* Self-help : can perform one tort to prevent the occurrence of another (Cowell v Rosehill Racecourse Co Ltd)

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1 Civil Wrong CHARACTISTICS OF TORTS [1] civil wrong [2] against a private individual that [4] violates their legally protected interests and [4] compensates for loss. * D s faultà conduct caused harm (socially, ethically unacceptable/unreasonable) à obligation to compensate for losses ** P s harm à infringement, damage, harm * Self-help : can perform one tort to prevent the occurrence of another (Cowell v Rosehill Racecourse Co Ltd) Civil Wrong **Joint tortfeasor: liable to P for the same wrong >> Several tf: liable to P for different wrongs >> Concurrent tf: liable to P for the same damage caused Torts Action ACTION à burden of proof = balance of probability = greater than > 50% Elements P must make out elements of tort Defences D s argument Remedies if plaintiff s claim is successful à damages (primary remedy) or injunctions (others) Torts Action PURPOSES OF TORT LAW compensate loss & rectify wrongs (place P in position they were in prior to harm caused by D) >> deterrence >> punishment (punitive/exemplary damages) Onus of Proof Actionable per se (without proof of damage) (Trespass) *Less onus of proof **P need only prove direct interference with person, land, goods (presumed unlawful) ***No need to prove substantial damage any interference actionable ****D must disprove fault once direct interference established justification/ authorisation of act OR excuse Action on the case OR case (Nuisance & Negligence) *More onus of proof **P must prove D s fault by D having intentionally or negligently inflicted harm ***Need to prove substantial damage or loss ****Need to link D s act with P s harm (causation) Onus of Proof Damages Damages *All tort give rise to damages Most common = compensatory damages à for actual damage suffered (including economic) - pecuniary losses (readily translated in monetary terms) and non-pecuniary losses Other Damages = Nominal; aggravated; and exemplary (or punitive).

2 Trespass to Person (Battery) Trespass to Person (Battery) (Direct) Intentional (or negligent) most are intentional Harmful or offensive contact with P s body DIRECTNESS = immediate, NOT consequential Hutchins v Maughan cannot be consequential P s 2 dogs died after picking up baits laid by D à D warned P at time when he saw him flocking sheep in vicinity with his 2 dogs, but P thought D was bluffing Herring CJ: dogs deaths were consequential not immediate (see Scott v Sheppard) Scott v Sheppard (1773) 2 Wm Bl 892 Blackstone J at 894 DIRECT ACT Fireworks tossed from A to B to D to P à exploded in P s face à All but D acting in self-preservation but D s act was direct interference = actionable per se à Directness = the harm suffered to P occurred so immediately after D s act that it could be considered a part of the acts itself INTENTIONAL *Intention = D s intent to do act à direct interference à intend contract (not the harm) à intention to make contact with their body / apply force **Motive = irrelevant (what prompts D to do act; ie. well-meaning vs malicious) à Mistake is no excuse ie. mistaken identity (misinterpretation of consent to contact) such as operation performed on the wrong patient Moore v Lambeth (No 2) mistake = no excuse D not entitled to enter land or takes chattel (good) under mistaken impression of entitlement to possession of it act constitutes trespass Cowell v Corrective Services (NSW) lack of awareness = no excuse P released from prison after sentence served à sentence recalculated by HC and was shortened à P falsely imprisoned à lack of negligence or of awareness that imprisonment was unlawful irrelevant ***Maintaining Contact Don t intend to make initial contact but maintain contact once it is established Fagan v Metropolitan Police à Drove on Police officer s foot unintentionally but remained on it for extended duration à Battery, despite unintentional initiation of contact à force intended to be maintained

3 ****Involuntariness: must be completely involuntary to apply (D has no knowledge or no control over situation) Morris v Marsden per Stable J if capacity to know nature and quality of act = not involuntariness D (catatonic schizophrenic), violently attacked P à mental illness not defence UNLESS person s act = complete automatism [K]nowledge of wrongdoing is immaterial,... and where there is the capacity to know the nature and quality of the act, that is sufficient although the mind directing the hand that did the wrong was diseased (at 927-8) CONTACT *P s right = bodily integrity à personal space, health and safety **Temporary emotion can impact for trespass claim: embarrassment, humiliation = aggravated damages Rixon v Star City unreasonable or unnatural contract required R barred from casino à Casino allowed to identify banned persons, ask them to leave and apprehend them if they refused à security put hand on man s shoulder *Not all contact amounts to battery à reasonable to make contact with person s shoulder to gain their attention (must be harmful or offensive - does not have to be hostile, aggressive or violent) *forcing R to turn around/swinging him around = unacceptable but not proved by R Collins v Wilcocks criminal case (Rixon based on this judgement) Police officer grabbed alleged prostitute à was scratched off à pulled her back to get her name and address etc. à grabbing and restraining someone is not considered socially acceptable à conduct falls within something unreasonable and unnatural for situation *circumstances can affect judgements à ie. person, age, etc. Trespass to Person (Assault) Trespass to Person (Assault) (Direct) threat (by words+ or acts) Intentionally (or negligently) create a (reasonable) apprehension Of imminent battery THREAT= words, actions, or words and actions INTENTIONAL must be reasonable to expect that the threat can be carried out **conditional threats still threats, where it is clear that you have no right to seek entitlements (where the condition is likely to occur) à ie. I ll punch you if you don t give me your money

4 Rozsa v Samuals conditional threat = intentional if condition likely to be fulfilled Taxi driver (A) pulled taxi in front of taxi rank queue à driver (B) said you can t jump queue and A refused to move à B threatened to punch him in the head and A pulled out a knife and said he d cut B to bits if he tries it à Threat conditional and B unentitled to make it BUT A s threat disproportional/unreasonable t B s (self-defence = provocation) IMMINENT BATTERY actual apprehension of imminent physical harm being done to your person Zanker v Vartzokas threat of imminent battery (soon to occur) Women driven home by man in van à man asked for sexual favours à when asked to stop man sped up and said his mate would really fix [her] up à jumped out of van Feared nothing she could do to prevent physical harm is she remained in the vehicle (entitled to damages for physical injuries incurred from exiting van) **Depends on context to determine if the harm is imminent or otherwise 1. something done in interim to avoid battery 2. repetition of threat can amount to harassment or stalking for victim (if imminent battery is not apparent) Trespass to Person (False Imprisonment) Direct Intentional (or negligent) Act TOTAL Restraint of Liberty Trespass to Person (False Imprisonment) DIRECTNESS **see Battery & Assault *People often imprisoned by A acting in behalf of B à B liable BUT if A merely acting on the word of B, then A not liable if reasonable steps were taken to act on B s subjective perception of the situation Coles Myer Ltd v Webster must directly/wrongly restrain person Conflict arose in store over credit card fraud à Store manager called police to restrain customer *Store manager responsible for false imprisonment BUT police acted reasonably given perception of incident (belief of customer s guilt) so not liable on the word of the store manager and took actions that would have been necessary if the accusations were true INTENTIONAL see battery / assault *clear lawful justification needed to escape liability à strict scrutiny by courts to determine whether it was lawful Ruddock v Taylor per Kirby J at [137]: function of false imprisonment to protect individuals from unauthorised executive detention

5 TOTAL RESTRAINT OF LIBERTY = no reasonable means of escape (Bird v Jones) *Fundamental liberty to move (basic human right) à must be more than blocking of one direction, where others are reasonable to follow (ie. blocking one of many doors) **Need not be physical confinement can be psychological Balmain Ferry v Robertson other reasonable means of escape Must pay penny to get on or off ferry wharf à P paid to enter, didn t catch ferry and wanted to exit wharf without paying to exit à restrained until he jumped over the fence à Privy Council = other reasonable means of escape (pay penny, catch another fairy reasonable to wait 20 minutes McFadzean v CFME Union possible alternative means of escape Anti-logging protestors in bush put up road blocks on either exit of forest à threats ongoing for days à protestors invited out by loggers but only if escorted by police à 1.5km bush track could also be used as an escape à if additional (unusual) steps/efforts must be taken to get out of the situation of restraint = restraint BUT protestors = experienced bush campers so could have escaped through alternative track (consider subjective party) à not total restraint Symes v Mahon submission to another s power (psychological restraint) Police officer mistook someone s identity and took them for questioning à had to catch train and stay in a hotel in another city à not actually physically restrained BUT considered to be imprisoned as he had no choice but to follow the officer Murray v Minister of Defence don t need to know of actual imprisonment D visited P in his office à D locked door and had security guards outside door à P did not know à P still believed (without actual knowledge of entrapment) that he had no reasonable means of escape à feeling like there is a total physical restraint/confinement constitutes false imprisonment regardless of knowledge of actual imprisonment Defences (Trespass to Person) Defences (Trespass to Person) POSSIBLE DEFENCES: Consent Necessity / emergency (Act justified?) Self Defence Provocation? (only in criminal law) CONSENT must be relevant to nature and circumstances of the conduct *Mistaken belief of consent/entitlement does not constitute consent (see Battery Intention: Motive is irrelevant à mistake is no excuse) (Moore v Lambeth) D must prove consent was expressly or Impliedly communicated from P to D -- ie. doctor must show that patient consented to the nature of the procedure **Liberty can consent to treatment (ie. surgery) even if it harms or kills you McNamara v Duncan consent relative to reasonable contact, sporting context *Consent for application of force extends, not only to application of the rules of the game, but to conduct that commonly occurs within the usage of the game, although actions aimed explicitly to injury players is unreasonable Herd v Weardale restraint when consent withdrawn = false imprisonment Worker down in mine wanted to be brought back to surface at 11am à only one lift which use being used until 1.30pm à lift not used after 1.10pm but worker not lifted out until 1.30pm à where consent is withdrawn, P must be released as soon as is practicable (as soon as possible but reasonable time to do so) Marion s Case per McHugh J consent makes act lawful, strict onus on D D must prove consent à consent is to make the intentional or reckless, direct act of D in making contact with P lawful à if this cannot be established, the tort is made out Dickinson v Waters restraint when consent withdrawn = false imprisonment Women refused to let security look in her bag upon exiting the store à allowed security to withhold her from leaving à revoked consent soon after à security required to let her go within reasonable time of consent revocation