03 THE LAW OF TORTS
WEEKEND SCHOOL 1
27-29 May 2016
Professor Sam Blay
THE LECTURE STRUCTURE
 Texts
 Definition, aims and scope of law of torts
 Intentional torts
TEXT BOOKS
Dominic Villa Annotated Civil Liability Act
Lawbook Co. (2013)
Balkin and Davis The Law of Torts 5th Ed
LexisNexis
Luntz & Hambly, Torts - Cases and
Commentary, 7th ed. LexisNexis,
Stewart and Stuhmcke, Australian Principles
of Torts Law Federation Press, 3rd Ed
Blay, Torts in a Nutshell LBC
INTRODUCTION
DEFINITION: THE NATURE OF
TORTS
WHAT IS A TORT?
 A tort is a civil wrong
 That (wrong) is based a breach of a
duty imposed by law
 Which (breach) gives rise to a
(personal) civil right of action for for
a remedy not exclusive to another
area of law
THE DIFFERENCE BETWEEN A
TORT AND A CRIME
 A crime is a public /community wrong that
gives rise to sanctions usually designated in
a specified code. A tort is a civil ‘private’
wrong.
 An action in criminal law is usually brought
by the state or the Crown. Tort actions are
usually brought by the victims of the tort.
 The principal objective in criminal law is
punishment. In torts, it is compensation
THE DIFFERENCE BETWEEN A
TORT AND A CRIME
•
Differences in Procedure:
–
Standard of Proof
Criminal law: beyond reasonable
doubt
• Torts: on the balance of probabilities
•
TORT
CRIME
A civil action
A criminal action
Brought by the victim
Brought by the Crown
Remedy: compensation
Remedy: punishment
Proof: balance of probabilities
Proof: beyond reasonable doubt
TORTS DISTINGUISHED FROM
BREACH OF CONTRACT
• A breach of contract arises from breach
of promise(s) made by the parties
themselves.
TORTS
CONTRACT
Damages unliquidated
Damages often liquidated
Protects what is already
owned or possessed
Protects expectation of
future benefits
Duty imposed by law
Duty arises from parties’
promises
Duty owed generally
Duty to other contracting
party
SIMILARITIES BETWEEN TORT
AND CONTRACT
• Both tort and breach of contract
give rise to civil suits
• In some instances, a breach of
contract may also be a tort: eg an
employer’s failure to provide
safe working conditions
Questions
• What are the objectives of tort
law?
THE OBJECTIVES OF TORT LAW
Loss distribution/adjustment: shifting losses from victims to perpetrators
Compensation: Through the award of (pecuniary) damages
• The object of compensation is to place the victim in the position he/she was before the
tort was committed.
Punishment: through exemplary or punitive damages. This is a
secondary aim.
Question
• What interests are protected by the
Law of Torts, and how are these
interests protected?
INTERESTS PROTECTED IN
TORT LAW
Personal
security
• Trespass
• Negligence
Reputation
Property
• Defamation
• Trespass
• Conversion
Economic
and
financial
interests
SOURCES OF TORT LAW
• Common Law:
– The development of torts by precedent through the
courts
• Donoghue v Stevenson
• Statute:
– Thematic statutes: eg Motor Accidents legislation
• Motor Accidents Compensation Act 1999
– General statutes: eg Civil Liability legislation
• The Civil Liability Act (NSW) 2002
ACTIONS IN TORT LAW
Trespass
• Directly caused injuries
• Requires no proof of
damage ( actionable per
se)
Action on the
Case/Negligence
• Indirect injuries
• Requires proof of damage
LIABILITY IN TORTS
LIABILITY IN TORT LAW
• Liability = responsibility
• Liability may be based on fault or it
may be strict
• Fault liability: the failure to live up to a
standard through an act or omission .
TYPES OF FAULT LIABILITY
Intentional
Fault
Negligence
Intention in Torts
Deliberate or wilful conduct
‘Constructive’ intent: where the
consequences of an act are
substantially certain: t
Where conduct is reckless
Transferred intent: where D
intends to hit ‘B’ but misses
and hits ‘P’
Negligence in Torts
• When D is careless in his/her
conduct
• When D fails to take reasonable care
to avoid a reasonably foreseeable
injury to another and that party
suffers damage.
STRICT LIABILITY
• No fault is required for strict liability
INTENTIONAL TORTS TO THE
PERSON
BATTERY
ASSAULT
FALSE IMPRSONMENT
Trespass
Conversion
Defamation
Intentional Torts
Misrepresentation
Deceit
WHAT IS TRESPASS?
• Intentional act of D which directly
causes an injury to the P or his /her
property without lawful justification
• The Elements of Trespass:
–
–
–
–
fault: intentional act
injury* caused directly
injury* to the P or to his/her property
No lawful justification
*INJURY IN TRESPASS
• Injury = a breach of right, not necessarily actual
damage
• Trespass requires only proof of injury not actual
damage
The Elements of Trespass
TRESPASS
Interference with person or
their property
Absence of lawful
justification
Direct
Intentional Act
SPECIFIC FORMS OF TRESPASS
TREAPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT
PROPERTY
Battery :
The Nature of the tort
BATTERY
• The intentional act of D which directly
causes a physical interference with the body
of P without lawful justification
• The distinguishing element: physical
interference with P’s body
THE INTENTIONAL ACT
IN BATTERY
• No liability without intention
• The intentional act = basic willful act +
the consequences.
THE ACT MUST CAUSE
PHYSICAL INTERFERENCE
• The essence of the tort is the protection of the
person of P. D’s act short of physical contact is
therefore not a battery
• The least touching of another could be
battery
– Cole v Turner (dicta per Holt CJ)
• ‘The fundamental principle, plain and
incontestable, is that every person’s body is
inviolate’ ( per Goff LJ, Collins v Wilcock)
Rixon v Star City Casino
• D places hand on P’s shoulder to attract
his attention; no battery
Collins v Wilcock
• Police officer holds D’s arm with a view to
restraining her when D declines to answer
questions and begins to walk away;
battery
SHOULD THE PHYSICAL
INTERFERENCE BE HOSTILE?
• Hostility may establish a presumption
of battery; but
• Hostility is not material to proving
battery
• The issue may revolve on how one
defines ‘hostility’
THE INJURY MUST BE CAUSED
DIRECTLY
• Injury should be the immediate
Law:
The Case
– Scott v Shepherd ( Lit squib/fireworks in market
place)
– Hutchins v Maughan( poisoned bait left for dog)
– Southport v Esso Petroleum(Spilt oil on P’s beach)
THE ACT MUST BE WITHOUT
LAWFUL JUSTIFICATION
• Consent is Lawful justification
• Consent must be freely given by the P if P is able
to understand the nature of the act
– Allen v New Mount Sinai Hospital
• Lawful justification includes the lawful act of
law enforcement officers
ASSAULT
WHAT IS ASSAULT
•
The intentional act or threat of
D which directly places P in
reasonable apprehension of an
imminent physical interference
with his or her person or of
someone under his or her
control
ASSAULT
TRESPASS:ASSAULT
• The intentional act or threat of D which directly
places P in reasonable apprehension of an imminent
physical interference with his or her person or of
someone under his or her control
• It is any act — and not a mere omission to act
— by which a person intentionally — or recklessly
— causes another to apprehend immediate and
unlawful violence:
The Gist of the Action
• …Assault necessarily involves the
apprehension of injury or the instillation of
fear or fright. It does not necessarily
involve physical contact with the person
assaulted: nor is such physical contact, if it
occurs, an element of the assault.
(Barwick CJ in The Queen v Phillips (1971)
45 ALJR 467 at 472
THE ELEMENTS OF ASSAULT
• There must be a direct threat:
– Hall v Fonceca (Threat by P who shook hand in front of D’s face
in an argument)
– Barton v Davis
• In general, mere words are may not actionable
– Barton v Armstrong
But mere silence as in silent telephone calls,
may constitute an assault: R v Burstow; R v Ireland
[1998] AC 147.
• In general, conditional threats are not actionable
•
– Tuberville v Savage
– Police v Greaves
D’ act must
induce
apprehension in P
It must be a
‘reasonable’
apprehension of
imminent unlawful
physical interference
What is
imminent
depends on the
circumstance
Police v Greaves
Barton v Armstrong
Zanka v Vartzokas
Zanker v Vartzokas and the issue of
imminence/immediacy
• The Facts:
– Accused gives a lift to victim and offers money
for sex; victim refuses.
– Accused responds by accelerating car, Victim
tries to open door, but accused increases
acceleration
– Accused says to victim: I will take you to my
mates house. He will really fix you up
– Victim jumps from car then travelling 60km/h
Zanker v Vartzokas: The Issues
• Was the victim’s fear of sexual
assault in the future reasonable?
• Was the feared harm immediate
enough to constitute assault?
Zanker v Vartzokas: The Reasoning
• Where the victim is held in place and unable to
escape the immediacy element may be fulfilled.
• The essential factor is imminence not
contemporaneity
• The exact moment of physical harm injury is
known to the aggressor
• It remains an assault where victim is
powerless to stop the aggressor from carrying
out the threat
FALSE IMPRISONMENT
SPECIFIC FORMS OF TRESPASS
TREAPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT
PROPERTY
FALSE IMPRISONMENT
• The intentional act of D which
directly causes the total restraint of P
and thereby confines him/her to a
delimited area without lawful
justification
• The essential distinctive element is
the total restraint
THE ELEMENTS OF THE TORT
Intentional act
It requires all the
basic elements
of trespass:
Directness
Absence of lawful
justification
Total restraint
RESTRAINT IN FALSE
IMPRISONMENT
• The restraint must be total
– Bird v Jones (passage over bridge)
– Rudduck v Vadarlis
– The Balmain New Ferry Co v Robertson
• Total restraint implies the absence of a
reasonable means of escape
– Burton v Davies (D refuses to allow P out of car)
• Restraint may be total where D subjects P to
his/her authority with no option to leave
– Symes v Mahon (police officer arrests P by mistake)
KNOWLEDGE IN FALSE
IMPRISONMENT
• The knowledge of the P at the
moment of restraint is not essential.
–Merring v Graham White Aviation
–Murray v Ministry of Defense
State of South Australia v LampardTrevorrow (2010) 106 SASR 331
•
•
•
When P was about a year old, he was
taken from hospital by an officer of the
Aborigines Protection Board and later
placed in long-term foster care without his
parents knowing of the removal or the
fostering. Issue whether there was FI.
The Full Court unanimously held that,
while neither the plaintiff nor his parents
had consented to his foster placement, he
was not falsely imprisoned during the
period of his foster care. The fact that the
plaintiff was an infant and needed care
and nurture spoke against any finding of
restraint. Any element of restraint, whilst
he grew as a young child, was solely
attributable to the obligation of his foster
parents to care for him and also
attributable to his immaturity.
However that the plaintiff’s claim of
negligence against the State was upheld
by the appeal court.
INTENTIONAL TORTS TO
PROPERTY
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