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LAW OF TORTS. LECTURE 3 Intentional torts to Chattels Action on the case for Wilful Injury Defences to Intentional Torts Greg Young greg.young@lawyer.com. TRESPASS TO PROPERTY. TRESPASS TO PROPERTY. LAND. GOODS/CHATTELS. TRESPASS TO PROPERTY. GOODS/CHATTELS Personal property.

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law of torts

LAW OF TORTS

LECTURE 3

Intentional torts to Chattels

Action on the case for Wilful Injury

Defences to Intentional Torts

Greg Younggreg.young@lawyer.com

trespass to property
TRESPASS TO PROPERTY

TRESPASS TO PROPERTY

LAND

GOODS/CHATTELS

trespass to property3
TRESPASS TO PROPERTY
  • GOODS/CHATTELS
  • Personal property

TRESPASS TO PROPERTY

LAND

trespass to goods chattel
TRESPASS TO GOODS/CHATTEL
  • The intentional/negligent act of D which directly interferes with the plaintiff’s possessionof a chattel without lawful justification
  • The P must have actual or constructive possession at the time of interference.
damages
DAMAGES
  • It may not be actionable per se (Everitt v Martin)
conversion
CONVERSION
  • The act of D in relation to another’s chattel which constitutes an unjustifiable denial of his/her title
conversion who can sue
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)
acts of conversion
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
acts of conversion9
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)
detinue
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)
damages in conversion and detinue
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)
the law of torts

THE LAW OF TORTS

Action on the Case for Indirect Injuries

indirect intentional injuries
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
indirect intentional injuries case law
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)
the intentional act
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
action on the case for indirect intentional harm elements
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
the scope of the rule
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
is there room for extending the scope
IS THERE ROOM FOR EXTENDING THE SCOPE
  • The normal person in Wilkinson v Downton
  • The normal/reasonableperson: The gender/race debate
the scope of intentional torts to the person
The Scope of Intentional Torts to the Person
  • Trespass:
    • Battery,
    • False Imprisonment
    • Assault
  • Action on the case (Wilkinson v Downton)
onus of proof
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) 1992 175 CLR 218
impact of the civil liability act
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

the law of torts22

THE LAW OF TORTS

Defences to Intentional Torts

introduction the concept of defence
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:
mistake
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
consent
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) 1992 175 CLR 218
valid consent
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)
consent in sports
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 Johnston
the burden of proof
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
statutory provisions on consent
STATUTORY PROVISIONS ON CONSENT
  • Minors (Property and Contracts) Act 1970 (NSW) ss 14, 49
  • Children and Young Persons (Care and Protection) Act 1998 (NSW)
self defence defence of others
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
the defence of property
THE DEFENCE OF PROPERTY
  • D may use reasonable forceto 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’
provocation
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
a critique of the current position on provocation
A Critique of the Current Position On Provocation
  • To discourage vengeance and retributive justice
  • The compensation theory argument
  • The gender based thesis
the case for allowing the defence of provocation
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. 151-159.
necessity
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
urgent situations of imminent peril
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
insanity
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)
infants
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)
discipline
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)
discipline40
DISCIPLINE
  • TEACHERS
  • CAPTAINS OF VESSELS
  • SPOUSES
illegality ex turpi causa non oritur actio
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
trespass cla 2002
TRESPASS & CLA 2002
  • s.3B(1)(a) Civil Liability Act (“CLA”) i.e. CLA does not apply to “intentional torts”, except Part 7 of the Act.
  • s.52 (2) CLA subjective/objective test i.e. subjective ("…believes…" & "…perceives…")/ objective ("…reasonable response…") test.
  • s.53(1)(a) & (b) CLA i.e. “and” = two limb test; "exceptional" and "harsh and unjust“ are not defined in the Act so s.34 of the Interpretation Act 1987.
  • s.54(1) & (2) CLA i.e. "Serious offence" and "offence" are criminal terms so reference should be made to the criminal law to confirm whether P's actions are covered by the provisions.