Law of Torts A

Battery
Battery is a direct act by the defendant causing bodily contact with the plaintiff without
consent.

Elements
DIRECT ACT requires a direct interference with the person rather than an interference
which is merely a consequence of the defendants act. That is, if the original act caused a
sequence of direct and not voluntary events, then the original act constitutes towards
battery (Scott v Shepherd).
POSITIVE ACT requires the positive doing of an act. If the act was to stand your ground as
opposed to actually moving in order to batter the other person then it would not
constitute as battery (Innes v Wylie).
INTENTIONAL ACT requires the action of the defendant to be intended. The harm need
not be intended (Gray v Barr).

Assault
Assault is a direct threat by the defendant that places the plaintiff in reasonable
apprehension on an imminent harmful or offensive direct contact with the plaintiffs
person.

Elements
POSITIVE ACT AND DIRECT PHYSICAL THREAT requires the threat made by the defendant
to be positive and direct. This also means that the defendant must have the means to
carry out the threat (Stephens v Myers). The threat made may have been conditional
(Tuberville v Savage), however in this case, D stated that he would not do anything.
REASONABLE APPREHENSIVE OF IMMINENT BATTERY requires that a reasonable person
in the same circumstances as the plaintiff would believe that the contact threatened by
the defendant would occur (Zanker v Vartzokas). Whether there was reasonable
apprehension would also be determined by whether the plaintiff had the means to carry
out the threat (Stephen v Myers). Fear is not a requirement (Brady v Schatzel). Also
words or text via phones/computer may constitute towards apprehension of imminent
battery, not just actions (Barton v Armstrong).
INTENTION TO CAUSE APPREHENSION requires the defendant to have intended to
create an apprehension that harm will occur. It is irrelevant whether the defendant
intended to carry out the act or cause harm (Hall v Fonceca).

False Imprisonment
False Imprisonment is a direct act by the defendant which intentionally deprives the
plaintiff of his or her liberty without consent or lawful justification.

Elements
POSITIVE ACT requires the defendants act positively contributed to the plaintiffs lack of
liberty. If the act was of a passive nature, then it does not constitute as false
imprisonment (Herd v Weardale Steel), unless this passive act was in fact positive in that
the defendant intended that their conduct or lack of conduct result in the imprisonment,
then the act will constitute as false imprisonment.
TOTAL RESTRAINT requires that the imprisonment had no reasonable means of escape
(Bird v Jones). Methods of escape that are dangerous, not apparent or if the plaintiff
reasonably believes that the use of any apparent and safe method would result in the use
of physical force by the defendant (Myer Stores v Soo) are not considered to be a
reasonable means of escape. Furthermore, the plaintiff needs not to be aware of the
false imprisonment (Murray v Ministry of Defence).
INTENTIONAL ACT requires the defendant to have the intention to perform the act that
directly resulted in the confinement of the plaintiff (Myer Stores v Soo).

Trespass to Land
Trespass to Land is any unauthorised, direct interference with anothers lawful
possession of land.

Elements
INTERFERENCE MUST BE WITH LAND IN THE LAWFUL POSSESSION OF THE PLAINTIFF
requires the plaintiff to have some form of proprietary right of the land (Delaney v TP
Smith). A person may sue in trespass to land so long as they hold adequate title against
everyone but a person who has an older, therefore, better title (Newington v Windeyer).
POSITIVE AND DIRECT ACT requires the defendant to have positively and directly
interfered with the land (Southport v Esso Petroleum), not an involuntary act (Public
Transport v Perry).
INTERFERENCE MUST RELATE TO LAND requires the interference by the defendant must
relate to land or airspace (Kelsen v Imperial Tobacco). The airspace above the plaintiffs
land depends on what can be said to be reasonable for the use and enjoyment of the
property.


Trespass to Goods
Trespass to Goods is a direct interference by a defendant with a plaintiffs possession of
goods.

Elements
NATURE OF PLAINTIFFS POSSESSION requires the plaintiff to be in actual or constructive
possession of the good at the time (Penfold Wines v Elliott). Actual possession is where
the plaintiff had actual control over the goods and constructive possession is where the
goods belong to the plaintiff but has no direct control over it. Also the plaintiff may sue
for trespass to goods if they are in immediate rights to the possession of the good, that is,
giving the goods to someone (a representative) to look after. However, if the good is
hired, the person in actual possession may sue but the actual owner may not until the
end of the period of the hiring.
NATURE OF THE DEFENDANTS ACTIONS requires the defendant to have directly and
voluntarily interfered with the goods (Hutchins v Maughan). The act by the defendant
must have been intentional (National Coal Board v Evans).

Conversion
Conversion is an intentional act by the defendant that is inconsistent with the plaintiffs
right of possession of the goods.

Elements
NATURE OF PLAINTIFFS INTEREST IN GOODS requires the plaintiff to be in actual
possession or with the immediate rights to possession (Penfold Wines v Elliott). People
with the immediate rights to possession may include bailees or finders. Finders have a
greater title than later possessors of the good but the owner of the good has a more
superior title than the finder (Armory v Delamirie). However, if the good is found on land
that is being exercised and controlled by someone, then the occupier has rights superior
to those of a finder over the goods (Parker v British Airways).
NATURE OF DEFENDANTS ACT requires the act by the defendant to be intentional and
inconsistent with the plaintiffs right to possession of the goods (Rendell v Associated
Finance). Acts of conversion:
- Taking/Dispossessing
- Destroying/Fundamentally altering
- Using
- Receiving
- Selling
- Refusing to surrender
Negligence
Negligence is the failure to take reasonable care, causing damage.

Elements
DUTY OF CARE requires the defendant to have owed a duty of care to the plaintiff to
exercise reasonable care and skill because his or her conduct involved a reasonably
foreseeable risk of harm towards the class of persons that the plaintiff was within
neighbour principle (Donoghue and Stevenson). The precise sequence of events need
not be foreseeable (Chapman v Hearse). If the plaintiff was not within the class of
persons in which there was a reasonable foreseeable harm, then the defendant does not
owe a duty to the unforeseeable plaintiff (Palsgraf v Long Island Railroad). Relationships
in which a duty of care is owed:
- Employer to Employee (Paris v Stepney)
- Occupier to Entrant (Neindorf v Junkovic)
- Driver to other road users (Manley v Alexander)
BREACH OF DUTY OF CARE requires the defendant to fail to take reasonable steps to
avoid a reasonably foreseeable and not insignificant risk of harm to the plaintiff where a
reasonable person in the defendants position would have done so. The reasonable
foreseeability test involves an examination of the defendants conduct and whether a
reasonable person would have reasonably foreseen a risk which was not insignificant
(CLA s9(1)(a)(b) and Drinkwater v Howarth). The standard of care in which the defendant
would be held would be of a reasonable person engaged in that particular activity (CLA
s9(1)(c)). The standard of care owed by a person does not change due to skill (Nettleship
v Weston) or condition (Mansfield v Weetabix). The standard of care owed by a young
child will be held to the standard of a child of that age (Mchale v Watson). To decide
whether a reasonable person would have taken precautions against a risk of harm, refer
to the CLA s9(2), s10 (Bolton v Stone Probability, Paris v Stepney Magnitude of harm).
An exceptional rule in which to discharge the onus of proof, is when a set of
circumstantial evidence can be proven. Res Ipsa Loquitur may be applied (Schellenberg v
Tunnel Holdings):
- If the thing causing the negligent act is under the management or control of the
defendant; and
- The accident is such as in the ordinary course of things does not happen if those who
have management use proper care; then
- It may be inferred that the negligent act was caused by the defendant; but
- There must be absence of explanation by the defendant.


CAUSATION requires the breach of duty of care by the defendant to have caused the
plaintiff injury or loss. The but-for test may be used: But for the defendants breach,
would the plaintiff have suffered damage? (Barnett v Chelsea), in establishing factual
causation (CLA s11(1)(a)). Cases in which there are multiple sufficient causes may not use
the but-for test as a definite test for causation (March v Stramare), so a common sense
approach may be used to establish causation (CLA s11(2)). Furthermore, on the balance
of probabilities, the plaintiff must prove that there is more than a 50% chance that the
harm would not have occurred had the defendant not acted negligently (CLA s12) (Tabet
v Gett). There are many instances where an intervening act, Novus Actus Interveniens, by
a 3
rd
party sever the chain of causation between the defendants breach and the
plaintiffs harm (Chapman v Hearse). If the 1
st
party can foresee the negligent act by a 3
rd

party, then the initial party remains responsible. If there was an intervening act due to
the 1
st
partys (plaintiff) negligence, then the defendant would not be held liable unless
the nature of the defendants duty of care is to prevent the action (Reeves v Metro
Police).
REMOTENESS requires the plaintiff to establish that the injury suffered was not too
remote. The kind/class of damage sustained by the plaintiff and the general matter in
which it occurred must have been reasonably foreseeable as a consequence of the
defendants negligence (Wagon Mound No 1). Section 11 (1)(b) of the CLA reflects the
common law in extending the rule to have the type of harm been reasonably foreseeable
as a result of the defendants conduct (Hughes v Lord Advocate). Furthermore, the
defendant may be held liable for harm that is of a greater extent than what was
reasonably foreseeable so long as the harm was of the class that was reasonably
foreseeable. The effect of this principle (The Thing Skull Rule) is that the defendant must
take the plaintiff as he/she is found (Smith v Leech Brain).













Multiple Tortfeasors
JOINT TORTFEASOR is when there are two (or more) defendants liable for the same
wrong (Thompson v ACT).
SEVERAL TORTFEASOR is when there are two (or more) defendants liable for different
wrongs (Chapman v Hearse).
CONCURRENT TORTFEASOR is when there are two (or more) defendants liable for the
same injury.
The plaintiff may sue either/both D1 and D2 in all cases. The recovery from D1 is not a bar
to claim against D2 (LRA s6(a)). The amount recoverable shall not exceed the amount of
the damages awarded from first judgement (LRA) s6(b)).
LIABILITY FOR DISTINCT HARMS is where two (or more) defendants are liable for
different injuries/losses caused.
AGGRAVATION OF PREVIOUS TORTIOUS INJURY is where the second defendants
conduct added damage to the plaintiffs injury which originally caused by the first
defendants negligence (SGIC v Oakley):
(1) Where the further injury results from a subsequent accident which would not have
occurred had P not been in the physical condition caused by Ds negligence.
(2) Where the further injury results from a subsequent accident which would have
occurred had P been in normal health but damage is greater due to aggravation of
earlier injury.
(3) Where the further injury results from a subsequent accident which would have
occurred had P been in normal health and the damage sustained includes no element
of aggravation of the earlier injury, the subsequent accident and further injury should
be regarded as casually independent of the first.
NOTE: For (1) and (2), the additional damage is treated as caused by D1s negligence.














Defences
VOLENTI NON FIT INJURIA is when the plaintiff freely and voluntarily, with full
knowledge of the nature and extent of the risk impliedly agrees to the defendants
negligent conduct. The plaintiff must have full knowledge of nature and extent of factual
risk being run and must accept that risk freely for the defence to be available (Avram v
Gusakoski). Section 13 and 14 of the CLA may be used to prove that an obvious risk was
involved and that the plaintiff was presumed to be aware of the obvious risk. Section 16
of the CLA is considered when an inherent risk occurs despite the exercise of reasonable
care and skill. Sections 17-19 of the CLA is considered when a dangerous recreational
activity is involved (Fallas v Mourlas).
CONTRIBUTORY NEGLIGENCE is when the plaintiff fails to take reasonable care for
his/her own safety, contributing to the harm, reducing the damages recoverable. The
plaintiff must have failed to take reasonable care for their safety and the injury sustained
must have been foreseeable and within the class of risk created by the plaintiffs conduct
(McPherson v Whitfield). Furthermore, the plaintiffs conduct must have contributed to
the injury (Froom v Butcher), and not necessarily the accident. If the plaintiff was
intoxicated, s46 of the CLA states that the standard of care that the defendant owes the
plaintiff if the same as a person who is not intoxicated. If the plaintiff was intoxicated at
the time of the accident, then there is a presumption of contributory negligence, unless
the plaintiff can prove that the intoxication had no connection with the injury suffered
(CLA s47). If the plaintiff relies on someone who is intoxicated at the time of the accident,
then there is a presumption of contributory negligence, unless the defendants
intoxication did not contribute to the accident or the defendant could not avoid relying
on the defendants care and skill (CLA s48).