Study Guide for End of Semester Exam
Intentional Torts against the Person
- Battery
Definition: Battiato v Lagana
a)Directly and intentionally
Direct – Reynolds v Clarke
Intent – Gray v Barr – intent of contact, not the harm that results Intentional meaning voluntary
b)Interferes
Lord Goff sterilisation case – ‘slightest touching without consent can amount to battery’
c)With his or her person without lawful justification
MacNamara v Duncan – onus is on the defendant to prove consent
Marion’s Case
Positive act Innes v Wylie
Does not have to be hostile Lord Goff and Collins v Wilcock
- Assault
a)Direct threat by the defendant
Direct – meaning that the defendant must have the means of carrying out the threat - Stephen v Myers
b)That causes the plaintiff to reasonably apprehend
Brady v Schatzel – changed the test of ‘fear’ to reasonable apprehension that violence was to ensue (knowledge is essential)
c)Imminent harmful contact with his or her person
Zanker v Vartzokas - In the case of a continuing or ongoing threat, the time period could be extended
*Conditional threats
Tuberville v Savage
If a threat is expressed in a condition way that states the threat is not to be carried out, there can be no reasonable apprehension that violence is to ensure, and therefore no assault.
Hall v Fonceca
Intent – intention to cause apprehension in plaintiff that a battery will ensue is sufficient
*White v Connolly – Qld – words alone do not constitute assault, there must be an a bodily act or gesture – Criminal Code s 245
Barton v Armstrong – NSW – verbal threats can amount to assault
- False imprisonment
a)Direct, intentional act by the defendant
Direct – D directly impacted on P
Intentional – voluntary, D must intend to deprive P of liberty
Myer Stores v Soo– it is enough to prove that there was enough force upon the defendant’s will so as to induce him to submit to deprivation of liberty. Actual physical restraint does not have to be proved.
b)That totally deprives the plaintiff of his or her liberty
Total restraint means no reasonable means of escape
Symes v Mahon – it was sufficient that the plaintiff believed he had no reasonable means of escape and completely submitted himself to the plaintiff
Bird v Jones – deprivation must be total - no false imprisonment as it was only a partial obstruction; must be compelled to stay in one place
Burton v Davies – it is false imprisonment if there is no reasonable means of escape – the defendant was driving at such a speed as to prevent the plaintiff from alighting – “If I lock a person in a room from which he may jump to the group at the risk of life and limb, I cannot be heard to say that he was not imprisoned because he was free to leap from the window”
R v Macquarie and Budge
Jumping into the water was not a reasonable means of escape.
c)Without lawful justification
Rixon v Star City – action failed because there was lawful justification
*Knowledge of imprisonment necessary?
No – Murray v Ministry of Defence – will affect damages
Defences to Intentional Torts Against the Person
- Necessity
1. Can commit a minor wrong to avoid a major wrong if this interference is necessary to save preserve life or protect persons from real and imminent harm Kirk v Gregory
a)D must prove an urgent situation of imminent peril actually existed
b)Not necessary for D to prove that means adopted actually succeeded
Cope v Sharpe
c)No need to prove that person/property would have suffered injury or destruction
- Where a person is unable to give consent to a medical treatment in a situation where the plaintiff’s life is at riskRe F
a)Treatment should be limited to what is necessary to save life of patient
- Defence to self, others and property
a)The act must be reasonably proportionate/necessary to counter perceived threat – not excessive
R v Howe – the defendant’s response must not be judged too harshly – instinctive
b)Reasonable belief that he/she was in danger is sufficient
c)Self defence can be used in defence of others
d)D must adopt means available to avoid using force
- Consent
MacNamara v Duncan – onus on defendant to prove consent
For consent to count as a defence, it must be
i)Real and freely given with respect to the tortious act itself (meaning the plaintiff needs to have been informed in broad terms of the general nature of the physical contact)
ii)Any consent given must not be exceeded
Freeman v Home Office - consent under duress is not valid
R v Williams – consent under fraud is not valid
Re F – medical practitioners must obtain consent
Giumelli v Johnston – sporting contact
Roberston v The Balmain New Ferry Company – withdrawal of consent – person who revokes consent is entitled to liberty as soon as it is reasonably convenient for the other party to release them
Collins v Wilcock - ordinary, everyday conduct
- Provocation
No defence at common law
White v Connolly – defence in criminal code s 268, 269
Must be loss of self-control, in ‘the heat of the moment before the time for passion was allowed to cool’
- Illegality
- Lawful justification
Criminal code 545A
- Insanity
Defence of insanity not available Morris v Marsden
Trespass to Land
- The interference of land must be in the lawful possession of the plaintiff
Delaney v T P Smith – plaintiff was not pursuant to a lawful proprietary right. Trespass to land is available as a remedy to someone who is in possession of land pursuant to some form of proprietary right
- There must be a positive act and a direct interference
Esso Petroleum v Southport Corporation – not trespass because it was not direct
- The interference ‘with or entry upon’ must be with ‘land’
Baron v Skyviews– not trespass, “restricting the rights of an owner in the air space above his land to such a height that is necessary for the ordinary use and enjoyment of his land”
Kelsen v Imperial Tobacco – airspace can constitute ‘land’
Graham v K.D. Morris – transient intrusions can amount to trespass
- There must be fault
Public transport commission of New South Wales v Perry –not trespass as an epileptic fit is involuntary
- There must be lack of consent
Halliday v Nevill – if consent is justified then there is no trespass
Remedies
- Damages
If the trespass to land results in damage, then the defendant may be held liable. The test is whether the damage was a reasonably foreseeable/reasonable consequence of the trespass. (Extent of liability)
Hogan v Wright
Horse escaping and getting injured was reasonably foreseeable consequence.
Mayfield Fair Limited v Pears – defendant unlawfully parked his car on the plaintiff’s premises. Car caught fire and damaged the building. Held: not liable as the fire was not a direct consequence of parking the car.
Exemplary damages – TCN Channel Nine v Anning– exemplary damages were awarded to mark disapproval of D’s conduct and to deter that person and others from acting this way
Nominal damages – if there is no damage
Aggravated damages – for act done with purpose to cause injury to feeling (humiliation etc) or done with knowledge of trespass
- Injunction
Graham v K D Morris
An injunction is only available at the discretion of the court and is an order from the court ordering that someone cease or assist an activity or not undertake a certain activity. The courts take into account the behavior of the parties on considering whether or not an injunction ought to be granted.
Defences
- Necessity
Necessity is a defence to trespass on land if the trespass was reasonably necessary to protect persons or property from the threat of real and imminent harm. Defendant must establish that an urgent situation of imminent peril existed. Southwark London Borough v Williams
- Re-entry on land
- Inevitable accident
Public Transport Commission of NSW v Perry
- Consent
Cannot be exceeded:
Lincoln Hunt Australia Pty Ltd v Willesee
Reporter and TV crew entered plaintiff’s premises and filmed and questioned those present.
Held: defendant was trespassing as the implied invitation did not extend to their purposes
TCN Channel Nine v Anning
ACA crew entered into property through unlocked gate and filmed the plaintiff
Implied licence will be applicable only in certain circumstances. Once it is revoked, the licencee becomes a trespasser.
Held: implied licence – gate unlocked – did not extend to filming of the plaintiff’s premises
Can be revoked:
Cowell v Rosehill Racecourse
Plaintiff was asked to leave. When he refused, he was forcibly ejected from the racecourse.
Held: licensee does not become a trespasser until he/she is given notice that the licence has been revoked. Licensee has a reasonable amount of time to leave the property before becoming a trespasser. The occupier has lawful permission to remove him/her if they don’t leave.
R v Barker
Held: A person who has permission to enter land for a specific purpose commits a trespass if he enters for any other purpose
- Lawful authority
Property Law Act (Qld) 1974 s 180
Where it is reasonably necessary in the interests of effective use in any reasonable manner of land that such land should have a statutory right of user in respect of that land, the court may impose upon the owner of such land, an obligation of user to permit. The court will only grant this licence if:
a)Consistent with public interest
b)Owner of the land can be adequately compensated
c)The owner of the land has refused consent despite the reasonableness of the trespass OR no owner can be found
Nuisance
Definition: an unreasonable, not necessarily direct, interference with the use and enjoyment of land in respect of a person who has the right to exclusive possession of the land
Nuisance is:
- Action on the case
- Usually indirect
- The defendant must show that the defendant’s interference was serious and unreasonable
- Property based – the plaintiff is the occupier of land
- Interference with enjoyment of land which does not disturb the owner’s right to possession of land
- Purpose of action in private nuisance to protect the right to use and enjoy the land
Public nuisance
- Crime
- Interferes with rights of public
- An individual can bring an action in public nuisance if he/she has suffered particular damage above and beyond the public in general and the damage is different in nature and extent
There are two types of nuisance:
- Actual/material damage – plaintiff will generally succeed
- Non material damage - enjoyment of land – must look at factors
For non-material damage, we look at the unreasonablenessof the interference:
a)Triviality
– requirement of ‘substantial’ interference
Walter v Selfe
Brick kiln – smell and cinders affected the plaintiff
Held: successful in obtaining injunction
“Ought this inconvenience to be considered in fact as more than fanciful…as an inconvenience materially interfering with the ordinary comfort physically of human existence”
Goldman v Hargrave
Fire burnt down Goldman’s house = non trivial damage.
Both nuisance and negligence
Halsey v Esso Petroleum
Held: serious damage is likely to be viewed as an unreasonable interference
b) Give and Take
General rule is that the law requires ‘give and take’ between neighbours. Nuisance is not an absolute matter. It requires balancing of various rights of adjoining landholders.
Kennaway v Thompson
Held: successful in injunction restraining the frequency and duration of motor boat racing
“Intervention by injunction is only justified when the irritating noise causes inconvenience beyond what other occupiers in the neighbourhood can be expected to bear. The question is whether the neighbour is using his property reasonably, having regard to the fact that he has a neighbour.”
Clary v Principal and Council of Women’s College
Held: not nuisance, ordinary and reasonable use of land
“Noises made by the students were only noises of the kind that are incidental to the occupation of premises as a dwelling.”
c) Hyper sensitivity
Robinson v Kilvert
Held: not nuisance. The law does not compensate people with sensitivities beyond that of an ordinary person
d) Locality
St Helen’s Smelting v Tipping
Locality can sometimes be an important factor to take into account whether something is unreasonable
You must put up with the necessary interferences associated with locality but “when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade…is a material injury to property, then there unquestionably arises a very different consideration”
Held: material damage to plaintiff’s trees and plantations caused by the defendant’s smelter amounted to nuisance – it was not an industrial area
Other factors
Time
Halsey v Esso Petroleum
Held: nuisance – injunction granted to limit operation during the night
Unjustifiable action may be acceptable during the day
Duration
The greater the duration, the more likely that it will amount to actionable nuisance, however this does not mean that a short duration isn’t actionable
Munro v Southern Dairies
Held: Loss of a single night’s sleep amounted to a substantial interference
Who can sue?
Peden v Bortolazzo
A landlord is not liable to a neighbour for a nuisance created by the tenant, unless the landlord expressly authorized the nuisance or it was certain to result from the purposes for which the property was let.
- The landlord does not have to terminate the contract of lease once nuisance is known
- The landlord does not control the tenant
- The landlord does not owe a duty of care to neighbours
Defences
‘Moved to the defence’ is no defence
Challen v McLeod Country Golf Club
Statutory Authority
A nuisance is authorized if it is an inevitable consequence of an activity that is expressly or impliedly authorized by statute.
Remedies
- Injunction
- Damages
Intentional Torts to Chattels
General comments:
All three actions protect interests in possession
Trespass to Goods
a)A direct, intentional interference (Colwill v Reeves)
‘Direct’ - acts of the defendant that make immediate contact with P’s goods without any voluntary human intervention
‘Intent’ - intention of interference with property, regardless of knowledge of tort (Colwill)
b)With the property in possession of another (Johnson v Diprose)
Possession of the good must be actual or constructive at the time of interference
c)Without lawful justification (Penfolds Wines v Elliot)
Right to sue: actual or constructive possession
Exception to this rule: a person with a right to immediate possession may sue in trespass to goods where the direct interference of a third party is to possession of a servant, agent or bailee holding under irrevocable bailment (Penfolds)
Constructive possession v Immediate right to possession
-immediate right to possession usually occurs when you give the good to someone else or someone else has taken your good
Is trespass to goods actionable per se?
Contact with goods – yes (mere touching with no damage is not trespass – Wilson v Marshall)
Asportation – no (Kirk v Gregory)
Examples of Trespass to Goods
Moving items, stealing of goods
Conversion
Definition: dealing with goods in a manner that is repugnant to the immediate right of the possession of the person who has the property of the chattel
Elements:
a)Intentional act that is(Ashby v Tolhurst)
b)Inconsistent with the rights of the person who has possession or the right to possession (Armory v Delamirie)
Ownership is relative and not necessary to the immediate right of possession
c)So extensive an encroachment on the rights of person in possession so as to exclude them from the use and possession of the goods
Right to sue: actual or constructive possession of the goods, or the immediate right to possession of the goods at the time of the conversion (Armory v Delamarie)
Actions amounting to conversion:
- Wrongful destruction or alteration Hollins v Fowler
- Wrongful taking of goods Healing Sales
- Wrongful delivery Glass v Hollander
- Detention (person refuses to give up a good) Flowfill Packaging
- Wrongful use of goods – Penfolds Wines v Elliot
^Wrongful taking of goods and wrongful use of goods require an intent to exercise dominion over the goods
*Bailee who has actual possession of goods can sue in conversion
Advantages
- Protects P’s dominion and control of the goods, not their physical condition
Detinue
Definition: possession of goods after a proper demand has been made for their return
Elements:
a)Goods must have been in D’s possession at some time, even though they may not be in D’s possession at the time the action is bought (Jones v Dowle)
b)Demand by the plaintiff for the return of the good (Lloyd v Osborne) (John F Goulding)
Demand must be clear and give sufficiently clear instructions regarding delivery
c)Clear refusal by the defendant to return them (Ming Kuei Property Investment v Hampson)
Does not need to be express refusal – if a proper demand has been made, failing to respond within a reasonable time may be regarded as a refusal
Right to sue: immediate right to possession
Advantages of detinue
-Allows return of goods
-Time does not begin to run until demand and refusal have been established
-It doesn’t matter if D no longer has the goods
-D will know that P is claiming an interest in goods (through demand)
-Action of detinue may be available even when the period of limitation for bringing the action for conversion has expired
-Conversion – damages assessed as of the date the conversion took place
-Detinue – damages assessed as of the date the judgment is given by the court (may be years later)
Damages
Trespass to Goods
Nominal damages may be awarded even though goods have not suffered damage
Conversion
Usually the full market value of the goods
Detinue
Entitled to value of goods at the time of trial, can seek return of chattel or recovery of value, or judgment for return
Damage to reversionary interest in goods
Available where plaintiff has no right to immediate possession but there is damage caused to goods when they are returned (usually permanent damage) Penfolds Wines v Elliott. This helps the owner who is not entitled to immediate possession.
Defences
Jus tertii
The right of a third party who is in possession of goods, even if that possession is wrongful, to bring an action for trespass to goods against anyone (except the rightful owner) who interferes with that person’s possession
Trespass to goods:no defence – except where the defendant is acting on behalf of the true owner or where the defendant has acted with the authority of the true owner
Conversion:defence – where a defendant can show that someone other than the plaintiff is entitled to possession of the goods, this destroys the plaintiff’s right to sue as the third party would have the immediate right to possession