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:
Trespass to Goods
Did P have possession?
Actual possession
P has physical control and intends to exercise control on their behalf Wilson v Lombank
Constructive Possession Ashby v Tolhurst
P had possession
P did not intend to relinquish possession
No-one else has assumed possession
Immediate right to possession
if the person whose actual possession is violated holds the goods as bailee at will for the plaintiff/ or is agent or employee of the plaintiff
The bailee and the bailor can both sue the person who took it from the bailee
If there was a bailment, did it affect possession?
Definition: a delivery of goods to another on the condition (express or implied) that the goods should be returned to the bailor as soon as the purpose for which the goods have been bailed Is complete
There must be a delivery to bailee who must voluntarily take possession Ashby
Breach of contract or acts repugnant to the purpose of the bailment
Three main duties of bailee Morris v Martin
Return the goods at the end of bailment
To take reasonable care (onus on bailee) If there is gratuitous bailment reasonable care may be less Denning
Not to convert the goods
Can terminate the bailment and resume immediate possession pending the giving of notice
Act must be sufficiently inconsistent with, or repugnant to, the terms of the bailment Hill v Reglon
Contracts may override this
Types of bailment
Bailment at will (revocable bailment)
Can be brought to an end at any time and bailor will then have a right to immediate possession
Bailment for fixed term
Bailor does not have right to immediate possession and only have a reversionary interest.
Repudiation of bailment can end fixed term bailment
Positive Voluntary act
Positive: “More than an omission/passive conduct” Innes v Wylie
Voluntary: Was the act of the conscious/willed mind?
Interference with P’s possession
Possession
P must show they had possession of the goods at the time of the unlawful interference, either actual, constructive, or a legal right to the immediate possession Johnson v Diprose
Actual possession
P has physical control and intends to exercise control on their behalf Wilson v Lombank
Constructive Possession Ashby v Tolhurst
P had possession but lost it
P did not intend to relinquish possession
No-one else has assumed possession
Immediate right to possession
Plaintiff has a right to immediate possession where another has actual possession as the agent or servant of the plaintiff
Arises in two situations:
Third party interferes with possession of P’s: servant or agent, bailee at will
Bailee acts repugnantly to the bailment by “destroying” the goods Penfolds
Both the bailee and the bailor can both sue the person who took it from the bailee
Normally an immediate right to possession that is gained from a repudiation of the bailment is not enough to sue unless Penfolds
Piggy Back principle: For a bailor to use the principle, D’s act must be a trespass against the bailee’s interest
If bailee consented to D’s act, then there is no violation of bailee’s possession and bailor can’t sue the bailee or the defendant in trespass
A person with immediate right to possession will not be able to sue in trespass where the bailee undertakes the material dealing with the good himself, unless that involves destruction. Or if the bailee authorises the material dealing with the good.
Subject of bailment destroyed where
Package is broken
Complete destruction. Look at the purpose of what the goods are for
Slender authority that when a stranger takes it out of possession by bailee’s consent (because licence of bailee is void because it is wrongful against bailor) is trespassory asportation
Exception where possession is not necessary
Trustee where goods in hands of beneficiary
Executor where interference occurs before executor appointed but after deceased’s death
P has an immediate right to possession
Bailment
a delivery of goods to another on the condition (express or implied) that the goods should be returned to the bailor as soon as the purpose for which the goods have been bailed Is complete
There must be a delivery to bailee who must voluntarily take possession and a change of possession from the bailor to the bailee Ashby v Tolhurst
NOTE: a bailment is more likely to be made out where there is a delivery AND a purpose. That purpose must require B to take possession of the goods to render a benefit Ashby v Tolhurst
Bailment at will
Can be brought to an end at any time and bailor will then have a right to immediate possession
During bailment, bailor retains the right to immediate possession of the good
Bailment for a term
Comes to an end after specified time or event
Bailor does not have right to immediate possession and only have a reversionary interest.
Breach of contract or acts repugnant to the purpose of the bailment
Three main duties of bailee Morris v Martin
Return the goods at the end of bailment
To take reasonable care (onus on bailee) If there is gratuitous bailment reasonable care may be less Denning
Not to convert the goods
Can terminate the bailment and resume immediate possession pending the giving of notice
Act must be sufficiently inconsistent with, or repugnant to, the terms of the bailment Hill v Reglon
Contracts may override this
Interference
“any unpermitted contact by the D with goods in the P’s possession is actionable as trespass provided it is sufficiently direct”
This includes:
Taking of goods
Moving/asporation of goods
Damaging goods
Using goods
Destroying goods
Actionable per se?
Damage is not needed if it is intentional
Damage is needed if it is negligent Everitt v Martin
However Adams J held that he would be hesitant to declare a right of action for mere touching of another’s goods without damage or asportation
Direct interference
The act must be direct
To lock someone’s goods in a room is not a trespass to...
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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