16/04/2015 2:35 PM TORTS

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1 16/04/2015 2:35 PM TORTS " 1"

2 The Nature of Intentional Torts 16/04/2015 2:35 PM Intentional torts exist to protect an individual s person or property rights from unwanted interference by others and include the trespass torts as well as several others including detinue and conversion. Intentional torts are named as such because they typically involve acts of deliberate transgression. Intentional torts have evolved from forms that predated the development of concepts of tortious negligence. The existence of intentional torts reflects the importance of prevention of incursions on individual rights held by society. The difference between trespass and case There are three key differences between trespass and actions on the case: I. Proof of damage i. Trespass: Actionable per se; no damage is necessarily required ii. Action on the case: The plaintiff must demonstrate physical injury or damage to property damage is the gist of the action II. Nature of the interference i. Trespass: Direct interference must have occurred ii. Action on the case: Interference is indirect or consequential III. Onus of Proof i. Trespass: The plaintiff bears the burden of establishing facts constituting the tort (a tort being prima facie unlawful), whereupon the defendant must show lack of fault or establish a defence ii. Action on the case: The plaintiff bears the burden of proof of demonstrating the intentions and actions of the defendant The elements of trespass torts 1. Intentional (or negligent) act caused (Leame v Bray (1803) 3 East 593); 2. Directly (Hutchins v Maughan [1947] VLR 131); 3. Interference with the plaintiff s person, goods or land (Hutchins v Maughan [1947] VLR 131) " 2"

3 An intentional or negligent act: fault I find the principle to be, that if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally or by misfortune, yet he is answerable in trespass (Leame v Bray (1803) 3 East 593 at 600) Wrongful imprisonment is a tort of strict liability. Lack of fault, in the sense of absence of bad faith, is irrelevant to the existence of the wrong. This is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim rather than upon the presence or absence of moral wrongdoing on the part of the defendant. A plaintiff who proves that his or her imprisonment was caused by the defendant therefore has a prima facie case. At common law it is the defendant who must then show lawful justification for his or her actions (Ruddock v Taylor (2005) 222 CLR 612 Fault is an essential element in trespass: if there is no intentional or negligent act by the defendant (McHale v Watson (1964) 111 CLR 384), there can be held to be no trespass o N.B. In England there is no longer liability for trespass for negligent acts Fault is determined by the nature of the defendant s act: if it is wrongfully wilful or negligent, the element is established (Holmes v Mather (1875) LR 10 Ex 261) o If the act that does an injury is an act of direct force vi et armis, trespass is the proper remedy (if there is any remedy) where the act is wrongful, either as being wilful or as being the result of negligence. Where the act is not wrongful for either of these reasons, no action is maintainable, though trespass would be the proper form of action if it were wrongful. Intentional conduct need not be hostile or include the intent to injure or harm the plaintiff (Boughey v The Queen (1986) 161 CLR 10; McNamara v Duncan (1971) 26 ALR 584) o The act causing interference must be deliberate, reckless or negligent (Sibley v Milutinovic (1990) Aust Torts Reps ) To determine negligence an objective test is used: reference is made to what the reasonable person would have done in the same situation That trespass includes negligent conduct was established in Williams v Milotin (1957) 97 CLR 465 o The approach taken in the above case has been rejected by English courts (Letang v Cooper [1965] 1 QB 232); torts of negligence are the only means available to a plaintiff complaining of negligent behaviour " 3"

4 o Dicta in Australia indicates dissatisfaction with the principle (Hackshaw v Shaw (1984) 56 ALR 417) Negligent trespass in Australia involves a shift of the burden of proof in an action for trespass the plaintiff must prove facts of the direct interference of the defendant s act; the burden of proof then shifts to the defendant to show either a lack of intention or negligence or that the act was not voluntary o N.B. The burden of proof fails to shift where the trespass is one of highway trespass (Venning v Chin (1974) 10 SASR 299) Directness A trespass lies where injury follows so immediately upon the act of the defendant that it may be termed part of that act; it is consequential on the other hand, when, by reason of some obvious and visible intervening cause, it is regarded, not as part of the defendant s act but merely as a consequence of it (Hutchins v Maughan [1947] VLR 131) Courts look to various factors to determine whether directness is present in a claim of trespass: o Immediacy of action! The example of throwing a log onto a highway as compared to being thrown into someone provides the classic example: throwing a log into someone is sufficiently direct, throwing a log onto a highway is not (Reynolds v Clarke (1725) 1 Str 634) o The directness of an act! For trespass to occur, the acts of the defendant must lead to a sequence of events resulting in the interference suffered by the plaintiff (Scott v Shepherd (1773) 2 Wm Bl 892; 96 ER 525) o Lack of intervening act! Where there is an intervening act, the directness must be removed! The instance of throwing the squib by two bystanders in Scott v Shepherd was held to be an extension of the initial act! The laying of baits did not constitute direct interference where dogs consumed them and died in Hutchins v Maughan [1947] VLR 131 " Before he could suffer an injury, he had himself to intervene by coming to the land and bringing his dogs " 4"

5 thereon the injury he suffered cannot be said to have followed so immediately in point of causation upon the act of the defendant as to be termed part of the act Loss or damage Trespass is actionable per se: there is no requirement for loss or damage for a cause of action Damages or loss may increase damages awarded as a remedy, without them damages awarded may only be nominal Damages may be incurred not only where there is physical injury but also in instances of (Fogg v McKnight [1968] NZLR 330): o Insult o Injury to feelings o Indignity o Disgrace o Mental suffering Compensatory or substantial damages are awarded where there exists some personal injury resulting from the trespass Exemplary damages are awarded as punishment to the guilty, to deter from any such proceedings for the future, and as proof of the detestation to the jury to the action itself (Henry v Thompson [1989] 2 Qd R 412) Exemplary damages may be reduced due to the conduct of the plaintiff, the plaintiff s behaviour has no bearing on substantial or compensatory damages Onus of proof In trespass torts, the onus is on the plaintiff to prove the elements of a trespass Once a plaintiff establishes the elements of a trespass, the onus shifts to the defendant to establish that the trespass was not intentional based on some excuse, authorisation or justification o An exception lies where the trespass arises out of some traffic incident on a public road, whereby the onus remains with the plaintiff for the entirety of the process (Venning v Chin (1974) 10 SASR 299 Tort reform legislation & intentional torts Intentional torts have had a resurgence in popularity due to: o The restrictions on quantum of damages recoverable in torts of negligence " 5"

6 Trespass to the person 16/04/2015 2:35 PM There are three intentional torts that serve to protect aspects of an individual s person: 1. Battery protects the body 2. Assault protects the mind 3. False imprisonment protects liberty Battery A battery is a direct and intentional act by a person which causes contact with the body of another o Whilst usually brought for deliberate acts, reckless or careless acts are not precluded in Australia To prove battery, the usual elements must be made out. Specifically for battery, these are: I. An intentional, voluntary act by a person II. Directly III. Caused offensive contact with the body of another o The act must take place without lawful justification or the consent of the plaintiff, which act as defences to the action Unwanted contact constitutes battery, however not all unwanted contact is sufficient to constitute the action A battery must be a positive and affirmative act causing contact offensive to the plaintiff outside the regular throes of everyday life (Rixon v Star City Pty Ltd [2001] NSWCA 265) Unwanted touching has been referred to in the past as touching in anger (Cole v Turner (1704) 87 ER 907), however there is disagreement as to whether the phrasing of the term in Cole v Turner refers to hostile conduct or merely prohibited conduct. There are two views, the latter of which is preferred in Australia: o Hostility as a necessary part of the battery! Wilson v Pringle [1987] QB 237 " Intentional touching in battery must be proved to be hostile touching. That still leaves unanswered the question when is touching to be called hostile? Hostility cannot be equated with ill will or malevolence Where the immediate act of touching does not itself demonstrate hostility, the plaintiff should plead the facts which are said to do so. " 7"

7 ! The court states that hostility need not necessarily be ill-will or malevolence, merely an intention to interfere with the plaintiff in contravention of his rights o Hostility as unwanted contact! Collins v Wilcock [1984] 1 WLR 1172 " Known prostitute grabbed by police when she refused to be questioned without intent to arrest! Rixon v Star City Pty Ltd [2001] NSWCA 265 " the absence of anger or hostile attitude by the person touching another is not a satisfactory basis for concluding that the touching was not a battery. A battery must be a positive act; passivity cannot be held to constitute battery (Innes v Wylie (1844) 174 ER 800) o Policeman stood entirely passive like a door or wall put to prevent the plaintiff from entering the room Passivity can become a positive act so as to constitute a battery (Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439) o Policeman stopped motorist; motorist accidentally stopped car on policeman s foot; motorist failed to respond to requests to remove car from position; court held that initial act of stopping was not a battery, but failure to promptly comply with requests to remove the car intentionally was battery Assault An assault is a direct threat by a person which intentionally or negligently creates apprehension of imminent, harmful or offensive contact To prove assault, the usual elements must be made out. Specific to assault, they are: I. An intentional voluntary act or threat II. Directly created in another person III. A reasonable apprehension of imminent contact with that person s body o The act must take place without lawful justification and without the consent of the plaintiff ACN Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti [2008] VSCA 274 sets out a full description of those elements of assault: " 8"

8 1. A threat by the defendant, by words or conduct, to inflict harmful or offensive contact upon the plaintiff forthwith. It is enough if the threat is to make contact to the body of the plaintiff without the plaintiff s consent or without any legal justification. 2. A subjective intention on the part of the defendant that the threat will create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith. It is not necessary to prove that the defendant in fact intends to carry out the threat. 3. The threat must in fact create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith, in the sense of being frightened by it. It is enough if the plaintiff apprehends that the threat will be carried out without his or her consent. 4. The apprehension in the mind of the plaintiff must be objectively reasonable. Intention The defendant must have had the intention to create the apprehension in the mind of the plaintiff (Rixon v Star City Pty Ltd [2001] NSWCA 265; Cranston v Consolidated Meat Group Pty Ltd [2008] QSC 41) Act or threat Conduct constituting assault may be threatening acts, words or both (Stephens v Myers (1830) 4 C & P 349) There is no clear authority in Australia on whether or not words alone will constitute an assault, despite it seeming logical that they could raise the reasonable apprehension of imminent bodily harm. There are, however, cases that would indicate that they ought to be considered as capable of forming an assault (Barton v Armstrong [1969] 2 NSWR 451) The House of Lords has held that silence may constitute assault (R v Ireland; R v Burstow [1998] AC 147) Apprehension An objective test is used to determine whether there is apprehension caused: would a reasonable person in the position of the plaintiff have formed the fear that contact was imminent? o Where a plaintiff knows of an exceptional fear or timidity, it may be found that their doing so waives the need for a reasonable person to have found an act threatening to form that apprehension (MacPherson v Beath (1975) 12 SASR 174) Apprehension of imminent harmful contact " 9"

9 The imminence of harm is relevant Imminence of harm does not necessarily correlate with immediacy in terms of time o Zanker v Vartzokas (1988) 34 A Crim R 11! Young woman got into defendant s van; woman asked to disembark when sexual advances made; man refused, saying I am going to take you to my mate s house. He will really fix you up ; threat held to be for imminent harm despite the threat being of future violence o Barton v Armstrong [1969] 2 NSWR 451! Examples given by White J of a hypothetical defendant threatening a victim in a scrub area with taunts of rape where her capture could be done at any point in time and despite no immediate action being taken, the threats maintained imminence in that the prolongation was at the pleasure of the defendant Conditional threats Threats of harm contingent on some action may or may not constitute assault o Tuberville v Savage (1669) 86 ER 684! If it were not for assize time, I would not take such language from you accompanied by gesturing towards a sword was held not to be an assault o Rozsa v Samuels [1969] SASR 205! Threat of taxi driver being punched in the face responded to by claims that the assailant would be cut to bits if he did so. Response held to constitute an assault when considered alongside the potential to respond differently to the situation such as locking the door to the car or moving away Damages Assault stands alone in tort law as not requiring any physical interference to warrant damages Damages will likely reflect lack of actual damage such as in Stephens v Myers (1830) 4 C&P 349 where damages of 1/- were awarded False imprisonment False imprisonment provides a remedy to the unlawful restraint of individual liberty (Trevorrow v South Australia (No 5) (2007) 98 SASR 136) False imprisonment is broken into three elements: " 10

10 1. An intentional, voluntary act 2. Directly causing 3. Total deprivation of the liberty of the plaintiff o The act must take place without lawful justification and without the consent of the plaintiff Directness and intention The elements are common to all intentional torts of trespass, however no authority exists for negligent false imprisonment o Obiter dicta in Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529 suggests that financial loss may be recovered in negligence where negligence causes the plaintiff s immobilisation Directness may prove problematic in claims of false imprisonment o Iqbal v Prison Officers Association [2010] 2 WLR 1054 saw a plaintiff serving a 15 year prison sentence confined to his cell for 24 hours due to a strike; ECA held no false imprisonment had occurred for the union striking had not been directly responsible for the plaintiff being in his cell nor had they made any positive act to cause imprisonment for the 24 hours o Ruddock v Taylor (2005) 222 CLR 612 regarded the plaintiff Taylor being allegedly falsely imprisoned when detained following cancellation of his visa. HCA held there was no false imprisonment for the cancellation s lawfulness led to the detention being lawful Policy Public policy concerns have been found relevant in determining whether or not imprisonment is false Instances in which military morale would be compromised saw the plaintiff fail in Haskins v Commonwealth (2011) 279 ALR 434 and in Parker v Commonwealth (1965) 112 CLR 295 Total deprivation of liberty False imprisonment requires the total deprivation of liberty Restriction of freedom of movement generally constitutes the total deprivation of liberty (Bird v Jones (1845) 1 QB 742) o A prison may have its boundary large or narrow, visible and tangible or, though real, still in the conception only; it may itself be moveable or fixed; but a boundary it must have, and that boundary the party imprisoned must be prevented from passing Some confusion seems to me to arise from confounding imprisonment of the body with mere loss of freedom; it is one part of the definition of freedom to be able to go " 11

11 with whosoever one pleases; but imprisonment is something more than the mere loss of this power; it includes the notion of restraint within some limits defined by a will or power exterior to our own. Whether there is reasonable means of escape will determine whether deprivation of liberty is total o Bird v Jones plaintiff capable of reversing course to avoid being blocked by police meant he was not sufficiently deprived of liberty to have been falsely imprisoned Whether escape is reasonable is dependent on the risk attached to it: If I lock a person in a room with a window from which he may jump to the ground at risk of life or limb, I cannot be heard to say that he was not imprisoned because he was free to leap from the window (Burton v Davies and General Accident Fire & Life Assurance Corp Ltd [1953] St R Qd 26) o Reasonable means of escape are essentially those not involving danger to the plaintiff (R v Macquarie and Budge (1875) 13 SCR (NSW) 264)! Man owed money to Bank of NSW; representative of bank cast off on vessel of debtor; held to have been falsely imprisoned for to attempt to escape was to involve great hazards Whether escape is reasonable may also depend on whether there are alternative escape routes known to the prisoner (Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379) Duration of false imprisonment Any form of total deprivation of liberty is sufficient (Murray v Ministry of Defence [1988] 1 WLR 692) o Lady imprisoned in home for 30 minutes Knowledge of the deprivation The deprivation must be against the will of the plaintiff, but not necessarily to the knowledge of the plaintiff at the time (Murray v Ministry of Defence [1988] 1 WLR 692) o Meering v Grahame-White Aviation Co (1919) 122 LT 44! Plaintiff went to answer questions regarding thefts at the office of his employer; unbeknownst to plaintiff detectives were stationed outside the door to prevent his departure; held to be false imprisonment There is old authority to suggest that a plaintiff must know of imprisonment (Herring v Boyle (1834) 149 ER 1126), however Australian courts seem to prefer the contrary view (South Australia v Lampard-Trevorrow [2010] SASC 56; Myer Stores Ltd v Soo [1991] 2 VR 597) " 12

12 Trespass to Land 16/04/2015 2:35 PM Elements Trespass to land is a: Voluntary Intentional (or negligent) Direct Physical interference with the plaintiff s exclusive possession of land Actionable per se Trespass to land is actionable per se, as are all actions in trespass o Entick v Carrington (1765) 2 Wils KB 275! Our law holds the property of every man so sacred that no man can set foot upon his neighbour s close without his leave. If he does, he is a trespasser, though he does no damage at all; if he will tread upon his neighbour s ground, he must justify it by law o Dumont v Miller (1873) 4 AJR 152: defendant and beagles entered land; no damage; lack of damage irrelevant The plaintiff need not be the legal owner of the land, merely the possessor of it: the tort deals with the interference to the right to enjoy property, The onus of proving lack of fault is on the defendant (Entick v Carrington (1765) 2 Wils KB 275) o If he admits the fact, he is bound to shew by way of justification that some positive law has empowered or excused him Voluntary Act of the Defendant The interference with the plaintiff s land must have been voluntary on the part of the defendant (Smith v Stone (1647) Sty 65; Public Transport Commission of New South Wales v Perry (1977) 14 ALR 273) o Public Transport Commission of New South Wales v Perry (1977)! It has been established for centuries that a defendant does not commit an action-able trespass by going on to a plaintiff s land involuntarily " 14"

13 Whether a defendant subjectively intends to invade a plaintiff s interests in land is irrelevant, however there must be an intention to commit the act that constitutes the trespass The voluntary act must be of the defendant, not an independent third party (League Against Cruel Sports Ltd v Scott [1986] QB 40 Directness Trespass to land requires a direct interference by the defendant Interference merely consequential upon the defendant s act is not a trespass (Southport Corp v Esso Petroleum Co Ltd [1954] 2 QB 182) o Oil discharge into estuary held not to constitute trespass when oil carried onto property by tide! C.f. Gregory v Piper (1829) 9 B&C 591 whereby rubbish drying and rolling onto plaintiff s land constituted trespass for the interference was the natural and probable consequence of the act! Difference between cases reconciled in theory where it is held that a defendant s behaviour is the initial step in an unbroken chain of events in which the actual outcome is the natural and probable consequence of the act Title to sue In order to maintain an action in trespass on land, the plaintiff must demonstrate actual exclusive possession of the subject land, and need not necessarily be the owner of the land (Newington v Windeyer (1985) 3 NSWLR 555) o A tenant of land may sue an owner in trespass (Rodrigues v Ufton (1894) 20 VLR 539) It is no defence to an action in trespass to argue the plaintiff is in wrongful possession unless the defendant has a legal right to exclusive possession (Delaney v TP Smith Ltd [1946] KB 393) o In Delaney v TP Smith Ltd, the plaintiff s actual possession, without a right to exclusive possession, would have been sufficient to sue all parties but the defendant, who owned the land o A person who is a mere licensee of a property, without exclusive possession, will not have title to sue in trespass because such a licence is a personal right, not a right on possession of the land (Cowell v " 15

14 o Rosehill Racecourse Co Ltd (1937) 56 CLR; 605Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534) Dinner guest, theatre patron, hospital patient (Kaye v Robertson [1991] FSR 62) fall into categories of licensee with no right to possession The nature of land Usque ad coelum et ad infernos (Blackstone s Commentaries on the Laws of England 2001, Cavendish Publishing, London) o Trespass to land has long been held to be capable beneath and above the soil of the land in question o The extent to which trespass is capable above and below has differed! Bernstein of Leigh (Baron) v Skyways & General Ltd [1978] QB 479! DiNapoli v New Beach Apartments Pty Ltd (2004) Aust Torts Reps o With regards to the airspace above land, it is generally held that the amount to which the possessor of land enjoys exclusive rights is that required for ordinary use and enjoyment of the land (Bernstein of Leigh (Baron) v Skyways & General Ltd [1978] QB 479)! (Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1: Crane jib above house; Davies v Bennison (1927) 22 Tas LR 52: shooting of cat on roof from adjoining property)! Dealt with to the extent of aircraft being capable of trespass in s72 of the Civil Liabilities Act 2002 NSW! Injury caused by material falling from non-military aircraft is provided for in ss10, 11 of the Damage by Aircraft Act 1999 (Cth)! Access to neighbouring land can be sought from a local council to carry out work under the Access to Neighbouring Land Act 2000 (NSW) o There is no requirement for actual interference with the ordinary use and enjoyment of the land, just whether an action may interfere (LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490) o There is no tortious conduct in taking a photograph of private land from a public place (Bathurst City Council v Saban (1985) 2 NSWLR 704) " 16