LAW OF TORTS

1. LAW OF TORTS Weekend Lecture 1ALecturer: Greg Younggreg.young@lawyer.comDefinition, aims & scope of torts Intentional Torts

2. TEXT BOOKS • *Baker, Blay et al Torts Law in Principle LBC 2005 4th Ed. • *Blay, Torts in a Nutshell LBC 1999 • Sappideen, Vines, Grant & Watson, Torts: Commentary & Materials LBC(2006) 9th Ed. • Balkin & Davis Law of Torts (2004) 3rd Ed. Butterworths • Luntz and Hambly Torts Cases and Commentary (2006) Revised 5th Ed. Butterworths • Trindade and Cane The Law of Torts • Fleming, The Law of Torts (1996)

3. LEC Torts Website • www.usyd.edu.au/lec/subjects/torts//materials.htm • Past exams & comments: www.library.usyd.edu.au/libraries/law/lpab.html#exams

4. WHAT IS A TORT? • A tort is a civil wrong • That (wrong) is based a breach of a duty imposed by law • Which (breach) gives rise to a (personal) civil right of action for for a remedy not exclusive to another area of law

5. THE DIFFERENCE BETWEEN A TORT AND A CRIME • A crime is public /community wrong that gives rise to sanctions usually designated in a specified code. A tort is a civil ‘private’ wrong. • Action in criminal law is usually brought by the state or the Crown. Tort actions are usually brought by the victims of the tort. • The principal objective in criminal law is punishment. In torts, it is compensation

6. THE DIFFERENCE BETWEEN A TORT AND A CRIME • Differences in Procedure: • Standard of Proof • Criminal law: beyond reasonable doubt • Torts: on the balance of probabilities

7. THE AIMS OF TORT LAW • Loss distribution/adjustment: shifting losses from victims to perpetrators • Compensation: Through the award of (pecuniary) damages • The object of compensation is to place the victim in the position he/she was before the tort was committed. • Punishment: through exemplary or punitive damages. This is a secondary aim.

8. INTERESTS PROTECTED IN TORT LAW • Personal security • Trespass • Negligence • Reputation • Defamation • Property • Trespass • Conversion • Economic and financial interests

9. INTENTIONAL TORTS INTENATIONAL TORTS Trespass Conversion Detinue

10. WHAT IS TRESPASS? • Intentional or negligent act of D which directly causes an injury to the P or his /her propertywithout lawful justification • The Elements of Trespass: • fault: intentionalor negligent act - injury must be direct • injury* may be to the P or to his/her property - No lawful justification

11. *INJURY IN TRESPASS • Injury = a breach of right, not necessarily actual damage • Trespass requires only proof of injury not actual damage

12. THE GENERAL ELEMENTS OF TRESPASS Intentional/ negligent act Direct interference with person or property Absence of lawful justification + + + A specific form of trespass “x” element =

13. SPECIFIC FORMS OF TRESPASS TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

14. BATTERY • The intentional or negligent act of D which directly causes a physical interference with the body of P without lawful justification • The distinguishing element: physical interference with P’s body

15. THE INTENTIONAL ACT IN BATTERY • No liability without intention • The intentional act = basic willful act + the consequences.

16. CAPACITY TO FORM THE INTENT • D is deemed capable of forming intent if he/she understands the nature of (‘intended’) his/her act • -Infants • Lunatics • Morris v Marsden • Hart v A. G. of Tasmania( infant cutting another infant with razor blade)

17. THE ACT MUST CAUSE PHYSICAL INTERFERENCE • The essence of the tort is the protection of the person of P. D’s act short of physical contact is therefore not a battery • The least touching of another could be battery • Cole v Turner (dicta per Holt CJ) • ‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate’ ( per Goff LJ, Collins v Wilcock)

18. The Nature of the Physical Interference • Rixon v Star City Casino (D places hand on P’s shoulder to attract his attention; no battery) • Collins v Wilcock (Police officer holds D’s arm with a view to restraining her when D declines to answer questions and begins to walk away; battery) • Platt v Nutt

19. THE INJURY MUST BE CAUSED DIRECTLY • Injury should be the immediate: • Scott v Shepherd ( Lit squib/fireworks in market place) • Hutchins v Maughan (poisoned bait left for dog) • Southport v Esso Petroleum(Spilt oil on P’s beach)

20. THE ACT MUST BE WITHOUT LAWFUL JUSTIFICATION • Consent is Lawful justification • Consent must be freely given by the P if P is able to understand the nature of the act • Lawful justification includes the lawful act of law enforcement officers • Wilson v. Marshall(D accused of assaulting police officer, held officer’s conduct not lawful)

21. TRESPASS:ASSAULT • The intentional/negligent act or threat of D which directly places P in reasonable apprehension of an imminent physical interference with his or her person or of someone under his or her control

22. THE ELEMENTS OF ASSAULT • There must be a direct threat: • Hall v Fonceca(Threat by P who shook hand in front of D’s face in an argument) • In general, mere words are not actionable • Barton v Armstrong • In general, conditional threats are not actionable • Tuberville v Savage • Police v Greaves • Rozsa v Samuels

23. THE ELEMENTS OF ASSAULT • The apprehension must be reasonable; the test is objective • The interference must be imminent • Rozsa v Samuels • Police v Greaves • Hall v Fonceca • Zanker v Vartzokas(P jumps out of a moving van to escape from D’s unwanted lift)

24. THE GENERAL ELEMENTS OF TRESPASS Intentional/ negligent act Direct interference Absence of lawful justification + + + A specific form of trespass “x” element =

25. SPECIFIC FORMS OF TRESPASS TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

26. FALSE IMPRISONMENT • The intentional or negligent act of D which directlycauses the total restraint of P and thereby confines him/her to a delimited area without lawful justification • The essential distinctive element is the total restraint

27. THE ELEMENTS OF THE TORT • It requires all the basic elements of trespass: • Intentional/negligent act • Directness • absence of lawful justification/consent , and • total restraint

28. RESTRAINT IN FALSE IMPRISONMENT • The restraint must be total • Bird v Jones (passage over bridge) • The Balmain New Ferry Co v Robertson • Total restraint implies the absence of a reasonable means of escape • Burton v Davies(D refuses to allow P out of car) • Restraint may be total where D subjects P to his/her authority with no option to leave • Symes v Mahon(police officer arrests P by mistake) • Myer Stores v Soo

29. FORMS OF FALSE IMPRISONMENT • See the following Cases: • Cowell v. Corrective Services Commissioner of NSW (1988) Aust. Torts Reporter ¶81-197. • Louis v. The Commonwealth of Australia 87 FLR 277. • Lippl v. Haines & Another (1989) Aust. Torts Reporter ¶80-302; (1989) 18 NSWLR 620.

30. VOLUNTARY CASES • In general, there is no FI where one voluntarily submits to a form of restraint • Herd v Weardale (D refuses to allow P out of mine shaft) • Robinson v The Balmain New Ferry Co. (D refuses to allow P to leave unless P pays fare) • Lippl v Haines • Where there is no volition for restraint, the confinement may be FI (Bahner v Marwest Hotels Co.)

31. WORDS AND FALSE IMPRISONMENT • In general, words can constitute FI see Balkin & Davis pp. 55 to 56: “restraint… even by mere threat of force which intimidates a person into compliance without any laying on of hands” may be false imprisonment - Symes v Mahon

32. KNOWLEDGE IN FALSE IMPRISONMENT • The knowledge of the P at the moment of restraint is not essential. • Meering v Graham White Aviation • Murray v Ministry of Defense

33. WHO IS LIABLE? THE AGGRIEVED CITIZEN OR THE POLICE OFFICER? • In each case, the issue is whether the police in making the arrest acted independently or as the agent of the citizen who promoted and caused the arrest • Dickenson v Waters Ltd • Bahner v Marwest Hotels Co

34. THE ‘MENTALLY ILL’ AND FALSE IMPRISONMENT • In Common Law, the lawfulness of an act of detention of a person must depend on "overriding necessity for the protection of himself and others’ per Harvey J in In re Hawke (1923) 40 WN (NSW) 58 • The situation under statute: • Watson v Marshall and Cade (1971) 124 CLR 621 • The Vic Mental Health Act 1959:Any person may be admitted into and detained in a psychiatric hospital upon the production of • (a) a request under the hand of some person in the prescribed form; • (b) a statement of the prescribed particulars; and • (c) a recommendation in the prescribed form of a medical practitioner based upon a personal examination of such person made not more than seven clear days before the admission of such person.

35. DAMAGES • False imprisonment is actionable per se • The failure to prove any actual financial loss does not mean that the plaintiff should recover nothing. The damages are at large. An interference with personal liberty even for a short period is not a trivial wrong. The injury to the plaintiff's dignity and to his feelings can be taken into account in assessing damages (Watson v Marshall and Cade )

36. OTHER FORMS OF TRESPASS TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

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

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

39. 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

40. STATUTORY EASEMENTS • Conveyancing Act 1919 s 88K (NSW) • 1. The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. • 2. Such an order may be made only if the Court is satisfied that: • (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and • (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land …can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement • all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful

41. RESTRICTIONS ON STATUTORY EASEMENTS • ‘Property rights are valuable rights and the court should not lightly interfere with [such] property rights… [the section] does not exist for people build right up to the boundary of their property [or] build without adequate access and then expect others to make their land available for access’ per Young J Hanny v Lewis (1999) NSW Conv. R 55-879 at 56-875 • ‘Developers have a responsibility to act reasonably as do the proprietors of adjoining land and the developers should not just proceed as if they would automatically get what they seek without negotiations’ (per Windeyer J Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR)

42. The Issue of Compensation • 88K (2) Such an order may be made only if the Court is satisfied that: the owner of the land to be burdened by the easement and each other person having an estate or interest in that land …can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement • Adequate compensation: (Wengarin Pty Ltd v Byron Shire Council [1999] NSWSC 485) • the diminished market value of the servient land • associated costs that would be caused to the owner • loss of amenities such as peace and quite • where assessment proves difficult, the court may assess compensation on a percentage of the profits that would be made from the use of the easement

43. Neighbouring land Access and Utility Service Orders • The Access to Neighbouring Land Act2000 ss11 and 13 • (1) A Local Court may make a neighbouring land access /utility service access order if it is satisfied that access to land is required for the purpose of carrying out work on or in connection with a utility service situated on the land and it is satisfied that it is appropriate to make the order in the circumstances of the case • (2) The Court must not make a utility service access order unless it is satisfied: • (a) that the applicant has made a reasonable effort to reach agreement with every person whose consent to access is required as to the access and carrying out of the work, and • (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with [the Act]

44. 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)

45. 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

46. 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

47. 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

48. 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)¯

49. 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)

50. THE TRESPASSORY ACT • Preventing P’s access Waters v Maynard) • The continuation of the initial trespassory act is a 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 (Barker v R)