Torts Exam Notes

How to answer the problem

1. Determine the parties 2. Cause of the action - what tort 3. Determine onus of proof 4. Each element and apply it with conflicting authorities/policies 5. Conclusion 6. Defences - elements - conclusion if they will apply - go through relevant ones. 7. Remedies - conclusions about the remedies - which are relevant 8. Overall conclusion.

Battery
Definition - reckless or intentional application of force to another person without consent, lawful excuse or justification. Elements 1.Direct and Positive Act: Battery must be an act (not omission) o Fagan v Metro Police Commission (1969) - car on police foot was an act not an omission but a positive act (continuous) Can include a continuous act 1. Cause contact with Plaintiff: Slightest contact can amount to battery (Collins v Wilcock) Contact need not be hostile (Rixon) 2. Without consent: OR without lawful excuse (Collins) Includes consent for ordinary contact of everyday life e.g. jostling and friendly slap Implied consent acceptable to ordinary standards to a certain extent BUT no greater a degree of contact that is essentially necessary in circumstances (Rixon; Collins; Boughey v R) 3. Intent to contact or negligence in contacting: (Venning v Chin) No need to prove damages but if there is damages and P wants comp must prove damages Onus of Proof - to establish, plaintiff has to show that a direct act of the defendant caused battery. Defendant must prove consent.

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Assault
Definition - an act that intentionally or recklessly causes another to apprehend immediate and unlawful personal violence. Elements 1.direct act causing reasonable apprehension of imminent contact not only must defendant cause plaintiff to actually apprehend contact, Plaintiffs apprehension must be reasonable - determined objectively in the circumstances (Bradey v Schatzel) apprehension - recognition of threat of contact the apprehension can be a present fear of contact - relatively immediate contact kept alive in victims mind (Zanker - girl in van) threats over phone even silent calls can be assault depending on circumstances e.g. power of defendant over plaintiff, pre-existing fear of defendant (Barton), not knowing when threats would occur 2. Intent to use force OR intent to cause apprehension of contact in victims mind: (Hall - Hall v Fonceca - shaking fist in face causing apprehension) Could be Recklessness - Defendant foresees possibility of causing the apprehension but acts anyway o Could be reckless in causing apprehension Onus of Proof is on plaintiff

False Imprisonment
Definition - Unlawfully restraining the liberty of another person (Banner) and the restraint must be a total obstruction of a persons free movement (Bird) Elements 1. Total imprisonment plaintiff must have their free movement prevented in all directions but not just obstruction of movement (Bird) If there is a reasonable means of escape, detention is not total Could be physical OR psychological boundary o psychological boundary (Symes v Mahon 1922) Psychological boundary if plaintiff had completely surrendered to control of defendant - e.g. threat

Torts Exam Notes

No need for the plaintiff to know they are imprisoned if still imprisoned (Meering - IRA) But lack of knowledge is likely to be reduced amount of damages (Meering) - nominal damages 1. A direct act Defendant can personally do imprisoning or can promote others to do imprisonment for them, as long as the other person acts completely at defendants direction and not with their independent judgment (Dickinson) 2. without consent consent can be given explicitly or by contract (Balmain; Herd) 3. without lawful authority 4. intent to imprison cant have a negligent false imprisonment (Sayers) - cant imprison accidentally. Onus of Proof - plaintiff must show total restraint of his or her liberty directly, intentionally and voluntarily effected by the defendant. Defendant must establish lawful justification for his act and public authorities are not in a special position.

Trespass to Land
Definition - intentional or negligent act of an individual which directly interferes with another individuals exclusive possession of land without lawful justification (Perry) Elements 1. Direct interference: What is land? o includes soil, subs soil, fixtures (Di Napoli v Beach Apartments) o airspace above land to a height that is necessary for ordinary use of the land (Bernstein v Skyview - google plane) interference with land o walking, driving on land o remaining on land beyond a reasonable time once permission is revoked (Lowell; Kuru - police in house, jumped off bench) o throwing objects or animals on land (Rigby) o swinging cranes (LJP Investments) 2. Title to Sue:

Torts Exam Notes

Possession not ownership (Newington) Plaintiff can takes possession and extinguish title of owner through acts of ownership 2 elements for possession (Newington): o Intention to exclude others o Actual possession by the exercise of acts of ownership 3. Without consent: Implied consent for members of public to enter path or driveway to go up to front door for legitimate purposes (Halliday - man driving out of driveway unlicensed, police new he was unlicensed, followed him on to property to arrest) implied consent can be revoked e.g. locked gate, signage (Halliday) what does legitimate purposes mean (Lincoln Hunt v Willesee) - e.g. Legitimate business (e.g A Current Affair.) 4. Without lawful authority: Police have authority (implied license) to enter a driveway to question or arrest someone they reasonably suspected of committing an offence (Halliday; Kuru) Police can have statutory authority to enter premises e.g. Crimes Act but the occupier can still withdraw consent for police to enter or remain on premises (Kuru) Police can have common law authority through necessity to preserve property and life. Police or public have the power to enter and remain on premises to prevent a breach but not to investigate whether there had been a breach and not to prevent a threatened breach of peace (Kuru) 5. Fault: Intent to interfere with land OR Negligence in interfering Onus of Proof is on the plaintiff to prove title and for all other elements except fault.

Action on the Case for Intentional Law

Definition - intentional act or statement which indirectly causes damage to a plaintiff Elements for an case for intentional tort include: 1. Indirect act with no justification: 2. Calculated action to produce some effect (Wilkinson - sheep fed pork, sheep to islamic country.)

Torts Exam Notes

meaning or word calculated debated - means the effect is objectively likely to happen (Carrier v Bonham; Naidu) so intention does not require a subjective personal desire by defendant to bring about results, it just requires that the result is likely to happen 3. Plaintiff suffers damage: Can include psychical harm/damages OR Can be a recognised psychiatric injury but not mere emotional harm (Grosse v Purvis; Naidu) 4. Harm cant be too remote a consequence of defendants act: Harm must be the natural and probable consequence of defendants act (Palmer Bryn) Onus of Proof is on

Remedies
See other sheet

Defences
Consent Real and freely given - consent must be genuine [Chatterton], not obtained through duress or fraud [Alderidge]. Legal capacity to consent - [Marions Case - Disabled, sterilisation] Consent must not be exceeded [McNamara - AFL] - Doctor and fingers. Necessity To prevent imminent harm to person [Marions Case] or property [Allen] Actions reasonable and proportionate Self Defence Reasonable apprehension of physical agression [Fontin]. Does not exceed reasonable force [Fontin]. Contributory Negligence Negligently contribute to interference or damage for which the plaintiff is suing [Horkin - patron, right to be there revoked by club, ejected by more force than necessary, contributed by not leaving, being drunk]. Partial defence.

Template
The usual approach adopted in answering a legal problem is as follows: 1. Identify the issues 2. State the law/legal principles 3. Apply the law to the facts

Torts Exam Notes

4.

Reach a conclusion.

[SET OUT THE ISSUES] (1) Set out the parties (2) (2) Are there any defences? (3) What are the possible remedies? [DO NOT DEAL WITH CLAIMS BY OR AGAINST OTHER PERSONS IF YOU ARE NOT ASKED TO DO SO, E.G. C] [DEFINITION OF CAUSE OF ACTION] [FIRST ELEMENT THE PLAINTIFF MUST PROVE IN ORDER TO SUCCEED] (I) Title to Sue [Underlined headings are a useful way to structure your answer] [STATE WHAT THE REQUISITE TITLE IS and the legal principle involved] The title required for trespass is exclusive possession of land. Possession of the surface carries with it possession of the airspace to the extent necessary for the ordinary use and enjoyment of land and structures on it, Bernstein v. Skyviews. The occupiers rights are not limited to areas of actual use but extend to those areas which in the future the occupier may use as part of the ordinary use of the land, L.J.P Investments v. Howard Chia. [HAS THE PLAINTIFF SATISFIED THAT REQUIREMENT- APPLY THE LEGAL PRINCIPLE TO THE FACTS AT HAND] As A is the occupier of the adjoining property, A would normally have exclusive possession of land. But does As possessory rights extend to that area of infringement, 20 metres above As roof. Even if that area is not within an area necessary for the current use of the land and structures, arguably it is within an area that A may wish to use in the future. It is also in an area that A may be able to commercially exploit by building or advertising space. There is also support in the authorities suggesting that intrusion at that level has been regarded as a trespass. This was conceded in Wollerton Wilson v. Costain and followed in later cases. [COME TO A CONCLUSION ON THIS PARTICULAR ISSUE] Consequently, it is likely that A will be held to have sufficient title to sue for trespass. (2) Conduct required for liability [STATE THE LAW RELEVANT TO THIS ELEMENT] In order to constitute trespassory conduct, Bs conduct must be a direct interference with the plaintiffs possession without the plaintiffs consent, Southport Corp v. Esso Petroleum . Directness is concerned with the causal relationship between the defendants conduct and the interference with the plaintiff or plaintiffs property. It will be direct where there is no voluntary conduct or active force intervening between the defendants conduct and impact with the plaintiff or the plaintiffs property, Southport Corporation v. Esso; Platt v.Nutt.. Turning to each separate incident.

Torts Exam Notes

[TEST AND SEE WHETHER THE ELEMENT IS MADE OUT ON THE FACTS HERE. WHERE THERE IS MORE THAN ONE INCIDENT - USUALLY EACH SEPARATE INCIDENT SHOULD BE EXAMINED TO DETERMINE WHETHER THE ELEMENT IS MADE OUT] (a) necessary for the work at hand. On the above tests this would qualify as a direct interference. (b) not notice swing: despite the fact that the conduct might be considered negligent, it is nevertheless a direct interference with possession (c) swung by the wind: this is the least certain of the alternatives. [IF THERE ARE A NUMBER OF ARGUMENTS THAT CAN BE PUT ON BOTH SIDES, PUT THESE ARGUMENTS] It is arguable that there is no direct act by B or that even if there is, the interference is indirect. It is arguable that B simply omits to act, i.e. omits to lock the crane jib consequently there is no act of B that can amount to an interference. Alternatively, the interference like Southport v. Esso (oil was dumped from the vessel at sea) is indirect. On the other hand, there may be thought to be a significant difference between dumping oil at sea (Esso case) and leaving a crane jib in such a position that it can swing across adjoining property. [COME TO A CONCLUSION ON EACH ISSUE] Consequently despite the possible characterisation of Bs conduct as an omission, it is thought that the failure to lock the crane jib and its consequent trespass will satisfy the requirement of directness. (3) What fault is required and who should prove it? [STATE THE LAW] In an action for trespass the defendant will not be liable in the absence of fault. Despite contrary English authority, the Australian courts accept that a trespass can be committed negligently as well as intentionally, Williams v. Milotin, Venning v. Chin. Additionally the Australian courts have insisted that in relation to accidents off the highway, ( as it is in this case) it is up to the defendant to disprove fault: McHale v. Watson. In this case therefore even if the conduct of the defendant is negligent a claim in trespass may still be available. This is significant as a claim in trespass can succeed when a claim in the tort of negligence may fail, in particular where there is no damage. Where the interferences are negligent, no claim in the tort of negligence would be available as there is no damage. Although there may be no good policy reason for allowing claims for negligent trespass, it is a claim which remains available to a plaintiff, Venning v. Chin. Similarly it will be up to the defendant to disprove fault by way of defence. For convenience, this issue is dealt with at this stage of enquiry rather than under the heading of defences. [APPLIED TO THIS CASE, WHERE THERE IS MORE THAN ONE FACTUAL SITUATION, APPLY THE LAW TO EACH FACT SITUATION SEPARATELY] necessary for the work at hand: this qualifies as an intentional interference. The necessity to continue may be a matter that can be raised by way of defence. not notice crane jib swinging: this could be regarded as negligent if a reasonable person exercising care would have avoided it. Alternatively if it was substantially certain to result from the defendants conduct, it might be regarded as intentional

Torts Exam Notes

swung by the wind: there is no intended interference at most a negligent interference. [ COME TO A CONCLUSION] Consequently the various interferences by the defendant would satisfy the requirement of fault. (4) Damage element [STATE THE LAW- IF IT HAS BEEN CRITICISED & THIS CRITICISM IS RELEVANT, BRIEFLY MENTION WHY THE PRINCIPLE MAY BE QUESTIONED BUT MAKE IT CLEAR WHAT THE CURRENT LEGAL POSITION IS] As trespass protects dignitary interests, there is no requirement that the plaintiff prove damage. Trespass is actionable per se. Contrast negligence where damage is the gist of the action. There is arguably no valid reason for maintaining the action for trespass where the interference is merely negligent although until the High Court finally decides the issue a claim is available for negligent trespass in Australia. (5) Defences [THE TERM IS USED TECHNICALLY TO MEAN THOSE MATTERS WHICH THE DEFENDANT IS REQUIRED TO PLEAD BY WAY OF DEFENCE AND PROVE ON THE BALANCE OF PROBABILITIES AND WHICH CAN EXCUSE (OR LIMIT) LIABILITY] [NOTE THIS SECTION OF THE ANSWER FOLLOWING INTEGRATES LAW WITH THE APPLICATION TO THE FACTS AT HAND. THIS IS AN EFFICIENT WAY TO ANSWER BUT USUALLY ONE THAT IS DIFFICULT FOR FIRST YEAR STUDENTS TO ACHIEVE] The defence of necessity may be available where the interference is reasonably necessary to prevent more serious injury, Proudman v. Allen. The defence should be available not only where the defendant acts to protect her or his safety but also where the defendant acts to protect the public. In the case at hand, where the jib of the crane was swung over As premises because it was necessary for the work at hand, it could be argued that the defence of necessity prevented liability for that incursion. However, it is clear that if the necessity was brought about by the defendants negligence, it cannot be relied upon: Southport Corporation v. Esso. The difficulty in this case is that B the contractor is being sued not the owner of the land. Any negligence of the owner would not be regarded as the contractors negligence. If this view is correct, it would have the curious result that an independent contractor employed by the owner of the land would have a defence of necessity when the owner of land would not. Perhaps the answer is that the owner of the land ought to be sued for trespass on the basis that the owner must be taken to have authorised the conduct which constituted the trespass. It is concluded that the defence of necessity may be available where the trespass was necessary for the work at hand provided that there was no other reasonable means by which B could carry out the work. (6). Remedies A may seek an injunction restraining B from continuing to trespass on As airspace. Relevant issues include inconvenience, likelihood of repetition and adequacy of damages. The likelihood of repetition is satisfied. If the sum requested by the plaintiff was unreasonable, this may be relevant to the issue of convenience and ad-

Torts Exam Notes

equacy of damages on the basis that the plaintiff was willing to sell the right to trespass for a sufficiently high sum. The problem raises the wider question of how far the interests of development should override individual property rights or allow compulsory purchase of those rights. For purposes of this problem, it is argued that the plaintiff should be entitled to an injunction restraining the trespass. Alternatively that substantial damages should be awarded for the trespass. It should not be construed as a mere technical breach of rights as the plaintiff should be able to commercially exploit the right to airspace and damages should reflect that value. CONCLUSION B would be liable for trespass to As airspace. The court may grant an injunction restraining the trespass or grant substantial damages instead of an injunction.