1. LAW OF TORTS

2. Essentials of Tort Law Tort Law Origins
Historically dealt with "duty" owed to everyone you haven't agreed with in advance
"Tort" = “Wrong”
The law of negligence
Personal injury
Property damage
Not for economic losses

3. WHAT IS A TORT? A tort is a civil wrong
That (wrong) is based a breach of a duty imposed by law
Which (breach) gives rise to a (personal) civil right of action for for a remedy not exclusive to another area of law

4. Tort Law Operation
Must take reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your neighbour
“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”

5. Reasonable Care -- The "reasonable man" test
“The reasonable man is a mythical creature of the law whose conduct is the standard by which the Courts measure the conduct of all other persons and find it to be proper or improper in particular circumstances as they may exist from time to time. He is not an extraordinary or unusual creature; he is not superhuman; he is not required to display the highest skill of which anyone is capable; his is not a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. He is a person of normal intelligence who makes prudence a guide to his conduct. He does nothing that a prudent man would not do and does not omit to do anything that a prudent man would do. His conduct is guided by considerations which ordinarily regulate the conduct of human affairs. His conduct is the standard ‘adopted in the community by persons of ordinary intelligence and prudence’.”

6. The "Reasonable Engineer or Geoscientist"
“How do you test whether this act or failure is negligent? In an ordinary case it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

7. Application of Tort Law to Commercial Transactions
Historically, liability had to follow contractual chain
Manufacturer  ↓
Distributor
Consumer

8. Who is my "neighbour" and what is "foreseeable"?
There must be a "sufficiently close relationship between
the parties" (proximity) to "justify imposition of a duty" and
There must be no "policy considerations" to prevent the
imposition of liability
Very complicated to determine, but the number of people to whom a duty is owed is probably expanding

9. THE DIFFERENCE BETWEEN A TORT AND A CRIME
A crime is public /community wrong that gives rise to sanctions usually designated in a specified code. A tort is a civil ‘private’ wrong.
Action in criminal law is usually brought by the state or the Crown. Tort actions are usually brought by the victims of the tort.
The principal objective in criminal law is punishment. In torts, it is compensation

10. THE DIFFERENCE BETWEEN A TORT AND A CRIME
Differences in Procedure:
Standard of Proof
Criminal law: beyond reasonable doubt
Torts: on the balance of probabilities

11. THE AIMS OF TORT LAW
Loss distribution/adjustment: shifting losses from victims to perpetrators
Compensation: Through the award of (pecuniary) damages
The object of compensation is to place the victim in the position he/she was before the tort was committed.
Punishment: through exemplary or punitive damages. This is a secondary aim.

12. INTERESTS PROTECTED IN TORT LAW
Personal security
Trespass
Negligence
Reputation
Defamation
Property
Conversion
Economic and financial interests

13. INTENTIONAL TORTS
INTENATIONAL TORTS
Trespass
Conversion
Detinue

14. WHAT IS TRESPASS?
Intentional or negligent act of D which directly causes an injury to the P or his /her property without lawful justification
The Elements of Trespass:
fault: intentional or negligent act
- injury must be direct
injury* may be to the P or to his/her property
- No lawful justification

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

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

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

18. BATTERY
The intentional or negligent 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

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

20. CAPACITY TO FORM THE INTENT
D is deemed capable of forming intent if he/she understands the nature of (‘intended’) his/her act
-Infants
Lunatics
Morris v Marsden
Hart v A. G. of Tasmania ( infant cutting another infant with razor blade)

21. 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)

22. The Nature of the Physical Interference
Rixon v Star City Casino (D places hand on P’s shoulder to attract his attention; no battery)
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)
Platt v Nutt

23. THE INJURY MUST BE CAUSED DIRECTLY
Injury should be the immediate:
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)

24. 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
Lawful justification includes the lawful act of law enforcement officers
Wilson v. Marshall (D accused of assaulting police officer, held officer’s conduct not lawful)

25. 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

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)
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

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

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

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

30. 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

31. 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

32. 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

33. 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.

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

35. WORDS AND FALSE IMPRISONMENT
In general, words can constitute FI
see Balkin & Davis pp. 55 to 56:
“restraint… even by mere threat of force which intimidates a person into compliance without any laying on of hands” may be false imprisonment
- Symes v Mahon

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

37. 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 v Waters Ltd
Bahner v Marwest Hotels Co

38. 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 situation under statute:
Watson v Marshall and Cade (1971) 124 CLR 621
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.

39. 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 )

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

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

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

43. 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

44. STATUTORY EASEMENTS Conveyancing Act 1919 s 88K (NSW)
1. The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.
2. Such an order may be made only if the Court is satisfied that:
(a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and
(b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land …can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement
all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful

45. RESTRICTIONS ON STATUTORY EASEMENTS
‘Property rights are valuable rights and the court should not lightly interfere with [such] property rights… [the section] does not exist for people build right up to the boundary of their property [or] build without adequate access and then expect others to make their land available for access’ per Young J Hanny v Lewis (1999) NSW Conv. R at
‘Developers have a responsibility to act reasonably as do the proprietors of adjoining land and the developers should not just proceed as if they would automatically get what they seek without negotiations’ (per Windeyer J Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR)

46. The Issue of Compensation
88K (2) Such an order may be made only if the Court is satisfied that: the owner of the land to be burdened by the easement and each other person having an estate or interest in that land …can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement
Adequate compensation: (Wengarin Pty Ltd v Byron Shire Council [1999] NSWSC 485)
the diminished market value of the servient land
associated costs that would be caused to the owner
loss of amenities such as peace and quite
where assessment proves difficult, the court may assess compensation on a percentage of the profits that would be made from the use of the easement

47. Neighbouring land Access and Utility Service Orders
The Access to Neighbouring Land Act ss11 and 13
(1) A Local Court may make a neighbouring land access /utility service access order if it is satisfied that access to land is required for the purpose of carrying out work on or in connection with a utility service situated on the land and it is satisfied that it is appropriate to make the order in the circumstances of the case
(2) The Court must not make a utility service access order unless it is satisfied:
(a) that the applicant has made a reasonable effort to reach agreement with every person whose consent to access is required as to the access and carrying out of the work, and
(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with [the Act]

48. 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)

49. 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

50. 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

51. 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

52. 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)¯

53. 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)

54. THE TRESPASSORY ACT Preventing P’s access Waters v Maynard)
The continuation of the initial trespassory act is a 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 (Barker v R)

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. REMEDIES Ejectment Recovery of Possession Award of damages Injunction
Parramatta CC v Lutz
Campbelltown CC v Mackay
XL Petroleum (NSW) v Caltex Oil

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

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*/Mortgagees*(Citicorp Australia v B.S. Stillwell)
Finders (Parker v British Airways; Armory v Delmirie)

63. 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 [1980]
Finders of lost property
Parker v British Airways [1982]
The position of the auctioneer
Willis v British Car Auctions [1978]
Destruction of the chattel is conversion
Atkinson v Richardson
Taking possession
Withholding possession
Clayton v Le Roy [1911]

64. 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)

65. 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)

66. 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 Medianal
Butler v The Egg and Pulp Marketing Board
The Winkfield
General and Finance Facilities v Cooks Cars (Romford)

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

68. 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

69. 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)

70. 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 [1897]
Janvier v Sweeney [1919]

71. 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

72. 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 (1937)
Stevenson v Basham [1922]

73. 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) CLR 218

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

75. 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:

76. 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)

77. 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) CLR 218

78. VALID CONSENT
To be valid, consent must be informed and procured without fraud or coercion: ( R v Williams;)
To invalidate consent, fraud must relate directly to the agreement itself, and not to an incidental issue: (Papadimitropoulos v R (1957) 98 CLR 249)

79. 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 Johnston

80. 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

81. STATUTORY PROVISIONS ON CONSENT
Minors (Property and Contracts) Act (NSW) ss 14, 49
Children & Young Persons (Care and Protection Act) 1998 (NSW) ss 174, 175

82. 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

83. 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’

84. 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 v Bellette (1986) Aust Torts Reports

85. 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

86. 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

87. 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 Murray v McMurchy
In re F
Cope v Sharp

88. 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 Marsden)

89. 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)

90. 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)

91. 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

92. TRESPASS & CLA 2002
s.3B(1)(a) Civil Liability Act (“CLA”) i.e. CLA does not apply to “intentional torts”, except Part 7 of the Act.
s.52 (2) CLA subjective/objective test i.e. subjective ("…believes…" & "…perceives…")/ objective ("…reasonable response…") test.
s.53(1)(a) & (b) CLA i.e. “and” = two limb test; "exceptional" and "harsh and unjust“ are not defined in the Act so s.34 of the Interpretation Act 1987.
s.54(1) & (2) CLA i.e. "Serious offence" and "offence" are criminal terms so reference should be made to the criminal law to confirm whether P's actions are covered by the provisions.