LAW OF TORTS
LECTURE 2
Assault
False Imprisonment
Trespass to Land
Trespass to Chattels
THE GENERAL ELEMENTS OF
TRESPASS
Intentional/
negligent act
+
Direct interference
+
Absence of lawful
justification
+
“x” element
=
A specific
form of trespass
TRESPASS:ASSAULT
•
The intentional/negligent act or
threat of D which directly
places P in reasonable
apprehension of an imminent
physical interference with his or
her person or of someone under
his or her control
THE ELEMENTS OF
ASSAULT
• There must be a direct threat:
– Hall v Fonceca (Threat by P who shook hand in front of
D’s face in an argument)
– Rozsa v Samuels ( threat to cut P into bits)
• In general, mere words are not actionable
– Barton v Armstrong
• In general, conditional threats are not actionable
– Tuberville v Savage
– Police v Greaves
– Rozsa v Samuels
THE ELEMENTS OF ASSAULT
• The apprehension must be reasonable;
the test is objective
• The interference must be imminent
Police v Greaves
– Rozsa v Samuels
– Barton v Armstrong
– Hall v Fonceca
Zanker v Vartzokas (P jumps out of a moving
van to escape from D’s unwanted lift)
SPECIFIC FORMS OF
TRESPASS
TRESPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT
PROPERTY
FALSE IMPRISONMENT
• The intentional or negligent act of
D which directly causes the total
restraint of P and thereby confines
him/her to a delimited area
without lawful justification
• The essential distinctive element
is the total restraint
THE ELEMENTS OF THE
TORT
•It requires all the basic elements of
trespass:
– Intentional/negligent act
– Directness
– absence of lawful justification/consent
, and
• total restraint
RESTRAINT IN FALSE
IMPRISONMENT
• The restraint must be total
– Bird v Jones (passage over bridge)
– The Balmain New Ferry Co v Robertson
• Total restraint implies the absence of a
reasonable means of escape
– Burton v Davies (D refuses to allow P out of car)
• Restraint may be total where D subjects P to
his/her authority with no option to leave
– Symes v Mahon (police officer arrests P by mistake)
– Myer Stores v Soo
FORMS OF FALSE IMPRISONMENT
• See the following Cases:
– Cowell v. Corrective Services
Commissioner of NSW (1988) Aust. Torts
Reporter ¶81-197.
– Louis v. The Commonwealth of Australia
87 FLR 277.
– Lippl v. Haines & Another (1989) Aust.
Torts Reporter ¶80-302; (1989) 18
NSWLR 620.
VOLUNTARY CASES
• In general, there is no FI where one
voluntarily submits to a form of restraint
– Herd v Werdale (D refuses to allow P out of mine
shaft)
– Robison v The Balmain New Ferry Co. (D refuses
to allow P to leave unless P pays fare)
– Lippl v Haines
• Where there is no volition for restraint, the
confinement may be FI (Bahner v Marwest Hotels
Co.)
WORDS AND FALSE
IMPRISONMENT
•In general, words can constitute FI
KNOWLEDGE IN FALSE
IMPRISONMENT
•The knowledge of the P at the
moment of restraint is not essential.
– Merring v Graham White Aviation
– Murray v Ministry of Defense
WHO IS LIABLE? THE AGGRIEVED
CITIZEN OR THE POLICE OFFICER?
• In each case, the issue is whether the
police in making the arrest acted
independently or as the agent of the
citizen who promoted and caused the
arrest
– Dickenson vWaters Ltd
– Bahner v Marwest Hotels Co
THE ‘MENTALLY ILL’ AND
FALSE IMPRISONMENT
 In Common Law, the lawfulness of an act of detention of a
person must depend on "overriding necessity for the
protection of himself and others’ per Harvey J in In re Hawke
(1923) 40 WN (NSW) 58 "
 The Vic Mental Health Act 1959:Any person may be admitted
into and detained in a psychiatric hospital upon the production
of
 (a) a request under the hand of some person in the prescribed form;
 (b) a statement of the prescribed particulars; and
 (c) a recommendation in the prescribed form of a medical practitioner based
upon a personal examination of such person made not more than seven clear
days before the admission of such person.
DAMAGES
False imprisonment is actionable per se
The failure to prove any actual financial loss
does not mean that the plaintiff should recover
nothing. The damages are at large. An
interference with personal liberty even for a
short period is not a trivial wrong. The injury to
the plaintiff's dignity and to his feelings can be
taken into account in assessing damages (Watson
v Marshall and Cade )
OTHER FORMS OF TRESPASS
TRESPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT
PROPERTY
TRESPASS TO PROPERTY
TRESPASS TO PROPERTY
LAND
GOODS/CHATTELS
TRESPASS TO LAND
• The intentional or
negligent act of D which
directly interferes with
the plaintiff’s exclusive
possession of land
THE NATURE OF THE
TORT
• Land includes the actual
soil/dirt, the structures/plants
on it and the airspace above it
• Cujus est solum ejus est
usque ad coelum et inferos
–Bernstein of Leigh v Skyways &
General Ltd
–Kelson v Imperial Tobacco
The Nature of D’s Act: A
General Note
•...[E]very invasion of private property, be it
ever so minute, is a trespass. No man can
set his foot upon my ground without my
license, but he is liable to an action, though
the damage be nothing.... If he admits the
fact, he is bound to show by way of
justification, that some positive law has
empowered or excused him ( Entick v
Carrington (1765) 16 St Tr 1029, 1066)
THE NATURE OF D’S ACT
• The act must constitute
some physical interference
which disturbs P’s exclusive
possession of the land
–Victoria Racing Co. v Taylor
–Barthust City Council v Saban
–Lincoln Hunt v Willesse
THE NATURE OF THE PLAINTIFF’S
INTEREST IN THE LAND
• P must have exclusive
possession of the land at the
time of the interference
exclusion of all others
THE NATURE OF
EXCLUSIVE POSSESSION
• Exclusive possession is distinct from
ownership.
• Ownership refers to title in the land.
Exclusive possession refers to physical
holding of the land
• Possession may be immediate or
constructive
•The nature of possession depends on the
material possessed
EXCLUSIVE POSSESSION:
CO-OWNERS
• In general, a co-owner cannot
be liable in trespass in respect of
the land he/she owns; but this is
debatable where the
’trespassing’ co-owner is not in
possession. (Greig v Greig)
•A co-possessor can maintain an
action against a trespasser (Coles
Smith v Smith and Ors)¯
THE POSITION OF TRESPASSERS
AND SQUATTERS
•
A trespasser/squatter in
exclusive possession can
maintain an action against
any other trespasser
THE POSITION OF
LICENSEES
• A licensee is one who has the
permission of P to enter or use land
(belonging to P)
• A licensee is a party not in
possession, and can therefore not
sue in trespass
• A licensee for value however may
be entitled to sue(E.R. Investments
v Hugh)
THE TRESPASSORY ACT
• Preventing P’s access Waters v
Maynard)
• The continuation of the initial
trespassory act is a trespass
continuing trespass
• Where D enters land for purposes
different from that for which P gave
a license, D’s conduct may
constitute trespass ab initio (Baker v
Crown)
THE POSITION OF POLICE
OFFICERS
• Unless authorized by law, police
officers have no special right of
entry into any premises without
consent of P. But see Halliday v
Neville
• A police officer charged with the
duty of serving a summons must
obtain the consent of the party in
possession (Plenty v. Dillion )
Police Officers; The Common
Law Position
•The poorest man may in his cottage bid
defiance to all forces of the Crown. It
may be frail- its roof may shake- the
wind may blow through it- the rain may
enter- but the King of England cannot
enter- all his force dares not cross the
threshold of the ruined tenement. So
be it- unless he has justification by
law’. ( Southam v Smout [1964] 1QB 308,
320.
REMEDIES
• Ejectment
•Recovery of Possession
•Award of damages
• Injunction
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.
• It may not be actionable per se (Everitt
v Martin)
CONVERSION:TROVER
• 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)
Bailments and Mortgages
•Bailment: The delivery/giving of chattels to
another on condition that they will be
returned to the bailor after a specified time
or purpose.
• The ‘giver’= bailor, ‘recipient to another
person as security for a debt;
transferee=mortgagee; transferor=
mortgagor
ACTS OF CONVERSION
Mere asportation is no conversion
• The D’s conduct must constitute an
unjustifiable denial of P’s rights to the
property
•Destruction of the chattel is conversion
(Atkinson v Richardson; Fouldes v
Willoughby)
• Taking possession
• Withholding possession (Clayton v Le Roy)
•
ACTS OF CONVERSION
• Misdelivery ( Ashby v Tolhurst
(1937 2KB); Sydney City Council v
West)
• Disposition by sale: that ‘sale’
without delivery may not constitute
sale
• Unauthorized dispositions in any
manner that interferes with P’s title
constitutes conversion ( Penfolds
Wines)
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
REPLEVIN
• A provisional remedy which
allows a P who is out of
possession to regain possession
until the right to the goods is
determined by Court.
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