COMMON ELEMENTS
1. Direct - Common Element
(LOOKING FOR TIME LAG - NO TIME BETWEEN ACT HAPPENING AND INJURY)
(NO INTERVENING CAUSE - STRAIGHT LINE FROM ACTION TO INJURY)
Leame v Bray (1803) 3 East 593, 602 - 603 (Le Blanc J)
The distinction is well instanced by the example put of a man's throwing a log into the highway; if at the
time of its being thrown it hit a person, it is a trespass; but if it be thrown, any person going along the road
receives an injury by falling over it as it lies there, it is case...
Salmond on Torts (7th ed, 1928) 230)
An injury is said to be direct when it follows so immediately upon the act of the defendant that it may be
termed part of that act; it is consequential on the other hand, when, by reason of some obvious and visible
intervening cause, it is regarded not as part of the defendant’s act, by merely a consequence of it’
Scott v Shepherd [1773] 3 Wils KB 403. - FOR ARGUING DIRECTNESS WHEN THERE IS AN INTERVENING CAUSE
Firecracker got thrown to one person then to another and then another. Explodes in last persons face. The
Plaintiff sued the first guy. Plaintiff
was successful in his claim. Judges said that because they instantly throw the firecracker which means there
was no intervening cause.
Hutchins v Maughan [1947] VLR 131
Complainant was droving a flock of ewes. The defendant warned him that he has laid poison baits on land
in the vicinity. The complainant thought
the defendant was bluffing, and brought his sheep and his two sheep dogs on to the land. The dogs pickup
the baits and died. Animals for the purposes of law are goods. - Trespass to goods. In this case the court
argued that the act was consequential. Where there is a degree of choice to take a certain action or not. It
would be challenging for the plaintiff to prove directness
EXAMPLES OF ACTIONS WHICH ARE NOT DIRECT
Rural Export and Trading (WA) Pty Ltd v Hahnheusern (2007) 243 ALR 356:
Claim of trespass to P's sheep by D who fed them pig meat to make them unsuitable for live export.
Court found lacked directness. The sheep could have chosen not to eat the feed.
Reynolds v Clarke (1726) 1 Str 634
Damage caused by water from D's rain spout
Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182
Oil spilled which then washed onto P's foreshore in an estuary with the tide
(Time lag = not direct) The tide brought something in
2. INTENTIONAL & VOLUNTARY - COMMON ELEMENT
a. Intentional - Common Element
The defendant's Act must be voluntary and intentional.
o Relates to the interference
o No need to prove that the defendant intended to cause harm
o No requirement for 'wrongful' or 'unlawful' action
o A benign motive will not prevent D's act from being a trespass
No man may be excused of trespass except where it may be judged utterly without his fault’ (Weaver
v Ward (1616) Hob 134) - onus
Standard of intention is low in Australia.
How does the law treat direct but unintentional actions?
The answer is different in Australia from the United Kingdom.
McHale v Watson (1964) 111 CLR 384
Threw a piece of steal, trespass, negligence
Croucher v Cachia (2016) 95 NSWLR 117
The evidence suggested that the gardener was holding a pair gardening sheers. Can you demonstrate
it is intentional?
the court considered the range of authorities when you cannot prove the act is intentional.
b. Voluntary - Common Element
Gibbons v Pepper: Who strikes the horse is important, not who rides it
Morris v Marsden: Where D knew what he was doing but not that it was wrong. Stable J said acts
performed in complete automatism or sleep walking not actionable. Knowledge of wrongdoing is
immaterial - capacity to know the nature and quality of the act is sufficient, even where the mind
directing the hand that did the wrong is 'diseased’.
if their arms are moving their hands are moving - it is said to be considered voluntary. As long as you
know your mouth is moving
that is sufficient
See also Fede v Gray - ice addict bit a cop.