THE LAW OF TORTS

1. THE LAW OF TORTS WEEK 3

2. TRESPASS TO PROPERTY TRESPASS TO PROPERTY LAND GOODS/CHATTELS

3. TRESPASS TO LAND • The intentional of D which directly interferes with the plaintiff’s exclusive possession of land

4. 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

5. 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)

6. 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

7. 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

8. 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

9. 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)¯

10. THE POSITION OF TRESPASSERS AND SQUATTERS • A trespasser/squatter in exclusive possession can maintain an action against any other trespasser

11. 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)

12. 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)

13. 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 )

14. 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.

15. TRESPASS TO PROPERTY TRESPASS TO PROPERTY LAND GOODS/CHATTELS

16. TRESPASS TO PROPERTY • GOODS/CHATTELS • Personal property TRESPASS TO PROPERTY LAND

17. TRESPASS TO GOODS/CHATTEL • The intentional/negligent act of D which directly interferes with the plaintiff’s possessionof a chattel without lawful justification • The P must have actual or constructive possession at the time of interference.

18. DAMAGES • It may not be actionable per se (Everitt v Martin)

19. CONVERSION • The act of D in relation to another’s chattel which constitutes an unjustifiable denial of his/her title

20. 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)

21. ACTS OF CONVERSION • Mere asportation is no conversion • Fouldes v Willoughby • The D’s conduct must constitute an unjustifiable denial of P’s rights to the property • Howard E Perry v British Railways Board • Finders of lost property • Parker v British Airways • The position of the auctioneer • Willis v British Car Auctions • Destruction of the chattel is conversion • Atkinson v Richardson;) • Taking possession • Withholding possession • Clayton v Le Roy

22. ACTS OF CONVERSION • Misdelivery ( Ashby v Tolhurst (1937 2KB); Sydney City Council v West) • Unauthorized dispositions in any manner that interferes with P’s title constitutes conversion (Penfolds Wines v Elliott)

23. DETINUE • Detinue: The wrongful refusal to tender goods upon demand by P, who is entitled to possession It requires a demand coupled with subsequent refusal (General and Finance Facilities v Cooks Cars (Romford)

24. DAMAGES IN CONVERSION AND DETINUE • In conversion, damages usually take the form of pecuniary compensation • In detinue, the court may in appropriate circumstances order the return of the chattel • Damages in conversion are calculated as at the time of conversion; in detinue it is as at the time of judgment • The Mediana • Butler v The Egg and Pulp Marketing Board • The Winkfield • General and Finance Facilities v Cooks Cars (Romford)

25. THE LAW OF TORTS Action on the Case for Indirect Injuries

26. INDIRECT INTENTIONAL INJURIES • ACTION ON THE CASE FOR PHYSICAL INJURIES OR NERVOUS SHOCK • ACTION ON THE CASE REFERS TO ACTIONS BASED ON INJURIES THAT ARE CAUSED INDIRECTLY OR CONSEQUENTIALLY

27. INDIRECT INTENTIONAL INJURIES: CASE LAW • Bird v Holbrook (trap set in garden) • D is liable in an action on the case for damages for intentional acts which are meant to cause damage to P and which in fact cause damage (to P)

28. THE INTENTIONAL ACT • The intentional may be deliberate and preconceived(Bird v Holbrook ) • It may also be inferred or implied; the test for the inference is objective • Wilkinson v Downton • Janvier v Sweeney • Nationwide News v Naidu

29. Action on the Case for Indirect Intentional Harm: Elements • D is liable in an action on the case for damages for intentional acts which are meant to cause damage to P and which in fact cause damage to P • The elements of this tort: • The act must be intentional • It must be one calculated to cause harm/damage • It must in fact cause harm/actual damage • Where D intends no harm from his act but the harm caused is one that is reasonably foreseeable, D’s intention to cause the resulting harm can be imputed/implied

30. THE SCOPE OF THE RULE • The rule does not cover ‘pure’ mental stress or mere fright • Wainright v Home Office • The act must be reasonably capable of causing mental distress to a normal* person: • Bunyan v Jordan • Stevenson v Basham

31. The Future of the Wilkinson v Downtown • The High Court obiter dicta Magill v Magill • Subsequent developments in Anglo-Australian law recognise these cases as early examples of recovery by reference to imputed intention to cause physical harm ; a cause of action later subsumed under the unintentional tort of negligence ( Per Gummow, Kirby and Crennan JJ) • Wilkinson v Downton, decided in 1987 and Janvier v Sweeney decided in 1919, which were cases of deception causing nervous shock, would probably now be explained either on the basis of negligence or intentional infliction of personal injury ( per Gleeson CJ)

32. ONUS OF PROOF • In Common Law, he who asserts proves • Traditionally, in trespass D was required to disprove fault once P proved injury. Depending on whether the injury occurred on or off the highway ( McHale v Watson; Venning v Chin) • The current Australian position is contentious but seems to support the view that in off highway cases D is required to prove all the elements of the tort once P proves injury • Hackshaw v Shaw • Platt v Nutt • See Blay; ‘Onus of Proof of Consent in an Action for Trespass to the Person’ Vol. 61 ALJ (1987) 25 • But see McHugh J in See Secretary DHCS v JWB and SMB (Marion’s Case) 1992 175 CLR 218

33. IMPACT OF THE CIVIL LIABILITY ACT • Section 3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability in respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct – the whole Act except Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death

34. THE LAW OF TORTS Defences to Intentional Torts

35. INTRODUCTION: The Concept of Defence • Broader Concept: The content of the Statement of Defence- The response to the P’s Statement of Claim-The basis for non-liability • Statement of Defence may contain: • Denial • Objection to a point of law • Confession and avoidance:

36. MISTAKE • An intentional conduct done under a misapprehension • Mistake is thus not the same as inevitable accident • Mistake is generally not a defence in tort law ( Rendell v Associated Finance Ltd, Symes v Mahon) • ‘Mistake’ may go to prove

37. 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 • See: Blay; ‘Onus of Proof of Consent in an Action for Trespass to the Person’ Vol. 61 ALJ (1987) 25 • But McHugh J in See Secretary DHCS v JWB and SMB (Marion’s Case) 1992 175 CLR 218

38. VALID CONSENT • To be valid, consent must be informed and procured without fraud or coercion: ( R vWilliams;) • To invalidate consent, fraud must relate directly to the agreement itself, and not to an incidental issue: (Papadimitropoulos v R (1957) 98 CLR 249; R v Linekar (the Times, 1994)

39. CONSENT IN SPORTS • http://www.youtube.com/watch?v=VgtKW5PLso4 • http://www.youtube.com/watch?v=W-BmKXU12yE • Alex McKinnon has been diagnosed as a quadriplegic and warned by doctors he may never walk again after this tackle.Jordan McLean was suspended for seven weeks after being found guilty of a 'dangerous throw' on Newcastle Knights player Alex

40. In contact sports, consent is not necessarily a defence to foul play (McNamara v Duncan; Hilton v Wallace) • To succeed in an action for trespass in contact sports however, the P must of course prove the relevant elements of the tort. • Giumelli v Johnston

41. THE BURDEN OF PROOF • Since the absence of consent is a definitional element in trespass, it is for the P to prove absence of consent and not for the D to prove consent

42. SELF DEFENCE, DEFENCE OF OTHERS • A P who is attacked or threatened with an attack, is allowed to use reasonable force to defend him/herself • In each case, the force used must be proportional to the threat; it must not be excessive. (Fontin v Katapodis) • D may also use reasonable force to defend a third party where he/she reasonably believes that the party is being attacked or being threatened

43. THE DEFENCE OF PROPERTY • D may use reasonable forceto defend his/her property if he/she reasonably believes that the property is under attack or threatened • What is reasonable force will depend on the facts of each case, but it is debatable whether reasonable force includes ‘deadly force’

44. PROVOCATION • Provocation is not a defence in tort law. • It can only be used to avoid the award of exemplary damages: Fontin v Katapodis; Downham Ballett and Others

45. A Critique of the Current Position On Provocation • To discourage vengeance and retributive justice • The compensation theory argument • The gender based thesis

46. The Case for Allowing the Defence of Provocation • The relationship between provocation and contributory negligence • The implication of counterclaims • Note possible qualifications Fontin v Katapodis to: • Lane v Holloway • Murphy v Culhane • See Blay: ‘Provocation in Tort Liability: A Time for Reassessment’,QUT Law Journal, Vol. 4 (1988) pp. 151-159.

47. NECESSITY • The defence is allowed where an act which is otherwise a tort is done to save life or property: urgent situations of imminent peril

48. Urgent Situations of Imminent Peril • The situation must pose a threat to life or property to warrant the act: Southwark London B. Council v Williams • The defence is available in very strict circumstances R v Dudley and Stephens • D’s act must be reasonably necessary and not just convenient Murray v McMurchy • In re F • Cope v Sharp

49. INSANITY • Insanity is not a defence as such to an intentional tort. • What is essential is whether D by reason of insanity was capable of forming the intent to commit the tort. (White v Pile; Morris v Marsden)

50. INFANTS • Minority is not a defence as such in torts. • What is essential is whether the D understood the nature of his/her conduct (Smith v Leurs; Hart v AG of Tasmania)