TORTS NOTES
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• “Interest in bodily security or protection of tangible property, financial resources or reputation which are
protected by law and not exclusively within the law of contract, restitution or criminal law”#— Balkin v Davis
• Functions of tort law:
• Compensation, Loss shifting, Loss spreading, Deterrence, Protects interests, Costs
• Standards of liability:
• Volition: did you have control? whether you were capable of doing it —>voluntary
• Intention: / negligence/ strict liability — if I did have the will to do it what was my intention? —> aim
• No tort liability for involuntary conduct but intention doesn’t have to be there for liability
• Tort theory
• Economic analysis —> spreading cost
• Corrective justice —> moral requirements, apologizing is not evidence of liability, not about retribution
• Civil recourse theory —> what the victim wants, empowering the victim
• Critical legal theory —> political, who’s going to get what rights and responsibilities
• Miller v Jackson
• Lord Denning
• Wasn’t trespass —> no intention
• Claimed nuisance and negligence#—> but P was after an injunction = nuisance
• For negligence plaintiff needs to establish damages
• No injunction granted
• Rylans v Fletcher
• Something dangerous on your property must be contained by you otherwise you are liable for damages
• Overruled now but good literature
Trespass'
• To person, land or goods#
• Trespass to the person #
• Protect interest of the person#
• Assault, battery false imprisonment#
• Interference = immediate and direct from D’s actions (&
intentional)#
• Trespass = direct injury flows naturally from defendant’s act
without necessity of intervention by another independent
factor —> Scott v Shepherd (firecracker in market place –#
direct) #
• Difference#between#UK#and#AUS#case#law#(case#v#trespass):#
• UK: basis of distinction has shifted from directness to intention
(Dipplock L & Denning L)#
• UK: Dipplock –#onus of proof on plaintiff —> Fowler v Lanning'
Denning –#no negligent trespass (following Dipplock), no
unintentional trespass#
• AUS: directness, moved to accept lack of intention is a
criterion for case#
• AUS: D must prove they didn’t have intention to trespass#
• Direct = trespass#
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Unintentional = negligent trespass (action on case)#
Williams v Millington = damages and duty of care#
Trespass has no damage and no duty of care#
Before UK cases#
Stingle v Clark —> follow Williams#
Battery'
Actionable per se without need to prove damage#
D has to be capable to perform intent#
Directness
Directness is closeness in connection –#causal chain#
Footnote 28
Direct result of D’s conduct (Scott v Shepherd)#
DPP v K—#sulphuric acid in hand dryer at school#
Distinguishable feature#
Physical interference#—#Contact with body of P#
Carter v Walker (no battery —#no direct harm by D, no physical
contact)#
Intentional conduct !
Intention = purpose#
Voluntary act#
Intention of particular consequences (NSW v Ibbit)#
Bolton v Stone —#taken to have intended consequences which are
substantially certain to flow from it#
D need not to intend harm#
Contact with body of P
Spitting, blood, operation, contact with object person is holding#
Acts generally expected in everyday life are excluded#
Incidental conduct #
Voluntary assumption of the risk#
Hostility? Cole v Turner#“need not be anger for battery”#— Rickson v
Star City Casino –#no hostility#
Consent fundamental —Touching without lawful justification)—#D had
onus to prove P had consent #
Mcmare v Duncan (AFL) — outside course of game#
Knowledge (P)
Not required#
Asleep, passed out, anaesthetic#
TORTS NOTES
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Assault'
False'Imprisonment'
?
Direct and Intentional threat#
?
Intentional, total and direct restraint on a person’s
?
Reasonable apprehension of an imminent
liability#
contact#
?
Without lawful justification#
?
Words and action = threat#
?
Deprivation of liberty#
?
Conditional threats#
?
Actual/total restraint#
?
Reasonable#
?
Bird v Jones (bridge construction) —#mere obstruction is
?
Directness#
insufficient#
?
Constituting a threat#
?
Escape?#
o Mere words can be an assault
o Danger to D#
(threat)Barton v Armstrong)#
o How long?#
o Footnote 75#
o Legal?#
o Preparations = not enough#
o Means#
?
Assault directness#
?
Length of time of detention#
o Maybe not a requirement#
?
Directness#
o Threat of imminent contact#
o Bird v Hollbrook #
?
Apprehension of imminent battery#
▪
Tulips, spring gun –#no#
o Rozsa v Samuels (taxi)#
o R v Garrett'
o Future assault Zanker v Vartzokas #
▪
Causal connection - yes#
?
Condtional threats#
o Coles Myer v Webster#
o Tuberville v Savage —#no assault#
▪
Shoplifting –#yes#
o Conditional words/actions may make
• Defamation also#
it clear there is no present intention,
• Wasn’t actually shoplifting#
no legal basis for apprehension#
?
Knowledge of Imprisonment#
o Police v Greaves — assault even
o Meering v Graham –'White Avation Co —
though conditional#
imprisonment without being aware— yes#
?
Intention#
o Herring v Boyle- no
o To cause apprehension#
o Murray v Ministry of Defence#–#yes (agreed with
o Hall v Fonceca#
Meering)
o Mere carelessness is not enough#
?
Wilkinson v Daltion: intention to cause harm. P must
o Don’t need to be afraid, just need to
prove harm was tortious and that D acted negligently.
believe it is going to happen#
Had to be physical harm#
o Victim must know#
?
Bunyon v Jordan—Aus cases, accepted Wilkinson.
o There can be battery without assault
Woman overheard man saying he was going to commit
(at common law) — Jones v
suicide and this caused P emotional stress. Sensitive P.
Sherwood#
comments were not made to P, sensitive P must be
?
Reasonable apprehension#
known to D. No assault#
o What is the gun isn’t loaded?#
?
Defences: necessity, insanity, discipline, illegality, selfo Still liable because victim believes it is#
defence, provocation, consent, lawful authority#
o Stephens v Myers#
?
Civil Liability Act 2002 (NSW)#
o Brady v Shatzel#
?
Actionable per se#
?
Battery is merged with assault in criminal#
?
Implied licence to enter#
?
3 principle causes of action#
#
o Trespass –#strict liability#
o Nuisance –#P’s use and enjoyment of land#
o Negligence –#Duty of care & Damage#
#
?
Nuisance#
'
o Unreasonable interference#
'
o Fault = did D create the nuisance#
'
o Conduct may be reasonable but interference
'
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was unreasonable#
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o Indirect interference#
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Trespass'to'Land'
'
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• Intentional or negligent#
TORTS NOTES
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Directly interferes with P’s exclusive possession#
Actionable per se — Entik v Carrington#
Without justifiable consent — Coco v R#
Occupier, not just owner (Tenant)#
Access to Neighboring Land Act#
Can remove someone (reasonably)#
?
Privacy#
o
Entik v Carrington — eyes cannot
commit trespass#
?
Land = soil, dirt, structures, plants, airspace,
“down to hell and up to heaven”#(Latin Maxim),
mines (but minerals are owned by government
and landholder owns strata and structures),
easements#
?
Airspace#
o
Kelsen v Imperial Tobacco —
injunction for removal –#yes#
▪
If you exclusively possess
land you exclusively possess
air space#
▪
Applies to tenants#
o
Bernstein of Leigh v Skyways
General Ltd — photos #
o
Davies v Bennison (1972)— bullet#
o
Woolerton and Wilson v Richard
Costain #
o
LJP investments Pty Ltd v Howard
Chia Investments (No. 2)#
o
Bendal Pty Ltd v Mirvav Project Pty
Ltd#
o
Schelter t/as Cape Crawford Tourism
v Brazakka P/L — photos#
?
Below the ground#
o If you own the land you own the
subsoil — Stoneman v Lyons #
o As far down as rock anchors — Di
Napoli v New Beach Apartments#
o
Bocardo SA v Star Energy UK
Onshore Ltd#
o Right to support —Conveyancing Act
—stops people destabilizing land#
?
The Highway#
o
Hickman v Maisey#à#wasn’t an
ordinary or reasonable use of the
highway#
o
Ireagh v Martin à#what’s ok to do on a
highway#
o Right to protest à#DPP v Jones (UK)#
o Give leaflets, carols, etc#
o ‘Highway’#is broad definition#
?
Nature of the Plaintiff’s interest in Land#
o Trespass to land protects possession#
o
Newington v Windeyer#
o P must have exclusive possession at
time of tort à#Georgeski v Owners
Corp.#
o Actionable per se#
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Tenant can take action against
landlord#
o
Manson v Clarke#
▪
P had right to hunt rabbit#
▪
D owned the land#
▪
D interferes with rabbit traps#
Who has BETTER possession?#
Barker v R#
Tenants and Lessors#
o A tenant with full possession can sue a
trespassing lessor#
o Landlord can sue for over holding if
they don’t leave when lease is up#
Intention#
o Intentional interference à#Public
Transport Commission v Perry#
o Intend to interfere with land#
o Recklessness might suffice#
Directness#
o Direct, physical, unauthorised, Davies
v Bennison#
o Expectations to everyday life#
o
Watson v Cower#à#placing things on
land#
Types of interference constituting trespass#
o Interference with use and enjoyment#
o Refusal to admit and refusal to leave
(licence)#
o Trespass ab initio (Barker v R) and
trespass pro tanto (Scope of consent
on position to enter)#
o Continuing trespass#
Encroachment of Buildings#
o Construction on the land of someone
else makes it there property#
o
Ramsden v Dyson#
o Encroachment of Buildings Act 1922#
Actions for Damage to Revisionary Interest#
o Owner out of possession need not sit
idly by and watch his property being
ruined#
Defences#
o Necessity –#SO Petroleum v South
Port Corp à'imminent peril, mistaken
belief is enough, self defence,
reasonable response#
o Consent –#aka licence à#lawful
authority - until expressly revoked
(Halliday v Neville) #
▪
Express#
▪
Implied à#Cowell v Rosehill
Racecourse#
Remedies#
o Damages (nominal, compensatory,
aggravated)#
o Injunction#
o Abatement by self-help