LAW OF TORTS

1
LAW OF TORTS

• LECTURE 3
• Intentional torts to Chattels
• Action on the case for Wilful Injury
• Defences to Intentional Torts

2
TRESPASS TO PROPERTY
TRESPASS TO PROPERTY
LAND
GOODS/CHATTELS
3
TRESPASS TO PROPERTY

• GOODS/CHATTELS
• Personal property

TRESPASS TO PROPERTY
LAND
4
TRESPASS TO GOODS/CHATTEL

• The intentional/negligent act of D which
  directly interferes with the plaintiffs
  possession of a chattel without lawful
  justification
• The P must have actual or constructive
  possession at the time of interference.

5
DAMAGES

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

6
CONVERSION

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

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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)

8
ACTS OF CONVERSION

• Mere asportation is no conversion
• Fouldes v Willoughby
• The Ds conduct must constitute an unjustifiable
  denial of Ps 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

9
ACTS OF CONVERSION

• Misdelivery ( Ashby v Tolhurst (1937 2KB)
  Sydney City Council v West)
• Unauthorized dispositions in any manner that
  interferes with Ps title constitutes conversion
  (Penfolds Wines v Elliott)

10
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)

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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 Winkfiled
• General and Finance Facilities v Cooks Cars
  (Romford)

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CONVERSION, TRESPASS AND DETINUE
13
THE LAW OF TORTS

• Action on the Case for Indirect Injuries

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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

15
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)

16
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

17
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, Ds
  intention to cause the resulting harm can be
  imputed/implied

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THE SCOPE OF THE RULE

• The rule does not cover pure mental stress or
  mere fright
• The act must be reasonably capable of causing
  mental distress to a normal person
• Bunyan v Jordan
• Stevenson v Basham

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IS THERE ROOM FOR EXTENDING THE SCOPE

• The normal person in Wilkinson v Downton
• The normal/reasonable person The gender/race
  debate

20
The Scope of Intentional Torts to the Person

• Trespass
• Battery,
• False Imprisonment
• Assault
• Action on the case (Wilkinson v Downton)

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Prospects for Development in the Common Law

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

22
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 (Marions Case) 1992 175 CLR 218

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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

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THE LAW OF TORTS

• Defences to Intentional Torts

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INTRODUCTION The Concept of Defence

• Broader Concept The content of the Statement of
  Defence- The response to the Ps Statement of
  Claim-The basis for non-liability
• Statement of Defence may contain
• Denial
• Objection to a point of law
• Confession and avoidance

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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

27
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
  (Marions Case) 1992 175 CLR 218

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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)

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CONSENT IN SPORTS

• 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 Johnsoton

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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

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STATUTORY PROVISIONS ON CONSENT

• Minors (Property and Contracts) Act 1970 (NSW)
  ss 14, 49
• Children (Care and Protection Act) 1987 (NSW) ss
  20 A, 20 B

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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

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THE DEFENCE OF PROPERTY

• D may use reasonable force to 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

34
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

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A Critique of the Current Position On Provocation

• To discourage vengeance and retributive justice
• The compensation theory argument
• The gender based thesis

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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.

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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

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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
• Ds act must be reasonably necessary and not
  just convenient Murphy v McMurchy
• In re F
• Cope v Sharp

39
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 Masden)

40
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)

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DISCIPLINE

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

42
DISCIPLINE

• TEACHERS
• CAPTAINS OF VESSELS
• SPOUSES

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ILLEGALITYEx turpi causa non oritur actio

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