THE LAW OF TORTS
WEEK 3
TRESPASS TO PROPERTY
TRESPASS TO PROPERTY
LAND
GOODS/CHATTELS
TRESPASS TO LAND
• The intentional of D
which directly interferes
with the plaintiff’s
exclusive possession of
land
THE NATURE OF THE
TORT
• Land includes the actual
soil/dirt, the structures/plants
on it and the airspace above it
• Cujus est solum ejus est
usque ad coelum et inferos
–Bernstein of Leigh v Skyways &
General Ltd
–Kelson v Imperial Tobacco
The Nature of D’s Act: A
General Note
•...[E]very invasion of private property, be it
ever so minute, is a trespass. No man can
set his foot upon my ground without my
license, but he is liable to an action, though
the damage be nothing.... If he admits the
fact, he is bound to show by way of
justification, that some positive law has
empowered or excused him ( Entick v
Carrington (1765) 16 St Tr 1029, 1066)
THE NATURE OF D’S ACT
• The act must constitute
some physical interference
which disturbs P’s exclusive
possession of the land
–Victoria Racing Co. v Taylor
–Barthust City Council v Saban
–Lincoln Hunt v Willesse
THE NATURE OF THE PLAINTIFF’S
INTEREST IN THE LAND
• P must have exclusive
possession of the land at the
time of the interference
exclusion of all others
THE NATURE OF
EXCLUSIVE POSSESSION
• Exclusive possession is distinct from
ownership.
• Ownership refers to title in the land.
Exclusive possession refers to physical
holding of the land
• Possession may be immediate or
constructive
•The nature of possession depends on the
material possessed
EXCLUSIVE POSSESSION:
CO-OWNERS
• In general, a co-owner cannot
be liable in trespass in respect of
the land he/she owns; but this is
debatable where the
’trespassing’ co-owner is not in
possession. (Greig v Greig)
•A co-possessor can maintain an
action against a trespasser (Coles
Smith v Smith and Ors)¯
THE POSITION OF TRESPASSERS
AND SQUATTERS
•
A trespasser/squatter in
exclusive possession can
maintain an action against
any other trespasser
THE POSITION OF
LICENSEES
• A licensee is one who has the
permission of P to enter or use land
(belonging to P)
• A licensee is a party not in
possession, and can therefore not
sue in trespass
• A licensee for value however may
be entitled to sue(E.R. Investments
v Hugh)
THE TRESPASSORY ACT
• Preventing P’s access Waters v
Maynard)
• The continuation of the initial
trespassory act is a trespass
continuing trespass
• Where D enters land for purposes
different from that for which P gave
a license, D’s conduct may
constitute trespass ab initio (Baker v
Crown)
THE POSITION OF POLICE
OFFICERS
• Unless authorized by law, police
officers have no special right of
entry into any premises without
consent of P. But see Halliday v
Neville
• A police officer charged with the
duty of serving a summons must
obtain the consent of the party in
possession (Plenty v. Dillion )
Police Officers; The Common
Law Position
•The poorest man may in his cottage bid
defiance to all forces of the Crown. It
may be frail- its roof may shake- the
wind may blow through it- the rain may
enter- but the King of England cannot
enter- all his force dares not cross the
threshold of the ruined tenement. So
be it- unless he has justification by
law’. ( Southam v Smout [1964] 1QB 308,
320.
TRESPASS TO PROPERTY
TRESPASS TO PROPERTY
LAND
GOODS/CHATTELS
TRESPASS TO PROPERTY
•GOODS/CHATTELS
TRESPASS
TO PROPERTY
•Personal property
LAND
TRESPASS TO
GOODS/CHATTEL
• The intentional/negligent act of D
which directly interferes with the
plaintiff’s possession of a chattel
without lawful justification
• The P must have actual or constructive
possession at the time of interference.
•
DAMAGES
•It may not be actionable per se
(Everitt v Martin)
CONVERSION
• The act of D in relation to
another’s chattel which
constitutes an unjustifiable
denial of his/her title
CONVERSION: Who
Can Sue?
• Owners
• Those in possession or entitled to
immediate possession
– Bailees*
– Bailors*
– Mortgagors* and
Mortgagees*(Citicorp Australia v B.S.
Stillwell)
– Finders (Parker v British Airways;
Armory v Delmirie)
ACTS OF CONVERSION
•
Mere asportation is no conversion
– Fouldes v Willoughby
• The D’s conduct must constitute an unjustifiable
denial of P’s rights to the property
– Howard E Perry v British Railways Board
• Finders of lost property
– Parker v British Airways
• The position of the auctioneer
– Willis v British Car Auctions
• Destruction of the chattel is conversion
– Atkinson v Richardson;)
• Taking possession
• Withholding possession
– Clayton v Le Roy
ACTS OF CONVERSION
• Misdelivery ( Ashby v Tolhurst
(1937 2KB); Sydney City Council v
West)
• Unauthorized dispositions in any
manner that interferes with P’s title
constitutes conversion (Penfolds
Wines v Elliott)
DETINUE
•
Detinue: The wrongful refusal
to tender goods upon demand
by P, who is entitled to
possession It requires a
demand coupled with
subsequent refusal (General
and Finance Facilities v Cooks
Cars (Romford)
DAMAGES IN CONVERSION
AND DETINUE
• In conversion, damages usually take the form of
pecuniary compensation
• In detinue, the court may in appropriate circumstances
order the return of the chattel
• Damages in conversion are calculated as at the time of
conversion; in detinue it is as at the time of judgment
– The Mediana
– Butler v The Egg and Pulp Marketing Board
– The Winkfield
– General and Finance Facilities v Cooks Cars
(Romford)
THE LAW OF TORTS
Action on the Case for
Indirect Injuries
INDIRECT
INTENTIONAL INJURIES
• ACTION ON THE CASE
FOR PHYSICAL INJURIES
OR NERVOUS SHOCK
•ACTION ON THE CASE
REFERS TO ACTIONS BASED
ON INJURIES THAT ARE
CAUSED INDIRECTLY OR
CONSEQUENTIALLY
INDIRECT INTENTIONAL
INJURIES: CASE LAW
• Bird v Holbrook (trap set in
garden)
–D is liable in an action on the
case for damages for intentional
acts which are meant to cause
damage to P and which in fact
cause damage (to P)
THE INTENTIONAL ACT
• The intentional may be deliberate
and preconceived(Bird v Holbrook )
• It may also be inferred or implied;
the test for the inference is
objective
Wilkinson v Downton
• Janvier v Sweeney
•Nationwide News v Naidu
•
Action on the Case for Indirect
Intentional Harm: Elements
• D is liable in an action on the case for damages
for intentional acts which are meant to cause
damage to P and which in fact cause damage to
P
• The elements of this tort:
– The act must be intentional
– It must be one calculated to cause harm/damage
– It must in fact cause harm/actual damage
• Where D intends no harm from his act but the
harm caused is one that is reasonably
foreseeable, D’s intention to cause the resulting
harm can be imputed/implied
THE SCOPE OF THE RULE
• The rule does not cover ‘pure’
mental stress or mere fright
– Wainright v Home Office
• The act must be reasonably
capable of causing mental
distress to a normal* person:
– Bunyan v Jordan
– Stevenson v Basham
The Future of the Wilkinson v
Downtown
• The High Court obiter dicta Magill v Magill
– Subsequent developments in Anglo-Australian law
recognise these cases as early examples of recovery by
reference to imputed intention to cause physical harm ; a
cause of action later subsumed under the unintentional tort
of negligence ( Per Gummow, Kirby and Crennan JJ)
– Wilkinson v Downton, decided in 1987 and Janvier v
Sweeney decided in 1919, which were cases of deception
causing nervous shock, would probably now be explained
either on the basis of negligence or intentional infliction of
personal injury ( per Gleeson CJ)
ONUS OF PROOF
• In Common Law, he who asserts proves
• Traditionally, in trespass D was required to disprove
fault once P proved injury. Depending on whether
the injury occurred on or off the highway ( McHale v
Watson; Venning v Chin)
• The current Australian position is contentious but
seems to support the view that in off highway cases
D is required to prove all the elements of the tort
once P proves injury
– Hackshaw v Shaw
– Platt v Nutt
– See Blay; ‘Onus of Proof of Consent in an Action for
Trespass to the Person’ Vol. 61 ALJ (1987) 25
– But see McHugh J in See Secretary DHCS v JWB and SMB
(Marion’s Case) 1992 175 CLR 218
IMPACT OF THE CIVIL
LIABILITY ACT
• Section 3B Civil liability excluded from Act
(1) The provisions of this Act do not apply to or
in respect of civil liability (and awards of
damages in those proceedings) as follows:
(a) civil liability in respect of an intentional
act that is done with intent to cause injury
or death or that is sexual assault or other
sexual misconduct – the whole Act except
Part 7 (Self-defence and recovery by
criminals) in respect of civil liability in
respect of an intentional act that is done
with intent to cause injury or death
THE LAW OF TORTS
Defences to Intentional Torts
INTRODUCTION: The
Concept of Defence
• Broader Concept: The content of
the Statement of Defence- The
response to the P’s Statement of
Claim-The basis for non-liability
•Statement of Defence may contain:
Denial
– Objection to a point of law
– Confession and avoidance:
–
MISTAKE
• An intentional conduct done under
a misapprehension
• Mistake is thus not the same as
inevitable accident
• Mistake is generally not a defence
in tort law ( Rendell v Associated
Finance Ltd, Symes v Mahon)
• ‘Mistake’ may go to prove
CONSENT
• In a strict sense, consent is not a
defence as such because in trespass,
the absence of consent is an element
of the tort
– See: Blay; ‘Onus of Proof of Consent in an
Action for Trespass to the Person’ Vol. 61
ALJ (1987) 25
– But McHugh J in See Secretary DHCS v
JWB and SMB (Marion’s Case) 1992 175 CLR
218
VALID CONSENT
• To be valid, consent must be
informed and procured without
fraud or coercion: ( R vWilliams;)
• 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)
The Cases
• R v Linekar
– A prostitute had sexual intercourse with the defendant on
the understanding that he would pay her £25. He in fact
never paid and never intended to pay. It was held that the
fraud did not vitiate consent as to the nature or quality of
the act. The defendant’s conviction for rape was quashed
• Papadimitropoulos v R
– Victim has sexual relations with accused in the belief that
they were legally married. Victims later discovers, the had
not in fact been married and that they has only completed
documents regarding the intention to marry. Held consent
was valid
CONSENT IN SPORTS
•http://www.youtube.com/watch?v=
VgtKW5PLso4
•http://www.youtube.com/watch?v=
W-BmKXU12yE
• Alex McKinnon has been diagnosed as a
quadriplegic and warned by doctors he may
never walk again after this tackle.
Jordan McLean was suspended for seven weeks
after being found guilty of a 'dangerous throw'
on Newcastle Knights player Alex
•In contact sports, consent is not
necessarily a defence to foul play
(McNamara v Duncan; Hilton v
Wallace)
• To succeed in an action for trespass
in contact sports however, the P
must of course prove the relevant
elements of the tort.
– Giumelli v Johnston
SELF DEFENCE,
DEFENCE OF OTHERS
• A P who is attacked or threatened with
an attack, is allowed to use reasonable
force to defend him/herself
• In each case, the force used must be
proportional to the threat; it must not be
excessive. (Fontin v Katapodis)
• D may also use reasonable force to
defend a third party where he/she
reasonably believes that the party is
being attacked or being threatened
THE DEFENCE OF
PROPERTY
• D may use reasonable force to defend
his/her property if he/she reasonably
believes that the property is under attack
or threatened
• What is reasonable force will depend on
the facts of each case, but it is debatable
whether reasonable force includes
‘deadly force’
PROVOCATION
• Provocation is not a defence in tort
law.
• It can only be used to avoid the
award of exemplary damages:
Fontin v Katapodis; Downham
Ballett and Others
The Case for Allowing the
Defence of Provocation
• The relationship between provocation
and contributory negligence
• The implication of counterclaims
•Note possible qualifications Fontin v
Katapodis to:
– Lane v Holloway
– Murphy v Culhane
– See Blay: ‘Provocation in Tort Liability: A Time
for Reassessment’,QUT Law Journal, Vol. 4 (1988)
pp. 151-159.
NECESSITY
• The defence is allowed where
an act which is otherwise a tort
is done to save life or property:
urgent situations of imminent
peril
Urgent Situations of
Imminent Peril
• The situation must pose a threat to life
or property to warrant the act: Southwark
London B. Council v Williams
• The defence is available in very strict
circumstances R v Dudley and Stephens
• D’s act must be reasonably necessary
and not just convenient Murray v
McMurchy
– In re F
– Cope v Sharp
INSANITY
• Insanity is not a defence as such to
an intentional tort.
• What is essential is whether D by
reason of insanity was capable of
forming the intent to commit the
tort. (White v Pile; Morris v
Marsden)
INFANTS
• Minority is not a defence as such in
torts.
•What is essential is whether the D
understood the nature of his/her
conduct (Smith v Leurs; Hart v AG
of Tasmania)
DISCIPLINE
• PARENTS
– A parent may use reasonable and
moderate force to discipline a
child. What is reasonable will
depend on the age, mentality, and
physique of the child and on the
means and instrument used. (R v
Terry)
ILLEGALITY:Ex turpi causa
non oritur actio
• Persons who join in committing an
illegal act have no legal rights inter
se in relation to torts arising
directly from that act.
– Hegarty v Shine
– Smith v Jenkins
– Jackson v Harrison
– Gala v Preston