#6906 - Torts A Summary Goods Torts - Torts Law

Trespass to Goods

1. Did P have possession?

   1. Actual possession

      1. P has physical control and intends to exercise control on their behalf Wilson v Lombank

   2. Constructive Possession Ashby v Tolhurst

      1. P had possession

      2. P did not intend to relinquish possession

      3. No-one else has assumed possession

   3. Immediate right to possession

      1. 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

      2. The bailee and the bailor can both sue the person who took it from the bailee

2. If there was a bailment, did it affect possession?

   1. 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

      1. There must be a delivery to bailee who must voluntarily take possession Ashby

   2. Breach of contract or acts repugnant to the purpose of the bailment

      1. 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

      2. 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

   3. Types of bailment

      1. Bailment at will (revocable bailment)

         • Can be brought to an end at any time and bailor will then have a right to immediate possession

      2. 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

1. Positive Voluntary act

   1. Positive: “More than an omission/passive conduct” Innes v Wylie

   2. Voluntary: Was the act of the conscious/willed mind?

2. Interference with P’s possession

   1. Possession

      1. 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

      2. Actual possession

         • P has physical control and intends to exercise control on their behalf Wilson v Lombank

      3. Constructive Possession Ashby v Tolhurst

         • P had possession but lost it

         • P did not intend to relinquish possession

         • No-one else has assumed possession

      4. 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:

           1. Third party interferes with possession of P’s: servant or agent, bailee at will

           2. 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

      5. 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.

      6. 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

      7. 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

   1. Bailment

      1. 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

      2. 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

      3. 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

      4. 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.

      5. Breach of contract or acts repugnant to the purpose of the bailment

         • Three main duties of bailee Morris v Martin

           1. Return the goods at the end of bailment

           2. To take reasonable care (onus on bailee) If there is gratuitous bailment reasonable care may be less Denning

           3. Not to convert the goods

         • Can terminate the bailment and resume immediate possession pending the giving of notice

           1. Act must be sufficiently inconsistent with, or repugnant to, the terms of the bailment Hill v Reglon

           2. Contracts may override this

   2. Interference

      1. “any unpermitted contact by the D with goods in the P’s possession is actionable as trespass provided it is sufficiently direct”

      2. This includes:

         • Taking of goods

         • Moving/asporation of goods

         • Damaging goods

         • Using goods

         • Destroying goods

      3. 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

3. Direct interference

   1. The act must be direct

      1. To lock someone’s goods in a room is not a trespass to those goods

      2. It is not trespass merely because one’s animal inflicts direct injury of goods

      3. Look to whether there was an intervening act. The trespass cannot be coincidental Hutchins v Maughan

4. Fault

   1. Trespass can be intentional

      1. Actual intention or;

      2. Possibly deemed intention

         • The doctrine of substantial certainty: a reasonable person in D’s position would believe that a particular result was substantially certain to follow.

         • Recklessness: a person knows that the outcome might ensure from particular actions and goes ahead to undertake those actions anyway

      3. The intention is intention to do the act which commits the trespass thus mistake does not save you Everitt v Martin

   2. Trespass can be negligent

      1. Has the person, in undertaking the relevant actions, acted with less care than the care with which a reasonable person would have acted in the circumstances?

   3. Burden of proof

      1. In ENGLAND: The burden of proof with regard to fault is always on the plaintiff Fowler v Lanning

      2. In Australia; the burden of proof with regard to fault is generally on the defendant (as per Windeyer J, McHale v Watson), except in highway cases where the burden falls on P (P must prove that there was intention/negligence and that it was not an inevitable accident, Venning v Chin

   4. If it is neither, the defendant is not liable for trespass National Coal Board v J E Evans and Co

5. Defences (for conversion also)

   1. Consent

      1. NOTE: In relation to consent, courts are less likely to find consent exists – communication in relation to our bodies is much easier than in relation to our goods

   2. Necessity

   3. Defence of Property

   4. Defence of lawful authority

      1. You taking your property back because you are the lawful owner of it

   5. Jus Tertii (Where another person has better possession) Wilson v Lombank

      1. FOR ACTUAL OR CONSTRUCTIVE POSSESSION

         • Where P has actual or constructive possession, plea of just tertii is not available to D unless D is defending the action on behalf of and by the authority of the person rightfully entitled to possession of the goods

      2. FOR RIGHT TO IMMEDIATE POSSESSION

         • Just tertii can be pleaded in any case where another person has a superior possessory interest to the P except:

           1. The D may not rely on it is he is a bailee of goods, with regard to a claim made in conversion by her bailor

              1. A bailee may rely on the defence against his bailor when:

                 1. He committed the act of conversion in the first place on the authority of the person with the superior interest – says the treu owner; OR

                 2. He defends the action when the matter comes to court on behalf of and by the authority of the person with the superior interest – say the true owner; OR

                 3. He has already made satisfaction to the person with the superior interest by returning the goods to him

6. Remedies

   1. Self-help

      1. Recaption: taking it back. If it is yours you can take it back with reasonable force

      2. Replevin: where the person who lost possession gets to hold the item until it is sorted

   2. Damages

      1. Compensatory for loss of use, damage, destruction,

      2. May get exemplary damages for invasion of privacy.

      3. Amount is decided at time of trespass, not judgment

   3. Injunction

   4. Declaration

Conversion

Definition: intentional dealing with goods which is seriously inconsistent with the possession or right to immediate possession of another person. Lancashire & Yorkshire Ry Co v MacNicholl Protects P’s interest in the dominion and control of goods, but not P’s interest in their physical condition

1. Actionable Per se

2. Plaintiff has superior possessory right

   1. P must have:

      1. Actual possession

      2. Constructive possession

      3. A...