LAW OF TORTS
LECTURE 4
Intentional torts to Chattels
Action on the case for Wilful Injury
Negligent Trespass
Negligence – Duty of Care
Greg Young
TRESPASS & CLA 2002
• s.3B(1)(a) Civil Liability Act (“CLA”) i.e. CLA does not
apply to “intentional torts”, except Part 7 of the Act.
• s.52 (2) CLA subjective/objective test i.e. subjective
("…believes…" & "…perceives…")/ objective ("…reasonable response…") test.
• s.53(1)(a) & (b) CLA i.e. “and” = two limb test; "exceptional" and
"harsh and unjust“ are not defined in the Act so s.34 of the Interpretation Act
1987.
• s.54(1) & (2) CLA i.e. "Serious offence" and "offence" are criminal
terms so reference should be made to the criminal law to confirm whether P's
actions are covered by the provisions.
TRESPASS TO PROPERTY
TRESPASS TO PROPERTY
LAND
GOODS/CHATTELS
TRESPASS TO PROPERTY
• GOODS/CHATTELS
TRESPASS
TO PROPERTY
• Personal property
LAND
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
ACTS OF CONVERSION
• Misdelivery ( Ashby v Tolhurst (1937 2KB);
Sydney City Council v West)
• Unauthorized dispositions in any manner that
interferes with P’s title constitutes conversion
(Penfolds Wines v Elliott)
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)
THE LAW OF TORTS
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
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
• The act must be reasonably
capable of causing mental distress
to a normal* person:
– Bunyan v Jordan
– Stevenson v Basham
IS THERE ROOM FOR EXTENDING THE
SCOPE
• The normal person in Wilkinson v
Downton
• The normal/reasonable person: The
gender/race debate
The Scope of Intentional Torts to the
Person
• Trespass:
– Battery,
– False Imprisonment
– Assault
• Action on the case (Wilkinson v Downton)
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
NEGLIGENCE AND FAULT IN TORTS
FAULT
INTENTION
NEGLIGENCE
TRESPASS
CARELESS
NEGLIGENCE
the action
NEGLIGENT TRESPASS
• Intentional or negligent act of D which
directly causes an injury to the P or his /her
property without lawful justification
• The Elements of Trespass:
–
–
–
–
fault: intentional or negligent act
injury must be direct
injury may be to the P or to his/her property
No lawful justification
NEGLIGENT TRESPASS
• While trespass is always a direct tort, it is not
necessarily an intentional act in every instance. It
may be committed negligently
• Negligent trespass is an action in trespass not in
negligence:
• Where the facts of a case permit, it is possible to
frame an action in both trespass and negligence on
the same facts
• Williams v. Molotin (1957) 97 CLR. 465.
What is Negligence?
• It is the neglect of a legal duty
• It involves the three elements of
• duty
• breach;
• resultant damage
Negligence: The Elements
Duty of care
Negligence
Breach
Damage
Negligence: The Early Cases
• Heaven v. Pender
•
(Defective equipment supplied to plaintiff painter)
• The dicta of Brett MR:
• whenever one person is by circumstances placed in
such a position with regard to another, that every one
of ordinary sense who did think would at once
recognise that if he did not use ordinary care and skill
in his own conduct with regard to those
circumstances he would cause danger or injury to the
person or property of the other (person) a duty arises
to use ordinary care and skill to avoid such danger.
Donoghue v. Stevenson
• Ginger beer-decomposing snail-P has shock-gastroenteritis
• Privity of contract between P and D. Issue was whether D
owed P a duty
• Dicta of Lord Atkin
• You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be
likely to injure your neighbour. Who then in law is my
neighbour? The answer seems to be persons who are
closely and directly affected by my act that I ought
reasonably to have them in mind to the acts or
omissions
NEGLIGENCE
• Grant v Australian Knitting Mills (1936)
• The application of the rule in D v S
• a manufacturer of products, which he sells in such a
form as to show that he intends them to reach the
ultimate consumer in the form in which they left him
with no reasonable possibility of intermediate
examination, and with the knowledge that the absence
of reasonable care in the preparation or putting up of
the products will result in an injury to the consumer’s
life or property, owes a duty to the consumer to take
that reasonable care
NEGLIGENCE: THE DUTY OF CARE
• The dicta of Lord Atkin in Donoghue v Stevenson:
– whenever one person is by circumstances placed in such a
position with regard to another, that every one of ordinary sense
who did think would at once recognise that if he did not use
ordinary care and skill in his own conduct with regard to those
circumstances he would cause danger or injury to the person or
property of the other (person) a duty arises to use ordinary care
and skill to avoid such danger.
– You must take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your
neighbour/another
Negligence: (Duty of Care)
• The Duty of care is the obligation to avoid acts
or omissions which are reasonably foreseeable
to cause damage to another.
• When does one owe a duty of care?
• Whenever one is engaged in an act which he or
she can reasonably foresee would be likely to
injure another person, one owes a duty of care
to that other person
The Modern Requirements for the
Duty of Care
• Jaensch v. Coffey (1984) per Dean J. p587-8
• A duty situation would arise from the following
combination of factors
• A reasonable foreseeability of real risk of injury to P
either as an identifiable individual or a member of a
class of persons
• The existence of proximity between the parties with
respect to the act or omission
• Absence of any rule that precludes such a duty
What is Reasonable Foreseeability?
• Reasonable foreseeability presupposes an objective
or a reasonable person’s standard
• The reasonable person is an embodiment of
community values and what the community expects
of a responsible citizen
• The concept allows us to evaluate D’s conduct not
from his or her peculiar position, but from that of a
reasonable person similarly placed
• Reasonable foreseeability is a question of law
Reasonable Foreseeability: Case Law
• Nova Mink v. Trans Canada Airlines [1951]
(Air traffic noise causing minks to eat their young
ones-No foreseeability)
• Palsgraf v. Long Island R.R. Co. (1928) (Railway
guards helping falling passenger-fireworks explosion
causing injury to plaintiff.-No foreseeability)
• Chapman v. Hearse (1961) (Car accident-Dr. stops to
help-gets killed by another vehicle-action against D who
caused initial accident- Foreseeability upheld)
The Scope of Reasonable
Foreseeability
• United Novelty Co. v. Daniels (1949)
(Workers cleaning coin operated machine with
flammable substance-rat in machine runs into fire
place causing fire damage and deathForeseeability upheld)
• Jaensch v. Coffey (1984) (Car accident-spouse
goes to hospital to see injured partner-suffers shock
from what she sees and hears of husband’s
condition-action against D who caused accidentProximity-Duty)
Reasonable Foreseeability: Established Category
Of Duty of Care
• Koehler -v- Cerebos (Australia) Limited [2005]
HCA 15
McHugh, Gummow, Hayne and Heydon JJ (majority): “The central inquiry
remains whether, in all the circumstances, the risk of a plaintiff …
sustaining a recognisable psychiatric illness was reasonably foreseeable, in
the sense that the risk was not far fetched or fanciful” [33]
“The duty which an employer owes is to each employee. The relevant duty
of care is engaged if psychiatric injury to the particular employee is
reasonably foreseeable”
Proximity
• Jaensch v. Coffey (1984) (Car accident-spouse goes to
hospital to see injured partner-suffers shock from
what she sees and hears of husband’s conditionaction against D who caused accident-ProximityDuty)
• Gala v. Preston (1991) (Duty relationship between
parties engaged in an illegal enterprise-No
proximity-No duty)
• Nagle v. Rottnest Island Authority (1993) (P injured while
diving into a rocky pool- pool promoted and
operated by D-Proximity, Duty upheld)
• Held: the board, by encouraging persons to engage
in an activity, came under a duty to take reasonable
care to avoid injury to them and the discharge of
that duty... require that they be warned of any
foreseeable risks of injury associated with the
activity so encouraged
The Main Features of Proximity
PROXIMITY
Degree of proximity
Physical
Circumstantial
Causal
Evaluation
Evaluation
of legal
and policy
considerations of
what is fair
and reasonable
Proximity Criticised
• The High Court has expressed reservations
about the usefulness of the notion of
proximity in recent times
– Hill v Van Erp (A unifying concept of proximity described as
“ambitious” per Dawson J; “of limited use in the determination of
individual disputes” per Gummow J; and affording no real guidance “in
determining the existence of a duty of care in difficult and novel cases”
per McHugh J)
– Perre v Apand (Proximity was no longer the “talisman for
determining a duty of care” per McHugh J; and “incapable of fulfilling,
unaided, the function of demonstrating the existence or absence of
duty of care” per Kirby J)
Proximity - Criticised
• Sullivan v Moody (2001) 207 CLR 562
Facts – In separate proceedings, fathers were denied access to their children as Dr
Moody (employed by the SA Dept of Community Welfare) incorrectly diagnosed
sexual abuse; The fathers sued in negligence for psychiatric injury.
Judgment – Appeals dismissed as no duty of care exists to protect a suspected abuser
from emotional distress
Gleeson CJ, Gaudron, McHugh, Hayne & Callinan JJ:
[573] “…foreseeability of harm is not sufficient to give rise to a duty of care”
[578] “The formula is not ‘proximity’. Notwithstanding the centrality of that concept, for
more than a century … it gives little practical guidance in determining whether a duty
of care exists in cases that are not analogous to cases in which a duty has been
established”
Proximity: Unclear how it is to be
Applied Now?
• Perre –v- Apand: Although proximity is not a universal test for
duty of care, it is a concept which has not been totally abandoned (per
McHugh J)
• “Incremental Approach”
- Sutherland Shire Council –v- Heyman: per Brennan CJ “develop
incrementally and by analogy with established categories”
- Perre –v- Apand: incremental approach adopted by McHugh J
•
Incremental Approach criticised in Brodie –v- Singleton Shire Council by Callinan J
as retreating to a “safe haven”
DUTY CATEGORIES: To whom is duty
owed?
•
One owes a duty to those so closely and directly affected by his/her conduct
that she ought reasonably to have them in contemplation as being so
affected when undertaking the conduct in question.
• Examples:
- Employer/Worker
- Driver/Other Road Users
- Doctor/Patient
- Consumers, users of products and structures
• Donoghue v Stevenson
• Voli v Inglewood Shire Council
• Bryan v Maloney
– Users of premises etc.
• Australian Safeway Stores v Zaluzna
Unborn Child
• The unborn child:
– The duty is not simply to take reasonable care in the abstract but to
take reasonable care not to injure a person whom it should
reasonably be foreseen may be injured by the act or neglect if such
care is not taken (Winneke CJ/ Pape J)
– There can be no justification for distinguishing between the rights…
of a newly born infant returning home with his /her mother from
hospital in a bassinet hidden from view on the back of a motor car
being driven by his proud father and of a child en ventre sa mere
whose mother is being driven by her anxious husband to the
hospital on way to the labour ward to deliver such a child ( Per
Gillard J in Watt v Rama)
- Lynch v Lynch (1991)
Unborn Child
• Wrongful life cases
– Harriton v Stephens [2006] HCA 15 (9 May 2006) The specific duty of
care postulated was a duty upon Dr Stephens to diagnose Rubella and
then advise Mrs Harriton to terminate the pregancy.
– Appeal dismissed (7 to 1 majority)
– Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing), Hayne J and
Callinan J in separate judgments dismissed the Appeal
– Kirby J dissented
Harriton v Stephens
• Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)
• [244] “It was not Dr P R Stephens's fault that Alexia Harriton was injured
by the rubella infection of her mother. Once she had been affected by the
rubella infection of her mother it was not possible for her to enjoy a life
free from disability. ... Dr P R Stephens would have discharged his duty by
diagnosing the rubella and advising Mrs Harriton about her
circumstances, enabling her to decide whether to terminate her
pregnancy; he could not require or compel Mrs Harriton to have an
abortion. ”
Harriton v Stephens
• Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)
• [249] “It is not to be doubted that a doctor has a duty to advise a mother
of problems arising in her pregnancy, and that a doctor has a duty of care
to a foetus which may be mediated through the mother[403]. However, it
must be mentioned that those duties are not determinative of the specific
question here, namely whether the particular damage claimed in this case
by the child engages a duty of care. To superimpose a further duty of care
on a doctor to a foetus (when born) to advise the mother so that she can
terminate a pregnancy in the interest of the foetus in not being born,
which may or may not be compatible with the same doctor's duty of care
to the mother in respect of her interests, has the capacity to introduce
conflict, even incoherence, into the body of relevant legal principle ”
Harriton v Stephens
• Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)
• [251 & 252] “Because damage constitutes the gist of an action in
negligence, a plaintiff needs to prove actual damage or loss and a court
must be able to apprehend and evaluate the damage, that is the loss,
deprivation or detriment caused by the alleged breach of duty. ... In the
Court of Appeal, Spigelman CJ recognised that in cases of this kind, to find
damage which gives rise to a right to compensation it must be established
that non-existence is preferable to life with ...
• A comparison between a life with disabilities and non-existence, for the
purposes of proving actual damage and having a trier of fact apprehend
the nature of the damage caused, is impossible. ”
RESCUERS
• There are two separate issues in rescue:
– The ‘duty’ to rescue
– The duty of care owed to the rescuer
• There is no positive legal obligation in the common law
to rescue
– The law does not ‘cast a duty upon a man to go to the aid
of another who is in peril or distress, not caused by him
• There may however exist a duty to rescue in master
servant relationships or boat owner and guest
relationships for instance
– Horsley v Macleran (The Ogopogo) (1971) 22 DLR
• One is only required to use reasonable care and skill in
the rescue
THE DUTY OWED TO RESCUERS
• The rescuer is generally protected : torts recognizes the existence of a duty of
care owed to the rescuer
• The issue of volenti-non fit injuria: This principle does not seem to apply in
modern tort law to rescue situations
– Note however the case of Sylvester v GB Chapman Ltd (1935) :attack by leopard while
attempting to put out a smouldering cigarette in straw
• ‘The cry of danger is the summons to relief. The law does not ignore these
reactions of the mind.. It recognizes them as normal… and places their effects
within the range of of the natural and the probable [and for that matter the
foreseeable] per Cardozo J in Wagner v International Railway Co. (1921)
– Chapman v Hearse
– Videan v British Transport Commission (1963) (rescue attempt to get a child trespassing on
railway line)
• Rescuers may recover for both physical injuries and nervous shock
– Mount Isa Mines v Pusey (1970)
• The US fire-fighter’s Rule does not apply in Australia and the UK
– Ogwo v Taylor (1988) AC 431
Unforeseeable Plaintiffs
• In general the duty is owed to only the
foreseeable plaintiff and not abnormal
Plaintiffs.
– Bourhill v Young [1943] AC 92
– Levi v Colgate-Palmolive Ltd (1941)
– Haley v L.E.B. [1965] AC 778
IMPACT OF THE CIVIL LIABILITY ACT ON THE
DUTY OF CARE
• The Civil Liability Act 2002 together with the
Civil Liability Amendment (Personal
Responsibility) Act 2002 govern the law of
negligence in NSW.
– The Civil Liability Act 2002 was enacted 28th
May 2002 and received assent on 18 June 2002
• Rationale behind the legislation:
– to limit the quantum of damages for personal
injury and death in public liability instances;
resultantly lowering insurance premiums.
– to discourage ‘over litigation’, by the imposition
of restrictions and obligations and responsibilities
upon plaintiffs and counsel
Duty of Care: Policy
• In novel cases, the Courts will not only apply
the test of “reasonable foreseeability” but
also consider “policy” considerations:
• Hill –v- Chief Constable of West Yorkshire
[1989] 1 AC 53 (the Yorkshire Ripper’s last victim not owed a duty
of care by investigating police)
• Sullivan –v- Moody (2001) 207 CLR 562 (suspected
sexual assault offenders not owed a duty of care to prevent harm by
investigating community services officers)
• D’Orta-Ekenaike –v- Victorian Legal Aid [2005]
HCA 12 (advocates’ immunity upheld)
Civil Liability Act 2002: Duty of Care
• Statute overrides the common law and that any
negligence claim commenced since 20 March
2002 will be governed by the Civil Liability Act
2002.
• Next lecture, we will consider the application of:
– general duty of care provisions of s.5B;
– situations of obvious/inherent risks under ss.5F to I;
and
– situations of dangerous recreational activities under
ss.5J to N.
The Rationale for Reform
• [I]t's my view that this country is tying
itself up in tape because of over litigation,
a long-term trend to see us litigate for
everything, to try to settle every problem
in our lives...by getting a big cash payment
from the courts....a country as small as
ours can't afford to have the Americanstyle culture of litigation". (Bob Carr)
The Rationale for Reform
• ‘We need to restore personal responsibility and
diminish the culture of blame.That means a
fundamental re-think of the law of negligence, a
complex task of legislative drafting.
There is no precedent for what we are doing, either in
health care or motor accident law, or in the legislation
of other States and Territories.
We are changing a body of law that has taken the
courts 70 years to develop’ (Bob Carr)
The Approach to Reform:
Government’s View
• We propose to change the law to exclude claims that
should never be brought and provide defences to
ensure that people who have done the right thing
are not made to pay just because they have access to
insurance (Bob Carr)
• We want to protect good samaritans who help in
emergencies. As a community, we should be
reluctant to expose people who help others to the
risk of being judged after the event to have not
helped well enough (Bob Carr)