LAW OF TORTSLAW OF TORTS

LECTURE 3LECTURE 3

Intentional torts to ChattelsIntentional torts to Chattels

Action on the case for Wilful InjuryAction on the case for Wilful Injury

Defences to Intentional TortsDefences to Intentional Torts

TRESPASS TO TRESPASS TO PROPERTYPROPERTY

TRESPASS TO PROPERTYTRESPASS TO PROPERTY

LAND GOODS/CHATTELS

TRESPASS TO TRESPASS TO PROPERTYPROPERTY

TRESPASS TO PROPERTYTRESPASS TO PROPERTY

LAND

• GOODS/CHATTELSGOODS/CHATTELS• Personal propertyPersonal property

TRESPASS TO TRESPASS TO GOODS/CHATTELGOODS/CHATTEL

• The The intentional/negligent intentional/negligent act of act of D which D which directly interferesdirectly interferes with with the plaintiff’s the plaintiff’s possessionpossession of a of a chattel chattel without lawful without lawful justificationjustification

• The P must have actual or The P must have actual or constructive possession at the constructive possession at the time of interference.time of interference.

•

DAMAGESDAMAGES

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

CONVERSIONCONVERSION

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

CONVERSION: Who CONVERSION: Who Can Sue?Can Sue?

• OwnersOwners• Those in possession or entitled Those in possession or entitled

to immediate possessionto immediate possession– Bailees*Bailees*– Bailors*Bailors*– Mortgagors* and Mortgagors* and Mortgagees*(Mortgagees*(Citicorp Australia Citicorp Australia v B.S. Stillwell)v B.S. Stillwell)

– Finders (Finders (Parker v British Parker v British Airways; Armory v DelmirieAirways; Armory v Delmirie))

ACTS OF ACTS OF CONVERSIONCONVERSION

• Mere asportation is no conversionMere asportation is no conversion– Fouldes v WilloughbyFouldes v Willoughby

• The D’s conduct must constitute an The D’s conduct must constitute an unjustifiable denial of P’s rights to the unjustifiable denial of P’s rights to the propertyproperty– Howard E Perry v British Railways BoardHoward E Perry v British Railways Board

• Finders of lost propertyFinders of lost property– Parker v British AirwaysParker v British Airways

• The position of the auctioneerThe position of the auctioneer– Willis v British Car AuctionsWillis v British Car Auctions

• Destruction of the chattel is conversion Destruction of the chattel is conversion – Atkinson v Richardson;Atkinson v Richardson;))

• Taking possessionTaking possession• Withholding possession Withholding possession

– Clayton v Le RoyClayton v Le Roy

• Misdelivery ( Misdelivery ( Ashby v Ashby v Tolhurst Tolhurst (1937 2KB)(1937 2KB); Sydney ; Sydney City CouncilCity Council v v WestWest))

• Unauthorized dispositions Unauthorized dispositions in any manner that in any manner that interferes with P’s title interferes with P’s title constitutes conversion constitutes conversion ((Penfolds Wines v ElliottPenfolds Wines v Elliott))

ACTS OF CONVERSIONACTS OF CONVERSION

DETINUEDETINUE

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

DAMAGES IN CONVERSION DAMAGES IN CONVERSION AND DETINUEAND DETINUE

• In conversion, damages In conversion, damages usuallyusually take the form of take the form of pecuniary compensationpecuniary compensation

• In detinue, the court may in appropriate In detinue, the court may in appropriate circumstances order the return of the chattelcircumstances order the return of the chattel

• Damages in conversion are calculated as at the Damages in conversion are calculated as at the time of conversion; in detinue it is as at the time of time of conversion; in detinue it is as at the time of judgment judgment – The MedianaThe Mediana– Butler v The Egg and Pulp Marketing BoardButler v The Egg and Pulp Marketing Board– The WinkfiledThe Winkfiled– General and Finance Facilities v Cooks Cars General and Finance Facilities v Cooks Cars

(Romford)(Romford)

Trover

. Conversion

Detinue Trespass

CONVERSION, TRESPASS AND CONVERSION, TRESPASS AND DETINUEDETINUE

THE LAW OF TORTSTHE LAW OF TORTS

Action on the Case Action on the Case for Indirect Injuriesfor Indirect Injuries

INDIRECT INDIRECT INTENTIONAL INTENTIONAL

INJURIESINJURIES• ACTION ON THE CASEACTION ON THE CASE FOR PHYSICAL INJURIES FOR PHYSICAL INJURIES OR NERVOUS SHOCKOR NERVOUS SHOCK

•ACTION ON THE CASE ACTION ON THE CASE REFERS TO ACTIONS REFERS TO ACTIONS BASED ON INJURIES THAT BASED ON INJURIES THAT ARE CAUSED INDIRECTLY ARE CAUSED INDIRECTLY OR CONSEQUENTIALLYOR CONSEQUENTIALLY

INDIRECT INTENTIONAL INDIRECT INTENTIONAL INJURIES: CASE LAWINJURIES: CASE LAW

• Bird v Holbrook Bird v Holbrook (trap set (trap set in garden)in garden)–D is liable in an action on D is liable in an action on the case for damages for the case for damages for intentional acts which are intentional acts which are meant to cause damage to meant to cause damage to P and which in fact cause P and which in fact cause damage (to P)damage (to P)

THE INTENTIONAL THE INTENTIONAL ACTACT

• The intentional may be The intentional may be deliberate and deliberate and preconceived(preconceived(Bird v Holbrook )Bird v Holbrook )

• It may also be inferred or It may also be inferred or implied; the test for the implied; the test for the inference is objectiveinference is objective

• Wilkinson v DowntonWilkinson v Downton• Janvier v SweeneyJanvier v Sweeney

Action on the Case for Action on the Case for Indirect Intentional Harm: Indirect Intentional Harm:

ElementsElements• D is liable in an action on the case for D is liable in an action on the case for

damages for damages for intentional acts intentional acts which which are are meant to cause damage meant to cause damage to P and which to P and which in in fact cause damage fact cause damage to Pto P

• The elements of this tort:The elements of this tort:– The act must be intentionalThe act must be intentional– It must be one calculated to cause It must be one calculated to cause

harm/damageharm/damage– It must in fact cause harm/actual damageIt must in fact cause harm/actual damage

• Where D intends no harm from his act Where D intends no harm from his act but the harm caused is one that is but the harm caused is one that is reasonably foreseeable, D’s intention to reasonably foreseeable, D’s intention to cause the resulting harm can be cause the resulting harm can be imputed/impliedimputed/implied

THE SCOPE OF THE THE SCOPE OF THE RULERULE

• The rule does not cover The rule does not cover ‘pure’ mental stress or mere ‘pure’ mental stress or mere fright fright

• The act must be reasonably The act must be reasonably capable of causing mental capable of causing mental distress to a normal* distress to a normal* person:person:– Bunyan Bunyan vv Jordan Jordan– Stevenson Stevenson vv Basham Basham

IS THERE ROOM FOR IS THERE ROOM FOR EXTENDING THE EXTENDING THE

SCOPESCOPE• The normal person in The normal person in Wilkinson v DowntonWilkinson v Downton

•The normal/reasonableThe normal/reasonable person: The gender/race person: The gender/race debatedebate

The Scope of Intentional The Scope of Intentional Torts to the PersonTorts to the Person

•Trespass:Trespass:– Battery, Battery, – False ImprisonmentFalse Imprisonment– AssaultAssault

•Action on the case Action on the case ((Wilkinson v DowntonWilkinson v Downton))

Prospects for Prospects for Development in the Development in the

Common LawCommon Law

•Rape CasesRape Cases•Sexual harassment CasesSexual harassment Cases•Racial/Ethnic harassment Racial/Ethnic harassment

CasesCases

ONUS OF PROOFONUS OF PROOF

• In Common Law, he who asserts provesIn Common Law, he who asserts proves• Traditionally, in trespass D was required to Traditionally, in trespass D was required to

disprove fault once P proved injury. Depending disprove fault once P proved injury. Depending on whether the injury occurred on whether the injury occurred onon or or offoff the the highway highway ( McHale v Watson; ( McHale v Watson; Venning v ChinVenning v Chin))

• The current Australian position is contentious The current Australian position is contentious but seems to support the view that in off but seems to support the view that in off highway cases D is required to prove all the highway cases D is required to prove all the elements of the tort once P proves injuryelements of the tort once P proves injury– Hackshaw v ShawHackshaw v Shaw– Platt v NuttPlatt v Nutt– See Blay; ‘Onus of Proof of Consent in an Action for See Blay; ‘Onus of Proof of Consent in an Action for

Trespass to the Person’ Vol. 61 ALJ (1987) 25Trespass to the Person’ Vol. 61 ALJ (1987) 25– But see McHugh J in See But see McHugh J in See Secretary DHCS v JWB and Secretary DHCS v JWB and

SMB (Marion’s Case) SMB (Marion’s Case) 1992 175 CLR 2181992 175 CLR 218

IMPACT OF THE CIVIL IMPACT OF THE CIVIL LIABILITY ACTLIABILITY ACT

• Section 3B Civil liability excluded from ActSection 3B Civil liability excluded from Act(1) The provisions of this Act do not apply (1) The provisions of this Act do not apply to or in respect of civil liability (and to or in respect of civil liability (and awards of damages in those proceedings) awards of damages in those proceedings) as follows:as follows:

(a) civil liability in respect of an (a) civil liability in respect of an intentional intentional act that is done with act that is done with intent to cause injury intent to cause injury or death or that or death or that is sexual assault or other is sexual assault or other sexual sexual misconduct – the whole Act except misconduct – the whole Act except Part Part 7 (Self-defence and recovery by 7 (Self-defence and recovery by criminals) in respect of civil liability in criminals) in respect of civil liability in respect of an intentional act that is done respect of an intentional act that is done with intent to cause injury or deathwith intent to cause injury or death

THE LAW OF TORTSTHE LAW OF TORTS

Defences to Intentional Defences to Intentional TortsTorts

INTRODUCTION: The INTRODUCTION: The Concept of DefenceConcept of Defence

• Broader Concept: The Broader Concept: The content of the Statement of content of the Statement of Defence- The response to Defence- The response to the P’s Statement of Claim-the P’s Statement of Claim-The basis for non-liabilityThe basis for non-liability

•Statement of Defence may Statement of Defence may contain:contain:

– DenialDenial– Objection to a point of lawObjection to a point of law– Confession and avoidance:Confession and avoidance:

MISTAKEMISTAKE

• An intentional conduct done An intentional conduct done under a misapprehensionunder a misapprehension

• Mistake is thus not the same Mistake is thus not the same as inevitable accidentas inevitable accident

• Mistake is generally not a Mistake is generally not a defence in tort law (defence in tort law ( Rendell v Rendell v Associated Finance Ltd, Symes Associated Finance Ltd, Symes v Mahonv Mahon) )

• ‘ ‘Mistake’ may go to proveMistake’ may go to prove

CONSENTCONSENT

• In a strict sense, consent is In a strict sense, consent is not a defence as such not a defence as such because in trespass, the because in trespass, the absence of consent is an absence of consent is an element of the tortelement of the tort– See: Blay; ‘Onus of Proof of Consent See: Blay; ‘Onus of Proof of Consent in an Action for Trespass to the in an Action for Trespass to the Person’ Vol. 61 ALJ (1987) 25Person’ Vol. 61 ALJ (1987) 25

– But McHugh J in See But McHugh J in See Secretary Secretary DHCS v JWB and SMB (Marion’s DHCS v JWB and SMB (Marion’s Case) Case) 1992 175 CLR 2181992 175 CLR 218

VALID CONSENTVALID CONSENT

• To be valid, consent must be To be valid, consent must be informed and procured without informed and procured without fraud or coercion: ( fraud or coercion: ( R R vvWilliamsWilliams;);)

• To invalidate consent, fraud To invalidate consent, fraud must relate directly to the must relate directly to the agreement itself, and not to an agreement itself, and not to an incidental issue: incidental issue: ((Papadimitropoulos v R Papadimitropoulos v R (1957) (1957) 98 CLR 249; 98 CLR 249; R v LinekarR v Linekar (the (the Times, 1994)Times, 1994)

• In contact sports, consent is In contact sports, consent is not necessarily a defence to not necessarily a defence to foul play (foul play (McNamara v McNamara v Duncan; Hilton v WallaceDuncan; Hilton v Wallace))

• To succeed in an action for To succeed in an action for trespass in contact sports trespass in contact sports however, the P must of however, the P must of course prove the relevant course prove the relevant elements of the tort.elements of the tort.– Giumelli v JohnsotonGiumelli v Johnsoton

CONSENT IN SPORTS CONSENT IN SPORTS

THE BURDEN OF THE BURDEN OF PROOFPROOF

• Since the absence of Since the absence of consent is a consent is a definitional element in definitional element in trespass, it is for the P trespass, it is for the P to prove absence of to prove absence of consent and not for consent and not for the D to prove consentthe D to prove consent

STATUTORY PROVISIONS STATUTORY PROVISIONS ON CONSENTON CONSENT

•Minors (Property and Minors (Property and Contracts) Act 1970 Contracts) Act 1970 ((NSW) ss 14, 49NSW) ss 14, 49

•Children (Care and Children (Care and Protection Act) 1987Protection Act) 1987 (NSW) ss 20 A, 20 B(NSW) ss 20 A, 20 B

SELF DEFENCE, SELF DEFENCE, DEFENCE OF OTHERSDEFENCE OF OTHERS

• A P who is attacked or threatened A P who is attacked or threatened with an attack, is allowed to use with an attack, is allowed to use reasonable forcereasonable force to defend to defend him/herselfhim/herself

• In each case, the force used must In each case, the force used must be proportional to the threat; it be proportional to the threat; it must not be excessive. (Fontin v must not be excessive. (Fontin v Katapodis)Katapodis)

• D may also use reasonable force to D may also use reasonable force to defend a third party where he/she defend a third party where he/she reasonably believes that the party is reasonably believes that the party is being attacked or being threatened being attacked or being threatened

THE DEFENCE OF THE DEFENCE OF PROPERTYPROPERTY

• D may use D may use reasonable forcereasonable force to to defend his/her property if he/she defend his/her property if he/she reasonably believes that the reasonably believes that the property is under attack or property is under attack or threatenedthreatened

• What is reasonable force will What is reasonable force will depend on the facts of each depend on the facts of each case, but it is debatable whether case, but it is debatable whether reasonable force includes reasonable force includes ‘deadly force’ ‘deadly force’

PROVOCATIONPROVOCATION

• Provocation is not a Provocation is not a defence in tort law.defence in tort law.

• It can only be used to avoid It can only be used to avoid the award of exemplary the award of exemplary damages: damages: Fontin v Fontin v Katapodis; Downham Ballett Katapodis; Downham Ballett and Othersand Others

A Critique of the Current A Critique of the Current Position On ProvocationPosition On Provocation

• To discourage vengeance To discourage vengeance and retributive justiceand retributive justice

• The compensation The compensation theory argumenttheory argument

• The gender based thesisThe gender based thesis

The Case for Allowing The Case for Allowing the Defence of the Defence of

ProvocationProvocation• The relationship between The relationship between provocation and contributory provocation and contributory negligencenegligence

• The implication of counterclaimsThe implication of counterclaims•Note possible qualifications Note possible qualifications Fontin v KatapodisFontin v Katapodis to to: : – Lane v HollowayLane v Holloway– Murphy v CulhaneMurphy v Culhane– See Blay: See Blay: ‘Provocation in Tort Liability: A ‘Provocation in Tort Liability: A Time for Reassessment’Time for Reassessment’,QUT Law ,QUT Law Journal, Journal, Vol. 4 (1988) pp. 151-159.Vol. 4 (1988) pp. 151-159.

NECESSITYNECESSITY

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

Urgent Situations of Urgent Situations of Imminent PerilImminent Peril

• The situation must pose a threat to The situation must pose a threat to life or property to warrant the act: life or property to warrant the act: Southwark London B. Council v Southwark London B. Council v WilliamsWilliams

• The defence is available in very The defence is available in very strict circumstances R v Dudley and strict circumstances R v Dudley and StephensStephens

• D’s act must be reasonably D’s act must be reasonably necessary and not just convenient necessary and not just convenient Murphy v McMurchyMurphy v McMurchy – In re FIn re F– Cope v SharpCope v Sharp

INSANITYINSANITY

• Insanity is not a defence as Insanity is not a defence as such to an intentional tort. such to an intentional tort.

• What is essential is whether What is essential is whether D by reason of insanity was D by reason of insanity was capable of forming the capable of forming the intent to commit the tort. intent to commit the tort. ((White v Pile; Morris v White v Pile; Morris v MasdenMasden))

INFANTSINFANTS

• Minority is not a defence as Minority is not a defence as such in torts. such in torts.

•What is essential is whether What is essential is whether the D understood the nature the D understood the nature of his/her conduct (of his/her conduct (Smith v Smith v Leurs; Hart v AG of Leurs; Hart v AG of TasmaniaTasmania) )

DISCIPLINEDISCIPLINE

• PARENTSPARENTS– A parent may use reasonable A parent may use reasonable and moderate force to and moderate force to discipline a child. What is discipline a child. What is reasonable will depend on the reasonable will depend on the age, mentality, and physique age, mentality, and physique of the child and on the means of the child and on the means and instrument used. (R v and instrument used. (R v Terry)Terry)

DISCIPLINEDISCIPLINE

• TEACHERSTEACHERS• CAPTAINS OF VESSELSCAPTAINS OF VESSELS• SPOUSESSPOUSES

ILLEGALITY:Ex turpi ILLEGALITY:Ex turpi causa non oritur actiocausa non oritur actio

• Persons who join in Persons who join in committing an illegal act committing an illegal act have no legal rights inter se have no legal rights inter se in relation to torts arising in relation to torts arising directly from that act.directly from that act.– Hegarty v ShineHegarty v Shine– Smith v JenkinsSmith v Jenkins– Jackson v HarrisonJackson v Harrison– Gala v PrestonGala v Preston