Danielle El-Rassi

43263224
TORTS LAW203
WORD COUNT: 1221
LAND
Bob v Thief - Trespass to land- (Entry into house)
For trespass to land, the act must fulfill the elements of directness, actionable per se, and there
must be fault (contact of trespassory nature); directly interfere with property (constituting land) in
the possession of the plaintiff without their consent, and the plaintiff must have title to sue:
Powell v McFarlane
1
; Newington v Windeyer
2
. The thief directly interfered with Bobs property.
With title to sue, Bob will likely succeed in suing for entering onto his property.
Bob v J ohn Trespass to Land- (Droppings)
To argue trespass to land, Bob must prove the above elements as in Bob v Thief. John clearly
interfered directly with the land in Bobs possession, without his consent (fault), by throwing dog
droppings onto his property: Rigby v Chief Constable
3
. Bob is likely to succeed in his claim
against John, however both should be aware that John could minimize costs through
provocation, whereby they sustained a negative relationship.
J ohn v Bob- Trespass to Land- (Window)
John must prove the above elements of trespass as explained previously to succeed in trespass
to land. Bobs children smashed Johns window whilst playing cricket (actionable per se), and
the action was direct, however there is no fault. The defendant bears the onus of proof to
disprove fault: Non-Marine v Scalera
4
. If Bob can prove no fault of his children, John will not
succeed in proving trespass to land.
CHATTELS
Bob v Thief (Trespass to chattels- car)

1
Powell v McFarlane (1977) 38 P.
2
Newington v Windeyer (1985) 3 NSWLR 555 (Newington).
3
Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242.
4
Non-Marine Underwriters, Lloyds of London v Scalera [2000] 1 SCR 551 [15].
Danielle El-Rassi
43263224
TORTS LAW203
In order to sue for Trespass to chattels, the plaintiff must prove the trespass to directly interfere
(Hutchins v Maughan
5
; Scott v Shepherd
6
) with the plaintiffs possession of the chattels
(Possession means factual control: Newington
7
). Only the actual possessor has title to sue:
Penfolds Wines v Elliot
8
. The robbery of Bobs factual possessions was direct. Bob will likely
succeed in his claim of trespass to chattels.
Bob v Auctioneer and Freda (Chattels- Conversion TV)
For a plaintiff to succeed in Conversion and Fault, he must prove that the defendant intentionally
dealt with the chattel. In the case of a car auction, even if the auctioneer mistakenly believes the
deal to be legitimate, the auctioneer will be liable: Union v British Car
9
. Bob is likely to succeed
in his suit of conversion if he successfully proves the auctioneer and Fredas intentionally
dealing with the car and television.
Bob v J ohn (Interference with Chattels- Detinue cricket balls)
For Bob to succeed against John in detinue, he must prove wrongful detention of goods where
the plaintiff has the immediate right to possession: Bolwell v Foley
10
and properly demands the
return: Lloyd v Osborne
11
, followed by failure to redeliver the goods: Lloyd
12
. John wrongfully
refused to return Bobs rightfully possessed cricket balls after proper demand. Bob will likely
succeed in detinue.
TRESPASS TO PERSON (ASSAULT)
Thief v Bob (Assault scream and bat)
Bob may be liable for assault if the thief can prove that he reasonably apprehended imminent
contact: Zanker v Vartzokas
13
and that Bob intended to create apprehension with force: Hall v
Fonceca
14
.

5
Hutchins v Maughan [1947] VLR 131 (Hutchins).
6
Scott v Shepherd (1773) 96 ER 525.
7
Newington v Windeyer (1985) 3 NSWLR 555.
8
Penfolds Wines Pty Ltd v Elliot (1946) 74 CLR 204.
9
Union Transport Finance v British Car Auctions [1978] 2 All ER 385.
10
Bolwell Fiberglass Pty Ltd v Foley [1984] VR 97.
11
Lloyd v Osborne (1899) 20 LR (NSW) 190 (Lloyd).
12
Ibid.
13
Zanker v Vartzokas (1988) 34 A Crim R 11.
Danielle El-Rassi
43263224
TORTS LAW203
Bob may be able to reduce the damages by using the defense of necessity, whereby Bob would
have to prove his counteractive conduct reasonable in the circumstances, and proportionate to
the risk posed: Fontin v Katapodis
15
. Bob would unlikely succeed with this defense, as the
yelling and raising of the cricket bat was disproportionate: Fontin
16
and as such, more forceful
than reasonably necessary to protect himself. However Bob did not actually commit battery; he
merely created apprehension of imminent contact in the thiefs mind. Bob is likely to be liable for
assault.
J ohn v Bob (Assault stormed onto Johns property)
The same elements as above (Thief v Bob) must be fulfilled. As such: Bob enetered Johns
property in response to Johns threat of setting the dog onto Bobs property. Bobs moving
aggressively onto Johns property may constitute an intention to use force or create
apprehension, and to create apprehension of imminent contact in Johns mind. Bob didnt
threaten violence, however John could argue that he apprehended imminent contact. Bob could
defend with provocation, to prevent exemplary damages: Fontin
17
, and as seen in Downham v
Bellette
18
, Bob could prevent himself from paying aggravated damages.
Bob v J ohn (Assault- Alsatian)
For Bob to succeed in assault, he must prove the elements as mentioned above in Thief v Bob.
Reasonable apprehension of imminent contact is not present, since Johns threat depended on
Bobs conduct (coming onto his land). Intention to create apprehension was Johns threat,
however Bob will likely not succeed in this claim, due to unfulfilled elements.
TRESPASS TO PERSON (BATTERY)
Bob v Thief (Battery- Car)

14
Hall v Fonceca [1983] WAR 309.
15
Fontin v Katapodis (1962) 108 CLR 177 (Fontin).
16
Ibid.
17
Ibid.
18
Downham v Bellette [1986] TASSC 34.
Danielle El-Rassi
43263224
TORTS LAW203
To sue in battery, the plaintiff must prove a positive act: Fagan v Metropolitan Police
Commissioner
19
, that it was direct: Hutchins
20
and intentional or negligent: Williams v Milotin
21
,
and that unlawful touching occurred: Brian Rixon v Star City
22
.
In accordance with the above elements, Bob was knocked to the ground by the moving car that
was operated by the thief, and the thief definitely reversed the car intentionally. The unlawful
touching occurred when the car came into contact with Bobs body. Bob should be aware that
the damages he receives may be reduced due to contributory negligence on his part; it may be
argued that the previous claim of assault against Bob contributed to causation of the battery.
J ohn v Bob (Battery- Stitches)
For John to succeed, a claim in battery requires the elements as listed above in Bob v Thief.
Bobs act was definitely positive, direct, intentional and negligent, and it caused unlawful
touching. On the facts however, John raised his arm after Bob slammed the door, so Bob may
succeed in defense with contributory negligence. He wouldnt have needed stitches if he didnt
raise his hand. John should also consider self-defense; he raised his hand for protection from
anticipated harm.
NUISANCE
Bob v J ohn (Barking and Jacaranda)
For a claim in nuisance, Bob must prove that he has title to sue: Hunter v Canary Wharf Ltd
23
,
that the defendant had requisite knowledge of the nuisance, that the interference is substantial
and unreasonable, and that there is more than trivial damage to personal comfort: Halsey v
Esso Petroleum
24
. Neighbours are generally seen to make allowances: Hunter
25
. However, Bob
has title to sue, and noise complaints (barking) and leaves ruining the pool filter are protected
interests. If Bob can prove Johns requisite knowledge of nuisance, and substantial and
unreasonable damage to his pool filter, then he will succeed in nuisance. Bob complained to the

19
Fagan v Metropolitan Police Commissioner [1969] 1 QB 439.
20
Above n, 5.
21
Williams v Milotin (1957) 97 CLR 465.
22
Brian Rixon v Star City Pty Ltd (formerly Sydney Harbour Casino Pty Ltd) (2001) 53 NSWLR 98 [51].
23
Hunter v Canary Wharf Ltd [1997] AC 665 (Hunter).
24
Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683.
25
Above n, 23.
Danielle El-Rassi
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TORTS LAW203
council (Not John) about the barking, so requisite knowledge is unfulfilled here. Furthermore it is
unlikely that Bob will succeed in his claim against the dog barking, as it is more difficult to prove
the unreasonableness of a dogs barking, and the more than trivial effect that this noise has on
Bob and his family.
ACTION ON CASE
J ane v Thief (Fright)
For Jane to succeed in action on the case, she must prove the act intentional: Wilkinson v
Downton
26
, calculated to cause damage: TCN v Anning
27
and the resulting harm. The act was
intentional, and third party harm is a probable consequence. Janes suffering fulfills these
elements. She will likely succeed in action on the case.


26
Wilkinson v Downton [1897] 2 QB 57.
27
TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82 [100].