LAW OF TORTS LECTURE 3 Intentional torts to Chattels Action on the case for Wilful Injury Defences to Intentional Torts

TRESPASS TO PROPERTY TRESPASS TO PROPERTY LAND GOODS/CHATTELS

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

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.

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

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

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)

ACTS OF CONVERSION Mere asportation is no conversion Fouldes v Willoughby The D’s conduct must constitute an unjustifiable denial of P’s 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

ACTS OF CONVERSION Misdelivery ( Ashby v Tolhurst (1937 2KB); Sydney City Council v West) Unauthorized dispositions in any manner that interferes with P’s title constitutes conversion (Penfolds Wines v Elliott)

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)

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)

CONVERSION, TRESPASS AND DETINUE

Action on the Case for Indirect Injuries THE LAW OF TORTS Action on the Case for Indirect Injuries

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

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)

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

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, D’s intention to cause the resulting harm can be imputed/implied

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

IS THERE ROOM FOR EXTENDING THE SCOPE The normal person in Wilkinson v Downton The normal/reasonable person: The gender/race debate

The Scope of Intentional Torts to the Person Trespass: Battery, False Imprisonment Assault Action on the case (Wilkinson v Downton)

Prospects for Development in the Common Law Rape Cases Sexual harassment Cases Racial/Ethnic harassment Cases

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 (Marion’s Case) 1992 175 CLR 218

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

Defences to Intentional Torts THE LAW OF TORTS Defences to Intentional Torts

INTRODUCTION: The Concept of Defence Broader Concept: The content of the Statement of Defence- The response to the P’s Statement of Claim-The basis for non-liability Statement of Defence may contain: Denial Objection to a point of law Confession and avoidance:

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

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 (Marion’s Case) 1992 175 CLR 218

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)

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

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

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

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

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’

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

A Critique of the Current Position On Provocation To discourage vengeance and retributive justice The compensation theory argument The gender based thesis

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.

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

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

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)

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)

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)

DISCIPLINE TEACHERS CAPTAINS OF VESSELS SPOUSES

ILLEGALITY:Ex 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