1. LAW OF TORTS LECTURE 2 Assault False Imprisonment Trespass to Land
Trespass to Chattels

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

3. 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

4. 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)
Rozsa v Samuels ( threat to cut P into bits)
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

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

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

7. FALSE IMPRISONMENT
The intentional or negligent 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

8. 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

9. 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

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

11. 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.)

12. WORDS AND FALSE IMPRISONMENT
In general, words can constitute FI

13. 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

14. 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 vWaters Ltd
Bahner v Marwest Hotels Co

15. 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 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.

16. 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 )

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

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

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

20. Cujus est solum ejus est usque ad coelum et inferos
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

21. 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)

22. 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

23. 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

24. 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

25. 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)¯

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

27. 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)

28. 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)

29. 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 )

30. 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.

31. REMEDIES
Ejectment
Recovery of Possession
Award of damages
Injunction

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

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

34. 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.
It may not be actionable per se (Everitt v Martin)

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

36. 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)

37. Bailments and Mortgages
Bailment: The delivery/giving of chattels to another on condition that they will be returned to the bailor after a specified time or purpose.
The ‘giver’= bailor, ‘recipient to another person as security for a debt; transferee=mortgagee; transferor= mortgagor

38. ACTS OF CONVERSION
Mere asportation is no conversion
The D’s conduct must constitute an unjustifiable denial of P’s rights to the property
Destruction of the chattel is conversion (Atkinson v Richardson; Fouldes v Willoughby)
Taking possession
Withholding possession (Clayton v Le Roy)

39. ACTS OF CONVERSION
Misdelivery ( Ashby v Tolhurst (1937 2KB); Sydney City Council v West)
Disposition by sale: that ‘sale’ without delivery may not constitute sale
Unauthorized dispositions in any manner that interferes with P’s title constitutes conversion ( Penfolds Wines)

40. 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

41. REPLEVIN
A provisional remedy which allows a P who is out of possession to regain possession until the right to the goods is determined by Court.

42. 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