Tort Law Notes - 126 Pages

Tort Law

A tort is a civil wrong arising out of a breach of a duty imposed by law. This breach gives rise to a personal civil right of action for a remedy not exclusive to another area of law. Difference between a tort & a crime

• Crime is a public/community wrong, giving rise to sanctions in a specified code. • Action in criminal law is brought by the Crown. Tort by the victims of the tort. • The principle objective in crime is punishment, in torts it is compensation. • Differences in Procedure - Standard of Proof

o Criminal - Beyond a reasonable doubt o Torts - On the balance of probabilities

Similarities

• Actions arise from wrongs imposed by law

• Certain crimes are also torts eg trespass & assault • In some cases the damages in torts may be punitive

• In some instances the criminal law may award compensation under criminal injuries compensation legislation.

• Object of compensation is to place the victim in position before wrong occurred. Intention

• Deliberate or Wilful conduct

• Constructive intent where the consequences of an act are substantially certain: the consequences are intended.

• Where conduct is reckless, whether the consequences are reasonably foreseeable.

• Transferred intent – (intent to hit A but hits B instead)

• When we speak of an intentional act, we speak of the wilful act, & the consequences that follow.

Negligent

• When D is careless in his/her actions/conduct.

• When D fails to take reasonable care to avoid a reasonably foreseeable injury to another.

Strict liability

• No fault is required for strict liability but by mere occurrence & causation. Actionable per se

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Intentional Torts

1.

Trespass

Trespass is actionable per se – no evidence of damage required Elements

• Direct interference • Voluntary/Intentional

• Without Consent of Person in Possession/ Other legal justifiable excuse

Trespass to Person

Trespass to the person includes: 1. Battery;

2. Assault

3. False Imprisonment 1. Battery

Battery involves an act by the defendant. It can be either intentional or negligent, that causes direct physical interference with the body of the plaintiff.

The issue of consent or lawful justification is for the D to prove. Elements

Actionable per se – no damage required and: 1. Physical contact

2. No requirement of Hostility 3. Positive Act

4. Direct and immediate consequence 5. Fault

6. Consent/Lawful Authority 1. Physical contact –

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• Police went to take restrain a prostitute, though not in the course of an arrest. He used force and she had not consented, she claimed battery, he argued no hostility.

• It is distinguished from if the officer were arresting her because in an arrest situation, the officer would be entitled to use reasonable force.

• The court held that there had been a battery, that the officer’s action, in taking the woman by the shoulder constituted trespass to person. Any touching of another person may amount to a battery.

• The judgment talks about how in daily life, we all must expect that we will be touched by others eg if we get onto a crowded bus, however, in these aspects of daily life, they don’t amount to a battery because there is an implied consent. • However, taking the woman by the arm to restrain her went beyond the

generally accepted ways of eg getting someone’s attention or ordinary physical contact, it would amount to a battery.

2. Hostility –

Collins v Wilcock (1984)

• Above – Shows hostility not a requirement Cole v Turner (1704)

• ‘the least touching of another in anger is battery’ Holt CJ. Or if the act is ‘rude and inordinate in fashion’

Boughey v r (1986)

• Doctor strangling gf for sexual pleasure. Court said hostility not required for battery.

Wilson v Pringle (1987)

• 2 schoolboys involved in schoolyard horseplay,

• Plaintiff argued that the D had intentionally jumped on top of him and injured him D argued horseplay and no hostility.

• Court said that there must be an element of hostility, looking at the old case. What is this hostility? It does not mean ‘ill will’ or ‘malevolence’ when talking about hostility, what is meant is an act that is against the plaintiff’s rights. • This case also emphasises that there is an expectation that there will be some

physical contact in everyday life. Marions Case (1992)

• Marion’s parents wanted to have her sterilised because her disability would give her problems with puberty, and they thought it would be in her best interest.

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• The issue here was an issue of consent (obviously because Marion could not give hers as intellectually disabled, so could the parents give it on her behalf)

• The HC said that every surgical procedure is a battery unless it is authorised, justified or excused by law. There is no mention of hostility or ill will.

• (McHugh J) Hostility is therefore not a requirement for the tort of battery. Rixon v Star City (2001) NSWCA

• Security guard had tapped him on shoulder and asked him to identify himself, he was claiming battery

• Held social Touching is not battery. So Hostility is not a requirement but social touching is not battery either.

3. Positive Act -

You cannot commit a battery by doing nothing at all. Innes v Wylie (1884)

• D stood in a doorway, preventing P from going through the doorway. • The court ruled that this will not constitute a battery.

Fagan v Metropolitan Police Commissioner (1969)

• D was a motorist accidentally drove his car over the foot of a police constable, coming to rest on it. The officer then asked D to move the car off his foot. D Refused. The officer said this constituted a battery. D said he didn’t intentionally drive onto P’s foot

• Court held once the officer asked the man to move the car off the foot, and the man did not do so, then there is a battery. Once the man become aware of it, intent was formed.

4. Directness

There must be a direct link between the act of the plaintiff, and the contact with the plaintiff’s person.

Note:

• If its Direct its Trespass if not its action on the case(negligence).

• Log example if log hits me its trespass as immediate wrong but if he leaves log and I tumble over it its action on the case(negligence), as indirect.

Reynolds v Clarke(1726)

• D put rainspout on house from which water fell on walls of plaintiffs house causing Ps walls to rot.

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• D threw a lighted Squib, landing in the stall of one man, who picks it up and throws it away, landing on the stall of another man, who also throws it away. It explodes in the plaintiff’s face. P sues D who argues no direct link.

• Court held that the actions of those that threw the firecracker in between were actions which were instinctive for their own self preservation; automatic. The direct link was not ruptured. It was direct because the consequence of D’s actions followed so closely upon D’s act, so as to be considered as part of the act.

5. Fault

Trespass to the person is not a strict liability tort. D must be at fault. P must be able to show this. The two important questions are:

a. Will negligence suffice or does the action have to be intentional? In England, you cannot have negligence Battery

Letang v Cooper (1964)

• P was on a holiday in Cornwall, deciding to sunbathe in a carpark. D drives his Jaguar into this carpark, running over P’s legs. D argued that he did not expect to find someone sunbathing in the carpark.

• Court thought that it was not appropriate to confuse everyone with whether battery is intentional or negligent. They said the tort of battery should deal with intentional conduct, and the tort of negligence should deal with negligent conduct.

Therefore, following Letang v Cooper, could not have negligent battery in England. Prior to this, you could. The CA in England, Lord Denning in particular, thought that it was time to tidy up the ‘convolutions’ of the common law. Australia did not followed this. In Australia

Williams v Milotin (1957)

• P was a cyclist who was run over on the roadway by a negligent truck driver. Truck driver was not deliberate in his actions but negligent.

• The HC said that the cyclist had two causes of action against the truck driver. He had a cause for action in negligence, and also in battery.

Authority that both causes of action can be brought McHale v Watson (1964)

• D was 12 years old who threw a sharp piece of steel in the general direction of P, but not at P. There is no suggestion that he deliberately threw the object at P. P

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was hit in the eye, causing considerable damage. P sued in both the tort of battery & negligence.

• One of the issues was whether the battery could be committed negligently. Court said he had a cause of action in both. This creates a situation where there are two causes of action arising out of the same set of circumstances.

(Negligence – court also held that the standard of care to apply is that of a reasonable 12 year old, not a reasonable adult)

Note:

• However, we note the judgment of Kirby J in Platt v Nutt(1988) who rather likes the English approach. He took the view that a negligent trespass should not be the law in Australia today.

b. Who Must prove Fault?

The onus of proving lack of fault was on the D in the old cases. In England, the courts decided that it was sensible for the plaintiff to prove that contact happened as the result of D’s actions.

Fowler v Lanning (1959)

• English court held that the onus of proof for fault, lay on the plaintiff. P was shot by shotgun pellets fired from D’s gun.

The HC has different views; McHale v Watson (1964)

• The plaintiff need only prove the facts, and once the plaintiff had proved that, then the onus of proving fault, or lack of, lay on D.

Williams v Milotin (1957)

• The HC said 2 causes of action here: negligence and trespass to the person. • In the tort of negligence, the plaintiff must prove fault, plaintiff must prove

negligence.

• In Battery, the HC said that P only had to prove the facts, then the onus was on D to prove lack of fault.

Note:

The problem in Australia, there are many of motor accident cases involving negligence and battery. Sometimes the burden of proof may be on P, sometimes it may be on D. Sometimes it may be on everyone. Therefore, there is an exception for highway cases. The onus of proving lack of fault rests on D, except in highway cases, where P must prove fault.

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Therefore, in non highway battery, the defendant may raise lack of fault as a defence and bears the burden of proving that there was no negligence and no intetion. However, in highway battery, the plaintiff must allege and prove fault as part of the cause of action.

6. Consent/Lawful Authority

Consent of the plaintiff in most cases is a matter for defence in Australia. eg going to the doctor for an inoculation against a disease, is consent to the ‘battery’. There are

situations other than the medical situations for example in sport. Sports

Giumelli v Johnston (1991)

• Australian rules case where D had jumped up on P, putting his elbow out, coming into contact with P’s face, fracturing his cheekbone.

• P alleged that D’s actions constituted a battery. D said that this should be expected in a the game. (“if you don’t like the heat in the kitchen, then you can leave”)

• King CJ said “the consent to the application of force in the course of the game extends not only to force which is within the rules (certainly when a player goes onto a field, he is consenting to force which is within the rules of the game) but he also consents to commonly encountered infringements of the rules”.

• If he therefore knows that there are infringements of the rules which involve contact, he consents to those when he runs onto the field. This cannot be taken to include physical violence applied in contravention of the rules, by a player intending to cause injury. There is a limit. But the limit does not stop where the rules stop, this limit stops where there is physical violence applied in

contravention of the rules by a player intending to cause injury. • P was therefore successful.

Canterbury Bankstown RLFC v Rogers (1993)

• Similar to above. P subjected to a high tackle Medical Treament

Rogers v Whitaker (1992)

• P went to see D an ophthalmic surgeon to have surgery which would improve the sight in her bad eye. She was concerned that something might have a side effect on her good eye. D assured her that this would not be the case.

• He did not warn her however, of a very rare 1 in 14000 possibility of condition that the good eye deteriorates in sympathy to the bad eye. This rare condition was associated with this kind of surgery.

• P sued for negligently failing to advise her of the possibility.

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• She did give her consent to the surgery, however, question was whether D’s failure to advise her invalidated her consent.

• The high court said that it did not.

• Her proper remedy was to sue for failure to warn in negligence. In Australia, as long as the patient knows the broad nature of the procedure that they are consenting to, then that is sufficient for consent. The failure to warn or to fully inform does not vitiate the consent.

Damages

• Nominal - to recognise infringement of P’s rights • Compensatory - to compensate P for loss or damage

• Aggravated - an extra sum for injury to feelings, indignity, disgrace, humiliation • Exemplary - to punish & deter conduct. Rarely awarded and only in Australia for

a ‘conscious & contumelious disregard for the plaintiff’s rights’ (Uren v John Fairfax 1966)

Henry v Thompson (1989) –

• P was an Aboriginal man who was bashed by police, not only that, but urinated on. Awarded exemplary damages.

• Provocation is not a defence to battery. 2. Assault

Elements

Positive, voluntary, intentional or negligent act; Directly causing;

Actionable per se and

1. Reasonable apprehension by P; 2. Of imminent contact with P’s person. 3. Words may be enough

4. Conditional threats must be lawful 1. Apprehension must be reasonable Macpherson v Beath (1975)

• University lecturer had surrounded by students making it seem to P that he was going to be physically harmed. P was an unusually timid person, and the court thought that in the circumstances, an ordinary person might not have

anticipated any imminent contact.

• However court found that the students knew of this characteristic and knew effect of their conduct and therefore found to constitute an assault.

2. Imminent Contact Stevens v Myers (1830)

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• D was in a parish meeting chaired by p. Resolved D should be ejected and D, who was up towards the back of the hall, stood up and threatened violence to and proceeded to walk down the hall with his fists clenched. The church warden interfered & stopped D when he was nowhere near the plaintiff. P claimed this constituted an assault.

• Held as no means of D carrying out his threat because the warden had stopped him and p could see this, could not constitute an assault – there must be an fear of an imminent contact, a means for which D could carry out the threat.

Barton v Armstrong (1969)

• Court said that there was not knowing when or whether the threats would be carried out, was sufficient to make it reasonable to apprehend imminent contact.

Zanker v Vartzokas (1988)

• Young woman accepted a lift from a stranger, who offered her money for sexual favours, she refused, and asked that he stop the car and let her out. He kept driving, and said to her that he was going to take her to his mate’s house who will ‘really fix her up’. The young woman terrified, and jumped out of the moving car.

• Court had to consider whether this was assault in whether it was reasonable for her to reasonably apprehend imminent contact. They held that because she had no idea where the mates place was, the words of D were sufficient to cause this reasonable apprehension of imminent contact with her person. There was no indication of how far off this ‘imminence’ was. A present fear, of relatively immediate imminent violence was instilled in her mind.

3. Words and Threats Barton v Armstrong (1969)

• D threatened P over the phone.

• The NSWSC said words can constitute an assault depending on circumstances. “To telephone someone in the early hours of the morning, not just once, but many times; in an atmosphere of drama, can constitute a threatening act”. • The question here was one of reasonable apprehension. It is not whether P is

timid etc, but the test is that of a reasonable person.

• The court ruled in this case that certainly, the reasonable person would have a reasonable apprehension.

4. Conditional Threats

“give me your money or I’ll shoot you” is an example of a conditional threat. Tuberville v Savage (1669)

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• P and D were exchanging words, and D placed his hand on his sword and said “if it were not assize time, I would not tolerate such words”.

• Held D’s actions and words made it unreasonable to apprehend imminent contact as it was not that time.

Police v Greaves (1964) NZ

• Assault case where he said if you come any closer ill stab, cannot legally impose such a condition and therefore held assault.

Rozsa v Samuels (1969)

• Taxi drivers, one of which jumped the queue. One of them had an iron bar, and the other had a knife. D took his knife and said ‘if you don’t get out of the way, I’ll stab you’. D said it was a conditional threat.

• Court ruled that it was an assault, the fact that he put it in those terms did not mean that it was not an assault, it would be reasonable to apprehend an imminence of contact in circs and he had no right to impose condition.

3. False Imprisonment Elements

Actionable per se 1. An intentional act Directly causing

2. Total Restraint of the Plaintiff’s liberty

(without lawful justification: a matter for defence) 3. Words can suffice

4. Knowledge not essential 1. Intention

The question remains as to whether you can have a negligent false imprisonment in Australia today. We know eg from McHale v Watson in relation to battery, that you certainly can have a negligent battery. There is no case to this point at this point in time. Sayers v Harlow (1958)

• English Case not about false imprisonment but tort of negligence however

illustrating the situation where a negligent false imprisonment could be possible. • P used a public toilet maintained by the Harlow district Council. An employee of

the council had negligently failed to maintain the lock of the toilet door, and P was locked in. To escape she climbed over the top of the cubicle door, was injured sued in the negligence & was successful as able to prove actual damage.

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• Had she not suffered damage, her only remedy would have been in the tort of false imprisonment, and that was dependent on whether the court would accept a negligent false imprisonment. (This would be unlikely in the UK because they won’t even allow a negligent battery)

2. Restraint Must Be Total Bird v Jones (1845) –

• P wanted to walk across the footpath on Hammersmith bridge in England but was unable because D had placed temporary fencing on the bridge to enable spectators to participate in a regatta. P proceeded to climb over the fence, D stationed 2 cops to prevent P from proceeding. P tried to force his way & was taken into custody.

• Held not false imprisonment. Though it blocked P’s passage across the bridge, there was nothing to stop P from turning around & going back the way he came. No false imprisonment because P’s passage was only obstructed in one direction. • Therefore, even for a short time, for there to be false imprisonment there must

be a total restraint of liberty, and that obstruction in one direction is not sufficient, even if it is very inconvenient for P

Burton v Davies (1953) Queensland Supreme Court

• Similar to Zanker a young woman was driven in a car, and when she asked the driver to stop and let her out, the driver refused and kept going.

• Held false imprisonment as she had no reasonable means of escape because the car was moving at some considerable speed. Even though the car door was not locked, and she could have jumped out of the car, the court held that this was not a reasonable means of escape because she would almost certainly be injured.

• Pointed out law does not expect P to endanger life & limb to make an escape, emphasising means of escape must be reasonable for no imprisonment. 3. Words

Example in a bank robbery where a robber says “don’t leave, don’t call the police

because I’m taking a hostage” In those circumstances, the person would, by means of an oral imprisonment be imprisoned. Words can therefore constitute imprisonment. Symes v Mahon (1922)

• D police officer purported to arrest P who turned out the wrong person. D had gone to P’s home, telling him that there was a warrant for his arrest and that he must accompany him to Adelaide, P obeyed, meeting not handcuffed, and free that night got on the train next day in different compartment. In Adelaide, P checked in at a hotel, then went with D to the police station by tram, spent some time there, returned to the hotel, then later went back to the police court, when

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the police discovered they had arrested the wrong person. P sued for false imprisonment, claiming the he had been imprisoned from the time he left for Adelaide with D, until the 2nd time he went to the police court.

• D argued no physical imprisonment.

• Court held didn’t matter that no physical imprisonment as P had completely submitted to D’s control. P reasonably thought that he had no way of escape. Myer Stores v Soo (1991)

• P while shopping in Myer was suspected of being a shoplifter who had been in the store before. Store detective approached him and man who did not want to make a scene in the shop agreed to go and was in office for some time being interrogated.

• Eventually he was allowed to leave on the condition that he attend at a local police station on a later date for further questioning. He did turn up on that later date, and it was discovered he was not the shoplifter they were after. He was allowed to go.

• He sued for false imprisonment while in that office at the store, and also whilst at the police station on the later date.

• The court held that on the occasion in the shop, he was falsely imprisoned, even though there was no physical imprisonment, he had submitted to the control of the store detective in order to avoid public humiliation. The court said that the detective’s roughness & brashness meant that P was more likely to avoid a scene, therefore P involuntarily submitted. However on the later date, it was held there was no false imprisonment because the store detective was not around and he was not being completely submissive to the detective. 4. Is Knowledge Essential?

Does a person have to know that they have been imprisoned? The short answer is no. You can be imprisoned whilst not conscious.

Herring v Boyle (1834) – not law anymore

• P was a 10 year old who went to a boarding school. The mother had not paid fees so headmaster refused to let her see the boy to take him home. The boy had no idea why he was not allowed to go home.

• An action for false imprisonment was started on his behalf and it failed. It was held that because the boy did not know of his imprisonment, that his liberty had been restrained, then he had no cause of action.

Merring v Graham White Aviation Co. (1919)

• P was an employee of the D. D suspected P of theft. Employer sent two of the security to hold him up in office till cops came. P did not realize he was being detained. He was not guilty of the theft and later sued for false imprisonment. It

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was argued by the employer that there was no false imprisonment because he had not actually been told that he was not allowed to leave, neither did he know that he was imprisoned.

• English court held immaterial whether P was aware of the restraint upon his liberty. Lord Atkin said that “it appeared to me that a person could be imprisoned without his knowing it. A person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious, while he is a lunatic.” An imprisonment can occur even when it begins and ends whilst P is still in that state of not unawareness.

• Aitkin LJ said, “…If a man can be imprisoned by having the key turned upon him without his knowledge, so he can be imprisoned if, instead of a lock and key or bolts and bars, he is prevented from, in fact, exercising his liberty by guards and warders or policemen. They serve the same purpose. Therefore it appears to me to be a question of fact… any restraint within defined bounds which is a restraint in fact may be an imprisonment.” Note may be different if lawful arrest.

Murray v Ministry of Defence (1988)

• P was suspected by London police of being a leader of the IRA and at that time regulations allowed police to detain IRA on mere suspicion without arresting. P didn’t tell her that she was under arrest at first, but before she was taken to the police station, she was formally arrested. She claimed to have been Falsely Imprisoned during that time when she was merely detained. She claimed this even though she did not know that they would let her leave.

• House of Lords said she was falsely imprisoned, even though she had not been told and she did not realise however because of regulation, there was a lawful justification.

• Lord Griffiths speaking for the Court noted, “The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful

interference with that liberty it should remain actionable even without proof of special damage…”

The old case of Herring v Boyle was therefore overruled by the newer cases. Different forms of imprisonment

Myer Stores v Soo (1991)

• No physical restraint but submission to authority Cowell v Corrective Services Commissioner of NSW (1988)

• P because of miscalculation was kept in prison longer than he should have been. • When released, he successfully sued for falsely imprisonment. No defence to the

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• P had been deported to Australia. The commonwealth would not issue passports & so he couldn’t leave. Held Commonwealth had lawfully refused passports and so there was no false imprisonment.

This question also illustrated by an example of driving a busload of tourists who cannot speak the local language, into the middle of nowhere and leaving them there. This raises a question of geography and whether this constitutes imprisonment.

Robinson v The Balmain New Ferry Co. Ltd (1906)

• P went to catch a ferry, missed the ferry, and wanted to get out of the wharf but was refused exit unless he paid the penny. He argued that this was a false imprisonment among other things.

• Prima facie there is a false imprisonment, but it is governed by the contractual arrangement. He knew what the conditions were, and voluntarily submitted to the rules, giving up his liberty on the conditions imposed.

• PC held that D were entitled to impose the conditions .

• The effect of this decision is that the presence of a contract excuses the

commission of a tort. Today we have the contracts review act which governs this Herd v Werdale (1915)

• P’s were miners who while down their mine, went on strike. Having told the employer they were on strike, they demanded that they be taken back to the surface howeve employer refused saying they had to stay till end of the shift as that was what their contract said. The miners sued for false imprisonment. • Court found in favour of D because of the presence of a contract. What would

have been a false imprisonment was held by the court not to be because of the contractual arrangement between the parties. The contract was therefore allowed to take tortioius character away from false imprisonment.

Dickinson v Waters Ltd (1931)

• P was a woman accused of shoplifting and the arrest, but turned out not shoplifter. She sued the proprietor of the business for false imprisonment though the police had arrested her.

• The court found that the officer would not have arrested her had it not been for the insistence of the manager. The court ruled in P’s favour that the manager did falsely imprison P .

• Police must have reasonable reasons in order to arrest. In the case of citizen’s arrest, they are entitled to make one, but there is common law to the effect that suspicion will never do. They need to be caught red-handed.

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This is not a trespass which is per se: you need not prove damage. Here, damage is an important part of the action.

Elements

· An intentional act

· Calculated to cause physical harm · And in fact causing it

Bird v. Holbrook (1828)

• D was sick of people trespassing into his garden, so set up a gun with a trip wire to shoot intruders. P went into the garden, tripped the wire, was shot and was injured. However trespass failed because shot wasn’t direct.

• Despite no trespass, ‘action on the case’ is allowed when directness is not sufficient. He has been injured because of the deliberate act of the garden owner. The court agreed that the garden owner had done an intentional act he did in fact cause physical damage to P, so P has a remedy in action on the case. Wilkinson v Downton (1897)

• D told the P her husband had been seriously injured in a traffic accident as a practical joke, she suffered shock & a serious physical illness

• Wright J upheld the jury’s verdict in her favour stating the principle as: “the df has…willfully done an act calculated to cause physical harm to the pf & the act does in fact does cause harm to her…without more appears to me to state a good cause of action”

• Conduct must be wilful & cause harm, recklessness or intention is irrelevant. It is an objective sense of causing harm. Reasonable person believing meant to harm. Janvier v Sweeney (1919)

• D were detectives who wanted to obtain from P some letters that they thought she had access to, they threatened her that they would tell the authorities that she had been involved with a German spy during the war years. She became physically ill as a result of the threats.

• Held a stronger case than Wilkinson v Downton saying you cannot go around threatening to report things to the police in order to get what you want from them. P was successful and approved Wilkinson v Downton.

Scope of the Rule

Bunyan v Jordan (1937) – narrow view

• P was a 20 year old female employee of D, who heard boss shoot a gun after talking about suicide and she went into nervous shock causing illness, so sued D.

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• P failed in the action because the D would not have reasonably have anticipated his joke ro cause harm to P. Court didn’t find employers drunkenness relevent. They looked at its effect on the normal young female, looking at the subjective element – nature of the wilful act, and also looking at the objective element – would that action be likely to cause damage to a normal young female? Carrier v Bonham QCA 26/6/2001

• An unreported judgment P was an experienced bus driver who was driving his bus in suburban Brisbane, when D, who is a chronic schizophrenic, jumped in front of the bus. P developed a psychiatric disorder because of it from distress, had to give up his work and sued D as well as state of Queensland who was responsible for the hospital that D had escaped from.

• Trial court found that D was liable to the plaintiff and so did the CA on the basis of Wilkinson v Downton.

• Held irrelevant what D as a psychiatric patient could forsee, the issue was what a reasonable person would foresee. It is therefore objective.

Adams v Motor Vehicle Trust (1957) - broader view

• D a schizophrenic took a car, claiming he was being pursued by people who were trying to kill him, drove through red light, seriously injuring P. A reasonable person test was applied, irrespective of whether D was schizophrenic or not. • The Queensland Supreme Court took ‘calculated’ to means foreseeable to the

reasonable person to cause injury. Takes ‘Calculated’ meaning reasonably foreseeable by the reasonable person to cause injury.

Note: no defence of insanity in torts except where extent not to be willful

Trespass to Land

As opposed to personal property that is movable. As with the other trespass torts, the elements are the same, except the additional element is the ‘exclusive possession of land’.

Elements

Intentional or Negligent act of the defendant Without lawful justification

1. Which Directly 2. interferes

3. With the Plaintiff’s exclusive possession of land 1. Directness

The conduct of P must constitute a direct interference with P’s possession of the property, an “immediate” consequence of D’s action. Significant because this means

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there is no break in the chain of causation, nor another event which itself becomes the causation.

Southport v Esso Petroleum (1954)

• A tanker was in distress with a cargo of petroleum so released oil cargo to

lighten the load. The oil landed on the coasts of the Southport area, polluting the beaches and nearby coastal areas, causing considerable damage. Sued fir

trespass to land but problem was directness. The oil was released somewhere on the high seas, the wind and the tides brought it on shore.

• The court said that it would only be direct if Esso had employed the wind and the tides to bring the oil to shore. Held not a direct action, and therefore no

trespass.

Scott v Shepherd (1773)

• refer to notes in battery. Conduct of D

Entick v Carrington (1765)

• Every invasion of private property… trespass. Must cause physical interference. League Against Cruel Sports Ltd v Scott (1986)

• Park J held that the master of a hunt was liable in trespass to land if he either intended hounds to enter the plaintiff’s land or negligently failed to prevent them from entering. ‘whatever the motive with which the league bought these plots of land it is entitled to enjoy them without trespass by hounds’.

Continuing trespass:

Konskier v Goodman Ltd (1927)

• Someone left rubbish on a property. It was an initial trespass, but because it was reasonable because of the work they were doing, there was no trespass as long as they “removed it within a reasonable time after the work was done”. They did not.

• P became a tenant of the house & as a result of the rubbish suffered damage to the house because of it. Scrutton LJ “If it was a trespass to leave the rubbish on the roof, it was a continuing trespass at the time when the plaintiff became tenant of the property. “

Implied licence

Tort Law

• Police officers saw someone who they knew had been disqualified from driving, reversing a car out of a driveway, walked up the driveway purporting to arrest him for driving while disqualified. P alleged officers were trespassing when they arrested him.

• High Court held that there was an ‘implied licence to persons to go upon the open driveway of a suburban dwelling for legitimate purposes’ as it is

unobstructed, and there is no sign to the contrary.

• It is therefore a bridge between a public thoroughfare and his/her own private dwelling. However, in his dissenting judgment, Brennan J said that the onus was on the person who was trespassing that “it is not incumbent on a person in possession to protect his privacy by a notice of revocation of a licence that he has not given; it is for those who infringe his privacy to justify their presence on his property.”

Exceeding Implied Licence:

The act must constitute some physical interference which disturbs P’s exclusive possession of the land

Lincoln Hung Aust P/L v Willesee (1986)

• P sought an injunction to restrain D from televising a videotape allegedly made in the course of a trespass on P’s place of business. D argued that the implied invitation by P for the public to enters its premises was limited to members of the public seeking information or business with it.

• Court granted damages to P and not an injunction because an injunction is only granted if it can be seen that irreparable damage will be suffered by the plaintiff if an injunction is not given, and that on the balance of convenience (in

calculating the damage) favours the injunction. However, the court said that in the circumstances it would be hard to show that irreparable damage would be suffered as D can meet the demands of large damages. (Young J)

Victoria Racing Co v Taylor (1937)

• P owned a racing area. D erected a scaffolding outside (off their property) to watch the sport.

• Court held no trespass as there was no physical interference. Bathurst v Saban (no 2) (1986)

• Council sent cameraman to take pictures of the property without going onto the property. P argued that this evidence was illegally obtained because of the tort of trespass. The court said no as he had not actually been on property.

Tort Law

Note: If you are on the property to begin with, and then later you exceed the bounds upon which you are allowed to be, thereby invading another section of that property, you are then taken to have committed trespass as if you had been there ab initio. Co Ownership

In general, a co-owner cannot be liable in trespass in respect 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)

Coles Smith v Smith & Ors

• Only the person with possession can sue. Newington v Windeyer (1985)

• Property belonged to a deceased estate, but was under the control of squatters. • Court held squatters in exclusive possession therefore are deemed to have title

to sue and can maintain an action against anyone except the actual owner. Licences

• A licensee is one who has 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) Police Officers

• Unless authorized by law, police officers have no special right of entry into any premises without consent of P ( 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] 3. Meaning of Land

Traditionally, the Common Law position was that Land includes the actual soil, dirt, the structures, plants, and the airspace above it. He who owns land bears also what is Above & beneath(heaven and hell).

Tort Law

Burnstein v Skyviews Ltd [1978] 1 QB 479

• An aerial photography company took some photos of a property and then sent them to the property owner offering to sell them.

• Held “This balance is in my judgement best struck in our present society by restricting the rights of an owner in the airspace above his land to such height as is necessary for the ordinary use and enjoyment(from heaven and hell) of his land and the structures upon it, and declaring that above that height he had no greater rights in the airspace than any other member of the public.”

Stoneman v Lions(1975)

• Buiders who excavated a trench with bays that extended under the footings of their neighbours garage held to have committed trespass as this affected the reasonable persons enjoyment. Made the garage collapse.

LJP Investments PTY Ltd v Howard Chia Investments Pty Ltd (1989)

• D was constructing a building and sought the permission of P to erect scaffolding extending over P’s land. P demanded costs for consent. D rejected but built the scaffolding, intruding 1.5 m into P’s property airspace, and at ground level, two posts about 100mm inside P’s land. Plaintiff sought a mandatory injunction for the removal of the scaffolding.

• Hodgson J endorsed the above case & held that “the relevant test is not whether the incursion actually interferes with the occupier’s actual use of land at the time, 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”. • Held that D had committed a trespass, and a mandatory injunction was granted. Remedies

• Ejectment- Reasonable force may be used to eject the trespasser to regain possession.

• Award of damages – where D’s conduct was deliberate with an intention to outrage P, then exemplary damages may be awarded (XL Petroleum P/L v Caltex Oil P/L (1985))

• Injunction – equitable remedy, therefore at court’s discretion.

Trespass to Goods

The intentional/negligent act of D which directly interferes with the plaintiff’s possession of a chattel without lawful justification

Tort Law

The P must have actual or constructive possession at the time of interference for a title to sue. It may not be actionable per se, without proof of damage (Everitt v Martin) because we are to expect the nominal physical contact of everyday social life. (Plenty v Dillon)

Exceptions to the need for actual or constructive possession 1. Trustees and beneficiaries;

2. Executors and administrators of deceased estates; 3. Owner of a franchise in the wrecks

4. The gratuitous bailor at will (Penfolds v Elliot (1946)

In terms of directness, the intentional act must directly interfere with right to possession.

Hutchins v Maughan (1947)

• D laid poisonous baits on unfenced land. He warned P of their existence but P ignored and Ps dogs ate the baits and died. D argued that P’s injury was not caused by him, but merely consequential and not direct, therefore not a trespass.

• Herring CJ and the court agreed that it was not a trespass:

• “In these circumstances, the injury P suffered cannot, in my opinion, be said to have followed so immediately in point of causation upon the act of D as to be termed part of that act. It should rather be regarded merely as consequential upon it and not as directly or immediately occasioned by it. And so trespass does not lie in respect of Ds act in laying the baits. Had the bait been thrown by D to Ps dogs, then no doubt the injury could properly be regarded as directly occasioned by the act of D, so that trespass would lie.”

National Coal Board v JE Evans and Co (Cardiff) Ltd (1951)

• If the trespass is unintentional, and there is no negligence, then there is no fault, and therefore no action in trespass NB – a mistake is not a defence in tort law.

2. Detinue

Another tort that protects our interest in goods, only one where the court can order specific restitution of the good. Therefore useful if P wants the object back. It has been abolished by statute in England in Australia it still exists. The essence of detinue is a demand for goods and a refusal to return them.

Elements 1. Title to Sue Wrongful

Refusal to return goods 2. Upon demand

Tort Law

P must be able to show that they are immediately entitled to possession of the goods. It must be a property right of some sort though not necessarily ownership.

Jarvis v Williams (1955)

• P sold and delivered goods to purchaser which usually would mean no more title but here, because of a contractual arrangement, P could have em back for a while.

• D refused to give the goods over. P sued in detinue.

• The court said P had no proprietary right to possess the goods. The personal contractual arrangement was not sufficient title. So P failed in suing for detinue. 2. must have been a demand made for the goods

P must establish that a demand was made. Lloyd v Osborne (1899)

• P claimed D had several sheep branded with Ps name. Ps solicitor sent a letter of demand to D, that demanded of D “at once to deliver to P or Ps agent, all sheep branded (with Ps brand)”

• The NSWSC said that this was insufficient because the date of delivery was not specified. The demand must therefore be very specific.

Capital Finance v Bray (1964)

• A hire purchase arrangement where if you bought a car and had to borrow money to buy it, it was actually owned by the finance company that lended you the money. You hire the car from the company, and when you pay off the money, ownership is transferred. If payment defaults, then the company can demand the car back. P claimed that D had defaulted, and therefore sent notice to D that he must immediately take the car to one of 3 specified locations. He didn’t.

• The court held that the notice was not sufficient because under the hire

purchase contract, there was nothing that said that the purchaser had to deliver the car anywhere if he defaulted, only that the finance company could come and get the car to repossess it. There was no obligation on the purchaser to take the car anywhere.

Howard Perry v British Railway Board (1980)

• The refusal by D to deliver goods is not excusable. If a demand is properly made, and D refuses, they commit detinue. P had transported goods by rail in England and the goods were in a yard owned by D. P demanded to be allowed to access the goods, but D refused because there was Industrial action at the time and they did not want to make it worse (so they COULD have returned the goods).

Tort Law

• P went on a coach tour, and delivered luggage to the coach, and upon arrival, her luggage was no longer there.

• The court ruled that unless goods were lost with no fault on Ds part, the fact that D cannot return the goods makes no difference. They are still liable for detinue. Forms of order:

1. Value of chattel & damage for its retention;

2. Return of the Chattel or recovery of its value & damages for retention 3. Return of the chattel & damages for detention

These are all at the judge’s discretion

3. Conversion

This tort is much broader than detinue. To understand conversion, we can look at a contract for bailment.

Definition of Conversion

“A dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property or special property in the chattel provided there is an intention on the part of the defendant to deny the owners right or assert a right inconsistent with it and the act results in the plaintiff being deprived of possession for an indefinite period which renders the chattel useless to the plaintiff” per Dixon J in Penfolds Wines v Elliot (1946)

It covers a lot of things that are not trespass because of all the directness rules. In fact, a lot of wrongful dealings with goods can fall under conversion.

Elements

1 dealing with a chattel · in a manner repugnant

· to the immediate right of possession · of the P having the property in the chattel

2 with the intent to deny the owners right or to assert a right inconsistent · and depriving P of possession

Bailment

Bailment is the delivery or giving of a chattel to another on the condition that it will be returned after a specified time or purpose. The Giver is the bailor, the keeper is the bailee, and the relationship is a bailment.

Tort Law

1. Bailment at will – return of chattel at will

2. Bailment for a term – return of chattel after a certain time subject to other conditions of the bailment

3. Bailment for a particular purpose 1. What can be Converted?

It needs to be capable of being property. Doodeward v Spence (1908)

• Case dealt with a foetus in a bottle of preserving spirit, a medical specimen. The court had to decided whether the object could be capable of being property because a dead body cannot be property. The executor of an estate for example, merely has responsibility of what happens to the body, but there can be no ownership. The court decided that because it was a medical specimen as opposed to a dead body, it was property, and therefore capable of conversion. • It must be tangible. You cannot convert, for example, electricity.

Perpetual Trustees & National Executors of Tasmania Ltd v Perkins (1989)

• 2 sisters who loaned a few valuable paintings to their brother. They did not give them to him, merely lending them to him on a long loan. On his death the brother’s family & executors, purported to sell the paintings to an Art Gallery. The surviving sister, and the estate of the other sister, sued the executors of their brother’s estate in conversion. The sisters said that the paintings were loaned on a bailment at will basis. The brother & the brother’s estate had no right therefore, to sell the pictures.

• Court agreed that the bailment at will meant that the sisters had an immediate right to the pictures.

• There was no suggestion that the brother’s estate was acting fraudulently, but there is no requirement per Dixon J in Penfolds Wines v Elliot (1946).

Bailment for a term

City Motors P/L v Southern Aerial (1961)

• In a hire purchase arrangement, a finance company wrongfully repossessed car during a contract for apparent default in payment . The bailee had not actually defaulted, but because of a mistake, the car was repossessed, during the term of the agreement. P sued the finance company for conversion.

• The court agreed, and held that during the term of the contract, providing the bailee was not in breach, the bailor had no right to possess the goods, and that the bailee, during the term could sue the bailor for conversion. This is because the bailee had a right to possession, whereas during the term, the bailor did not.

Tort Law

Penfolds Wines v Elliot (1946) – Leading Aus Bailment case

• D was using Ps bottles to put his own wine in, and sold them in a BYO bottle arrangement. Ps bottles said “this bottle always remains the property of P”. • P sought an injunction to restrain D from continuing on the basis of a conversion.

Once empty, the purpose for which the bottles were sold, they had a right to possession according to the bottles. There is therefore a bailment arrangement. • Once empty, the court said they did have an immediate right to possession to

the bottles & had title to sue. However, Court said there was no dealing with the chattel on Ds part, there was no way that D interfered with Ps right of

possession. A few of the bottles however, were given by D to people other than those who had given him the bottle on bailment. The court said that this may be a conversion. However, it was not serious enough to grant an injunction for. • This case clearly establishes the right to possession gives a title to sue, and also

what kind of a dealing constitutes a conversion. The court couldn’t agree whether Ds use constituted a conversion.

• This would not happen today because it would be covered by s52 of TPA 1974. Other legal rights to possession

Lien

At common law a lien is a limited right to retain possession of goods pending payment of a debt. Liens include the general lien, artificers lien, the repairs lien and the lien of the unpaid seller. A lien is a defence, not a right of action, however a person with a valid lien has sufficient interest to sue 3rd parties and owners of the title to goods in conversion. Standard Electronics v Stenner (1960)

• The court recognised someone with a lien has title to sue. Finders

At law, if you find an object, you have a right to possession of it, and you have a better right to possess it than the whole world except for the true owner.

Amory v Delarmarie ( 1772)

• P was a chimney sweep’s boy who found a jewel, & took it to be valued. The jeweller refused to return it. P sued in trover.

• Court held that the boy’s possessory title was good enough for a title to sue. His title was better than anybody except the true owner.

Further complicated when the chattel is found on private property. Elwes v Brigg Gas Co (1886)

Tort Law

• A Timber boat was found embedded in land. The court held that it belonged to the land owner because it was embedded in the land.

Bridges v Hawksworth (1851)

• P found money lying on the floor of the public part of a shop.

• Court held that the finder had a better claim to it than the owner of the shop, simply because it was found in the public part of the shop.

Parker v British Airways Board (1982)

• P found a valuable bracelet in a 1st class lounge owned by British Airways. P gave it to an employer of British Airways with instructions that if it was not claimed by the true owner, then it was to be returned to P. British Airways kept it & P sued for conversion.

• Court held that P as finder had a better title to the bracelet than D even though D was occupier of premises. D could not claim a better title unless the occupier had manifested an intention to control the premises and everything in the premises.

Chairman of the National Crime Authority v Flack (1998)

• P had a son who did not live with her but was being investigated by D for drug offences. D, with a search warrant, conducted a search of her house and took away a suitcase containing a large sum of money. P was unaware of its existence. D did not charge the son, but also refused to return the money. P sued.

• Federal Court referred to the Parker case. The court said that it is significant that it was found in Ps home. When it is a home, you do manifest an intention to control the premises and everything in it.

2. What constitutes the required conduct for a conversion? The conduct must be intentional.

Ashby v Tolhurst (1937)

• P left car in a parking station. The attendant allowed a rogue pretending to be P who was authorised, to have the car and drive away.

• Court held you can act bona fide and still commit a conversion if the dealing was intentional, and since act of handing was intentional, here conversion.

Dealings amounting to conversion

• Disposing of the goods, which includes sale of the good (Perpetual Trustees &National Executors of Tasmania Ltd v Perkins (1989)

Tort Law

• Taking possession of goods – (Rendell v Associated Finance (1957)) If you merely take possession of the good with a view to keeping possession, then that

amounts to a conversion.

• Abusing possession – Likely in the case of actual damage, Simply using without abusing may not amount to a conversion (Penfolds wines)

• Transferring possession to someone else other than the bailor (Penfolds – where D gave bottles back to bailee, not a conversion, but was when he gave to 3rd parties)

• Withholding conversion • Denial of Plaintiffs Right

• Co-Ownership? – probably not a conversion Kitano v Commonwealth (1973) , though a little indecisive. If one owner destroys the good without consent of the • other, then that will be a conversion, but simply one co owner using the good to

the exclusion will not be a conversion.

Defences to Intentional Torts

• The defendant’s denial of the tortious act e.g. Defendant had an alibi for when the alleged tortious event occurred

• The defendant’s objection to a point of law e.g. Defendant admits liability for the act, but questions whether the act constitutes a tort

• The defendant admits liability but seeks to avoid the responsibility e.g. Defendant admits liability, but counterclaims on the plaintiff

Consent

In a strict sense, consent is not a defence as such, because in trespass, the absence of consent is an element of the tort

Marion’s Case (1992) 175 CLR 218

• In this case, the court stated that every surgical procedure was a battery, unless there was consent on behalf of the patient

Freeman v Home Office [1984] 1 All ER 1036

• The House of Lords said absence of consent has to be proved by the plaintiff Valid Consent

Tort Law

Valid consent must be informed and procured without fraud or coercion R v Williams

• Defendant had told the plaintiff that she needed an operation to allow her voice to reach its full potential

• Plaintiff had consented to an operation. This operation turned out to be sexual intercourse with the defendant

• Court held that this was not consent, as she had consented to something not of the nature performed

Fraudulent Consent

Fraudulent consent is not valid consent. To invalidate consent, fraud must be directly related to the agreement itself, and not to an incidental issue.

Papadimitropoulus v R (1957) 98 CLR 249

• The plaintiff was an immigrant woman who had little understanding of English • The defendant led the plaintiff to believe that she was married to him, it is under

this belief that the plaintiff had sex with the defendant

• Court held that the consent in this instance was valid, as there was a

misapprehension about relationship, but this does not change consent for the act

Consent in Sports

• In contact sports e.g. Rugby, consent is not necessarily a defence to foul play • (McNamara v Duncan (1971) 26 ALR 584, Hilton v Wallace)

• To succeed in an action for trespass in contact sports, the plaintiff must prove the relevant elements of the tort (Giumelli v Johnston (1991))

Consent in Medical Procedures

There are various problem areas of consent in Medical treatments 1. Wrong Medical Procedure:

Chatterton v Gerson [1981] QB 432

• If a person goes to hospital for a procedure and another procedure is undertaken, this procedure is a trespass.

2. Actuality of the consent for a specific procedure Murray v McCurchy (1949) 2 DLR 442

• The plaintiff was patient of the defendant

Tort Law

• plaintiff had mentioned in passing how she would like to be sterilized

• During the plaintiff’s last childbirth, the defendant decided to do the plaintiff a favour and tied her fallopian tubes

• When the plaintiff found out, she was irate and sued for trespass. Plaintiff said that the surgery was not necessary at the time

• The court held that there was no consent, as the procedure wasn’t an essential one

3. The Question of Validity 4. Capacity to Consent

Gillick v West Norfolk Health Authority

The plaintiff’s were a minors parents who objected to the defendant giving their • daughter the “pill”

• Court held that a minor can consent to a medical operation, if they are mature enough to appreciate the gravity of the situation

5. Informed Consent

Rogers v Whitaker (1992) 175 CLR 479

• The plaintiff was a patient of the defendant

• The plaintiff had one good eye and one bad eye, it was proposed that she have surgery on the bad eye to restore sight to that eye

• The defendant did not tell the plaintiff that there was a rare chance that she would lose vision in her good eye

• The court held that there was still consent for the procedure F v R(1983)

• P had undergone surgery with the D tying of her fallopian tubes. The tubes subsequently rejoined and the plaintiff fell pregnant, plaintiff sued the defendant for not telling her that there was a chance of this occurring • Court held that there was still consent for the operation

• Informed consent cases are issues of negligence not trespass. As it is not possible to argue that the plaintiff did not consent to the operation, as there was

consent, just not informed consent. Necessity

The defence is allowed where an act which is otherwise a tort is done to save life or property. Generally only permissible in “urgent situations of imminent peril” . Southwork London Borough Council v Williams [1971] Ch 734

• The defendants were squatters that were trespassing on council land, Council sued in trespass, defendant argued necessity

Tort Law

• The court rejected , as it contravened every persons personal right to property, as it could be seen that no property would be safe

• The court also stated that it was not the place of the law to look after homeless • The defendants act must be reasonably necessary and not just convenient Murray v McMurchy (1949) 2DLR 442

• The plaintiff went to hospital for treatment on an abdominal complaint • Through a misunderstanding, her fallopian tubes were tied

• The court rejected the defence of necessity, it stated that the act must be required to save life and property

Malette v Shulman (1990) 67 DLR (4d) 321

• P a Jehovah’s witness, carried a card that stated that in the event of an accident she did not wish to receive a blood transfusion but in hospital was.

• The plaintiff sued the defendant, who raised the defence of necessity

• Court said that this was not applicable, as the plaintiff had made her position clear. It was a generous act from the doctors, but not necessary

• But the plaintiff only got nominal damages and had to pay her own costs • Necessity is a defence that is only permissible in certain circumstances, as it has

the ability to be abused Necessity and Medical Intervention

In general, it is permissible to undertake medical procedures relating to the plaintiff without his or her consent in the following circumstances:

• Where its impossible to communicate with the person e.g. patient is unconscious • The act is in the best interest of the assisted person e.g. Life saving surgery • Necessity can extend to routine or permanent contact e.g. Dressing and feeding

a disabled patient re F

• A mentally incapacitated woman was found to be pregnant and doctors wanted to terminate the pregnancy. They applied to the court to grant such a decision. • It was held that, although such procedures are prima facie acts of trespass, the

court

• was willing to grant a termination. The situation deemed it necessary to allow the

• trespass Infancy

Being a minor is not a defence to a tortious act. What is essential is whether the defendant

Tort Law

A mistake is an intentional conduct done under a misapprehension, thus mistake is not the same as inevitable accident, generally irrelevant in intentional torts, except for matters of mistaken self defence and therefore the court will consider whether the belief of the defendant that he or she needed to take Action in self defence, although mistaken, was in the circumstances reasonable and so justified. Although mistake is notma defence in tort law, mistake may go to prove an absence of intent.

Rendell v Associated Finance [1957] VR 604

• The defendant mistakenly repossessed the plaintiff’s car • The court rejected this defence

Symes v Mahon(1922)

• The defendant police officer arrested the wrong person by mistake • The court rejected the defence of mistake

Illegality

The traditional common law position on illegality is usually summed up in the Latin maxim “ex turpi causa no oritor action”, which means that no cause of action may be based on an illegal act.

Hegarty v Shine

• The plaintiff was a prostitute that sought to be reimbursed for services

• The court held that the plaintiff was not able to claim for the money, as she was a prostitute, thus she was committing an illegal act to, obtain the money owed Gala v Preston

• The plaintiff robs a bank and was involved in an accident in the get away vehicle • Court held that they were not able to get damages for injuries suffered, as they

were involved in an illegal act Exceptions

There is an actionable tort, if the illegal act is not central to the tort Self Defence

In general, a person who is attacked or threatened with an attack and who reasonably believes his life is in danger, is allowed to use such force as necessary to protect himself. Force used must be proportional to threat, not excessive.

Fontin v Katapodis (1962) 108 CLR 117

• The plaintiff had accused the defendant of outstanding payments • The defendant came back to the store with proof of paying the debt • The argument turned into a brawl

Tort Law

• The plaintiff hit the defendant twice with a piece of wood • The defendant retaliated with a piece of glass

• The court said that the defendants use of force was excessive, thus no defence of self defence

Defence of Other

The defendant may use reasonable force to defend a third party. The defendant is allowed to use force as may be reasonably necessary in circumstances to defend a third party in situations where he reasonably believes that third party is about to be attacked or where the party is actually attacked

Goss v Nicholas [1960] Tas SR 133

• The court held that a person is entitled to use force to defend a third party, the amount of force one can use is to be proportionate to the degree of injury anticipated for the stranger

Defence of Property

The common law allows an individual to use reasonable force to defend his property Shaw v Hacksaw [1983] 2 VR 65

• The defendant owned a property where his petrol was constantly siphoned off by individuals

• One night the defendant lay in wait with a shot gun to deter potential thieves\ • The defendant shot at the car injuring the plaintiff

• Court held that this was an unreasonable force

The Issue of Damages

Self defence or the defence of another or property when successful affords the defendant an absolute defence. However, where the defendant’s conduct is adjudged to be excessive in the circumstances, the fact that he may have had a prima facie case of self defence would be immaterial; he will be held totally liable for any actual damage or compensatory damages awarded.

Provocation

Provocation is not a defence in tort law; it can only be used to avoid the award of exemplary damages

Tort Law

• Provocation can not be used to mitigate damages, can only be used to mitigate exemplary Damages A critique of the current position on provocation

Negligence

Negligence involves the breach of a legal duty of care by an inadvertent act or omission which injures another person. It connotes the complex concept of duty, breach, causation and damage thereby suffered by the person to whom the duty was owed.

Elements

• Duty – D owed P a duty to take care in the circumstances

• Breach – D’s act or omission failed to reach the standard of carefulness required by the circumstances and so there is a breach of the duty to take care

• Causation – D’s breach of duty caused damage to P

• Damage – Damage suffered by P is legally recognisable and not too remote from the breach of duty

Generally, the onus of proving negligence rests upon the person alleging the action, on the balance of probabilities that the act or omission was negligent.

The common law of negligence in NSW has been significantly affected by the Civil Liability Amendment (Personal Responsibility) Act 2002, which amended the Civil Liability Act 2002. These provisions commenced on 06/12/02

Duty of Care

Previously relationship required

The tort of negligence developed from the action on case, however back then, no tort if P could not raise a specific relationship between themselves and D which gave rise to a duty of care.

Bird v Holbrook(1828)

• P’s animal escaped and he went to get it & set off the trap D his neighbour had set up. No warning notice was set and P was injured.

• Sued as action on the case successfully as held spring gun was unreasonable. Heaven v Pender (1883) QBD

Tort Law

• P painter sub-contracted by a third party to paint a ship on D’s dock. However P was injured when scaffold, erected negligently by the defendant collapsed. • P was unsuccessful on the first instance, as not able to establish a relationship

that gave rise to a duty of care. At this time there were only certain relationships that gave rise to a duty of care on the basis of negligent conduct. And to begin an action, they needed to fit it in one of these categories, as he wasn’t privy to contract of employment didn’t give it.

• On appeal, the court ruled in favour of the plaintiff, and said plaintiff was impliedly invited onto the defendant’s land, thus giving the plaintiff a relationship which gave rise to a duty of care and invitee/invitor relation • Brett MR (later lord Esher) proposed a general rule (as opposed to

categorisation) for when liability and negligence would arise. “Everyone of ordinary sense would realise that if ordinary care was not exercised they would cause danger to other people, a duty therefore arises to use this ordinary care & skill to avoid such danger.’ However majority didn’t accept this at that time and just said there was an invitee invitor duty, narrower view.

Victorian Railway Commissioners v Coultas (1888)

• Train just missed the couple who were in the car she lost her baby & developed serious psychiatric illness, PC said no duty as the ordinary person would not have developed such a problem.

Lelivre v Gauld (1893) 1 QB 491

• Brett MR (Now Lord Eshar) again reinstated the general rule he said before, adding some “continuity or neighbourhood (closeness)”, physically, was needed to limit the ambit of power afforded by the statement before.

• However still no majority change from the position that a special relationship must first exist between the two parties

Wilkinson v Downton (1897)

• D told the P her husband had been seriously injured in a traffic accident as a practical joke, she suffered shock & a serious physical illness

• Wright J upheld the jury’s verdict in her favour stating the principle as: “the df has…willfully done an act calculated to cause physical harm to the pf & the act does in fact does cause harm to her…without more appears to me to state a good cause of action”

• Conduct must be wilful & cause harm, recklessness or intention is irrelevant. It is an objective sense of causing harm.

• 2 stage analysis by blay:

o D Must Willfuly or recklessly inflict nervous shock on P

o D Must do above by word or conduct or both of a kind where nervous