Law of Torts Summary
Intentional Torts
Trespass
A cause of action may be brought provided the elements of directness and intention are satisfied.
General Elements:
Direct Act: For an act to be defined as direct, rather than consequential, the harm must ‘...have followed so immediately in point
of causation upon the act of the defendant as to be termed part of that act.’ (Herring CJ, Hutchins v Maughan). Unless
‘...immediately or directly occasioned...’ (Herring CJ) by the act, the act is consequential.
Hutchings v Maughan
[1947] VLR 131; [1947] ALR 201
Supreme Court of Victoria
• P knowingly took dogs onto a property baited previously by D.
• P’s dogs ate baits and soon died.
• “When the harm follows so immediately upon the defendant that it is really a part of the act” (Herring CJ)
then it is immediate. If there is a time lapse, such that the harm is merely consequential, it is not a direct act.
(Scott v Shepherd 1773)
2 Wm Bl 892
Blackstone J
• If the direct act is enacted under compulsion for personal safety, and thus the actor(s) are not free agents, they may
be deemed intermediate and inconsequential.
Southport Corporation v Esso Petroleum Co Ltd
[1954] 2 QB 182 (CA) 195-6
Denning LJ
• Oil discharged by D’s tanker stranded in an estuary and carried by the tide onto P’s foreshore property.
• Did not constitute trespass as the oil was carried by the tide, and thus it was a consequential act, not a direct one.
Voluntary Act: According to Stable J in Morris v Marsden [1952] 1 All ER 925 a capacity to know the nature and quality of the act
is sufficient. There needn’t be knowledge of wrongdoing: ‘[K]knowledge of wrongdoing is...immaterial... ,and...where there is
capacity to know the nature and quality of the act, that is sufficient...’.
If the direct act is enacted under compulsion for personal safety, and thus the actor(s) are not free agents, they may be deemed
intermediate and inconsequential (Scott v Shepherd 1773) 2 Wm Bl 892.
Intentional (or negligent) Act: There must be intent to act, regardless of motive. If a doctor acts with good intentions but
performs a medical procedure without consent, he has committed trespass unless it is such an emergency that the doctrine of
necessity applies. NEED RULE HERE
Trespass to Person:
Battery: The tort of battery involves a voluntary, direct and intentional act which is harmful and offensive to the
defendant (Rixon v Star City). Acts are classified as such when they are deemed to be beyond the degree acceptable in
everyday conduct (Lord Goff, Rixon v Star City).
1"
"
Rixon v Star City Pty Ltd
[2001] NSWCA 265; (2001) 53 NSWLR 98; BC200105894
Court of Appeal (NSW)
Sheller JA
• P, and ‘excluded’ person in the Casino had re-entered the premises.
• D touched the shoulder of P and asked ‘are you Mr Rixon?’ P maintains he was spun around forcefully – detail rejected by
Sheller JA. P alleged assault, battery and false imprisonment.
• The contact made by D was deemed to be within the bounds of acceptable everyday contact given the circumstances.
Assault: An assault involves a voluntary, direct and intentional act in which the defendant instils a reasonable
apprehension of imminent battery in the plaintiff (Zanker v Vartzokas).
Rosza v Samuels
[1969] SASR 205
Supreme Court of South Australia
Hogarth J
• D parked his taxi at the front of a taxi rank. P threatened to punch D if he did not move his taxi.
• D grabbed a knife from his taxi and threatened to ‘cut [P] to bits’ if he did not move his taxi.
• A conditional threat will thus constitute assault if the condition is an unlawful demand.
• Hogarth J: ‘A person is guilty of assault if he unlawfully displays force against another in such a way that he creates in the
mind of the other the belief that force is about to be used against him, provided he intended to create such a
belief.’
• Self-defence is not an adequate defence where the response is unreasonable and disproportionate to the threat.
Zanker v Vartzokas
(1988) 34 A Crim R 11
Supreme Court of South Australia
White J
• P is asked if she would like a lift in D’s van. D asks for sexual favours in exchange for money.
• P refuses. In response D speeds up the van and said he would take her to a mate’s house and ‘really fix her up.’
• P jumps out of the moving van.
• A threat of battery at an uncertain time in the future can constitute assault if the “threat could operate
immediately on the victim’s mind but in a continuing way” (White J), such that the element of
immediacy need not be proven.
MacPherson v Brown
Zelling J
• P, along with other students in a group blocks the path of D the day after an altercation at a sit-in demonstration.
• Zelling argued that the group limited D’s movement, and thus produced a threat of battery which was not immediate,
but ‘could operate immediately on the victim’s mind but in a continuing way so long as the unlawful imprisonment
situation continued.’
Barton v Armstrong
Taylor J
• D ran P over the telephone and threatened him with serious violence.
• P alleged an assault.
2"
"
•
Taylor J found that threats over the telephone were not ‘mere words’ but that D’s strong position of power and
influence meant that P genuinely feared the threats would be carried out in a future time unless he did as was
asked of him. It was thus an ongoing threat of imminent harm in Ps mind.
False Imprisonment: False imprisonment occurs when the Freedom of movement of P is totally and unlawfully restrained by
a voluntary, direct and intentional act.
Zanker v Vartzokas
(1988) 34 A Crim R 11
Supreme Court of South Australia
White J
• P is given a lift by D. When she asks to leave, D speeds up, and continues driving at a high speed recklessly.
• False imprisonment can occur when the only means of escape is in no way reasonable.
Bird v Jones
(1845) 7 QB 742; 15 ER 668
Court of Queen’s Bench
Patterson J, Coleridge J
• P insisting on entering an area of a bridge’s walkway closed off to the public.
• D attempted to halt P by grabbing his cloak but failed.
• At the request of D, his way was blocked in one direction by two police officers who said he could return from the way
which he had come but not proceed.
• There must be a total restraint of liberty. Patterson J: “But Imprisonment is, as I apprehend, a total restraint of liberty
of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience it may
bring on him”
• Loss of freedom does not necessarily constitute false imprisonment. It must be “Restraint within some limits
defined by a will or power exterior to our own” (Coleridge J).
Symes v Mahon
[1922] SASR 447
Supreme Court of South Australia (Full Court)
• P was mistaken for another individual. He was ‘taken up for questioning’ but never formally arrested.
• P was taken by the officer, D, on a train to Adelaide, travelling in a separate compartment to D.
• Upon arrival D soon realised P was not the person he sought initially.
• P brought a case in false imprisonment for the period of the train ride.
• Physical barriers are not required for a case in false imprisonment. There need only be evidence of complete
submission to the authority in command.
The Balmain New Ferry Co Ltd v Robertson
(1906) 4 CLR 379
High Court of Australia
• P entered a ferry terminal wharf knowing he was required to pay 1 penny to pass the turnstile.
• He missed his ferry, but demanded and forcibly attempted to exit without paying the required sum.
• D tried to forcibly prevent him from leaving.
• There was no case in false imprisonment, as there was not ‘total restraint’ (Patterson J, Bird v Jones) because a
reasonable means of escape existed (by water or paying a penny).
• A person who knowingly enters upon an agreement in which his freedom is relinquished for a period of
time has no case in false imprisonment. OR A person is subject to the terms of an agreement he knowingly enters.
Herd v Weardale Steel Coke and Coal Co
[1915] AC 67
3"
"
House of Lords
• P, an employee of D, entered a mine but complained the conditions were unsafe.
• P demanded to be taken to the surface using D’s shaft lift at 11:00 am. P was told the shaft was in use until 1:10 pm.
• P was lifted up at 1:30, after the lift had sat idle for 20 minutes at the base of the shaft.
• There was no case in false imprisonment, as P was under contract (Balmain Ferry).
• Where consent is withdrawn, false imprisonment will only occur where it is unreasonable for D to
restrain P.
• Defence: Volenti non fit injuria (voluntary assumption of risk): P knowingly entered into the agreement and chose to
enter the mine under the conditions of his agreement.
Murray v Ministry of Defence
[1988] 1 WLR 692
House of Lords
• P was suspected of aiding the IRA. D and other officers entered P’s house at 7:00 am and ordered P get dressed whilst
other members of the house to assembled in the living room.
• Only after P dressed and returned downstairs was she notified of her arrest at 7:30 am.
• Under relevant legislation officers could detain suspects for 4 hours without a warrant provided they were notified of their
arrest.
• P brought an action of false imprisonment for the period between 7 and 7:30 am.
• Knowledge of restraint is not an element of the course of action in false imprisonment even if the victim is
in no way harmed by the imprisonment. However, only nominal damages should be expected if this is the case.
Dickinson v Waters Ltd
(1931) 31 SR (NSW) 593
Supreme Court of NSW (Full Court)
• P was falsely accused of shoplifting by D.
• D detained P in the manager’s office and called the police, who asked D if they wished to press charges. D answered yes. P
was brought to the police station.
• P brought an action of false imprisonment for the period she was held at the police station, in which she was successful.
• Imprisonment must have been caused by the defendant’s direct act either by physically detaining
plaintiff or being active in the action which causes the imprisonment.
Myer Stores Ltd v Soo
[1991] 2 VR 597 (AD)
• P, an innocent customer of D’s store, was accused of shoplifting on a pervious occasion which had been caught on video
camera.
• P was approached by a security officer and two police officers whom the officer had notified, and asked to accompany
them to an office to ‘sort the matter out’. P refused, and was then escorted to the office where he was held for an hour.
• A week later the officers entered P’s house under a search warrant ‘by day’ but the officers did not depart until after
sunset. On leaving, P was asked to again return to the station later for another interview. He was exonerated following
this.
• Joint liability for false imprisonment can occur (police and store) between those responsible for
insisting on detainment and those responsible for enforcing the detainment.
Trespass to Land:
Trespass to land occurs where there is a voluntary, direct and intentional (negligent) interference with land without
consent of the exclusive possessor (onus is on D to prove consent).
Definition of land:
4"
"
Airspace:
Bernstein (Baron)v Skyviews and General Ltd
[1978] QB 479
Queen’s Bench Division
Griffiths J
• D flew in the airspace above P’s land, taking photo’s of P’s property which D attempted to sell to P afterwards. P ordered
the photo’s be destroyed or given to him.
• In this case the law diverges from the old Latin principle that ‘rights in the soil extend to heaven and hell’, as the court
reasoned that taken to its logical extension, this would prohibit satellites from flying over private land.
• Griffiths J declared that the rights of a landowner to the airspace above their property are restricted to “such height as
is necessary for the ordinary use and enjoyment of his land and the structures upon it”
LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd
(1989) 24 NSWLR 490
• D was constructing a building and sought permission from P, the neighbour, to erect scaffolding on P’s land. P responded
by demanding a reasonable sum be payed – a lump sum and weekly rental payments, which D rejected. D built the
scaffolding, which protruded 1.5m into airspace above P’s land, and two posts 100mm onto the land itself. P sought a
mandatory n for the removal of the scaffolding.The injunction was granted because paying remedies would be D’s
achieved intention, but trespass must be proved before an injunction can be granted.
• Hodgson J: “the relevant test is not whether the incursion actually interferes with the occupier’s actual use of the land at
the time [actionable per se], but rather whether it is of a nature and at a height which may interfere with
any ordinary uses of the land which the occupier may see fit to undertake.”
• This Illustrates that injunctions will be prima facie (on initial facts) granted in cases involving continuing
trespass. However other factors may also influence the decision, for example a reasonable demand by the P, reckless
disregard of the P’s rights on the part of the D and the inadequacy of monetary compensation in many circumstances.
• Hodgson J also reasoned that “...one person should not be permitted to use the land of another person for considerable
commercial gain for himself, simply because the use of the other person’s land causes no significant damage to that other
person’s land.”
• LJP v Howard Chia also exemplifies that it is not the actual use of the P’s land that should be taken into consideration by the
court when deciding whether or not to award damages or an injunction, but the potential use of the land, in conjunction
with the landowner’s continuing ability to sell his land.
Graham v K D Morris & Sons Pty Ltd
[1974] Qd R 1
• D’s crane was situated about 15 m from the boundary to P’s land, such that when the wind encroaches from the
North or North-East, the jib was suspended into P’s property 18.6m, and suspended above the roof of P’s house.
• Campbell J accepted that it was both unsightly and a cause of nervousness and apprehension such that it “interferes
with that part of the airspace above her land which is requisite for the proper use and enjoyment of
that land.”
Subterranean Land:
Di Napoli v New Beach Apartments
[2004] NSWSC 52
Young CJ
• D installed rock anchors which extended beneath the surface of P’s land.
• P argued that there was the possibility (actionable per se) of damage to property.
• The court decided that the anchors were not so far beneath the surface that they were beyond P’s ownership/control.
• Contrary to Bernstein v Skyviews, the judgement in this case defines landowners as having “substantial control
over land underneath his or her soil for considerable depth,” (Young CJ).
5"
"
Consent – Express or Implied:
Lincoln Hunt Australia Ltd v Willesee
(1986) 4 NSWLR 457
Supreme Court of New South Wales
Young J
• D, accompanied by reporters and camera men, entered P’s land, a private business, with the intent of filming a
defamatory expose, under the false pretence that D was simply conducting business with P.
• P felt this footage, if released, would have a detrimental effect on his business and applied for an interlocutory application
(an urgent application) for injunction to restrain D from airing the taped material.
• There is an implied license to go on another person’s land for lawful inquiry: purposes such as retrieving a dropped object
or delivering a parcel.
• However “one must analyse the invitation expressed or implied, given by the occupier in each case.”
Young J citing Barker v The Queen (1983) CLR 338.
• Young J therefore argued that the implied license which D suggested existed, only applied “invitation by the plaintiff
for the public to visit its premises was limited to members of the public bona fide seeking information or business
with it or to clients of the firm, but not to people, for instance, who wished to enter to hold up the premises and rob them or even to
people whose motives were to go on the premises with video cameras and associated equipment or a reporter to harass the inhabitants
questions which would be televised throughout the State.”
• Thus the implied permission is only for limited purpose. If this implied purpose is exceeded, you are
liable for trespass. When the purpose for going on a property is designed to interfere negatively with the
landowner’s interests or when an expressed license is gained under false pretences, this license is withdrawn.
• This case is also authority for the fact that where monetary damages are deemed an adequate remedy and there is no
continuing trespass, injunctions will not be granted.
Halliday v Neville
(1984) 155 CLR 1
High Court of Australia
• Police officers caught P, a disqualified driver, reversing a car out of a driveway which he did not own. While still on the
driveway, P was arrested by the officers.
• P escaped and ran to his own property, where he was captured by police.
• Unless otherwise prohibited, members of the public, including police officers, have an implied licence to enter the
driveway of a “suburban dwelling” (Gibbs CJ, Mason, Wilson and Deane JJ). This proposition also expressly confirms
the right of police officers to “[question] and [arrest] a trespasser or a lawful visitor” (Gibbs CJ et al) on
the driveway of another person’s property.
• The law implies permission for any person to enter onto a driveway or entrance of a property for lawful
act, but this implied license can be revoked expressly or implicitly at any time.
• Brennan J dissenting implies that people have an implied consent to enter a property purely for legitimate pursuits that
directly involve the owner of the land; quoting Lord Widgery CJ in Brunner v Williams (1975) 73 LGR 266 at 272
“...anyone who has any genuine reason for wishing to enter the house or the garden has implied license from the occupier
to approach the front or nearest door and ask whether he may be given permission for what he wishes to do.”
• There is a quote in this case including directness, intention and without consent – find it.
Remaining on Land after permission to remain has been withdrawn:
Placing or Throwing material on land:
Leaving Objects unlawfully placed on land (continuing trespass):
Konskier v B Goodman Ltd
[1928] 1 KB 421; [1927] AII ER Rep 187
Court of Appeal (England)
6"
"