TORTS SUMMARY - WEEK 2

INTENTIONAL 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

TORTS SUMMARY - WEEK 2 Distinction between two legal actions 1. action for trespass caused by negligence where there is direct harm 2. action for negligence descended from action on the case focuses on carelessness of D eg. duty of care in Australia both actions still available - Venning v Chin (1974) 10 SASR 299, per Bray CJ; Williams v Milotin (1957) 97 CLR 465. In UK - no action for trespass when carelessness involved since Letang v Cooper [1965] 1 QB 232. 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 - Horkin v North Melbourne Football Club Social Club [1983] VR 153. might be available in a case of trespass based on negligence - Venning v Chin (1974) 10 SASR 299 and NSW v Riley [2003] NSWCA 208 at para [106] per Hodgson JA. 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, onus usually on defendant to show that neither intention nor negligence was present in a case of alleged negligence, defendant must show that he or she exercised a due amount of care in the circumstances, etc. 5 Motor accident cases for pragmatic reasons, a different rule applies in motor accident cases - see Venning v Chin (1974) 10 SASR 299. hence an action for trespass based on a running down of a pedestrian, the burden will be on the plaintiff to show that the defendant's action was either intentional or careless 5 2. Trespass to the Person in General - three types battery assault false imprisonment 5 3. Battery a) Inviolate nature of the person

TORTS SUMMARY - WEEK 2 the common law protects personal integrity - any touching of another person, however slight, may amount to a battery - Collins v Wilcock [1984] 3 All ER 375 at 378, per Robert Goff LJ; Darby v Director of Public Prosecutions [2004] NSWCA 431. can have battery without assault Forde v Skinner (1830) 4 Car & P 239; 172 All ER 687 cutting hair without consent. 7 b) Anger not necessary part of tort of battery in Australia, touching does not have to be hostile - Darby v Director of Public Prosecutions [2004] NSWCA 431, per Giles JA at [79], citing Boughey v The Queen (1986) 161 CLR 10. 7 c) Exceptions to the general rule reasonable punishment of children self-defence prevention of crime the exigencies of life implied consent - Rixon v Star City Pty Ltd (2001) 53 NSWLR 98, and affirmed in McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903 at [99]. consent - in Australia, consent is a defence, and must be proved by the defendant McHugh J obiter, in Secretary, Dept of Health and Community Services v JWB (1992) 175 CLR 218, at 310-311. lawful arrest 8/9 4. Assault Assault is an overt act indicating an immediate intention to commit a battery, coupled with the capacity of carrying that intention into effect - cited in Rixon v Star City Pty Ltd 53 NSWLR 98 at [56], from Clerk & Lindsell on Torts, M R Brazier, gen ed, 17th ed (1995) London, Sweet & Maxwell, 590 [12-12]. person is put in fear of actual contact no contact is needed - 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. Rixon v Star City Pty Ltd 53 NSWLR 98 at [58] per Sheller JA. pointing a gun held was assault - caused an immediate apprehension of harm - NSW v Ibbett [2006] HCA 57, para [18]. conditional threat assault if was excessive response to threat from P - Rozsa v Samuels [1969] SASR 205. a conditional threat can still amount to an assault where the condition relates to the plaintiffs future conduct and the defendant has no right to demand that future conduct - Balkin and Davis at p 44. imminent violence Defendant must have capacity of carrying out threat. Plaintiff put in fear of imminent violence, threat was continuing - Zanker v Vartzokas (1988) 34 A Crim R 11.

TORTS SUMMARY - WEEK 2 words alone can constitute assault late night threatening phone calls - Barton v Armstrong [1969] 2 NSWR 451, per Taylor J. 9/11

5. False Imprisonment tort protects personal integrity - the freedom to move essence of the action: the total restraint of freedom of a person "false" here means wrongful, unjustified 11 a) Total restraint of freedom restraint must be total, not partial - Bird v Jones (1845) 7 QB 742. all reasonable avenues of escape must be cut off the "prison" does not have to be physical walls no "reasonable way out" - if the only means of exit from a situation will itself pose a danger; eg Zanker v Vartzokas (1988) 34 A Crim R 11; held to be imprisonment where someone would had to have swum to shore from a boat - R v Macquarie (1875) 13 SCR (NSW) 264. 11/12 but could have jumped in harbour - Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379. force of authority, fear and power of social constraint - Symes v Mahon [1922] SASR 447. 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. - Myer Stores Ltd v Soo [1991] 2 VR 589 at 625. 12 threats may be enough - McFadzean and Ors v C.F.M.E.U and Ors [2004] VSC 289, per Ashley J [90]. 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]. 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; Trevorrow v SA (No 5) [2007] SASC 285, per Gray J at [987]. 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 - Dickinson v Waters Ltd (1931) 31 SR (NSW) 593; Myer Stores Ltd v Soo [1991] 2 VR 589. Reviewed and affirmed in Coles Myer Limited v Webster; Coles Myer Limited v Thompson [2009] NSWCA 299 (8 Oct 2009) and Coles found vicariously liable.

TORTS SUMMARY - 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. 14/15 c) Intentional or negligent possible though no decided case. mistake as to lawful authority - Cowell v Corrective Services Commission of NSW (1988) 13 NSWLR 714. 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. - McFadzean and Ors v C.F.M.E.U and Ors [2004] VSC 289 at [94]. 15 arrest general rule is lawful authority must be used in a proper way arrest for purposes of investigation improper - Zaravinos v State of NSW [2004] NSWCA 320. 16 informed of reason or arrest if not, apart from certain exceptions, is false imprisonment - Christie v. Leachinsky [1947] AC 573; NSW v Delly [2007] NSWCA 303 (6 Nov 2007). 16/17 breach of contract conditions of entry to premises known to P - Balmain New Ferry Co Ltd v Robertson (1909) 4 CLR 379. 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 - temporary detention of protestors for their safety - Austin v Commissioner of Police of the Metropolis [2009] UKHL 5 (28 Jan 2009). 18