TORTS SUMMARY - WEEK 2INTENTIONAL TORTS, TRESPASS TO THE PERSON 1. Trespass – General characteristics • in the law of tort, it is a crossing of some “boundary” • can have trespass to the person, to land, to goods • “actions on the case” – are where harm is not direct – eg. malicious prosecution, privacy, nuisance, negligence 1 ELEMENTS a) Harm must be direct • act of laying poisoned baits not direct harm - Hutchins v Maughan [1947] VLR 131. • feeding sheep pellets contaminated with pig meat not direct harm – Rural Export & Trading (WA) Pty Ltd v Hahnheuser (2007) 243 ALR 356 (overturned in Rural Export & Trading (WA) Pty Ltd v Hahnheuser [2008] FCAFC 156 (22 August 2008) – the Full Court noted there that contamination of the pellets was in the interest of “environmental protection”. But they did not disagree with the reasoning on the trespass issue.) • chain of causation not broken – throwing a lighted firecracker into a crowded market place and it being thrown from one to another, this reaction held to be involuntary - Scott v Shepherd (1773) 2 W Bl 892. • battery of a child when man hit woman, causing her to drop child – “directness" not broken by chain of events - Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890; [2000] 2 Cr. App. R. 339. 1/2 b) Actionable per se • “of itself” - no need to prove harm • the law regards the boundary crossing itself as inherently harmful • “action on the case” (negligence) require proof of harm 2 c) Burden of proof • “balance of probabilities” • plaintiff must make out the elements of the action – the voluntary crossing of the relevant “boundary” • onus then lies on defendant to show justification - McHale v Watson (1964) 111 CLR 384, per Windeyer J. 2 d) Relevance of “intention” to trespass • not necessary to show intention to cause harm • necessary to show act was “voluntary” – Public Transport Commission v Perry (1977) 137 CLR 107. • necessary to show either intention or negligence as to the act - Stanley v Powell [1896] 1 QB 86 and McHale v Watson (1964) 111 CLR 384. 3 1 defendant must show that he or she exercised a due amount of care in the circumstances. the burden will be on the plaintiff to show that the defendant's action was either intentional or careless 5 2. a different rule applies in motor accident cases . • In UK . duty of care • in Australia both actions still available . Battery a) Inviolate nature of the person 2 . Williams v Milotin (1957) 97 CLR 465.TORTS SUMMARY . 4 Remoteness • in trespass all damage is recoverable not just that which was foreseeable • in an action for negligence the rules of “remoteness” limit recovery for unforeseeable damage 4 e) Burden of proof in trespass Non-motor accident cases • once a prima facie case of trespass made out. • limitation periods were different but are same now 3 Other reasons for choosing Trespass rather than Negligence Contributory negligence – operates to reduce damages • would not be available in an action for intentional trespass . Trespass to the Person in General . per Bray CJ. • might be available in a case of trespass based on negligence . onus usually on defendant to show that neither intention nor negligence was present • in a case of alleged negligence.three types • battery • assault • false imprisonment 5 3. action for trespass caused by negligence – where there is direct harm 2.Horkin v North Melbourne Football Club Social Club [1983] VR 153. action for negligence – descended from “action on the case” – focuses on carelessness of D – eg.see Venning v Chin (1974) 10 SASR 299.no action for trespass when carelessness involved since Letang v Cooper [1965] 1 QB 232. etc.Venning v Chin (1974) 10 SASR 299. • hence an action for trespass based on a running down of a pedestrian.Venning v Chin (1974) 10 SASR 299 and NSW v Riley [2003] NSWCA 208 at para [106] per Hodgson JA.WEEK 2 Distinction between two legal actions – 1. 5 Motor accident cases • for pragmatic reasons. touching does not have to be hostile . • can have battery without assault – Forde v Skinner (1830) 4 Car & P 239. • 3 . Darby v Director of Public Prosecutions [2004] NSWCA 431. citing Boughey v The Queen (1986) 161 CLR 10.cited in Rixon v Star City Pty Ltd 53 NSWLR 98 at [56]. at 310-311. coupled with the capacity of carrying that intention into effect’ .NSW v Ibbett [2006] HCA 57. • pointing a gun – held was assault .Balkin and Davis at p 44.in Australia. consent is a defence.Collins v Wilcock [1984] 3 All ER 375 at 378.Darby v Director of Public Prosecutions [2004] NSWCA 431. • person is put in fear of actual contact – no contact is needed . Plaintiff put in fear of imminent violence.caused “an immediate apprehension of harm” . Dept of Health and Community Services v JWB (1992) 175 CLR 218. 7 c) Exceptions to the general rule • reasonable punishment of children • self-defence • prevention of crime • the “exigencies” of life – implied consent . • imminent violence – Defendant must have capacity of carrying out threat.any touching of another person. gen ed. • conditional threat – assault if was excessive response to threat from P . in Secretary. • lawful arrest 8/9 4.Zanker v Vartzokas (1988) 34 A Crim R 11. Sweet & Maxwell.Rozsa v Samuels [1969] SASR 205. • consent . M R Brazier.“Proof of assault requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact … proof of assault does not require proof of an intention to follow it up or carry it through. and must be proved by the defendant McHugh J obiter. 17th ed (1995) London.” Rixon v Star City Pty Ltd 53 NSWLR 98 at [58] per Sheller JA. Assault • Assault is ‘an overt act indicating an immediate intention to commit a battery. however slight. para [18]. • a conditional threat can still amount to an assault where the condition relates to the plaintiff’s future conduct and the defendant has no right to demand that future conduct . may amount to a battery . per Robert Goff LJ.WEEK 2 the common law protects personal integrity . 590 [12-12].Rixon v Star City Pty Ltd (2001) 53 NSWLR 98. threat was continuing . 7 b) “Anger” not necessary part of tort of battery • in Australia. and affirmed in McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903 at [99]. from Clerk & Lindsell on Torts. 172 All ER 687 – cutting hair without consent. per Giles JA at [79].TORTS SUMMARY . McFadzean and Ors v C.WEEK 2 • words alone – can constitute assault – late night threatening phone calls .M.E.R v Macquarie (1875) 13 SCR (NSW) 264. fear and power of social constraint . Coles Myer Limited v Thompson [2009] NSWCA 299 (8 Oct 2009) – and Coles found vicariously liable.Myer Stores Ltd v Soo [1991] 2 VR 589 at 625. Reviewed and affirmed in Coles Myer Limited v Webster. Trevorrow v SA (No 5) [2007] SASC 285.Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379.” . 14 b) Directness • harm must be direct • constraint by police at instigation of D – D held liable where police are the agent of D but not when police have made own enquiries . • “the restraint may be constituted by a person having a justified apprehension that if he did not submit to what he was asked to do he would be compelled to do it by force. ultimately held and upheld (McFadzean v CFMEU and ors [2007] VSCA 289 (13 Dec 2007)was not false imprisonment – protestors had other ways out [100] and had decided not to leave [173]. False Imprisonment • tort protects personal integrity .Barton v Armstrong [1969] 2 NSWR 451. per Taylor J. Myer Stores Ltd v Soo [1991] 2 VR 589. 4 .Dickinson v Waters Ltd (1931) 31 SR (NSW) 593. 9/11 5.U and Ors [2004] VSC 289.TORTS SUMMARY . eg Zanker v Vartzokas (1988) 34 A Crim R 11. • force of authority. per Gray J at [987].F. unjustified 11 a) Total restraint of freedom • restraint must be total. held to be imprisonment where someone would had to have swum to shore from a boat .the freedom to move • essence of the action: the total restraint of freedom of a person • "false" here means wrongful.if the only means of exit from a situation will itself pose a danger.Bird v Jones (1845) 7 QB 742. 12 • threats may be enough . • all reasonable avenues of escape must be cut off • the "prison" does not have to be physical walls • no "reasonable way out" . 11/12 • but – could have jumped in harbour . 13/14 • possibly the threat of public humiliation might be sufficient • able to call police for help not reasonable – McFadzean at [60] 13 • if you suffer foreseeable harm may have a case in the tort of negligence • awareness of imprisonment not necessary .Murray v Ministry of Defence [1988] 1 WLR 692. per Ashley J [90].Symes v Mahon [1922] SASR 447. not partial . Christie v.WEEK 2 an employer can be liable for false imprisonment committed by an employee as long as employee's action is direct and otherwise amounts to the tort.E. 17/18 • cannot always demand to be released whenever it is convenient if consented to some restraint .Herd v Weardale Steel Coke and Coal Co [1915] AC 67. 18 • prevention of breach of peace .U and Ors [2004] VSC 289 at [94].Balmain New Ferry Co Ltd v Robertson (1909) 4 CLR 379. 16 • informed of reason or arrest – if not. 15 d) Defence of lawful authority • onus on defendant to prove this defence – “If imprisonment is proved it is for the defendant if he is to escape liability to prove a lawful justification for the imprisonment either at common law or by statute. 14/15 c) Intentional or negligent • possible though no decided case. apart from certain exceptions.Zaravinos v State of NSW [2004] NSWCA 320. 15 • arrest – general rule is lawful authority must be used in a proper way – arrest for purposes of investigation improper .TORTS SUMMARY .temporary detention of protestors for their safety . 16/17 • breach of contract – conditions of entry to premises known to P . NSW v Delly [2007] NSWCA 303 (6 Nov 2007).” . 18 • 5 .M.Cowell v Corrective Services Commission of NSW (1988) 13 NSWLR 714.McFadzean and Ors v C. • mistake as to lawful authority . Leachinsky [1947] AC 573. is false imprisonment .Austin v Commissioner of Police of the Metropolis [2009] UKHL 5 (28 Jan 2009).F.
Report "Week 2 - Intentional Torts, Trespass to the Person.doc"