This is an extract of our Control And Protection Of Goods document, which we sell as part of our Torts A Notes collection written by the top tier of Monash University students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Torts A Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Control and protection of goods Is there a bailment? (to decide who has possessory rights) In order to decide what the rights of the parties are, whether there has been a bailment and, if so, what has occurred in relation to that bailment must be considered. Definition A bailment is a delivery of goods to another on the condition, express or implied, that the goods shall be restored to the bailor, or dealt with as he/she directs, as soon as the purpose for which the goods have been bailed is completed.
The following elements must be satisfied to show a bailment. Delivery The good must be delivered by the bailor to the bailee.
A delivery can be inferred when the goods are left with the bailee for a particular purpose requiring the involvement of the bailee (Ashby v Tolhurst).Leaving for safe keeping would be enough (obiter in Ashby v Tolhurst)
Simply leaving a car in a car park without parting with possession or leaving it with another for safe keeping is not a bailment (Ashby).
[Discuss per facts]
Voluntary taking of possession by bailee The bailee must have taken possession of the goods voluntarily.
- IE cannot leave the goods with someone without their knowledge or consent.
[Discuss per facts]
The bailee must have possession
[Discuss per facts]
Possession of good to revest in bailor The parties must have intended possession of the good to revest in the bailor at the end of the bailment (or for the goods to be dealt with as the bailor intends).
[Discuss per facts and conclude as to whether there is a bailment; if so move to next]
Type of bailment What type of bailment was created will impact on the rights of the parties. Bailment at will Under a bailment at will, the bailor can demand the return of the good at any time. This means he/she retains a right to immediate possession (RTIP).
Here, the bailment is likely to be a bailment at will because [per facts]. Bailment for a term Under a bailment for a term, the bailor cannot demand the return of the good until the agreed term has ended. This means he/she loses the right to immediate possession (RTIP) until that term ends.
Here, the bailment is likely to be a bailment for a term because [ per facts]. Accordingly P would have no RTIP unless there has been a repudiation of the bailment.
Just because a term is mentioned does not mean it is bailment for a term - if P has right to take back the good any time it's still bailment at will.
Repudiation of bailment?
A bailment for a term will become a bailment at will, giving the bailor the RTIP, if the bailee does an act that repudiates the bailment.
A bailment is repudiated if the bailee breaches a condition of the bailment. This includes a breach of one of three common law duties implied into all bailments [ if there are not express terms contradicting them].
Here, D may have breached An express term of the bailment (explain) The duty to take reasonable care of the goods the subject of the bailment (Morris v Martin)
- The duty to return the goods to the bailor at the end of the bailment (Morris v Martin)
- The duty not to convert the goods (treat as your own) (Morris v Martin) Conclusion on bailment and possessory rights[Conclude bailment and describe possessory rights of both parties]
Trespass to goods [interfering with goods]
Definition A trespass to goods is a voluntary and positive act of the defendant that intentionally or negligently and directly interferes with a plaintiff's possession of a good.
Trespass to goods is actionable per se (though mere touching without damage may not be). Positive act P must show that D's act was a positive act and not mere passivity or omission ( Innes v Wylie). D's act here was/was not positive [reasons].
Innes v Wylie: standing blocking door not a positive act.
Eg standing still and being hit by goods. Voluntary act D's act must have been voluntary, meaning D's act was conscious and willed. Here D's act was [clearly/not] voluntary [note reasons if necessary]. D is not required to have intended to bring about the results of the conduct to satisfy this element. DirectnessP must show that the interference with the good was direct, meaning that it followed 'so immediately upon the act of the defendant that it may be termed part of that act' (Hutchins v Maughan).
[Note any issues with directness]
Was the interference merely consequential?
Injury that is merely consequential upon D's act will not ground a claim in tort.
Interference will be consequential if there is an intervening act between D's act and the interference with the good, such that the contact cannot be termed part of D's act ( Hutchins v Maughan).
It may be relevant if time has elapsed between D's act and the injury to P (this can be inferred from Myer Stores v Soo).
Intervening acts [note if any of the below apply]
Human acts Human acts, including acts of P, may constitute an intervening act.P's own act of coming to the hazard can be an intervening act: Hutchins v Maughan Voluntary action by P can be an intervening act: Myer Stores v Soo
HOWEVER an act that is reflexive or in selfdefence will be considered an inevitable consequence of D's unlawful act and will not be seen as intervening to undermine directness (Scott v Shepherd). Natural forces Natural forces can constitute an intervening act (Southport Corporation v Esso).Tide (Southport) Gravity is not considered an intervening act (dropping something on someone still trespass)
Southport: the intervening act of the tide in bringing oil to shore made damage to P's shore only consequential on D's act.
But P may argue that that Southport should not be followed as "inevitable consequences" of D's act (such as gravity or as was held in Scott v Shepherd) should not be considered intervening acts. Will there be directness where D's agent and not D commits the tort?
D may argue that [agent], and not D, committed the battery on P and therefore there is no directness. However, P can argue that [agent] was acting as D's agent. The court would then treat the principal (in this case D) as being in the position of his/her agent [agent] and therefore there will be no problem of directness (Dickinson v Waters).
Can police be agents?
D may argue that a police officer cannot be found to be an agent for him/her. It will usually be found that police acted independently by making their own assessments, rather than taking directions from members of the public (Davidson v Chief Constable of North Wales).
However, P can argue that it is not unheard of for police to be agents of citizens (see, eg, Dickinson v Waters) and that the circumstances of the case, namely the fact that [note the reason eg police took direction], means that the officer/s were acting as D's agent. Fault Nonhighway cases As this is not a highway case, D must prove on the balance of probabilities that he/she was not at fault (McHale v Watson), by showing that he/she
- Did not intend to interfere with P's goods; and
- Was not reckless or negligent (careless) in carrying out his/her actions Highway cases As mentioned above, this is a highway case; accordingly, P must prove on the balance of probabilities that D was at fault (Venning v Chin) by showing that he/sheIntended to interfere with P's goods; or Was reckless or negligent (careless) in carrying out his/her actions.
While P may argue that Venning v Chin is a South Australian Supreme Court decision and not binding in Victoria, it is a widely accepted principle in Victoria. Intention?
Here, it appears that D [intended/did not intend] the outcome of his/her act because...
While may appear there is no actual intention, it is probable that the doctrine of substantial certainty, as applied in the US, applies in Australia (though there is no direct precedent here). By that doctrine, D will be deemed to have intended the result of his/her actions if a reasonable person in D's position would recognise that their acts were substantially certain to result in that outcome.
In this case, a reasonable person would/would not realise that doing ... is substantially certain to result in ...
A defendant will be held to be reckless as to the outcome of his/her actions if he/she knows that the outcome might ensue from a particular action, but does that action anyway. However, this standard is not overly necessary to prove fault as negligence will suffice in Australia.
In this case...
In Australia, negligent trespass is recognised (Williams v Milotin; Stingel v Clark). D's actions will be negligent if it would have been reasonably foreseeable to a reasonable person
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