03 TORTS
WEEK 3
INTENTIONAL TORTS TO PROPERTY
DEFENCES TO INTENTIONAL TORTS
SPECIFIC FORMS OF TRESPASS
TREAPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT
PROPERTY
LAND
CHATTELS
TRESPASS TO PROPERTY: LAND
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
• 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
• 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
– Newington v Windeyer (1985) 3 NSWLR
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/pro tanto
Case Law
– Singh v Smithenbecker: D entered land to take sheep lawfully
purchased. But became trespasser once he removed P’s gate
and took certain sheep without permission.
– Bond v Kelly: D became trespasser when he cut more timber
from P’s land than permitted amount.
– However see: Healing (Sales) v Inglic Electrix: D went to P’s
house to take some of their property, but also took P’s. Held:
Barwick CJ and Menzies J -D was not liable as part of purpose
was lawful. Kitto J said taking P’s stuff made them liable. Thus,
there is some doubt as to the trespass pro tanto doctrine.
THE POSITION OF POLICE
OFFICERS
• Unless authorized by law,
police officers have no
special right of entry into
any premises without
consent of P. (Halliday v
Neville)
• A police officer charged
with the duty of serving a
summons must obtain the
consent of the party in
possession (Plenty v. Dillion
)
TRESPASS TO CHATTELS
TRESPASS TO
GOODS/CHATTEL
• The intentional/negligent act of D
which directly interferes with the
plaintiff’s possession of a chattel without
lawful justification
• The P must have actual or constructive
possession at the time of interference.
•
DAMAGES
• It may not be actionable per se (Everitt v
Martin)
CONVERSION
• The act of D in relation to
another’s chattel which
constitutes an unjustifiable denial
of his/her title
CONVERSION: Who Can Sue?
• Owners
•
Those in possession or entitled to immediate
possession
– Bailees*
– Bailors*
– Mortgagors* 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
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)
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
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
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)
CONSENT IN SPORTS
• http://www.youtube.com/watch?v=VgtKW5PLso
4
• http://www.youtube.com/watch?v=WBmKXU12yE
• 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
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