LAW OF TORTS

Weekend Lecture 1A
Lecturer: Greg Young
greg.young@lawyer.com

Definition, aims & scope of torts

Intentional Torts

TEXT BOOKS
*Baker, Blay et al Torts Law in Principle LBC 2005 4th Ed.
*Blay, Torts in a Nutshell LBC 1999
Sappideen, Vines, Grant & Watson, Torts: Commentary &
Materials LBC (2006) 9th Ed.
Balkin & Davis Law of Torts (2004) 3rd Ed. Butterworths
Luntz and Hambly Torts Cases and Commentary (2006) Revised 5th
Ed. Butterworths
Trindade and Cane The Law of Torts
Fleming, The Law of Torts (1996)

LEC Torts Website

www.usyd.edu.au/lec/subjects/torts/
/materials.htm
Past exams & comments:
www.library.usyd.edu.au/libraries/la
w/lpab.html#exams

WHAT IS A TORT?
A tort is a civil wrong
That (wrong) is based a breach of a
duty imposed by law
Which (breach) gives rise to a
(personal) civil right of action for for
a remedy not exclusive to another
area of law

THE DIFFERENCE BETWEEN

A TORT AND A CRIME
A crime is public /community wrong that gives
rise to sanctions usually designated in a
specified code. A tort is a civil private wrong.
Action in criminal law is usually brought by
the state or the Crown. Tort actions are usually
brought by the victims of the tort.
The principal objective in criminal law is
punishment. In torts, it is compensation

THE DIFFERENCE BETWEEN

A TORT AND A CRIME

Differences in Procedure:

Standard of Proof
Criminal law: beyond reasonable
doubt
Torts: on the balance of probabilities

THE AIMS OF TORT LAW

Loss distribution/adjustment: shifting losses from
victims to perpetrators
Compensation: Through the award of (pecuniary)
damages

The object of compensation is to place the

victim in the position he/she was before
the tort was committed.
Punishment: through exemplary or punitive
damages. This is a secondary aim.

INTERESTS PROTECTED IN
TORT LAW
Personal security

Trespass
Negligence
Reputation

Defamation
Property

Trespass
Conversion
Economic and financial interests

INTENTIONAL TORTS

INTENATIONAL TORTS

Trespass

Conversion

Detinue

WHAT IS TRESPASS?
Intentional or negligent act of D which
directly causes an injury to the P or his
/her property without lawful justification
The Elements of Trespass:
fault: intentional or negligent act
- injury must be direct
injury* may be to the P or to his/her property
- No lawful justification

*INJURY IN TRESPASS
Injury = a breach of right, not
necessarily actual damage
Trespass requires only proof of injury
not actual damage

THE GENERAL ELEMENTS

OF TRESPASS
Intentional/
negligent act

Direct interference
with person or property

Absence of lawful
justification

+
x element

A specific
form of trespass

SPECIFIC FORMS OF
TRESPASS
TRESPASS
TRESPASS
PERSON

BATTERY
ASSAULT
FALSE IMPRISONMENT

PROPERTY

BATTERY
The intentional or negligent act of

D which directly causes a physical

interference with the body of P
without lawful justification
The distinguishing element:
physical interference with Ps body

THE INTENTIONAL ACT

IN BATTERY
No liability without intention
The intentional act = basic willful
act + the consequences.

CAPACITY TO FORM THE

INTENT
D is deemed capable of forming intent if
he/she understands the nature of
(intended) his/her act
-Infants
Lunatics
Morris v Marsden
Hart v A. G. of Tasmania ( infant cutting
another infant with razor blade)

THE ACT MUST CAUSE

PHYSICAL INTERFERENCE
The essence of the tort is the protection of the
person of P. Ds act short of physical contact is
therefore not a battery

The least touching of another could be battery

Cole v Turner (dicta per Holt CJ)
The fundamental principle, plain and
incontestable, is that every persons body is
inviolate ( per Goff LJ, Collins v Wilcock)

The Nature of the Physical

Interference
Rixon v Star City Casino (D places hand on Ps
shoulder to attract his attention; no battery)

Collins v Wilcock (Police officer holds Ds arm with a view

to restraining her when D declines to answer questions and begins to
walk away; battery)

Platt v Nutt

THE INJURY MUST BE

CAUSED DIRECTLY
Injury should be the immediate:
Scott v Shepherd ( Lit squib/fireworks
in market place)
Hutchins v Maughan (poisoned bait
left for dog)
Southport v Esso Petroleum(Spilt oil
on Ps beach)

THE ACT MUST BE WITHOUT

LAWFUL JUSTIFICATION
Consent is Lawful justification
Consent must be freely given by the P if P is
able to understand the nature of the act
Lawful justification includes the lawful act
of law enforcement officers
Wilson v. Marshall (D accused of assaulting
police officer, held officers conduct not lawful)

TRESPASS:ASSAULT

The intentional/negligent act or

threat of D which directly places P
in reasonable apprehension of an
imminent physical interference
with his or her person or of
someone under his or her control

THE ELEMENTS OF ASSAULT

There must be a direct threat:
Hall v Fonceca

(Threat by P who shook hand in front of

Ds face in an argument)

In general, mere words are not actionable

Barton v Armstrong
In general, conditional threats are not actionable
Tuberville v Savage
Police v Greaves
Rozsa v Samuels

THE ELEMENTS OF ASSAULT

The apprehension must be reasonable; the
test is objective
The interference must be imminent

Rozsa v Samuels
Police v Greaves
Hall v Fonceca
Zanker v Vartzokas (P jumps out of a moving van to escape
from Ds unwanted lift)

THE GENERAL ELEMENTS

OF TRESPASS
Intentional/
negligent act

Direct interference

Absence of lawful
justification

+
x element

A specific
form of trespass

SPECIFIC FORMS OF
TRESPASS
TRESPASS
TRESPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT

PROPERTY

FALSE
IMPRISONMENT
The intentional or negligent act of
D which directly causes the total
restraint of P and thereby confines
him/her to a delimited area without
lawful justification
The essential distinctive element is
the total restraint

THE ELEMENTS OF
THE TORT
It requires all the basic elements of
trespass:
Intentional/negligent act
Directness
absence of lawful justification/consent

, and

total restraint

RESTRAINT IN FALSE
IMPRISONMENT
The restraint must be total
Bird v Jones (passage over bridge)
The Balmain New Ferry Co v Robertson

Total restraint implies the absence of a reasonable

means of escape
Burton v Davies (D refuses to allow P out of car)

Restraint may be total where D subjects P to his/her

authority with no option to leave
Symes v Mahon (police officer arrests P by mistake)
Myer Stores v Soo

FORMS OF FALSE
IMPRISONMENT
See the following Cases:

Cowell v. Corrective Services

Commissioner of NSW (1988) Aust.
Torts Reporter 81-197.
Louis v. The Commonwealth of
Australia 87 FLR 277.
Lippl v. Haines & Another (1989)
Aust. Torts Reporter 80-302;
(1989) 18 NSWLR 620.

VOLUNTARY CASES
In general, there is no FI where one
voluntarily submits to a form of restraint
Herd v Weardale (D refuses to allow P out of mine
shaft)

Robinson v The Balmain New Ferry Co. (D

refuses to allow P to leave unless P pays fare)

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

WORDS AND FALSE

IMPRISONMENT
In general, words can constitute FI
see Balkin & Davis pp. 55 to 56:
restraint even by mere threat of force
which intimidates a person into compliance
without any laying on of hands may be
false imprisonment
- Symes v Mahon

KNOWLEDGE IN FALSE
IMPRISONMENT
The knowledge of the P at the
moment of restraint is not
essential.
Meering v Graham White Aviation
Murray v Ministry of Defense

WHO IS LIABLE? THE

AGGRIEVED CITIZEN OR THE
POLICE OFFICER?
In each case, the issue is whether the
police in making the arrest acted
independently or as the agent of the
citizen who promoted and caused the
arrest

Dickenson v Waters Ltd

Bahner v Marwest Hotels Co

THE MENTALLY ILL AND

FALSE IMPRISONMENT

In Common Law, the lawfulness of an act of detention of a person

must depend on "overriding necessity for the protection of himself
and others per Harvey J in In re Hawke (1923) 40 WN (NSW) 58
The situation under statute:
Watson v Marshall and Cade (1971) 124 CLR 621
The Vic Mental Health Act 1959:Any person may be admitted
into and detained in a psychiatric hospital upon the production of
(a) a request under the hand of some person in the prescribed form;
(b) a statement of the prescribed particulars; and
(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 days before the admission of such person.

DAMAGES
False imprisonment is actionable per se
The failure to prove any actual financial loss
does not mean that the plaintiff should recover
nothing. The damages are at large. An
interference with personal liberty even for a
short period is not a trivial wrong. The injury to
the plaintiff's dignity and to his feelings can be
taken into account in assessing damages (Watson
v Marshall and Cade )

OTHER FORMS OF TRESPASS

TRESPASS
TRESPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT

PROPERTY

TRESPASS TO
PROPERTY
TRESPASS
TRESPASS TO
TO PROPERTY
PROPERTY

LAND

GOODS/CHATTELS

TRESPASS TO LAND
The intentional or

negligent act of D which

directly interferes with
the plaintiffs exclusive
possession of land

THE NATURE OF THE

TORT

Land includes the actual soil/dirt, the

structures/plants on it and the airspace
above it
Cujus est solum ejus est usque ad coelum
et inferos
Bernstein of Leigh v Skyways & General
Ltd
Kelson v Imperial Tobacco

STATUTORY EASEMENTS
Conveyancing Act 1919 s 88K (NSW)
1. The Court may make an order imposing an easement
over land if the easement is reasonably necessary for
the effective use or development of other land that will
have the benefit of the easement.
2. Such an order may be made only if the Court is
satisfied that:
(a) use of the land having the benefit of the easement will not be
inconsistent with the public interest, and
(b) the owner of the land to be burdened by the easement and each
other person having an estate or interest in that land can be
adequately compensated for any loss or other disadvantage that will
arise from imposition of the easement
all reasonable attempts have been made by the applicant for the order
to obtain the easement or an easement having the same effect but
have been unsuccessful

RESTRICTIONS ON
STATUTORY EASEMENTS
Property rights are valuable rights and the court should
not lightly interfere with [such] property rights [the
section] does not exist for people build right up to the
boundary of their property [or] build without adequate
access and then expect others to make their land available
for access per Young J Hanny v Lewis (1999) NSW Conv.
R 55-879 at 56-875
Developers have a responsibility to act reasonably as do
the proprietors of adjoining land and the developers should
not just proceed as if they would automatically get what
they seek without negotiations (per Windeyer J Goodwin v
Yee Holdings Pty Ltd (1997) 8 BPR)

The Issue of Compensation

88K (2) Such an order may be made only if the Court is satisfied
that: the owner of the land to be burdened by the easement and
each other person having an estate or interest in that land can
be adequately compensated for any loss or other disadvantage
that will arise from imposition of the easement
Adequate compensation: (Wengarin Pty Ltd v Byron Shire
Council [1999] NSWSC 485)

the diminished market value of the servient land

associated costs that would be caused to the owner
loss of amenities such as peace and quite
where assessment proves difficult, the court may assess compensation on
a percentage of the profits that would be made from the use of the
easement

Neighbouring land Access

and Utility Service Orders
The Access to Neighbouring Land Act 2000 ss11 and
13
(1) A Local Court may make a neighbouring land access /utility service
access order if it is satisfied that access to land is required for the purpose
of carrying out work on or in connection with a utility service situated on
the land and it is satisfied that it is appropriate to make the order in the
circumstances of the case
(2) The Court must not make a utility service access order unless it is
satisfied:
(a) that the applicant has made a reasonable effort to reach agreement
with every person whose consent to access is required as to the access
and carrying out of the work, and
(b) if the requirement to give notice has not been waived, that the
applicant has given notice of the application in accordance with [the Act]

The Nature of Ds Act: A

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

THE NATURE OF DS
ACT
The act must constitute some
physical interference which disturbs
Ps exclusive possession of the land
Victoria Racing Co. v Taylor
Barthust City Council v Saban
Lincoln Hunt v Willesse

THE NATURE OF THE

PLAINTIFFS INTEREST IN THE
LAND

P must have exclusive

possession of the land at the
time of the interference
exclusion of all others

THE NATURE OF EXCLUSIVE

POSSESSION
Exclusive possession is distinct from
ownership.
Ownership refers to title in the land.
Exclusive possession refers to physical
holding of the land
Possession may be immediate or constructive
The nature of possession depends on the
material possessed

EXCLUSIVE POSSESSION: COOWNERS

In general, a co-owner cannot be

liable in trespass in respect of the

land he/she owns; but this is
debatable where the trespassing
co-owner is not in possession.
(Greig v Greig)
A co-possessor can maintain an
action against a trespasser (Coles
Smith v Smith and Ors)

THE POSITION OF LICENSEES

A licensee is one who has the
permission of P to enter or use land
(belonging to P)
A licensee is a party not in possession,
and can therefore not sue in trespass
A licensee for value however may be
entitled to sue(E.R. Investments v
Hugh)

THE TRESPASSORY ACT

Preventing Ps access Waters v
Maynard)
The continuation of the initial
trespassory act is a continuing trespass
Where D enters land for purposes
different from that for which P gave a
license, Ds conduct may constitute
trespass ab initio (Barker v R)

THE POSITION OF
POLICE OFFICERS

Unless authorized by law, police

officers have no special right of
entry into any premises without
consent of P ( Halliday v Neville)
A police officer charged with the
duty of serving a summons must
obtain the consent of the party in
possession (Plenty v. Dillion )

Police Officers; The Common

Law Position
The poorest man may in his cottage bid
defiance to all forces of the Crown. It may
be frail- its roof may shake- the wind may
blow through it- the rain may enter- but the
King of England cannot enter- all his force
dares not cross the threshold of the ruined
tenement. So be it- unless he has
justification by law. Southam v Smout
[1964] 1QB 308, 320.

REMEDIES

Ejectment
Recovery of Possession
Award of damages
Injunction
Parramatta CC v Lutz
Campbelltown CC v Mackay
XL Petroleum (NSW) v Caltex Oil

TRESPASS TO
PROPERTY
TRESPASS
TRESPASS TO
TO PROPERTY
PROPERTY

LAND

GOODS/CHATTELS

TRESPASS TO
GOODS/CHATTEL

The intentional/negligent act of D

which directly interferes with the
plaintiffs possession of a chattel
without lawful justification
The P must have actual or
constructive possession at the time
of interference.

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

CONVERSION
The act of D in relation to
anothers chattel which
constitutes an unjustifiable
denial of his/her title

CONVERSION: Who
Can Sue?

Owners

Those in possession or entitled to immediate

possession

Bailees*/ Bailors*
Mortgagors*/Mortgagees*(Citicorp
Australia v B.S. Stillwell)
Finders (Parker v British Airways;
Armory v Delmirie)

ACTS OF CONVERSION

Mere asportation is no conversion

Fouldes v Willoughby
The Ds conduct must constitute an unjustifiable denial of Ps rights
to the property
Howard E Perry v British Railways Board [1980]
Finders of lost property
Parker v British Airways [1982]
The position of the auctioneer
Willis v British Car Auctions [1978]
Destruction of the chattel is conversion
Atkinson v Richardson
Taking possession
Withholding possession
Clayton v Le Roy [1911]

ACTS OF CONVERSION
Misdelivery ( Ashby v Tolhurst

(1937 2KB); Sydney City Council v

West)
Unauthorized dispositions in any
manner that interferes with Ps title
constitutes conversion ( Penfolds
Wines v Elliott)

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
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 Medianal
Butler v The Egg and Pulp Marketing Board
The Winkfield
General and Finance Facilities v Cooks Cars (Romford)

THE LAW OF TORTS

Action on the Case for
Indirect 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
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 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 [1897]
Janvier v Sweeney [1919]

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,
Ds intention to cause the resulting harm can be
imputed/implied

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 (1937)
Stevenson v Basham [1922]

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
(Marions Case) 1992 175 CLR 218

THE LAW OF TORTS

Defences to Intentional
Torts

INTRODUCTION: The
Concept of Defence
Broader Concept: The content of
the Statement of Defence- The
response to the Ps Statement of
Claim-The basis for non-liability
Statement of Defence may contain:
Denial
Objection to a point of law
Confession and avoidance:

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)

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 (Marions Case) 1992 175 CLR 218

VALID CONSENT
To be valid, consent must be
informed and procured without fraud
or coercion: ( R v Williams;)
To invalidate consent, fraud must
relate directly to the agreement itself,
and not to an incidental issue:
(Papadimitropoulos v R (1957) 98
CLR 249)

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
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
Minors (Property and
Contracts) Act 1970 (NSW) ss
14, 49
Children & Young Persons
(Care and Protection Act) 1998
(NSW) ss 174, 175

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
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

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 v
Bellette (1986) Aust Torts Reports
80-038

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. 151159.

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
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
Ds act must be reasonably necessary
and not just convenient Murray v McMurchy
In re F
Cope v Sharp

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
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
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)

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

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.