Intentional Torts Notes

Torts General Direct/Indirect direct + intentional = trespass: Scott v Shepherd direct + intentional/negligent = trespass/case: William v Holland, approved in Williams v Milotin indirect = case: Hutchins v Maughan Onus of Proof Non-highway cases: At a first step, in an action of trespass, the plaintiff must prove a trespassory act attributable to the defendant: Platt v Nutt * Then in trespass, the onus is on the defendant to prove, on the balance of probabilities, that the trespassory act occurred without the defendant's fault: McHale v Watson In an action on the case, the onus is on the plaintiff to prove the defendant's fault: Holloway v McFeeters In highway cases: Plaintiff bears onus of proof of fault, either to prove negligence or intention: Venning v Chin Battery Elements of Battery * a positive act: Holmes v Mather * that directly: Hutchins v Maughan * and intentionally or carelessly: Williams v Holland * causes physical contact with the plaintiff: Collins v Wilcock * without consent: In Re F, or lawful justification: Fontin v Katapodis Every person's body is inviolate, any touching to another person, however, slight, may amount to a battery: Collins v Wilcock Query whether the conduct is ordinarily acceptable: Rixon v Star City Consent is a defence to battery: Collins v Wilcock Assault Elements of assault: * a positive act (not an omission): Holmes v Mather * that directly: Hutchins v Maughan * and intentionally or carelessly: Williams v Holland * causes the plaintiff to apprehend imminent and unlawful contract to their person: Barton v Armstrong The apprehension of the imminent force must be reasonable: ACN v Chetcuti The plaintiff's bravery is irrelevant in considering whether there is an assault or not: Brady v Schatzel When the condition clearly nullifies the threat, there is no assault: Tuberville v Savage That the defendant had the means to carry out the threat, constitutes an assault, irregardless of the effective control or prevention by others: Stephens v Myers False imprisonment Elements of false imprisonment: * a positive act, not an omission: Holmes v Mather * that directly: Hutchins v Maughan * and intentionally or carelessly: Williams v Holland * totally deprive the plaintiff of his liberty: Symes v Mahon * without the plaintiff's consent or lawful justification: Bahner v Marwest Hotels False imprisonment is a total restraint of the liberty of one person, not partial obstruction: Bird v Jones Irregardless of the person's acknowledgement of the false imprisonment or the person's physical ability to exercise the freedom of movement: State of SA v Lampard-Trevorrow A person may consent to a restraint on liberty: Balmain New Ferry Co. v Robertson Action on the case for wilful injury: Elements on the case for wilful injury * There must be an intentional act, and the act itself may be deliberate and preconceived: Bird v Holbrook * A person who wilfully does an act calculated to cause physical harm to the plaintiff, including psychiatric injury, is liable to the plaintiff in damages for the harm inflicted. Here the harm is the one that is reasonably foreseeable: Wilkinson v Downton; and * Calculated means objectively "likely to have that effect" instead of "intended to have that effect": Carrier v Bonham * Does in fact inflict either indirect or consequential harm to the plaintiff: Wilkinson v Downton * However, the act must be reasonably capable of causing mental distress to a person with ordinary sensibility: Bunyan v Jordan Law Reform (Miscellaneous Provisions) Act 1944, s 3(1), s 4(1)(5) Damages Aggravated damage is awarded from the point of view of the plaintiff, while in case of exemplary damages, the focus is on the conduct of the defendant: State of NSW v Ibbett * Aggravated damages may be awarded as a compensation for conduct which causes emotional hurt, insult and humiliation to the plaintiff: Henry v Thompson * Humiliation, injured feelings and affront to dignity may be a natural and probable consequence after the conviction of trespass to land: TCN Channel Nine v Anning * The nature of exemplary damages is punitive. It will be awarded for the conscious wrongdoing for the wrongdoer, and it will not be awarded where the act was done negligently, or where the criminal offender has been sentenced to a substantial "criminal imprisonment": Gray v Motor Accident Commission Aggravated damages and exemplary damages can be awarded concurrently: State of NSW v Ibbett In a proceeding against two or more joint tortfeasors where all the tortfeasor are liable for compensatory damages, exemplary damage may be awarded against one (or more) but not necessarily all the tortfeasor: XL Petroleum (NSW) v Caltex Oil (Australia) The action in trespass to land serves to vindicate an occupier's right to exclusive use and occupation, therefore, not need for the plaintiff to prove damage: Plenty v Dillon As to the damage to the property, the plaintiff may require reinstatement of the property instead of compensation for loss, if the requirement is reasonable for the difference in price: Parramatte City Council v Lutz Trespass to land Elements of trespass to land * the defendant directly entered into land, i.e., the defendant must commit an affirmative act of trespass * intentional or negligent: Williams v Holland * voluntarily enter onto land within the plaintiff's exclusive possession: Plenty v Dillon * without the consent of the plaintiff other other lawful justification: Halliday v Nevill A person who lawfully enters another's land may become a trespasser if he or she voluntarily exceeds his or her invitation on to the land: Public Transport Commission v Perry The owner of the land may revoke the licence for entering their land at any time: Halliday v Nevill Only person with actual possession of the land can sue another for trespass: Newington v Windeyer * An owner out of possession may bring an action on the case in respect of damages to the owner's reversionary interest if damage could be proved: Rodrigues v Ufton A person with title to land owns the land up to the sky and down to the depth * Aerial trespass: LJP Investments v Howard Chia Investments * Underground trespass: Di Napoli v New Beach Apartment * Notwithstanding the depth beyond the effective control of the occupier of the land: Bocardo v Star Engergy UK Onshore Damage by Aircraft Act 1999 (Cth) * section 3, object of the Act. * section 9, scope of the Act. (interstate, international etc). * the Act does not apply in relation to a Defence Force aircraft. * section 10, liability of injury, loss. * s10(1) scope of liability, applies to impact with an aircraft: ACQ v Cook * s10(2) person who will be responsible. including owner, operator, authorised operator however no more than 14 days (authorisor), unauthorised operator (the responsible operator) * s10(2A) exemption clause --- owner have no exclusive rights * s10(3) exemption clause --- person had taken all reasonable steps to prevent the unauthorised use of the aircraft. (e.g. hijack) * s11 strict liability Civil Liability Act 2002 (NSW) --- Part 12 * s72 Action not maintainable for ordinary flight at a reasonable height above the ground * s73(1) strict liability , restricted to material loss * s73(2) owner can be indemnified if no fault * s73(3) lease more than 14 days, no responsible on owner (must not employ any crew on the flight) Private Nuisance Private nuisance is an action on the case for unlawful interference with the use or enjoyment of land: Raciti v Hughes * The interference or injury must be substantial according to the ordinary standard to be expected in the locality: St Helen's Smelting Co. v Tipping * It is no defence to say that the activity is social useful or reasonable care has already been taken: Munro v Southern Diaries Only actual and exclusive possession can sue nuisance, a mere licensee does not have the title to sue: Hunter v Canary Wharf Scope of Liability: * Creator of the nuisance, even not an occupier of the land: Fennell v Robson Excavations * An occupier who knew the existence of the nuisance: Challen v McLeod Country Golf Club * No liability on the part of a lessor to the nuisance created by his lessee unless the creation is authorised or for the purpose of the contract: Peden v Bortolazzo * No liability to remove the risk of act of god, however, has liability to reduce the risk created by own negligence: Goldman v Hargrave It is not a defence to say the nuisance was in existence before the plaintiff's occupation of the land: Campbelltown Golf Club v Winton * However, statutory authority to carry out an activity may provide a defence: Allen v Gulf Oil Refining Defence to intentional tort Usually contributory negligence is not a defence in intentional tort: Horkin v North Melbourne Football Club Social Club * Unless the injury is an indirect and unintended consequence on the part of the defendant: NSW v Riley Fault: In modern tort law, whatever the position may have been in medieval times, fault (intent or negligence) is an essential ingredient. The fault-based nature of tort liability requiring intent or negligence on the part of the defendant. Exceptions: (strict liability) Private nuisance Vicarious liability Statute of aircraft operator for damage to person or property Damage by Aircraft Act 1999 (Cth) Civil Liability Act 2002 (NSW) (s 72 73) 1. The defendant's horses, driven by his servant, became uncontrollable. 2. The defendant, sitting beside his servant was asked not to interfere with the driving. 3. The horses knocked down and injured the plaintiff when they turned to a corner. 4. The plaintiff sued the defendant in negligence and in trespass. 1. The plaintiff alleged that the defendant had shot and wounded him during a military training exercise. Holmes v Mather (1875) No fault, no trespass. If the act that does an injury is an act of direct force vi et armis, trespass is the proper remedy (if there is any remedy) where the act is wrongful, either as being wilful or as being the result of negligence. Where the act is not wrongful for either of these reason, no action is maintainable, though trespass would be the proper form of action if it were wrongful 1. The respondent sustained a serious head injury when he was hit behind the left ear by a golf ball driven by the appellant. 2. Sued in negligence, whether the respondent ought to have been foreseeable to the appellant? Ollier v Magnetic Island Country Club [2004] Liability requires the plaintiff to prove a negligent act (or lack of duty of care/an omission) on the part of the defendant which was a cause of the plaintiff's injury Weaver v Ward (1616) There is no liability in trespass where the trespassory act was committed without fault by the defendant No man shall be excused of a trespass except it may be judged utterly without his fault. * As if a man by force take my hand and strike you or if here the defendant had said, that the plaintiff can cross his piece when it was discharging, or had set forth the case with the circumstances, so as it had appeared to the Court that it had been inevitable, and that the defendant had committed no negligence to give occasion to the hut. * Defendant is liable. Vicarious Liability Strict liability: not dependent on any personal fault on the part of the employer * Generally, an employer is liable for the torts of an employee committed in the course of employment. Determining whether an act was committed in the course of employment is not always easy. Even prohibited act may still be judged to be in the course of employment so as to render the employer liable (although the seriousness of the misconduct may disentitle the employee to be indemnified by the employer for any liability to the injured party). * Nevertheless, an employer is not generally liable for a tort committed by an independent contractor However, determining whether a person is employed as an independent contractor or as an employee is not always straightforward. A number of facts are relevant. "Joint and several liability": when more than one person is liable to the plaintiff for the same damage The plaintiff may recover 100% of his/her loss (but not more) from any of the parties, in one or more actions. In this situation, the defendant may seek a contribution from each other. * Liability for intentionally caused property damage or economic loss is still joint and several. If the loss is a property loss or economic loss caused by negligence and not related to personal injury, the liability is now proportionate. (Civil Liability Act 2002 (NSW) --- Part 4) Each potential defendant is only primarily liable to the plaintiff for his or her proportion of the plaintiff's loss * s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1946 - SECT 5 Joint tort-feasor cannot ask for indemnity from the victim for the contribution part direct + intentional = trespass direct + intentional / negligent = trespass / case Proceedings against and contribution between joint and several tort-feasors (1) Where damage is suffered by any person as a result of a tort (whether a crime or not): (a) judgment recovered against any tort-feasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tort-feasor in respect of the same damage, (b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the spouse, brother, sister, half-brother, half-sister, parent or child, of that person, against tort-feasors liable in respect of the damage (whether as joint tort-feasors or otherwise) the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action, (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought. (2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity. (3) For the purposes of this section: (a) the expressions "parent" and "child" have the same meanings as they have for the purposes of the Compensation to Relatives Act of 1897 as amended by subsequent Acts, and (b) the reference in this section to "the judgment first given" shall, in a case where that judgment is reversed on appeal, be construed as a reference to the judgment first given which is not so reversed and, in a case where a judgment is varied on appeal, be construed as a reference to that judgment as so varied, and (c) the expression "spouse" of a person includes the de facto partner of a person at the time of his or her death. Note: "De facto partner" is defined in section 21C of the Interpretation Act 1987 . Trespass on the Case Trespass is actionable per se: without proof of material loss or damage indirect = case Direct & Indirect 1. The defendant, Shepherd, threw a lighted squib into a crowded markethouse. 2. In order to remove the danger,Willis and Ryal picked up the squib and threw it away one by one. 3. Unfortunately, the plaintiff Scott was struck by the squib thrown by Ryal in the face. 4. As a consequence, Scott lost one eye. Scott v Shepherd (1773) The settled distinction is that, where the injury is immediate (direct), an action for trespass will lie. Where the injury is consequential (indirect), it must be an action on the case * Trespass is an injury accompanied with force, for which an action of trespass vi et armis lies against the person from whom it is received. The question here is whether the injury received by the plaintiff arises from the force of the original act of the defendant or from a new force by a third party. 1. Some baits were laid by the defendant along the creek. 2. The plaintiff too dogs down along the creek and the dogs picked up baits and died. Hutchins v Maughan [1947] In applying the settled distinction between trespass and case, an interference with the plaintiff will be direct when it follows so immediately in terms of causation upon the defendant's act as to be part of that act * Now the baits were laid by the defendant before the complainant took his dogs on to the land in question. They may even have been laid before he arrived in the vicinity. And had he not chosen to come into the vicinity and bring his dogs with him he would have suffered no injury from the defendant's act. Nor indeed would he have done so, had he not taken his dos on to the land where the baits were laid. The doing of the act therefore of itself did him no mischief. Before he could suffer an injury, he had himself to intervene by coming to the land and bring his dog thereon. Trespass & Case 1. The horse and the cart of the plaintiff were struck with great violence by the gig and the horse of the defendant, which led to great hurt to the plaintiff 's son and the daughter. 2. The defendant appealed by alleging that the case was not an action on the case, instead, was only an action of trespass. 1. The plaintiff claimed to recover damages from personal injuries caused directly by the defendant in negligence. 2. The only way for the plaintiff to succeed is if the action could be successfully brought on the case due to the statutory limitation on trespass. Williams v Holland (1833) Where the plaintiff is injured by the defendant's direct (or immediate) act, the plaintiff may elect to bring an action on the case (rather than trespass) provided that the defendant's act is negligent. However, where the defendant's act is both direct and intentional, the only cause of action available to the plaintiff is trespass. 1. The plaintiff was injured by a door which was slammed shut by the defendant in circumstances where she would not have been injured unless she put out her hand to impede the passage of the closing door. 2. In an action on trespass to the person, the plaintiff must prove on the balance of probabilities that the injuries were the direct result of the act or force of the defendant. 1. The plaintiff suffered personal injuries when she was struck by a car while crossing a public road. Platt v Nutt (1988) Onus of proof of the trespassory act is an issue distinct from onus of proof of fault. The plaintiff in trespass must prove that the defendant committed the trespassory act of which the plaintiff complains. Williams v Milotin (1957) The principle in Williams v Holland is part of Australian law. Onus of proof Non-highway cases: * In an action of trespass, the plaintiff must prove a trespassory act attributable to the defendant. * In an action on the case, the onus is on the plaintiff to prove the defendant's fault. Then, the onus is on the defendant to prove, on the balance of probabilities, that the trespassory act occurred without the defendant's fault: McHale v Watson; Holmes v Mather In highway cases: Plaintiff bears onus of proof of fault, either to prove negligence or intention. Venning v Chin (1974) As a general rule, in trespass the onus is on the defendant to disprove fault. However, in trespass for injury caused in a highway accident, the onus is on the plaintiff to prove fault on the part of the defendant. Trespass to Person Battery The tort of battery is the defendant's direct application of force to the plaintiff's body without consent or other lawful justification. Battery is an intentional form of trespass to the person. An act will be intentional if it is a deliberate, wilful act, that is to say, if the defendant 'meant to do it'. It is not a requirement of the tort of battery that the defendant's intention extended to a injuring or harming the plaintiff; it is enough that the defendant intended to perform the act which caused the offensive contact with the plaintiff. Battery is actionable per se, i.e., the plaintiff need not prove actual damage. * "Nominal damages" will be awarded where tort was trivial and no damage was suffered. 1. Two police officers on duty in a police car suspected two women in the street who appeared to be soliciting for the purpose of prostitution. 2. They asked the women to come into the car to perform investigation but was refused by one of the women. 3. In order to question her, one of the policewoman followed the appellant and took hold of her arm to detain her. 4. The appellant then swore at the policewoman and scratched the officer's arm with her fingernails. 5. The appellant was convicted of assaulting a police officer in the execution of her duty and she appealed against this conviction, contending that when the assault occurred the officer was not exercising her power of arrest and was acting beyond the scope of her duty in detaining the appellant by taking hold of her arm. Every person's body is inviolate. 1. The plaintiff sought a declaration from the Court for the permission of her daughter's sterilisation operation. 2. Her daughter suffered serious mental disability and thus unable to make the consent. 3. Though it was considered disastrous for F to conceive and give birth to a baby, she was unable to use the conventional methods for contraception. 1. K, (the plaintiff) was regarded as a thief as a result of F's (defendant) statement, but later was proved not to be a truth when K showed his receipt. 2. K was very angry and then made an insulting remark to F and grabbed the T square by the end without the cross-piece and hit F with it once on the arm and once on the shoulder. 3. In return, F, picked up an off-cut glass and threw it at K's face and thus wounded K seriously. 1. The defendant was a casino operator who issued the plaintiff an exclusion order in pursuance to Casino Control Act 1992 (NSW). 2. The plaintiff was identified when he was playing and one of the employee of the defendant asked for the plaintiff 's identity with one hand being placed on the plaintiff 's shoulder. 3. The plaintiff appealed for battery and assault. Definition of Battery Cole v Turner (1704) First, that the least touching of another in anger is a battery. Secondly, if two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery. Thirdly, if any of them use violence against the other, to force his way in a rude inordinate manner, it will be a battery; or any struggle about the passage to that degree as may do hurt, will be a battery. Collins v Wilcock [1984] The fundamental principle, plain and incontestable, is that every person's body is inviolate. It has long been established that any touching of another person, however, slight, may amount to a battery. The breadth of the principle reflects the fundamental nature of the interest so protected. The effect is that everybody is protected not only against physical injury but against any form of physical molestation. Generally speaking, consent is a defence to battery; and most of the physical contacts of the ordinary life are not actionable because they are implied consented to by all who move in society and so expose themselves to the risk of body contact, ... or they are within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life. Without consent In Re F [1990] The principle of necessity may justify medical or surgical treatment, which otherwise would constitute trespass to the person, when the patient is incapable of giving his consent or her consent by reason of lack of consciousness in an emergency situation or metal disability. However, application of this principle is accompanied by stringent safeguards requiring that the proposed treatment be in the best interests of patient in order to preserve his or her life, health or well-being Without Lawful Justification Fontin v Katapodis (1962) Although provocation is no defence or ground for the reduction of compensatory damage in an action for assault and battery, provocation may negative or reduce an award of exemplary damages. Where force is used in self defence, the degree of force must be proportionate to the threat to which the defendant is expressed. Generally acceptable contact not battery Rixon v Star City (2001) Physical contact which is generally acceptable in the ordinary conduct of daily life does not constitute battery. Assault requires an intention to create in another person an apprehension of immediate harmful or offensive contact. Assault The tort of assault is committed where the defendant's (subjectively) intentional or (objectively) reckless act creates the plaintiff's mind the (objectively reasonable) perception of the immediate application of unlawful force. In this context, "immediate" does not necessarily mean "instantaneous" but includes "a relatively short period of time".

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