1. WEEK 2 INTENTIONAL TORTS TO THE PERSON BATTERY ASSAULT FALSE IMPRSONMENT

2. INTRODUCTION

3. Frivolous Law Suits and Law Reform?? Read: Liebeck v. McDonald's Restaurants,McDonald's Restaurants, No. D-202 CV-93-02419, 1995 WL 360309 (Bernalillo County, N.M. Dist. Ct.August 18, 1994)WLBernalillo CountyN.M. Dist. Ct. 1.What was the impact of the case on tort law reform in the United States. What comparisons, if any, do you see with regard to tort law reform in Australia that led to the adoption of the CLA? 2.Would punitive damages have been awarded in NSW under the CLA?

4. Trespass Conversion Defamation Misrepresentation Deceit Intentional Torts

6. WHAT IS TRESPASS? Intentional act of D which directly causes an injury to the P or his /her property without lawful justification The Elements of Trespass: – fault: intentional act – injury* caused directly – injury* to the P or to his/her property – No lawful justification

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

8. Intentional Act Direct Absence of lawful justification Interference with person or their property The Elements of Trespass TRESPASS

9. SPECIFIC FORMS OF TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT TREAPASS

10. The Nature of the tort Battery :

11. BATTERY The intentional 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

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

13. 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)

14. Rixon v Star City Casino D places hand on P’s shoulder to attract his attention; no battery

15. 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

16. Platt v Nutt

17. In Re F Per Lord Goff: It is well established that, as a general rule, the performance of a medical operation upon a person without his or her consent is unlawful, as constituting both the crime of battery and the tort of trespass to the person.

18. SHOULD THE PHYSICAL INTERFERENCE BE HOSTILE? Hostility may establish a presumption of battery; but Hostility is not material to proving battery The issue may revolve on how one defines ‘hostility’

19. THE INJURY MUST BE CAUSED DIRECTLY Injury should be the immediate The Case Law: – 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 – Allen v New Mount Sinai Hospital Lawful justification includes the lawful act of law enforcement officers

21. ASSAULT

22. WHAT IS ASSAULT The intentional 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

23. ASSAULT

24. TRESPASS:ASSAULT The intentional 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 It is any act — and not a mere omission to act — by which a person intentionally — or recklessly — causes another to apprehend immediate and unlawful violence:

25. The Gist of the Action …Assault necessarily involves the apprehension of injury or the instillation of fear or fright. It does not necessarily involve physical contact with the person assaulted: nor is such physical contact, if it occurs, an element of the assault. (Barwick CJ in The Queen v Phillips (1971) 45 ALJR 467 at 472

26. 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) – Barton v Davis In general, mere words are may not actionable – Barton v Armstrong But mere silence as in silent telephone calls, may constitute an assault: R v Burstow; R v Ireland [1998] AC 147. In general, conditional threats are not actionable – Tuberville v Savage – Police v Greaves

27. D’ act must induce apprehension in P It must be a ‘reasonable’ apprehension of imminent unlawful physical interference What is imminent depends on the circumstance Police v Greaves Barton v Armstrong Zanka v Vartzokas

28. Zanker v Vartzokas and the issue of imminence/immediacy The Facts: – Accused gives a lift to victim and offers money for sex; victim refuses. – Accused responds by accelerating car, Victim tries to open door, but accused increases acceleration – Accused says to victim: I will take you to my mates house. He will really fix you up – Victim jumps from car then travelling 60km/h

29. Zanker v Vartzokas: The Issues Was the victim’s fear of sexual assault in the future reasonable? Was the feared harm immediate enough to constitute assault?

30. Zanker v Vartzokas: The Reasoning Where the victim is held in place and unable to escape the immediacy element may be fulfilled. The essential factor is imminence not contemporaneity The exact moment of physical harm injury is known to the aggressor It remains an assault where victim is powerless to stop the aggressor from carrying out the threat

31. FALSE IMPRISONMENT

32. SPECIFIC FORMS OF TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT TREAPASS

33. FALSE IMPRISONMENT The intentional act of D which directly causes 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

34. THE ELEMENTS OF THE TORT It requires all the basic elements of trespass: Intentional act Directness Absence of lawful justification Total restraint

35. RESTRAINT IN FALSE IMPRISONMENT The restraint must be total – Bird v Jones (passage over bridge ) – Rudduck v Vadarlis – 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)

36. VOLUNTARY CASES In general, there is no FI where one voluntarily submits to a form of restraint – Herd v Werdale (D refuses to allow P out of mine shaft) – Robison 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.)

37. KNOWLEDGE IN FALSE IMPRISONMENT The knowledge of the P at the moment of restraint is not essential. – Merring v Graham White Aviation – Murray v Ministry of Defense

38. Cases in False Imprisonment Watson v Marshall and Cade (1971) 124 CLR 621, – a police officer asked the plaintiff to accompany him to a psychiatric hospital. The plaintiff believed he would have been compelled to go along if he had refused. The High Court held that the plaintiff had a justified apprehension that, if he did not submit to do what was asked of him, he would be compelled by force to go with the defendant. This restraint thereby imposed on the plaintiff amounted to imprisonment

39. McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250, Appellants were a group of protesters who had engaged in a protest against logging in a Victorian forest area. The respondents imposed a picket near the site which made it impossible for the appellants to leave by the most direct route without permission. However, there was an alternative route available through the bush for exit purposes. There was also evidence that the protesters were anxious to remain at the site during the duration of the picket The Victorian Court of Appeal held that the appellants had remained in the forest, not primarily because of the respondents’ actions but rather for their own reasons — to continue their protest in an endeavour to stop the logging. Moreover, the court agreed with the trial judge that an alternative means of exit was both available and reasonable.

40. Darcy v State of New South Wales [2011] NSWCA 413 The plaintiff had severe developmental disabilities and lived in the community but where she had trouble with the police on occasions. The Local Court ordered that she be taken a residential centre which accommodates and treats persons with intellectual and other disabilities. The Department of Community Services intended that P should be returned to the community but difficulties of a bureaucratic and funding nature prevented this happening. The primary issue was whether the failure to return her and her continued stay at the residential center was FI.

41. State of South Australia v Lampard- Trevorrow (2010) 106 SASR 331 When P was about a year old, he was taken from hospital by an officer of the Aborigines Protection Board and later placed in long-term foster care without his parents knowing of the removal or the fostering. Issue whether there was FI. The Full Court unanimously held that, while neither the plaintiff nor his parents had consented to his foster placement, he was not falsely imprisoned during the period of his foster care. The fact that the plaintiff was an infant and needed care and nurture spoke against any finding of restraint. Any element of restraint, whilst he grew as a young child, was solely attributable to the obligation of his foster parents to care for him and also attributable to his immaturity. However that the plaintiff’s claim of negligence against the State was upheld by the appeal court.

42. INTENTIONAL TORTS TO PROPERTY

43. TRESPASS TO PROPERTY: LAND

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

45. 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

46. 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)

47. 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

48. 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

49. 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 The nature of possession depends on the material possessed

50. 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)¯

51. THE POSITION OF TRESPASSERS AND SQUATTERS A trespasser/squatter in exclusive possession can maintain an action against any other trespasser – Newington v Windeyer (1985) 3 NSWLR

52. 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)

53. 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 a b initio/pro tanto

54. Case Law – Singh v Smithenbecker: D entered land to take sheep lawfully purchased. But became trespasser once he removed P’s gate and took certain sheep without permission. – Bond v Kelly: D became trespasser when he cut more timber from P’s land than permitted amount. – However see: Healing (Sales) v Inglic Electrix: D went to P’s house to take some of their property, but also took P’s. Held: Barwick CJ and Menzies J -D was not liable as part of purpose was lawful. Kitto J said taking P’s stuff made them liable. Thus, there is some doubt as to the trespass pro tanto doctrine.

55. THE POSITION OF 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 )

56. 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.

57. TRESPASS TO PROPERTY LAND GOODS/CHATTELS

58. TRESPASS TO PROPERTY LAND GOODS/CHATTELS GOODS/CHATTELS Personal property Personal property

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

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

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

62. 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 )