1. STUDENT SURVEY FEEDBACK FEBRUARY 2017
03-Law of Torts
STUDENT SURVEY FEEDBACK FEBRUARY 2017

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5. Introduction Intentional Torts Professor Sam Blay
03 THE LAW OF TORTS
Introduction
Intentional Torts
Professor Sam Blay

6. THE LECTURE STRUCTURE Texts Definition, aims and scope of law of torts
Intentional torts

8. TEXT BOOKS
Dominic Villa Annotated Civil Liability Act Lawbook Co. (2016)
Balkin and Davis The Law of Torts 5th Ed LexisNexis
Luntz & Hambly, Torts - Cases and Commentary, 7th ed. LexisNexis,
Stewart and Stuhmcke, Australian Principles of Torts Law Federation Press, 3rd Ed
Blay, Torts in a Nutshell LBC

9. DEFINITION: THE NATURE OF TORTS
INTRODUCTION
DEFINITION: THE NATURE OF TORTS

10. WHAT IS A TORT? A tort is a civil wrong
That (wrong) is based a breach of a duty imposed by law

11. Torts and Crime

12. THE DIFFERENCE BETWEEN A TORT AND A CRIME
A crime is a public /community wrong that gives rise to sanctions usually designated in a specified code. A tort is a civil ‘private’ wrong.
An 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

13. 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

14. Proof: balance of probabilities CRIME A criminal action
TORT
A civil action
Brought by the victim
Remedy: compensation
Proof: balance of probabilities
CRIME
A criminal action
Brought by the Crown
Remedy: punishment
Proof: beyond reasonable doubt

16. TORTS DISTINGUISHED FROM BREACH OF CONTRACT
A breach of contract arises from breach of promise(s) made by the parties themselves.
CIVIL OBLIGATIONS
TORT
BREACH OF CONTRACT

17. Protects what is already owned or possessed Damages unliquidated
TORTS
Duty owed generally
Duty imposed by law
Protects what is already owned or possessed
Damages unliquidated
CONTRACT
Duty to other contracting party
Duty arises from parties’ promises
Protects expectation of future benefits
Damages often liquidated

18. SIMILARITIES BETWEEN TORT AND CONTRACT
Both tort and breach of contract give rise to civil suits
In some instances, a breach of contract may also be a tort: eg an employer’s failure to provide safe working conditions

19. Questions
What are the objectives of tort law?

20. THE OBJECTIVES 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.

21. Question
What interests are protected by the Law of Torts, and how are these interests protected?

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

23. SOURCES OF TORT LAW Common Law: Statute:
The development of torts by precedent through the courts
Donoghue v Stevenson
Statute:
Thematic statutes: eg Motor Accidents legislation
Motor Accidents Compensation Act 1999
General statutes: eg Civil Liability legislation
The Civil Liability Act (NSW) 2002

24. BASIC ACTIONS IN TORT LAW
Trespass
Directly caused injuries
Requires no proof of damage ( actionable per se)
Action on the Case/Negligence
Indirect injuries
Requires proof of damage

25. LIABILITY IN TORTS

26. LIABILITY IN TORT LAW Liability = responsibility
Liability may be based on fault or it may be strict
Fault liability: the failure to live up to a standard through an act or omission .

27. TYPES OF FAULT LIABILITY
Intentional
Negligence
Fault

28. Intention in Torts Deliberate or wilful conduct
‘Constructive’ intent: where the consequences of an act are substantially certain: t
Where conduct is reckless
Transferred intent: where D intends to hit ‘B’ but misses and hits ‘P’

29. Negligence in Torts When D is careless in his/her conduct
When D fails to take reasonable care to avoid a reasonably foreseeable injury to another and that party suffers damage.

30. STRICT LIABILITY
No fault is required for strict liability

31. INTENTIONAL TORTS TO THE PERSON
BATTERY
ASSAULT
FALSE IMPRSONMENT

32. Trespass Intentional Torts Deceit Conversion Defamation
Misrepresentation
Deceit
Intentional Torts

33. 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
interference caused directly
interference to the P or to his/her property
No lawful justification

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

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

36. Battery :
The Nature of the tort

37. 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

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

39. 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)

40. Croucher v Cachia [2016] NSWCA 132

41. Uguzcu v Macquarie Hotel Liverpool Pty Ltd [2016] NSWSC 843

42. White v Johnston [2015] NSWCA 18
The issues on appeal:
Whether a patient's consent is invalid if the sole purpose of treatment is non-therapeutic;
Whether the absence of consent forms the gist of assault and battery; and
Whether the onus of proving consent lies with the patient or the practitioner.

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

44. 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

45. 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’

46. THE INJURY MUST BE CAUSED DIRECTLY
Injury should be the immediate The Case Law:
Scott v Shepherd ( Lit squib/fireworks in market place)

47. 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

48. White v Johnston [2015] NSWCA 18
The issues on appeal:
Whether a patient's consent is invalid if the sole purpose of treatment is non-therapeutic;
Whether the absence of consent forms the gist of assault and battery; and
Whether the onus of proving consent lies with the patient or the practitioner.

49. Assault

50. 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:

51. THE ELEMENTS OF ASSAULT
There must be a direct threat:
State of New South Wales v McMaster [2015] NSWCA 228; 328 ALR 309, 
State of New South Wales v Ibbett [2005] NSWCA 445

52. Police v Greaves Barton v Armstrong Zanka v Vartzokas
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

53. 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

54. 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?

55. 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

56. Mere Words and Silence In general, mere words are may not actionable
Barton v Armstrong
But silence as in silent telephone calls, may constitute an assault: R v Burstow; R v Ireland [1998] AC 147.

57. Conditional Threats In general, conditional threats are not actionable
Tuberville v Savage
Police v Greaves

58. False Imprisonment Trespass to Land
03 THE LAW OF TORTS
False Imprisonment
Trespass to Land

59. False imprisonment

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

61. 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

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

63. 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
Zanker v Vartzokas (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)

64. KNOWLEDGE IN FALSE IMPRISONMENT
The knowledge of the P at the moment of restraint is not essential.
Merring v Graham White Aviation
Commonwealth v Fernando (2012) 200 FCR 1
Goldie v Commonwealth [2004] FCA 156

65. 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.

66. INTENTIONAL TORTS TO PROPERTY

67. SPECIFIC FORMS OF TRESPASS
TREAPASS
PERSON
PROPERTY
BATTERY
LAND
CHATTELS
ASSAULT
FALSE IMPRISONMENT

68. Trespass to property: land

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

70. Cujus esft solum ejus est usque ad coelum et inferos
SCOPE OF THE TORT
Land includes the actual soil/dirt, the structures/plants on it and the airspace above it
Cujus esft solum ejus est usque ad coelum et inferos
Bernstein of Leigh v Skyways & General Ltd
Kelson v Imperial Tobacco

71. 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
Bathurst City Council v Saban

72. trespass to land: Title to sue

73. 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

74. 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

75. 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.
A co-possessor can maintain an action against a trespasser (Coles Smith v Smith and Ors)¯

76. 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

77. 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)

78. 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/pro tanto

79. 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.

80. 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 )

81. 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.

82. Interference with Goods Action on the case for willful injury Defences
03 THE LAW OF TORTS
Interference with Goods
Action on the case for willful injury
Defences

83. TRESPASS TO CHATTELS

84. 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.

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

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

87. CONVERSION: Who Can Sue?
Owners
Those in possession or entitled to immediate possession
Bailees*
Bailors*
Mortgagors* and Mortgagees*
Finders

88. ACTS OF CONVERSION
Misdelivery
Unauthorized dispositions in any manner that interferes with P’s title constitutes conversion (Penfolds Wines v Elliott)

89. 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)

90. 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 Winkfield
General and Finance Facilities v Cooks Cars (Romford)

91. Action on the Case for Indirect Injuries

92. 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

93. THE INTENTIONAL ACT
The intentional may be deliberate and preconceived
It may also be inferred or implied; the test for the inference is objective
Wilkinson v Downton
Janvier v Sweeney
Nationwide News v Naidu
Carrier v Bonham [2001] QCA 234

94. THE SCOPE OF THE RULE
The rule does not cover ‘pure’ mental stress or mere fright
Wainright v Home Office
The act must be reasonably capable of causing mental distress to a normal* person:
Bunyan v Jordan
Stevenson v Basham

95. The Future of the Wilkinson v Downtown
The High Court obiter dicta Magill v Magill
Subsequent developments in Anglo-Australian law recognise these cases as early examples of recovery by reference to imputed intention to cause physical harm ; a cause of action later subsumed under the unintentional tort of negligence ( Per Gummow, Kirby and Crennan JJ)
Wilkinson v Downton, decided in 1987 and Janvier v Sweeney decided in 1919, which were cases of deception causing nervous shock, would probably now be explained either on the basis of negligence or intentional infliction of personal injury ( per Gleeson CJ)

96. 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

97. White v Johnston [2015] NSWCA 18
The issues on appeal:
Whether a patient's consent is invalid if the sole purpose of treatment is non-therapeutic;
Whether the absence of consent forms the gist of assault and battery; and
Whether the onus of proving consent lies with the patient or the practitioner.

98. 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

99. Defences to Intentional Torts

100. 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:

101. 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

102. 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

103. 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)

104. CONSENT IN SPORTS http://www.youtube.com/watch?v=VgtKW5PLso4
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

105. Self-Defence CLA S52
 1. A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a)  to defend himself or herself or another person, or
(b)  to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c)  to protect property from unlawful taking, destruction, damage or interference, or
(d)  to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.

106. Croucher v Cachia [2016] NSWCA 132

108. State of New South Wales v McMaster; State of New South Wales v Karakizos; State of New South Wales v McMaster [2015] NSWCA 228

109. The Issue of Reasonable Response: CLAs53
Where s52 could apply but for the fact that the conduct was not a reasonable response in the circumstances as D perceived them, a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that:
(a)  the circumstances of the case are exceptional, and
(b)  in the circumstances of the case, a failure to award damages would be harsh and unjust.

110. Sahade v Bischoff [2015] NSWCA 418
An altercation occurred when the respondent caught the appellant breaking apart his staircase with a sledgehammer.

111. 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’
But see S52(3) CLA:
S52 provisions on self defence does not protect D if D’s conduct involves the intentional or reckless infliction of death only:
(a)  to protect property, or
(b)  to prevent criminal trespass or to remove a person committing criminal trespass.

112. 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

113. 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
London Borough of Southwark Council v Williams [1971] 1 Ch 734
Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147
State of Queensland v Nolan Qd R 454
Murray v McMurchy [1949] 2 DLR 442

114. 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

115. 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)

116. 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)

117. 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)

118. 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.
Gollan v Nugent (1988) 166 CLR 18