Trespass to Personal Property
Trespass to personal property is a where a defendant directly interferes with a plaintiff’s
possession. Trespass to personal property is comprised of three intentional torts:
o Trespass to goods (chattels)
o Conversion
o Detinue
Conversion
Conversion is an intentional tort where a defendant takes away a plaintiff’s personal
property by using it, or altering it in a way that contradicts the immediate right of
possession to the plaintiff (the owner). An action can only occur if the defendant commits
the act intentionally, negligence cannot satisfy this tort.
Elements of conversion
To establish an action in conversion there must be:

Title to sue;

A direct interference with the goods that amounts to a repugnant dealing; and

Fault of defendant
Title to sue
Owner:
The plaintiff must have actual or immediate right to possession at time of conversion to sue.
This is different from trespass in the way that an owner who is yet to transfer their right to
possession at the time of conversion could sue, Wertheim v Cheel (1885) 11 VLR 107.
Bailees and Bailors:
Bailment involves the temporary transfer of possession of a good from a bailor to a bailee i.e.
hiring a car. If misuse of the goods amounts to the bailee acting as though the goods were their
own, the bailee could be sued by the bailor, Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR
204.
Co-owners:
In the case of there being co-owners, they will usually be joined as co-owners. The act of one
owner will only give rise to conversion if the goods are destroyed or there has been a
disappearance of possessory rights, Parr v Ash (1876) SCR (NSW) 352 at 355.
Repugnant dealing
The remedy given to repugnant dealing will include the full value of the goods. The question
that will need to be decided is whether or not the interference was so great the defendant
should be made to pay for the chattel. If the damage is not enough to satisfy conversion, it
will be a trespass, not conversion.
What is an interference?
o
o
o
o
o
o
o
Using goods without permission, Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204.
Destruction of goods (i.e. crashing a car), Schemell v Pomeray (1989).
Alteration of goods, Hollins v Fowler (1875) LR 7 HL 757.
Delivery of goods to wrong person (unless bailor gives wrong address).
Wrongful taking of goods (must prove goods were taken from plaintiff with the intention of
exercising dominion over it), Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5)
[2002] 2 AC 883; 3 All ER 20.
Wrongful detention of goods (evidenced by plaintiff’s demand for return and the defendant
refusing), Baldwin v Cole (1704) 6 Mod Rep 212; 87 ER 964.
Wrongful disposition (where defendant gives goods to a third party).
Damages can also be recovered for consequential loss i.e. a tradesperson can recover for the
consequential loss resulting from the conversion of his or her tools of trade: Bodley v Reynolds
(1856) 115 ER 1066.
Fault of defendant
 It is a requirement of the tort of conversion that the D’s conduct be intentional.
 although the D’s act must be intentional, it is not necessary that the D must intend
to dispossess the P by that act.
 The D may convert the P’s goods without even knowing of the P’s existence, and
without any dishonest intent.
COPY AND PASTED ^^^^
Detinue
Detinue is the wrongful detention of a plaintiff’s goods after a demand has been made
requesting for the return of the goods that has been made by the person with the right to
immediate possession of the goods and a failure to comply has been made by the
defendant. It is important to note there is an overlap with conversion, however, it is
possible to sue in both, Chairman, National Crime Authority and another v Flack (1998) 86
FCR 16. The differences between dentine and conversion is that detinue can arise from
negligent acts. The title to sue is the same as conversion.
Demand and Refusal
In relation to the demand by the plaintiff, it can be either an oral request or can be in
writing. There must be a clear time and place where the plaintiff wants the goods delivered.
Detinue and Conversion
An unintentional loss of goods by a bailee is the only situation that can give rise to detinue,
otherwise it will be conversion.
Remedy: P can claim restitution of Goods. Discussion on Relief found here: General &
Finance Facilities v Cooks Cars (Romford) Ltd [1963] 1 WLR 644
➢ 3 different forms of judgment:
■ Value of chattels as assessed and damages for its detention;
■ Return of chattel or recovery of its value as assessed and damages for its detention;
■ Return of chattel and damages for its detention.
ECONOMIC LOSS
Economic loss is damage caused to the plaintiff that results in economic loss. This usually
does not result in personal injury.
The method used by the court to determine whether a duty is imposed on a plaintiff in
cases of pure economic harm is by adopting the ‘salient features’ approach.
The ‘salient features’ approach
The salient features approach was first used in the case of Caltex Oil (Australia) Pty Ltd v The
Dredge ‘Willemstad’ (1976) 136 CLR 529. The salient features were derived from McHugh J’s
reasoning and are as follows:
1. Was the loss suffered by the plaintiff reasonably foreseeable?
2. If yes to question 1, would the imposition of a duty of care impose indeterminate liability
on the defendant?
3. If no to question 2, would the imposition of a duty of care impose an unreasonable burden
on the autonomy of the defendant?
4. If no to question 3, was the plaintiff vulnerable to loss from the conduct of the defendant?
5. Did the defendant know that its conduct could cause harm to individuals such as the
plaintiffs?
Reasonable foreseeability
The reasonable foreseeability factor is a common precondition to establish in all cases of pure
economic loss.
Indeterminate liability
A duty of care will only be imposed if the liability is not indeterminate. This is to stop liability
rippling down to a large amount of parties.
the autonomy of the defendant
If it would result in an unreasonable burden to the autonomy of an individual, liability will not
be imposed by the courts.
Vulnerability
It is more likely the court will establish the existence of a duty of care when the party is
vulnerable, especially when someone is not in a position to protect themselves from a certain
risk.
Knowledge
The knowledge factor requires a defendant have knowledge that their conduct could harm
the plaintiff.
How the Salient features apply to the scenario
Who else could recover economic losses?
As for the rest of the people that suffered economic loss, the general law is against
recognising a duty of care to ripple effect victims.
In the case of Perre v Apand Pty Ltd (1999) 198 CLR 180, the defendant, a potato crisp
manufacturer, sold infected seeds to Perre. The disease in the potatoes did not take long to
spread to neighbouring farms, meaning Perre and the neighbouring farmers could not export
their potatoes. Perre and the neighbouring farmers sued Apand for pure economic loss amd
won. However, in Perre v Apand Pty Ltd (1999) 198 CLR 317, Kirby J did not allow damages to
the following:
1. the local stores who suffered income losses;
2. the trucking firm which previously transported the potatoes; and
3. consumers in WA who were forced to buy potatoes or crisps from more expensive
suppliers.
The line was drawn by his honour to stop the so called ‘ripple effect’.