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

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

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

4. 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.

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

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

7. 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)

8. 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

9. 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)

10. 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)

11. 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)

12. CONVERSION, TRESPASS AND DETINUE

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

14. 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

15. 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)

16. 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

17. 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

18. 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

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

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

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

22. 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

23. 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

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

25. 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:

26. 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

27. 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

28. 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)

29. 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

30. 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

31. STATUTORY PROVISIONS ON CONSENT
Minors (Property and Contracts) Act (NSW) ss 14, 49
Children (Care and Protection Act) 1987 (NSW) ss 20 A, 20 B

32. 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

33. 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’

34. 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

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

36. 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

37. 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

38. 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

39. 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)

40. 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)

41. 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)

42. DISCIPLINE
TEACHERS
CAPTAINS OF VESSELS
SPOUSES

43. 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