Here you will find both extended and summarised torts law notes for the entire Monash University topic (Both Torts A and Torts B).
The summary notes are an excellent exam help, with steps to work out whether a particular tort is found in a problem question, and relevant precedent and case citations for that HD answer. They are short enough for use in an exam, but detailed enough that you will never miss a point.
The extended provide comprehensive information about all areas of the subject...
The following is a more accessible plain text extract of the PDF sample above, taken from our Torts Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Control and Protection of Goods
What counts as goods?
Generally, objects that are tangible and moveable and capable of being possessed – i.e. not land or attached to land
includes cheques, living goods like pets and substances like gas
The plaintiff’s interest in goods
Relevant to the question of standing (required interest) to sue. You must establish your standing
Torts to goods and land have different standing requirements
Main issues that arise are:
Distinction between ownership and forms of possession
How ‘bailment’ affects interests in goods
Types of interests in goods
Owner: It is a propriety interest and the ultimate interest eg. You bought/inherited/received it
Possessor: Things don’t have to be physically with you.
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
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
Plaintiff has physical control and intends to exercise control on her own behalf (eg Wilson v Lombank)
Flexibly interpreted - ‘control’ means has actual access to goods even though not in the hands of person
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.
Holding a handbag: custody not possession
Constructive Possession (Ashby v Tolhurst)
P had possession
They did not intend to relinquish possession
No-one else has assumed possession
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
Makes no difference if it’s actual or constructive. Actual possession is better than constructive possession.
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
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.
so transfer of possession but not ownership
Bailment is not a tort. You do have a right to sue under a bailment though.
It means possession has been transferred from one person to another
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
Where the bailment is at will the bailor may also sue on the basis of an immediate right to possession.
A bailment which originally gave the bailor no immediate right to possess may become a bailment at will.
Manders v Williams
P brewer supplied porter in casks to a publican on condition that he was to return empty casks within six months
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.
Similarly, if a bailee does a wrongful act which may be deemed to terminate the bailment the bailor may sue
The remedy would lie not only against the bailee but against anyone else who deals with the goods
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
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
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.
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
the bailee must voluntarily take possession of the goods to constitute a bailment (e.g. Ashby v Tolhurst)
Ashby v Tolhurst
Involved parking in a parking lot
P parker car in D’s parking lot
Locked it and paid D
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’
Came back and the car was gone
D said a man took it who said he was your friend.
P sued D in tort and under the terms of the bailment
D was found not liable
It was not a bailment as they didn’t accept
Possession was not vested in the Defendant, the terms of the parking ticket shows this
There was a licence (permission) to park. Possession didn’t move
There was no evidence of delivery
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)
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
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:
Return the goods at end of bailment to the bailor or...
Buy the full version of these notes or essay plans and more in our Torts Law Notes.
Here you will find both extended and summarised torts law notes for the entire Monash University topic (Both Torts A and Torts B).
The summary notes are an excellent exam help, with steps to work out whether a particular tort is found in a problem question, and relevant precedent and case citations for that HD answer. They are short enough for use in an exam, but detailed enough that you will never miss a point.
The extended provide comprehensive information about all areas of the subject...
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