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Torts A Extended Intentional Torts To Goods Notes

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This is an extract of our Torts A Extended Intentional Torts To Goods document, which we sell as part of our Torts Law Notes collection written by the top tier of Monash University students.

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Control and Protection of Goods What counts as goods?

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Generally, objects that are tangible and moveable and capable of being possessed - i.e. not land or attached to land

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includes cheques, living goods like pets and substances like gas

The plaintiff's interest in goods

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Relevant to the question of standing (required interest) to sue. You must establish your standing o

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Torts to goods and land have different standing requirements

Main issues that arise are: o

Distinction between ownership and forms of possession

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How 'bailment' affects interests in goods

Types of interests in goods

1. Owner: It is a propriety interest and the ultimate interest eg. You bought/inherited/received it

2. Possessor: Things don't have to be physically with you.

3. Immediate right to possession: Someone has it in their possession, but you have the right to go up to them as demand it back immediately

4. Reversionary interest: Someone has the right to have the good to come back to them after something has happened or a time has passed

f you bail something you are the 'bailor' and if you are given it they are a 'bailee'

Possession

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Plaintiff has physical control and intends to exercise control on her own behalf (eg Wilson v Lombank)

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Flexibly interpreted - 'control' means has actual access to goods even though not in the hands of person

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It's a question of fact. They must have sufficient control and are holding it for your possession, excluding others from doing what they like.

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Holding a handbag: custody not possession

Constructive Possession (Ashby v Tolhurst)

1. P had possession

2. They did not intend to relinquish possession

3. No-one else has assumed possession o

Irrespective of whether D had physical control. If the purpose of P was not to give D control, there is not assumed control

Actual Possession

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Makes no difference if it's actual or constructive. Actual possession is better than constructive possession.

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Actual: you actually have physical control. Eg. Things you leave in your car. However, could argue if you have possession of car keys you are still in actual possession. However you could argue it is constructive

Bailment

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A delivery of goods to another (bailee) on the condition (express or implied) that the goods should be returned to the bailor (or dealt with as the bailor directs) as soon as the purpose for which the goods have been bailed is completed.

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so transfer of possession but not ownership

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Bailment is not a tort. You do have a right to sue under a bailment though.

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It means possession has been transferred from one person to another

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A bailee of goods can sue third parties in conversion. The reason for this, as explained in The Winkfield is that, as against a wrongdoer, possession is title and even the chattel that has been converted is deemed to be the chattel of the possessor and of no other; therefore, its loss or deterioration is the bailee's loss which must be recouped on his or her demand

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Where the bailment is at will the bailor may also sue on the basis of an immediate right to possession.

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A bailment which originally gave the bailor no immediate right to possess may become a bailment at will.

Manders v Williams

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P brewer supplied porter in casks to a publican on condition that he was to return empty casks within six months

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Held that P could sue a sheriff who seized some empty casks in execution for a debt of the publican because, once they were empty, the effect of the contract was to make the publican a bailee at will, whereupon P was entitled to immediate possession.

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Similarly, if a bailee does a wrongful act which may be deemed to terminate the bailment the bailor may sue

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The remedy would lie not only against the bailee but against anyone else who deals with the goods

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For instance, destruction or sale of the goods by the bailee will ordinarily terminate the bailment as will dealing with them in a manner wholly inconsistent with the terms of the bailment

Breach of contract

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Some contracts contain special stipulations regarding the revesting of the right to possession in the bailor in the event of a breach by the bailee of one of the terms of the contract

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Hire-purchase contracts normally prohibit the hirer from selling the good, and empower the owner to terminate the contract by the giving of notice if the prohibition is disregarded.

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You must examine the contract to determine whether the terms meant to displace the common law rules concerning acts repugnant (offensive) to the bailment and so prevent the resumption of the right to immediate possession pending the giving of notice

Delivery and Possession There must be *

a delivery to the bailee and

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the bailee must voluntarily take possession of the goods to constitute a bailment (e.g. Ashby v Tolhurst)

Ashby v Tolhurst

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Involved parking in a parking lot

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P parker car in D's parking lot

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Locked it and paid D

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Ticket said: 'The proprietors do not accept any responsibility for the safe custody of any cars or articles therein nor for any damage to the cars or articles however caused ... all cars being left in all respects entirely at their owners' risk'

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Came back and the car was gone

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D said a man took it who said he was your friend.

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P sued D in tort and under the terms of the bailment

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D was found not liable

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It was not a bailment as they didn't accept

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Possession was not vested in the Defendant, the terms of the parking ticket shows this

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There was a licence (permission) to park. Possession didn't move

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There was no evidence of delivery

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Ie - the car, like the computer in your car, remained in the plaintiff's possession when he parked it in the parking lot with the defendant's licence (ie permission)

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If he had left it there for a particular purpose, there would have been a transfer of possession, but the terms made it clear this did not occur

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Where you only get it if you produce your ticket it is a bailment. The way they have got around it is flat fees.

Three Main Duties of Bailee Morris v Martin:

1. Return the goods at end of bailment to the bailor or otherwise deal with goods as directed by the bailor

2. To take reasonable care of the goods (onus on bailee to prove reasonable care taken)

3. Not to convert the goods

IF the bailment has been ended, they can demand the right to have it back You can agree to more or less if you have a contract Don't have to be an owner to be a bailor The bailee can bail it to someone else, known as a sub bailor Morris v Martin

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P sent her mink to a furrier to be cleaned (She is the owner and she has bailed it to D)

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D didn't do cleaning so asked if they could send it to a third party, she said yes

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Terms on condition on which they did the cleaning, it said it was at the 'customers' risk (D's risk) There was a sub-bailment

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The fur was stolen

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She sued the cleaner and sued under the terms of the bailment

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Court said she could, and she was successful

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Two judges said the second point was breach and other judge said 3rd point was breached

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If D voluntarily took possession and knew whose it was, there's a sub-bailment. You don't need a contract. They need to be aware that it belongs to the bailor. When a sub-bailement is created, the sub-bailee assumes the obligation of the bailee to the bailor (the original one).

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Denning said: There was a breach of number two. What's reasonable depends on circumstances and how you came to have the things in your possession.

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He said if it is a gratuitous bailment then reasonable care might be less. On these facts it was a bailment for reward, the reasonable care was higher, and it was not taken.

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She was able to sue the cleaner because:

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There was a sub bailment for reward (being paid for)

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Judge said sub bailee is the person who has possession. Occurs when someone who isn't the owner but who has the right to possession, and transfers it

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