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

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

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

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

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)

SPECIFIC FORMS OF TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

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

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

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

FORMS OF FALSE IMPRISONMENT See the following Cases: Cowell v. Corrective Services Commissioner of NSW (1988) Aust. Torts Reporter ¶81-197. Louis v. The Commonwealth of Australia 87 FLR 277. Lippl v. Haines & Another (1989) Aust. Torts Reporter ¶80-302; (1989) 18 NSWLR 620.

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.)

WORDS AND FALSE IMPRISONMENT In general, words can constitute FI

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

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

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.

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 )

OTHER FORMS OF TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

TRESPASS TO PROPERTY TRESPASS TO PROPERTY LAND GOODS/CHATTELS

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

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

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)

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

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

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

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)¯

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

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)

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)

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 )

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.

REMEDIES Ejectment Recovery of Possession Award of damages Injunction

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

CONVERSION:TROVER 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)

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

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)

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)

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

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.

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