LAW OF TORTSLAW OF TORTS

LECTURE 2LECTURE 2

AssaultAssault

False ImprisonmentFalse Imprisonment

Trespass to LandTrespass to Land

Trespass to ChattelsTrespass to Chattels

THE GENERAL ELEMENTS THE GENERAL ELEMENTS OF TRESPASSOF TRESPASS

Intentional/negligent act

“x” element

Direct interference Absence of lawfuljustification+ +

+=

A specificform of trespass

TRESPASS:ASSAULTTRESPASS:ASSAULT

• The The intentional/negligent intentional/negligent act or threatact or threat of D which of D which directlydirectly places P in places P in reasonable apprehension reasonable apprehension of an imminent physical of an imminent physical interferenceinterference with his or with his or her person or of someone her person or of someone under his or her control under his or her control

THE ELEMENTS OF THE ELEMENTS OF ASSAULTASSAULT

• There must be a direct threat:There must be a direct threat:– Hall v Fonceca (Hall v Fonceca (Threat by P who shook hand Threat by P who shook hand

in front of D’s face in an argument)in front of D’s face in an argument)– Rozsa v Samuels Rozsa v Samuels ( threat to cut P into bits)( threat to cut P into bits)

• In general, In general, mere wordsmere words are not actionable are not actionable– BBarton arton v v Armstrong Armstrong

• In general, conditional threats are not In general, conditional threats are not actionableactionable– Tuberville Tuberville v v SavageSavage– Police Police v v Greaves Greaves – Rozsa v SamuelsRozsa v Samuels

• The apprehension must be The apprehension must be reasonable; the test is objectivereasonable; the test is objective

• The interference must be The interference must be imminent Policeimminent Police vv Greaves Greaves– Rozsa v SamuelsRozsa v Samuels– Barton Barton v v Armstrong Armstrong – Hall v FoncecaHall v Fonceca

Zanker v Vartzokas (Zanker v Vartzokas (P jumps out of a P jumps out of a moving van to escape from D’s moving van to escape from D’s unwanted lift)unwanted lift)

THE ELEMENTS OF ASSAULTTHE ELEMENTS OF ASSAULT

SPECIFIC FORMS OF SPECIFIC FORMS OF TRESPASSTRESPASS

TRESPASSTRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT

FALSE FALSE IMPRISONMENTIMPRISONMENT

• The The intentionalintentional or or negligent negligent act act of D which of D which directly directly causes the causes the total restraint total restraint of of P and thereby confines P and thereby confines him/her to a delimited area him/her to a delimited area without lawful justificationwithout lawful justification

• The essential distinctive The essential distinctive element is the element is the total restrainttotal restraint

THE ELEMENTS OF THE ELEMENTS OF THE TORT THE TORT

• It requires all the basic It requires all the basic elements of trespass:elements of trespass:– Intentional/negligent actIntentional/negligent act– DirectnessDirectness

– absence of lawful absence of lawful justification/consent justification/consent , , andand

• total restrainttotal restraint

RESTRAINT IN FALSE RESTRAINT IN FALSE IMPRISONMENTIMPRISONMENT

• The restraint must be The restraint must be totaltotal– Bird Bird v v Jones Jones (passage over bridge(passage over bridge))

– The Balmain New Ferry Co v RobertsonThe Balmain New Ferry Co v Robertson

• Total restraint implies the absence of a Total restraint implies the absence of a reasonable means of escapereasonable means of escape– Burton Burton v v Davies Davies (D refuses to allow P out of car)(D refuses to allow P out of car)

• Restraint may be total where D subjects P to Restraint may be total where D subjects P to his/her authority with no option to leavehis/her authority with no option to leave– Symes Symes v v Mahon Mahon (police officer arrests P by (police officer arrests P by

mistake)mistake)– Myer Stores Myer Stores v v SooSoo

FORMS OF FALSE FORMS OF FALSE IMPRISONMENTIMPRISONMENT

• See the following Cases: See the following Cases: – Cowell v. Corrective Services Cowell v. Corrective Services Commissioner of NSWCommissioner of NSW (1988) (1988) Aust. Torts Reporter ¶81-197.Aust. Torts Reporter ¶81-197.

– Louis v. The Commonwealth of Louis v. The Commonwealth of Australia Australia 87 FLR 277. 87 FLR 277.

– Lippl v. Haines & Another Lippl v. Haines & Another (1989) Aust. Torts Reporter ¶80-(1989) Aust. Torts Reporter ¶80-302; (1989) 18 NSWLR 620.302; (1989) 18 NSWLR 620.

VOLUNTARY CASESVOLUNTARY CASES

• In general, there is no FI where one In general, there is no FI where one voluntarily submits to a form of voluntarily submits to a form of restraintrestraint– HerdHerd v v Werdale Werdale (D refuses to allow P out (D refuses to allow P out

of mine shaft)of mine shaft)– Robison Robison v v The Balmain New Ferry Co. The Balmain New Ferry Co. (D (D

refuses to allow P to leave unless P pays refuses to allow P to leave unless P pays fare)fare)

– Lippl Lippl v v HainesHaines

• Where there is no volition for Where there is no volition for restraint, the confinement may be FI restraint, the confinement may be FI ((Bahner Bahner v v Marwest Hotels Co.)Marwest Hotels Co.)

WORDS AND FALSE WORDS AND FALSE IMPRISONMENTIMPRISONMENT

• In general, words can In general, words can constitute FIconstitute FI

KNOWLEDGE IN KNOWLEDGE IN FALSE FALSE

IMPRISONMENTIMPRISONMENT•The knowledge of the P at The knowledge of the P at

the moment of restraint is the moment of restraint is not essential.not essential.– Merring Merring v v Graham White AviationGraham White Aviation– Murray Murray v v Ministry of DefenseMinistry of Defense

WHO IS LIABLE? THE WHO IS LIABLE? THE AGGRIEVED CITIZEN OR THE AGGRIEVED CITIZEN OR THE

POLICE OFFICER?POLICE OFFICER?• In each case, the issue is In each case, the issue is

whether the police in making the whether the police in making the arrest acted independently or as arrest acted independently or as the agent of the citizen who the agent of the citizen who promoted and caused the arrest promoted and caused the arrest – Dickenson vWaters LtdDickenson vWaters Ltd– Bahner Bahner v v Marwest Hotels CoMarwest Hotels Co

THE ‘MENTALLY ILL’ AND THE ‘MENTALLY ILL’ AND FALSE IMPRISONMENTFALSE IMPRISONMENT

In Common Law, the lawfulness of an act of detention of a In Common Law, the lawfulness of an act of detention of a person must depend on "overriding necessity for the person must depend on "overriding necessity for the protection of himself and others’ per Harvey J in protection of himself and others’ per Harvey J in In re HawkeIn re Hawke (1923) 40 WN (NSW) 58 " (1923) 40 WN (NSW) 58 "

The Vic The Vic Mental Health ActMental Health Act 1959:Any person may be admitted 1959:Any person may be admitted into and detained in a psychiatric hospital upon the production into and detained in a psychiatric hospital upon the production of of (a) a request under the hand of some person in the prescribed form; (a) a request under the hand of some person in the prescribed form; (b) a statement of the prescribed particulars; and (b) a statement of the prescribed particulars; and (c) a recommendation in the prescribed form of a medical practitioner based (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 upon a personal examination of such person made not more than seven clear days before the admission of such person. days before the admission of such person.

DAMAGESDAMAGES

False imprisonment is actionable False imprisonment is actionable per seper se The failure to prove any actual financial loss The failure to prove any actual financial loss

does not mean that the plaintiff should recover does not mean that the plaintiff should recover nothing. The damages are at large. An nothing. The damages are at large. An interference with personal liberty even for a interference with personal liberty even for a short period is not a trivial wrong. The injury to short period is not a trivial wrong. The injury to the plaintiff's dignity and to his feelings can be the plaintiff's dignity and to his feelings can be taken into account in assessing damages (taken into account in assessing damages (Watson Watson v Marshall and Cadev Marshall and Cade ) )

OTHER FORMS OF OTHER FORMS OF TRESPASSTRESPASS

TRESPASSTRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT

TRESPASS TO TRESPASS TO PROPERTYPROPERTY

TRESPASS TO PROPERTYTRESPASS TO PROPERTY

LAND GOODS/CHATTELS

TRESPASS TO LANDTRESPASS TO LAND

• The The intentionalintentional or or negligent act negligent act of D of D which which directly directly interferes interferes with the with the plaintiff’s plaintiff’s exclusive exclusive possession of landpossession of land

THE NATURE OF THE THE NATURE OF THE TORTTORT

• Land includes the actual Land includes the actual soil/dirt, the soil/dirt, the structures/plants on it and structures/plants on it and the airspace above itthe airspace above it

• Cujus est solum ejus est Cujus est solum ejus est usque ad coelum et inferosusque ad coelum et inferos–Bernstein of LeighBernstein of Leigh v v Skyways & Skyways & General LtdGeneral Ltd

–Kelson v Imperial Tobacco Kelson v Imperial Tobacco

The Nature of D’s Act: A The Nature of D’s Act: A General NoteGeneral Note

• ...[E]very invasion of private property, ...[E]very invasion of private property, be it ever so minute, is a trespass. No be it ever so minute, is a trespass. No man can set his foot upon my ground man can set his foot upon my ground without my license, but he is liable to without my license, but he is liable to an action, though the damage be an action, though the damage be nothing.... If he admits the fact, he is nothing.... If he admits the fact, he is bound to show by way of justification, bound to show by way of justification, that some positive law has that some positive law has empowered or excused him ( empowered or excused him ( Entick v Entick v CarringtonCarrington (1765) 16 St Tr 1029, 1066) (1765) 16 St Tr 1029, 1066)

THE NATURE OF D’S ACTTHE NATURE OF D’S ACT

• The act must constitute The act must constitute some physical some physical interference which interference which disturbs P’s exclusive disturbs P’s exclusive possession of the landpossession of the land–Victoria Racing Co. v TaylorVictoria Racing Co. v Taylor–Barthust City Council v SabanBarthust City Council v Saban–Lincoln Hunt v WillesseLincoln Hunt v Willesse

THE NATURE OF THE THE NATURE OF THE PLAINTIFF’S INTEREST IN THE PLAINTIFF’S INTEREST IN THE

LANDLAND

• P must have P must have exclusive exclusive possession possession of the land of the land at the time of the at the time of the interference interference exclusion exclusion of all othersof all others

THE NATURE OF THE NATURE OF EXCLUSIVE EXCLUSIVE

POSSESSIONPOSSESSION• Exclusive possession is distinct Exclusive possession is distinct

from ownership. from ownership. • Ownership refers to Ownership refers to titletitle in the in the

land. Exclusive possession refers land. Exclusive possession refers to to physicalphysical holding of the land holding of the land

• Possession may be Possession may be immediateimmediate or or constructive constructive

•The nature of possession depends The nature of possession depends on the material possessedon the material possessed

EXCLUSIVE EXCLUSIVE POSSESSIONPOSSESSION: CO-: CO-

OWNERSOWNERS• In general, a co-owner In general, a co-owner cannot be liable in trespass in cannot be liable in trespass in respect of the land he/she respect of the land he/she owns; but this is debatable owns; but this is debatable where the ’trespassing’ co-where the ’trespassing’ co-owner is not in possession. owner is not in possession. ((Greig Greig v v GreigGreig))

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

THE POSITION OF THE POSITION OF TRESPASSERS AND TRESPASSERS AND

SQUATTERSSQUATTERS

• A trespasser/squatter A trespasser/squatter in exclusive possession in exclusive possession can maintain an action can maintain an action against any other against any other trespassertrespasser

THE POSITION OF THE POSITION OF LICENSEESLICENSEES

• A licensee is one who has the A licensee is one who has the permission of P to enter or permission of P to enter or use land (belonging to P)use land (belonging to P)

• A licensee is a party not in A licensee is a party not in possession, and can therefore possession, and can therefore not sue in trespass not sue in trespass

• A licensee for value however A licensee for value however may be entitled to suemay be entitled to sue(E.R. (E.R. Investments v Hugh) Investments v Hugh)

THE TRESPASSORY THE TRESPASSORY ACTACT

• Preventing P’s access Preventing P’s access Waters Waters v v Maynard)Maynard)

• The continuation of the initial The continuation of the initial trespassory act is a trespass trespassory act is a trespass ccontinuing trespassontinuing trespass

• Where D enters land for Where D enters land for purposes different from that purposes different from that for which P gave a license, for which P gave a license, D’s conduct may constitute D’s conduct may constitute ttrespass arespass ab initio b initio (Baker v (Baker v Crown)Crown)

THE POSITION OF THE POSITION OF POLICE OFFICERSPOLICE OFFICERS

• Unless authorized by law, Unless authorized by law, police officers have no police officers have no special right of entry into any special right of entry into any premises without consent of premises without consent of P. But see P. But see Halliday v NevilleHalliday v Neville

• A police officer charged with A police officer charged with the duty of serving a the duty of serving a summons must obtain the summons must obtain the consent of the party in consent of the party in possession (possession (Plenty v. Dillion Plenty v. Dillion ))

Police Officers; The Police Officers; The Common Law PositionCommon Law Position

•The poorest man may in his cottage The poorest man may in his cottage bid defiance to all forces of the bid defiance to all forces of the Crown. It may be frail- its roof may Crown. It may be frail- its roof may shake- the wind may blow through shake- the wind may blow through it- the rain may enter- but the King it- the rain may enter- but the King of England cannot enter- all his of England cannot enter- all his force dares not cross the threshold force dares not cross the threshold of the ruined tenement. So be it- of the ruined tenement. So be it- unless he has justification by law’. ( unless he has justification by law’. ( Southam v SmoutSoutham v Smout [1964] 1QB 308, [1964] 1QB 308, 320.320.

REMEDIESREMEDIES

• EjectmentEjectment•Recovery of PossessionRecovery of Possession•Award of damagesAward of damages• InjunctionInjunction

TRESPASS TO TRESPASS TO PROPERTYPROPERTY

TRESPASS TO PROPERTYTRESPASS TO PROPERTY

LAND GOODS/CHATTELS

TRESPASS TO TRESPASS TO PROPERTYPROPERTY

TRESPASS TO PROPERTYTRESPASS TO PROPERTY

LAND

• GOODS/CHATTELSGOODS/CHATTELS• Personal propertyPersonal property

TRESPASS TO TRESPASS TO GOODS/CHATTELGOODS/CHATTEL

• The The intentional/negligent intentional/negligent act of D act of D which which directly interferesdirectly interferes with the with the plaintiff’s plaintiff’s possessionpossession of a chattel of a chattel without lawful justificationwithout lawful justification

• The P must have actual or The P must have actual or constructive possession at the constructive possession at the time of interference.time of interference.

• It may not be actionable per se It may not be actionable per se (Everitt v Martin)(Everitt v Martin)

CONVERSION:TROVECONVERSION:TROVERR

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

CONVERSION: Who CONVERSION: Who Can Sue?Can Sue?

• OwnersOwners• Those in possession or entitled Those in possession or entitled

to immediate possessionto immediate possession– Bailees*Bailees*– Bailors*Bailors*– Mortgagors* and Mortgagors* and Mortgagees*(Mortgagees*(Citicorp Australia Citicorp Australia v B.S. Stillwell)v B.S. Stillwell)

– Finders (Finders (Parker v British Parker v British Airways; Armory v DelmirieAirways; Armory v Delmirie))

Bailments and Bailments and MortgagesMortgages

•Bailment: The delivery/giving of Bailment: The delivery/giving of chattels to another on condition chattels to another on condition that they will be returned to the that they will be returned to the bailorbailor after a specified time or after a specified time or purpose.purpose.

• The ‘giver’= bailor, ‘recipient to The ‘giver’= bailor, ‘recipient to another person as security for a another person as security for a debt; transferee=mortgagee; debt; transferee=mortgagee; transferor= mortgagortransferor= mortgagor

ACTS OF ACTS OF CONVERSIONCONVERSION

• Mere asportation is no conversionMere asportation is no conversion• The D’s conduct must constitute The D’s conduct must constitute

an unjustifiable denial of P’s an unjustifiable denial of P’s rights to the propertyrights to the property

•Destruction of the chattel is Destruction of the chattel is conversion (conversion (Atkinson v Atkinson v Richardson; Fouldes v WilloughbyRichardson; Fouldes v Willoughby))

• Taking possessionTaking possession• Withholding possession (Clayton v Le Withholding possession (Clayton v Le

Roy)Roy)

• Misdelivery ( Misdelivery ( Ashby v Ashby v Tolhurst Tolhurst (1937 2KB)(1937 2KB); Sydney ; Sydney City CouncilCity Council v v WestWest))

• Disposition by sale: that Disposition by sale: that ‘sale’ without delivery may ‘sale’ without delivery may not constitute salenot constitute sale

• Unauthorized dispositions in Unauthorized dispositions in any manner that interferes any manner that interferes with P’s title constitutes with P’s title constitutes conversion (conversion ( Penfolds Wines Penfolds Wines))

ACTS OF CONVERSIONACTS OF CONVERSION

DETINUEDETINUE

• Detinue: The wrongful Detinue: The wrongful refusal to tender refusal to tender goods upon demand goods upon demand by P who is entitled to by P who is entitled to possession It requires possession It requires a demand coupled with a demand coupled with subsequent refusalsubsequent refusal

REPLEVINREPLEVIN

• A provisional remedy A provisional remedy which allows a P who is which allows a P who is out of possession to out of possession to regain possession until regain possession until the right to the goods is the right to the goods is determined by Court.determined by Court.

DAMAGES IN CONVERSION DAMAGES IN CONVERSION AND DETINUEAND DETINUE

• In conversion, damages In conversion, damages usuallyusually take the form of pecuniary take the form of pecuniary compensationcompensation

• In detinue, the court may in In detinue, the court may in appropriate circumstances order appropriate circumstances order the return of the chattelthe return of the chattel

• Damages in conversion are Damages in conversion are calculated as at the time of calculated as at the time of conversion; in detinue it is as at conversion; in detinue it is as at the time of judgment the time of judgment