enters onto premises after
passing a notice stating certain matters the entrant consents to by entry). Or from the
circumstances of D’s dealing witht eh goods more generally. (Harper v Reg-Air Pty
Ltd)
Where consent is implied through a notice, the defendant must take reasonable steps
to draw the existence of the notice to the plaintiffs attention. Even if this is done, it
remains possible for P to rpove that she did not see the notice (Vine v Waltham Forest
LBC), but if D placed the notice in a prominent position and took steps to ensure it
came to P’s attention, P’s direct evidence that he or she did not see the notice may not
be credible. It is not necessary that P understand the notice, just that she knows the
notice is regulating why she is there. (vine as above).
Lawful Authority
Where D can claim to have acted under lawful authority. Authority can exist at
common law or under statute. When authority is under an act, the said interference
just needs to be proven to be covered by the particular statute.
Remedies
Recaption of Chattels
The common law right of reception of chattels allows a person who has been deprived
of the possession goods to recover those goods immediately and without recourse to
legal action.
Trepass to Goods
Damages is the main remedy for trepass to goods. Trespass to goods is actionable per
se, that is proof of damage is not required. Nominal damages may be awarded even
though the goods have not been destroyed or damaged.
Compensatory damages are available should the plaintiff have made a profit during
the period detainment of the goods by D. Plaintiff need establish that in the absence of
detention, he or she would have made a profit from the use of goods, or suffered a
loss from the lack of goods, i.e. by hiring or buying a new chattel to substitute.
Cannot recover damages for the loss of use of goods. That is, yacht taken and
damaged. P can claim damages for damage to yacht, but no compensation for the loss
of use during the time yacht was taken.
Aggravated Damages may be awarded in aggravated circumstances. i.e. D overturned
P’s car whilst P was inside. P does not need to suffer damages.
Limited Interest in goods the damages will be of a limited extent. That is to the extent
of P’s ownership of the goods in question.
Conversion
Damages – measure is usually full market value at the time of the act of conversion.
Consequential loss – if the value of the goods converted rises between the date of
conversion and tehd ate of trial, the plaintiff will be able to recover this increase in
value only as consequential loss, and only if the necessary condition is satisfied.
(Western Credits Pty Ltd v Dragon Motors Pty Ltd)
Detinue
Judgment for the Value of chattel
Judgement for the Return of chattel and value as assessed
Judgment for the Return of chattel.
In all of the above judgement, damages for the detention of the chattel are available.
Reversionay interest in goods
Damages
Negligence
1.
2.
3.
4.
Duty of Care
Breach of Duty of Care
Causation
Remoteness
Duty of Care
Donoghue v Stevenson
The Neighbour Principle
You must take reasonable care to avoid acts and omissions, which you can reasonably
foresee, would be likely to injure your neighbour. Who then, in law, is my neighbour?
The answer seems to be persons who are so closely and directly affected by my act
that I ought reasonably to have them in contemplation when I am directing my mind
to the acts or omissions, which are called in question.
In other words:
Duty of care requires the defendant to have owed a duty of care to the plaintiff to
exercise reasonable care and skill because his or her conduct involved a reasonably
foreseeable risk of harm towards the class of persons that the plaintiff was within –
neighbour principle.
Reasonable Foreseeability
The requirement of reasonable foreseeability does not mean that a person can be held
liable in negligence only if they were in a position to foresee the victim particularly or
individually. It may be enough that the defendant ought to have foreseen injury to a
class of persons of which the victim was one.
Precise sequence of events need not be foreseeable. (Chapman v Hearse)
In order to establish the prior existence of duty of care, with respect to a plaintiff
subsequently injured, as the result of a sequence of events following a defendant’s
carelessness, it is not necessary for the plaintiff to show that the precise manner in
which their injuries were sustained was reasonably foreseeable. It is sufficient if it
appears that injury to a class of persons of which he was one might reasonably be
foreseen as a consequence.
-
In regards to the case:
Chapman negligently collided with another car. Chapman was thrown onto
road. Dr Cherry came to the aid of Chapman. Dr Cherry was then hit by the
negligent driving of Hearse.
The high court found that the defendant could be expected to foresee that
someone might have come to his aid if he had an accident, and that in so doing
that person might be injured or killed.
The Unforeseeable Plaintiff (Palsgraff v Long Island Railroad Co)
If the plaintiff was not within the class of persons in which there was a reasonable
foreseeable harm, then the defendant does not owe a duty to the unforeseeable
plaintiff.
The Case: The plaintiff was standing on the defendant’s railway platform near some
weighing scales. Much further down the platform a man carrying a small package
wrapped in newspaper was having difficulty in boarding a train, which had already
started to move. A guard employed by the defendant, who was on the train, reached
out to help him, and another guard pushed him from behind. In the process the
package, which contained fireworks, fell between the platform and the train and
exploded. The resulting vibrations dislodged the scales, which fell on the plaintiff,
injuring her.
- If any wrong had been committed it had been committed against the passenger
getting into the carriage. But when the guard tried to help the passenger to get into the
carriage, the guard did not create any risk of injury to P standing down the platform.
Because of this no duty of care was owed to P.
Duty of Care owed by employer to employee (Czatyrko v Edith Cowan University)
An employer owes a duty of care to an employee to provide:
1. Safe place of work
2. Safe systems of work
3. Safe plant and equipment
4. Competent co-employees
Duty of Care owed by an occupier to an entrant (Thompson v Woolworths)
There is a Duty of Care owed by an occupier to an entrant. The preciseness of the
relationship between the entrant and occupier is to be examined in judgement of
whether there was a breach of duty.
Duty of Care owed to other road users (Manley v Alexander)
But the reasonable care that a driver must exercise when driving a vehicle on the road
requires that the driver control the speed and direction of the vehicle in such a way
that the driver may know what is happening in the vicinity of the vehicle in time to
take reasonable steps to react to those events
Breach of Duty
Reasonable foreseeability set out in CLA
S9(1) A person does not breach a duty to take precautions against a risk of harm
unless a) The risk was foreseeable (that is, it is a risk of which the person knew or ought
reasonably to have known); and
b) The risk was not insignificant; and
Section (1)b changes the test from wyong v shirt of farfetched and fanciful test.
Ultimately tightening it up.
The required standard of care
S9(1)
c) In the circumstances, a reasonable person in the position of the person would
have taken the precautions
Neindorf v Junkovic
- Standard of care should not be elevated due to their being some commercial
gain. Care should be the same.
McHale v Watson
- In the case of children the standard of care is lowered.
Imbree v McNeilly
- The standard of care owed by an inexperienced driver to others, including the
instructor is the same as a reasonable driver.
Carrier v Bonham
- There is no reduced standard of care by person of unsound mind in the context
of negligence. (impossible to determine degrees of unsoundness)
Breach of the duty of care
S9(2) In deciding whether a reasonable person would have taken precautions against a
risk of harm, the court is to consider the following (among other relevant things) –
a) The probability that the harm would occur if care were not taken;
Bolton v Stone
- The lower the probability of harm, the less likely it is to be one against which
precautions must be taken.
b) The likely seriousness of the harm;
Paris v Stepney Borough Council
-
The more serious the likely harm if the risk materialises, the more significant
or substantial the risk and the greater the required precautions.
c) The burden of taking precautions to avoid risk of harm;
Caledonian Collieries Ltd v Speirs
- If the probability and/or magnitude of the risk are real, as opposed to
extremely small, then the plaintiff must prove that it was reasonable for the
defendant to take precautions. But this does not mean the defendant has to
take precautions which are out of all proportion to the risk they are supposed
to avert.
d) The social utility of the activity that creates the risk of harm.
Watt v Hertforshire CC
- An individual may be required to submit to a risk for the sake of some greater
good, which he or she would not be required to accept if some lesser interest
were at stake.
Res Ipsa Loquitur
An accident will itself provide evidence of negligence where in the ordinary affairs of
mankind such an incident is unlikely to occur without want of care on the part of the
person sued. (Lambos v Commonwealth of Australia)
Sometimes the mere fact that an accident happened justifies an interference, on the
balance of probabilities, that it was the result of negligence on the part of the alleged
tortfeasor even thought the injured person cannot specify the particular act or acts of
negligence o the part of the alleged tortfeasor that caused the accident.
Note: Australian courts have taken the view that the principle of res ipsa loquitur just
expresses a simple truth, namely that sometimes a court is justified in drawing an
inference of negligence on the balance of probabilities, even though the evidence in
support of it is very sparse, if such evidence as there is speaks loudly enough of
negligence.
Causation
S11(1) A decision that a breach of duty caused particular harm comprises the
following elements –
a) the breach of duty was a necessary condition of the occurrence of the harm
(factual causation)
Barnett v Chelsea and Kensington Hospital Management Committee
- But for test of causation
o But for the defendants breach would the plaintiff have suffered harm?
o If the answer to the ‘but for’test was no, than causation is satisfied. If
the answer is yes, than it may very well be that causation is not
satisfied.
S11(2) In deciding in an exceptional case, in accordance with established principles,
whether a breach of duty – being a breach of duty that is established but which can
not be established as satisfying subsection (1)(a) – should be accepted as satisfying
subsection (1)(a), the court is to consider why responsibility for the harm should be
imposed on the party in breach.
Strong v Woolworths
- 17-31 important commentary
- As earlier noted, the limitations of the "but for" analysis of factual causation
include cases in which there is more than one sufficient condition for the
occurrence of the plaintiff's injury.
March v Stramare
When trying to determine causation, it is common sense to consider whether the
actual damage to the plaintiff was the very thing likely to occur as a consequence of
the conduct of the defendant.
In other words (my words) – also see intervening factors below:
When there a two or more intervening causes, one must consider the act of the
defendant in terms as the most likely reason for the damage having occurred to the
defendant.
-
As can be seen in March v Stramare, damages will then be reduced for any
other intervening factors whether from multiple or several tortfeasors or the
plaintiff himself through intoxication or some other form.
Scope of Liability (Remoteness a Common Law)
Remoteness: The damage sustained by the plaintiff must not be too remote.
S11(1) A decision that a breach of duty cause particular harm comprses the following
elements –
(b) It is appropriate for the scope of the liability of the person in breach to extend to
the harm so caused (scope of liability)
(4) For the purpose of deciding the scope of liability, the court is to consider (among
other relevant things) whether or not and why responsibility for the harm should be
imposed on the party who was in breach of the duty.
-
Scope of liability is the same as remoteness at common law. However, Scope
of Liability is wider than remoteness at common law. Common law cases are
still relevant.
Wagon Mount (No 1)
Case title: Overseas Tankship (UK) Ltd b Morts Dock & Engineering Co Ltd (The
Wagon Mound (No 1)) [1961] AC 388
Common law test of remoteness developed:
Is the kind or type of damage that occurred, the kind or type of damage that is
reasonably foreseeable?
Hughes v Lord Advocate
It is not necessary that the exact manner in which the injury occurs be foreseeable.
The case:
The plaintiff was severely burned when he knocked a paraffin lamp into a manhole. It
was foreseeable that if paraffin lamps were left lying around children might play with
them and in the process be burned. But what happed was that the breaking of the lamp
set off a very large explosion that knocked the plaintiff into the manhole from which
flames were leaping then metres into the air. It was held that injury by fire was
foreseeable and it was irrelevant that the exact manner in which the injury occurred,
and its extent, were unforeseeable.
The ‘thin skull’ rule
The defendant has to take the plaintiff as he or she finds them. The defendant won’t
succeed in arguing that this particular plaintiff had some form of disability of which
the defendant was not aware. The defendant cannot succeed in claiming the damage is
too remote due to some unknown disability.
Smith v Leech Brain
A pre-existing susceptibility or sensitivity that increased the extent of injury should
not cause the damage suffered to be too remote. Rather, this may result in a reduction
of damages payable, where it can be shown that the plaintiff may have suffered (in
this case cancer) the condition irrespective of the damage occurred by the given act.
Tremain v Pike
Case reapplies the common test: is the kind or type of damage that occurred, the kind
or type of damage that is reasonably foreseeable?
Multiple Sufficient Causes and Interevening Acts
Applying the ‘but for’ test doesn’t always produce the right result. There following
are two eamples.
Multiple Sufficient Causes
This is where two or more factors are operative on the facts, each of which would on
its own be enough (sufficient) to produce the harm. Applying the ‘but for’ test here
can lead to counter-intuitive outcomes.
Alternative Causes
In some cases tortious conduct has the effect, by accelerating a condition needing
attention, of necessitating some medial or surgical operation sooner than would
otherwise have been the case.
If an accelerated condition proves incapable of cure, the tortfeasor can be held liable
for the acceleration. (Zumeris v Testa)
But if the condition proves incapable of partial cure, the injured person will recover
only if it can be shown that they have suffered injuries or losses as a result of the
tortious conduct greater than those they would have suffered eventually anyway; or
that they are suffering ill-health now, whereas otherwise they would only have
suffered it later; or that if the condition had not been accelerated the treatment might
have never been necessary, either because some vicissitude of life might have
intervened and pre-empted the onset of the condition – or perhaps, a cure might have
been found before the operation was needed.
If a total cure is available the injured person recovers nothing on account of the
acceleration. (Cutler v Vauxhall Motors Ltd)
Additional Causes
Two sufficient causes may combine to bring about damage. It is important to note that
the causes are independent of one another. If one of the causes would not have
occurred, or would not have had the effect it did, but for the occurrence of the other,
they would not be multiple sufficient causes but multiple contributing causes.
If only one of the sufficient causes is tortious, than the person causing the tortious
action would probably not be liable. However, if the tortious act causes the second
cause, this would not be an additional cause but rather an intervening cause.
Nilon v Bezzina
Where two or more defendants or tortfeasors have material contributed to the
plaintiff’s injuries and the plaintiff can prove that on the balance of probabilities that
D contributed to it, the plaintiff does not have to disentangle to a precise extend the
actual contribution.
Intervening Causes
Where an act of the plaintiff or some third part intervenes between the defendant’s
breach and the harm suffered, simply asking whether that harm would have occurred
‘but for’ the initial breach may again yield a counter-intuitive result. This is because,
according to that test, the defendant’s breach will in every case be identified as a
cause of the harm.
Courts have held that the effect of the ‘intervening’ act can sometimes be to ‘sever the
casual chain’. There is a degree of uncertainty about when this will happen in the
cases.
Chapman v Hearse (3rd Party Act – Causal Chain Intact)
Foreseeability is not a test of causation and that human action does not break the
chain of causation if it is foreseeable.
The case:
Chapman argued that there was a break in the chain of causation between any breach
on his part and the injury and death of doctor cherry. The reason there was a break in
this chain he argued was due to the intervening actions of Hearse. Chapman argued
that this negligent driving by Hearse was not reasonably foreseeable therefore it broke
the chain of causation.
HC disagreed. The HC said that it was reasonably foreseeable that iin this action
someone else might drive negligently.
Lamb v Cambden LBC (3rd Party Act – Causal Chain Broken)
An intervening intentional act may not break the chain of causation if it is foreseeable,
or if it is the very type of act against which the defendant was obliged to take
precautions.
The case:
Employees of the council negligently ruptured a water main outside P’s house,
flooding the house and undermining its foundations. The house began to crack and
subside causing the tenants in it to leave. P was overseas and the house, left vacant,
was taken over by squatters, who casued further extensive and deliberate damage to it.
The plaintiff sought damages from the council, inter alia, for the damage caused by
the squatters. The Court of Appeal denied compensation for the damage by the
squatters because the damage inflicted by the squatters was too remote; two of the
judges reached this conclusion by applying the foreseeability principle.
McKew v Holland, Hannen & Cubbitts
If the plaintiff behaves very unreasonably, P’s conduct may break the causal chain,
even if the conduct was foreseeable in this ordinary sense.
Multiple Tortfeasors: Proportionate Liability and Contribution
Have a basic understanding of S28 – 33 of CLA.
Joint Tortfeasors
The defendants (two or more) are held liable to the plaintiff for the same wrong eg.
They are liable to the plaintiff for the same cause of action in negligence. The ‘joint’
aspect refers to the ‘same wrong’.
Several Tortfeasors
The defendants (two or more) are held liable to the plaintiff for different wrongs eg.
They are liable to the plaintiff for different causes of action such as two separate
incidents of negligence. The ‘several’ aspect refers to the ‘different wrongs’.
Concurrent Tortfeasors
The defendants are responsible for the same damage (or same injury) to the plaintiff.
(a) Joint Tortfeasors are also concurrent tortfeasors because they are liable for
the same wrong and thus it follows that they must also have caused the same
damage or same injury to the plaintiff.
(b) Several Concurrent Tortfeasors are tortfeasors who are responsible for
different wrongs, but they each cause the same damage or same injury to the
plaintiff. NOTE: Where ‘several tortfeasors’ each cause different or distinct
damage or injury to the plaintiff they are usually referent to as ‘several
tortfeasors’.
Solidary and Proportionate Liability:
Solidary Liability
Solidary Liability encourages plaintiff’s to sue the tortfeasor who is most likely to be
able to pay any damages awarded, thereby increasing the chance that plaintiffs will
actually be compensated. Another, related effect is that the risk of a tortfeasor being
insolent or not worth suing is placed on other tortfeasors and not on the plaintiff.
Proportionate Liability
Proportionate liability applies to all ‘apportionable claims’, defined as claims for
economic loss or damage to property arising from breach of a duty of care, as well as
claims arising from the breach of statutory prohibitions on misleading and deceptive
conduct. Only the liability of ‘concurrent wrongdoers’ is affected: these are defined as
one of two or more persons whose act or omission caused, independently of each
other or jointly, the (same) damage for which P is claiming.
Under s28 of the CLA, personal injury to the plaintiff is not covered by proportionate
liability.
S28 – S33 were introduced through the professional standards act 2004.
Thompson v Australian Capital Television Pty Ltd
Issue 1: Whether channel 7 and 9 were joint tortfeasors? The HC concluded that 9 and
7 were joint tortfeasors this is because they both acted together in concert through the
licensing agreement.
Issue 2: Whether the release of channel 9 through the settlement agreement also
applied to Channel 7? It did not operate to release 7. Go to S6 of the Law reform act.
Law Reform Act 1995 (Qld) (S6/7)
S6 Proceedings against, and contribution between, joint and several tortfeasors
Where damage is suffered by any person as a result of a tort (whether a crime or not)
the following apply—
. (a) judgment recovered against any tortfeasor liable in respect of that damage shall
not be a bar to an action against any other person who would, if sued, have
been liable as a joint tortfeasor in respect of the same damage;
Even if one party is of an agreement under s6a, the party can still go after another
tortfeasor for instance as in Thompson.
6a abolished the common law rule in Brimstead v Harrison. The rule abolished was,
“judgement against one tortfeasor prevents any further action against another
tortfeasor for the same cause of action. Even if judgement against the first tortfeasor
has not been satisfied or not been paid.”
Issue 3: (DON’T WORRY) Whether the defence of innocent dissemination could be
raised in the defence of tort of defamation.
. (b) if more than 1 action is brought in respect of that damage by or on behalf of the
person by whom it was suffered, or for the benefit of the estate, or of the
spouse, parent, or child of that person, against tortfeasors liable in respect of
the damage (whether as joint tortfeasors or otherwise)—the sums recoverable
under the judgments given in those actions by way of damages shall not in the
aggregate exceed the amount of the damages awarded by the judgment first
given; and in any of those actions, other than that in which judgment is first
given, the plaintiff shall not be entitled to costs unless the court is of opinion
that there was reasonable ground for bringing the action;
The right to contribution:
. (c) any tortfeasor liable in respect of that damage may recover contribution from
any other tortfeasor who is, or would if sued have been, liable in respect of the
same damage, whether as a joint tortfeasor or otherwise, so, however, that no
person shall be entitled to recover contribution under this section from any
person entitled to be indemnified by the person in respect of the liability in
respect of which the contribution is sought.
In s6c, the words “if sued have been, liable” were addressed directing in the Brambles
case. S6c recognizes where parties might have entered into an indemnity. e.g.
indemnity through contract (contractual indemnity), indemnity through insurance.
Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213
Ratio p219: A tort-feasor who has come under an enforceable obligation to pay
money for the damage caused by his tortious act may successfully recover
contribution from another tort-feasor who has also come under and obligation to pay
money in respect of the same damage and he may also recover contribution from any
other tort-feasor who, not having been sued by the injured party, had he been sued,
would have been found to have caused or contributed to the same damage by a
tortious act. It seems to me that there is no need whatever to specify any point of time
as at which the expression “if sued” should be supplied. It can be read “if sued at any
time” which, of course, does not import any temporal element into the section.
Assessment for contribution:
S7 Amount of contribution and power of the court
In any proceedings for contribution under this division the amount of the contribution
recoverable from any person shall be such as may be found by the court to be just and
equitable having regard to the extent of that person’s responsibility for the damage;
and the court shall have power to exempt any person from liability to make
contribution, or to direct that the contribution to be recovered from any person shall
amount to a complete indemnity.
Aggravation of Earlier Tortious Injury
State Government Insurance Commission v Oakey (1990) Aust Torts Reports 81-003
Where the negligence of a defendant causes an injury and the plaintiff subsequently
suffers further injury, the position is as follows:
(a) Where the injury results from an accident which would not have occurred had
the plaintiff not been in the physical condition caused by the defendants
negligence, the added damage was to be treated as caused by that negligence.
(b) Where the further injury results from an accident which would have occurred
had the plaintiff been in normal health, but the injury sustained is greater
because of aggravation of the earlier injury, the additional damage resulting
from the aggravation was to be treated as caused by the defendants negligence.
(c) Where the further injury results from an accident which would have occurred
had the plaintiff been in normal health and the damage sustained includes no
element of aggravation of the earlier injury, the subsequent accident and
further injury should be regarded as casually independent of the first.
Defences to Negligence
Volenti Non Fit Injuria (Complete Defence)
See ss13, 14, 15, 16, 17, 18 and 19 of the CLA.
Section 14(1) Sets up a rebuttable presumption in respect to obvious risk.
a) Volenti Non Fit Injuria and Dangerous Recreational Activity
These two are separate, Dangerous Recreational Activity is a defence which covers
the defendant where one is participating in a dangerous recreational activity and an
obvious risk materialises. Where as, volenti non fit injuria (voluntary assumption of
risk) is when the defendant raises the defence and the activity involves an obvious
risk. The plaintiff is then required to rebut this and show that on the balance of
probabilities the he or she was not aware of the risk.
Fallas v Mourlas [2006] NSWCA 32
Issue One: Was spotlighting to be considered a dangerous recreational activity under
that of the act? To consider this, one needs to look to see whether the activity carried
with it a significant risk of physical harm.
Significant risk of physical harm test by Ipp JA:
‘...the term lays down a standard lying somewhere between a trivial risk and a risk
likely to materialise. Where the particular standard lies between these two extremes
cannot be prescribed by any rule of thumb. Each individual case will have to depend
on its particular circumstances and by having regard to the ordinary meaning of the
term.’
The burden of proof is on the defendant (Fallas) to prove whether a significant risk
of harm existed: [24]. A ‘significant risk of a recreational activity may be entirely
different from the obvious risk that materialises’
‘...regard must be had to the particular activities engaged in by the plaintiff at the
relevant time. Any other test for determining the scope of the relevant dangerous
recreational activity is likely to be vague and uncertain (if another test is capable of
formulation at all).’
Conclusion: I am of the opinion that the recreational activity in which Mr Mourlas
was engaged carried with it a significant risk of physical harm and, therefore, was a
dangerous recreational activity.
Issue Two: The materialisation of an obvious risk of a dangerous recreation activity.
Ipp JA: No; Tobias JA: Yes; Basten JA: His Honour concluded that the risk was an
obvious risk. However, because his Honour had concluded previously that it had not
been established that the activity amounted to a dangerous recreational activity, it was
not necessary to consider whether it was an obvious risk of ‘that dangerous activity’.
As noted above, in obiter dicta Basten JA had doubt as to whether it was an obvious
risk of any ‘assumed’ dangerous recreational activity but this question did not form
part of his Honour’s ratio.
In order to determine whether an obvious risk of dangerous activity has materialised,
one must consider it on a case by case basis. Fallas and Mourlas can be used in the
exam on a similar question.
Contributory Negligence
Section 23 and 24.
- Intoxication
Section 46, 47, 48, 49.
Illegality (619-627)
Section 45 of CLA
Illegality is a complete defence at common law. However, if damages are awarded
and the offence was still illegal, damages will be reduced by 25% see CLA s45 (3).
The degree of connection between the illegality and the injury will be relevant to the
question of whether the breach of the criminal law prevents a civil claim from being
brought. (Miller v Miller)
Matthews v McCullock of Australia Pty Ltd
- The plaintiff was injured due to the defendant’s negligence when riding a
motor cycle while disqualified from holding a licence. It was held that since
the only connection between the illegality and the injury was that the plaintiff
would not have been in a position to be injured if he had not breached the
statute by riding without a licence, he could not be denied recovery.
Under the approach in Miller v Miller, the result of the above can be explained by
saying that the purpose of the law imposing the sanction – here , the requirement to be
licensed – was not to limit the ability of the injurd, but non-licensed, driver to bring
an action in negligence. Accordingly, it could not be inconsistent or promote
incoherence if the claim was allowed: the reasons for making the failure to have a
license illegal were not adversely impacted by allowing a civil claim for negligence
by those injured while driving without a licence.
Damages
Part 3 of CLA
s 54(2) – plaintiffs had been awarded too much in the past. section links into future
earnings.
s59 – modifies common law approach
(1)a – The QLD statutory response to the HC decision in CSR v Eddy and in
Ballesteros v Child law.
(1)b – not due to a reason solely from the reason (?)
(1)c – If as a consequence of what happened the plaintiff needs help. If that help is
provided gratuitously or free of charge, an amount covering that can be claimed. The
basis of claim is a reasonable commercial rate. Parent, child spouse or relative can
claim.
s62(2) – refers to schedule 6(A) of the civil liability regulation (DON’T LOOK UP
REGULATION)
Malec v J C Hutton Pty Ltd
- In Malec, the court doealt with an analogous assessment difficulty that arises where
further harm beyond the original injury has cocured by the time the court assess
damages and the court is required to assess, hypothetically, what would have occurred
had the defendant not committed the tort.
General Info
A claim for damages can only be made once P has suffered actionable damages. This
is known as the once and for all rule. Where the injury has effects that will continue
into the future (continuing loss, pain and suffering) damages for that future loss have
to be assess before it occurs. This, as we will see, involves great deal of speculation
and uncertainty.
The basic function of an award of tort damages is to compensate for the loss the tort
has caused to the plaintiff by the tort, in so far as a monetary award can do this. The
plaintiff is entitled to be put into the position they would have been in had the tort not
been committed.
Limitiations of Actions
- Under s11 of the Limitation of actions act, a plaintiff has 3 years to
commence an action.
- If the plaintiff was injured three and half years ago, as a result of the
defendants action, the plaintiff is statute barred.
- Q v Stephenson the court can agree to make an extension of time.
- If the state of the plaintiff’s decision is not known, applications for
extension is to be awarded.
- Under s11(2)a),
Q v Stephenson
- [18][19][35] read of case.
- Have a look at the explanation at the top of page four.
- See handout.
Essay Response Notes (Potential Topics)
Solidary Liability (798 - 804 of Barker)
Solidary Liability encourages plaintiff’s to sue the tortfeasor who is most likely to be
able to pay any damages awarded, thereby increasing the chance that plaintiffs will
actually be compensated. Another, related effect is that the risk of a tortfeasor being
insolent or not worth suing is placed on other tortfeasors and not on the plaintiff.
Criticisms:
First, since the person most ikely to be bale to pay any compensation awarded is not
necessarily the person best able to prevent losses of the type suffered by the plaintiff
from occurring in the future, it may be argued that solidary liability is not the best
way of achieving the loss-prevention aim of tort law. Whether this is regarded as
problematic clearly depends on how important the aim of deterrence is regarded in
tort law relative to the aim of ensuring the plaintiff is compensated.
Second, it is often argued that solidary liability is unfair to defendants because it
imposes on them liability disproportionate to fault. The force of this objection is
weakened by the existence of rights of contribution between tortfeasors (examined
below) and by the fact that the relationship between the extent of a person’s liability
and their fault is, as we have seen, very loose throughout the law of tort.
Third the principle of solidary liability has come under attack in recent years on the
basis that it is unfair that one tortfeasor should have to bear the full risk of the
insolvency or impecuniosity of other tortfeasors. However, given that, in general, tort
law operates effectively as a mechanism for compensating for losses only as against
insured defendants, any unfairness in this allocation of risk seems tolerable.
Objectors proposed the introduction of proportionate liability: each concurrent
tortfeasor would be liable only for a share of the plaintiff’s loss proportionate to that
tortfeasor’s responsibility. This approach is consistent with the idea of tort law as a
system of corrective just: according to theories of corrective justice a person is
obliged to correct only the effects of the wrong he or she has personally done, not
bear responsibility for correcting losses caused by the wrongs of others.
For those who believe instead that the main justification for tort liability is
compensation, and that tort liability coupled with a system of liability insurance is the
best way to ensure that people who suffer loss are compensated for it, solidary
liability coupled with rights of contribution remains preferable to proportionate
liability.
Proportionate Liability
Proportionate liability applies to all ‘apportionable claims’, defined as claims for
economic loss or damage to property arising from breach of a duty of care, as well as
claims arising from the breach of statutory prohibitions on misleading and deceptive
conduct. Only the liability of ‘concurrent wrongdoers’ is affected: these are defined as
one of two or more persons whose act or omission caused, independently of each
other or jointly, the (same) damage for which P is claiming.
Under s28 of the CLA, personal injury to the plaintiff is not covered by proportionate
liability.
S28 – S33 were introduced through the professional standards act 2004.
Penfolds Wine (NEED TO KNOW ALL OF THIS PLUS IMPROVE NOTES)
In Penfolds Wines Pty Ltd v Elliot (1946) 74 CLR 204, Starke, Dixon and McTiernan
JJ were in the majority while Lathan CJ and Williams J dissented. Analyse each
judgment in the case and be prepared to discuss the different approaches taken.
Facts:
 E hotelier who sold bulk wine to customers who provided their own bottles
 Appellant bottle’s embossed with company’s name and sales invoice informed
customers that the bottles remained property of the company and once
contents were used must be handed over to company on demand
 An inspector under the Foods Act 1908 (NSW) took 2 bottles branded with
company’s name which E’s brother left to be filled with bulk wine
1. Latham CJ
Trespass to Goods: Latham says Yes. (214-217)
The defendant has argued the existence of any tort. As the bottles were obtained from
the bailee and used within the bailee’s permission, no trespass to goods has occurred,
whether against the bailee or the bailor the one with the right of immediate possession
to the goods.
Latham concludes that the bailment was void once the bailee acted in a way with the
goods repugnant to the rights of the bailor. That is, when the bottles were hand to the
defendant by the bailee, the bailment ended, and thus the person with the immediate
right to possession is able to sue in trespass to goods. Latham concludes, that although
this may not be the logical argument, the evidence he offers supports his view.
Conversion on page 217-219. Elliot was not the true owner, and dealing with them
like he was the true owner is the basis for conversion.
Latham sees the taking of the bottles without any intention to exercise permanent or
temporary dominion over them as not conversion. However, when the actual use of
the bottles is for the benefit of the defendant and his brother, this then is conversion.
Latham in this case, saw that the defendant’s use of the bottles to put any liquid he so
chose into them, was assuming the rights of the true owner. As such, dealing with
another’s goods as owner for however long, is conversion.
Injunction should be given to the plaintiff as any other common law remedy is unjust.
2. Starke J
Starke J said no to conversion and did not address trespass to goods unless it can be
taken that by associated with Dixon J judgment he agrees in full.
Starke J associates himself with Dixon J judgment. Starke J said that conversion had
occurred, but could only be shown to have occurred to two bottles. There was no
evidence of the defendant in any systematic way or any substantial extent dealing
with the plaintiff’s bottles in a manner inconsistent ownership, or that the respondent
was handling the bottles of the appellant except rarely and causally. As such this is
not the proper case for an injunction.
3. Dixon J
Dixon J said no to trespass, no to conversion and no to an injunction.
Dixon J sees that there is no trespass as there is no infringement upon the possession
of anyone. Dixon J states that trespass is a wrong to possession. In the facts of the
case, there was never any invasion of possession. The defendant came into possession
of the bottles without trespass. His possession of the bottles was never trespassory.
If any conversion had been committed by the respondent, clearly the appellants as the
persons entitled immediately on demand to the possession of the bottles would be the
proper party to complain of it. The essence of conversion is a dealing with a chattel in
a manner repugnant to the immediate right of possession of the peson who has the
property or special property in the chattel. Filling the bottles with wine at the request
of the person who brought them could not in itself be a conversion. It was not a use of
the bottles involving any exercise of dominion over them, however transitory.
4. McTiernan J
McTiernan J said yes to conversion, no to trespass and no to an injunction.
E’s delivery of bottles to inspector-conversion as use of bottles of E was
inconsistent with the dominion and right of property of the appellant, however
did not sanction order of an injunction as no evidence that dealings of the bottle
were in a manner inconsistent with its ownership
5. Williams J
Williams J concurs with Latham?. However, No to trespass to goods, yes to
conversion and yes to an injunction.
Injunction:
Starke, Dixon, McTiernan said No.
Latham and Williams said Yes.
Trespass to Goods:
Dixon, McTiernan, Williams (NO)
Yes: Latham CJ
Stark did not address the issue (could be argued that he did by associating himself
with Dixon. However, Hinchy doesn’t see this as necessarily agreeing).
Conversion:
All but Dixon said yes.
2009 Notepool Penfolds Notes
Penfolds Wines Pty Ltd v Elliot
Facts:
 E hotelier who sold bulk wine to customers who provided their own bottles
 Appellant bottle’s embossed with company’s name and sales invoice informed
customers that the bottles remained property of the company and once
contents were used must be handed over to company on demand
 An inspector under the Foods Act 1908 (NSW) took 2 bottles branded with
company’s name which E’s brother left to be filled with bulk wine
Judgments:
 Latham CJ: ordered an injunction (remedy sought by appellant) considered
E’s dealings with the bottle conversion, inconsistent with dominion of owner
of bottles



Williams J concurred with Latham CJ
Dixon J: no conversion, redelivery of bottles to whom the def. received them
was not intended nor did it confer any right over property of the bottles.
Filling bottles with bulk wine did not involve exercise of any dominion over
them
Starke and McTiernan JJ: E’s delivery of bottles to inspector-conversion as
use of bottles of E was inconsistent with the dominion and right of property of
the appellant, however did not sanction order of an injunction as no evidence
that dealings of the bottle were in a manner inconsistent with its ownership
Damages
Person in actual possession entitles to recover full value of those goods
Person who has right to possession will be limited to value of interest rather than full
value of the chattel
Lecture One material
What is a Crime?
The person who brings the action in a criminal matter is the Crown. If the crown
is successful, the consequences are punishment for the person found guilty.
“To be a crime it goes beyond a mere matter of compensation between the
parties. So is to amount to conduct deserving punishment by the state.”
What is a Tort?
The person who suffered the harm sues for tort. i.e. the plaintiff. If a plaintiff is
successful, compensation/damages. A tort is a civil wrong not amounting to a
breach of contract. There is overlap between a tort and crime.
Tort and Contract Law
In tort you do not have to be in party to the contract to be able to sue on it.
Whereas unlike contract where you voluntarily enter into an obligation, tort is
where obligations are involuntarily placed on oneself.
Tort and the law of property
Real property is land or anything attached to it, in addition to this there is
personal property. Property law governs the way people posses property.
Aims of Torts
Primary Aim
To compensate for the loss suffered. Some torts are said to be actionable, that is
you do not need to prove any damage was committed, just that it occurred. Aim
of torts is to put the plaintiff into the position that he or she would have been in
had the tort not been committed.
Mallete v Shulman
A woman suffered catastrophic injuries in a motor vehicle accident. Rushed to
hospital, nursing staff found card in the woman’s pocket. Woman jahobers
witness? Religious so no blood transfusion. Doctor gave blood transfusion,
otherwise woman would die.
Deterrence
The law of tort acts as a deterrent. I.e. do not do this tort!
Economic Analysis
Economic analysis should give the greatest number of good for the greatest
number of people. Economic analysis looks at loss distribution.
The Common Law
Common Law is judge-made law, made by prior rulings. Tort law is a common
law subject, as it is based of prior cases as opposed to statutory law.
Two Main types of tort:
- Trespass (battery, assault, false imprisonment, trespass to land and
goods)
- Action on the case (negligence)
Negligence is where someone owes another person a duty of care,
you breach that duty and it causes damage.
The main difference between trespass and action on the case, is whether the
injury was caused directly or indirectly. If it is direct it is trespass as you cannot
have an indirect trespass. Trespass actions are said to be actionable perse. That
is the plaintiff is not required to show damage took place, just the tort occurred.
Negligence the plaintiff must prove that he or she suffered damage.