1. law, govt and politics


Monash Law Students’ Society
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STUDENT TUTORIAL
PROGRAM 2015
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Torts
SKETCH NOTES
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SKETCHNOTES: TORTS A SEMESTER 1 2015, MONASH LAW STUDENTS
SOCIETY
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Tutor: Tom Hvala
Year of Study: Semester 1, 2014
Lecturer: Paul Czarnota
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Cases included in tutor’s notes not included in the 2015 reading guide:
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• Andreas v Selfridge
• Barton v Armstrong [1969] 2 NSWR
451
• Borcado SA v Star Energy
• Green v Chelsea Waterworks Co
(1894) 70 LT 547
• Jeffrey v Honig
• Pittar v Alvarez
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Cases included in the 2015 reading that are not included in the tutor’s notes
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• Nil
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GENERAL COMMON ELEMENTS
These apply to all trespasses (i.e. battery, assault, false imprisonment, trespass to
goods and trespass to land).
Positive and Voluntary Act (PVA)
• D’s act must be both positive and voluntary (Innes v Wylie)
o Positive: more than an omission/passive conduct (Innes v Wylie)
o Voluntary: absence of compulsion, coercion or self-preservation (Scott,
Carrier)
Directness
• The interference caused to P must follow directly from the D’s act (Hutchins v
Maughan)
• This will be satisfied where:
o Interference follows so immediately upon the act of the D that it is “part
of the act” (Hutchins v Maughan)
o Where D’s act sets off a chain of events, in the absence of any “new and
independent intervening cause”, the interference will be direct (Scott v
Shepherd)
• Types of Intervening Acts:
o Natural Forces that break the chain of directness – NAI? (Esso Petroleum)
o Voluntary Human Actions which break the chain of directness (Soo, Scott
v Shepherd)
• Agency (Coles Myer Ltd v Webster)
o Fact a tort committed by D’s agent does not disrupt the element of
directness
o D’s conduct must be such that it caused and procured the wrongful act
o Intention may be relevant
Fault
• In Australia, except in “highway cases”, D bears the burden of proof in
disproving intent or negligence (McHale v Watson, Stingel v Clark, Platt v
Nutt)
• Fault will be established where:
o D subjectively intended the act (but not necessarily the consequences)
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o D was reckless (and knew the consequence might follow from their
conduct)
o D negligently carried out acts. This is when:
▪ D acted with less care than that which a reasonable person
would’ve acted with in the circumstances OR
▪ It was reasonably foreseeable to a reasonable person in the
position of the D that their conduct may lead to harm (Williams v
Milotin)
• Differences in UK law:
o Negligence is insufficient to establish fault (Lord Denning in Letang v
Cooper)
▪ However see (League Against Cruel Sports v Scott) where it was
enough that D negligently let dogs go on land
o In the UK, the P always bears the burden of establishing fault (Fowler v
Lanning)
• “Highway cases”
o P bears the burden of proof in establishing fault (Venning v Chin) in the
following scenarios, where:
1. There is a collision between vehicles on the highway
2. There is a collision between a vehicle and pedestrian on the highway
3. A vehicle runs off a highway and damages property adjoining the highway
4. There is contact between goods being carried out of a property adjacent
to a highway, and people using the highway
o Does not include torts which happen to occur on a highway e.g. assault
whilst in car
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BATTERY
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Definition
• Battery is a PVA of the D, which directly, and intentionally/negligently causes a
physical injury with the body of the P without lawful justification.
• To establish battery, P will have to prove all of the elements of the tort on the
balance of probabilities (BoP).
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PVA see above
Transmission of force (ToF)
• Did the ToF to P exceed that which is generally considered acceptable conduct?
(Rixon)
o No requirement of anger or hostility (Rixon)
o P does not need to know they have been touched (Re F (Mental Patient:
sterilisation)
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o No need for hand to hand contact e.g. (Scott v Shepherd)
o Malice? (Cole v Turner)
Directness see above
Fault see above
Defences see below
Remedies and conclusion
• Actionable per se
• Damages to be awarded (Nominal/compensatory/aggravated/exemplary)
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ASSAULT
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Definition
• Assault consists of int/neg creating in another a reasonable apprehension of
contact with their person (Tuberville v Savage)
• To establish assault, P will have to prove all of the elements of the tort on the
BoP
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PVA
Did the D perform an act that is capable of assault?
• Words alone can be assault (R v Ireland) however unlikely mere words without
bodily movement constitute an assault (Barton v Armstrong)
• Actions/words may render threatening conduct innocent (Tuberville v Savage)
Did the P apprehend immediate contact?
• Apprehension must be imminent
o Extension: an apprehension can be ‘continuing’ (Zanker v Vartzokas)
• Factors to consider regarding immediacy of the fear include:
o Whether there was a reasonable chance of escape (Zanker v Vartzokas)
o Whether there was a reasonable chance of an intervening act e.g.
protection arriving
o Power of the P relative to D
P’s apprehension must be reasonable
• P must have knowledge of threat
• Subjective factors that will affect reasonableness:
o Did D have the capacity to carry out the threat? (Read v Coker)
o If D knew the person was timid, the unreasonableness of P’s
apprehension may not protect D. If D didn’t know, it may not be assault
Was the act a conditional threat?
• Is the threat conditional? Upon P doing what? (Rozsa v Samuels)
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• If a condition is attached to a threat, such as will nullify the threat’s immediacy
by making it contingent upon something else, assault will fail (Tuberville v
Savage)
• As per Rozsa v Samuels, in determining whether a conditional threat in
response to a threat constitutes assault, the following applies:
o If the D had no right to impose that condition, OR if the condition that
the P must comply with is an unlawful demand (‘your money or your
life’) then it is assault
o A threat can still exist even if conditional (Read v Coker)
Directness see above
Fault see above
Defences see below
Remedies and conclusion
• Actionable per se
• Damages to be awarded (Nominal/compensatory/aggravated/exemplary)
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FALSE IMPRISONMENT
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Definition
• “A total restraint of the P’s freedom without a reasonable means of egress that
is directly and intentionally of negligently brought about by a positive and
voluntary act of the defendant without lawful excuse” (Bird v Jones)
• To establish FI, P will have to prove all of the elements of the tort on the BoP.
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PVA see above
Total restraint
• Total restraint required, no matter how short a time (Bird v Jones)
• No reasonable means of regress (McFadzean v CFMEU)
o FI may occur within a particular space (Meering)
o Not within a whole country (Louis v Commonwealth)
o Not decisive D contributes to P’s decision to stay (McFadzean v CFMEU)
o FI can occur by breach of duty to release P (e.g. from prison)
Means of egress (McFadzean v CFMEU)
• Must be reasonable, consistently available
• Four factors
o Threat to danger or self; distance and time; threat or danger to
property; illegality
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• Situation where call for help? !
Psychological constraint
• P must completely submit to will of D (Symes v Mahon)
Knowledge of restraint
• FI is actionable without proof of special knowledge or damage (SA v Lampard)
Contractual cases
• Voluntary assumptions of contractual obligations make it possible for P to
consensually place themselves where restraint is inevitable (Balmain, Herd)
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Directness see above
o When police use their own discretion and arrest someone, usually breaks
directness, however an employee can be sufficiently involved if they
actively promoted the actions of the police (joint tortfeasors) (Coles Myer,
Soo)
Fault see above
Defences? see below
Remedies and conclusion
• Actionable per se
• Damages to be awarded (Nominal/compensatory/aggravated/exemplary)
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ACTION ON THE CASE: IIP
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Definition
• Intentional act, by D, which is calculated to cause harm and does (Wilkinson v
Downton). Needs damage
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Intentional act
• D must have subjectively intended to perform the act that caused the harm
• D’s act can be:
o Physical (Bird v Holdbrook): even if you set something up that is
dangerous, without giving notice, you are liable to action on the case if
the lack of notice showed intention
o Mere words(Wilkinson v Downton)
▪ If there is an intention to terrify P then D will be liable (Janvier v
Sweeney)
▪ If just words, person must be present (Bunyan v Jordan)
o Or a combination (Nationwide News v Naidu)
Calculated?
• Multiple meanings:
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o D subjectively intended to injure the P, even where the actual injury
suffered was different to that intended e.g. little scare c.f. nervous
breakdown (Wilkinson v Downton)
o The act was objectively likely to cause personal injury to the P (Carrier
v Bonham)
o Where it was reasonably foreseeable that an act would cause injury
(Bunyan v Jordan)
Causes harm
• Physical acts (Bird v Holdbrook)
• Words
• Threats (Janiver v Sweeney)
• Words overheard (Bunyan v Jordan)
Actual harm
• Types of harm:
o Physical e.g. (Bird v Holdbrook) mental harm e.g. (Wilkinson v
Downton) BUT mere mental distress? (Giller v Procopets, Nationwide
News v Naidu)
Defences? see below
Remedies and conclusion
• Remember NOT APS
• Damages to be awarded (Nominal/compensatory/aggravated/exemplary)
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DEFENCES
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Consent
• D will not be liable if he can prove P consented to the interference on the BoP
• Consent can be given expressly by words or be inferred by conduct
• Must be real and genuine
Onus of proof
• D must prove consent (Marion’s Case)
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Implied consent (usually sport)
• Consent exceeded where deliberate and unusual infringement of code
(McNamara v Duncan)
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(Express consent (usually medical)
• Where nature of procedure explained to P properly, no trespass (Chatterson v
Gerson)
• NB: no therapeutic privilege at CL placing doctors above ordinary citizen
(Rogers v Whittaker)
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• Other considerations:
o Doctors have power to override consent of parents in some cases e.g. de
facto therapeutic privilege
o It is within the powers of the court to give consent to a procedure when
the P at hand is an adult (Re F) – what is decided must be judged by that
of a reasonable person in the best interests of P/supported by other
doctors. !
Children
• Minors can give legal consent when she/he ‘achieves a sufficient understanding,
and intelligence to enable him or her to understand fully what is
proposed’ (Marion’s Case)
• Minors do not have overriding veto when a court makes a decision according to
its view of the child’s best interests
• Non-therapeutic procedures on a minor require a court order (Marion’s Case)
• Cases involving the sterilisation of a child are decided on an ad hoc basis
(Marion’s Case)
• In therapeutic cases, parental authority exists to the extent that the child is
unable to consent for itself (Marion’s Case)
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(v) Vitiated consent: Power imbalance
• Reference to Canadian and English precedent.
(v) Vitiated consent: Duress or fraud
• If consent is not wholly independent and genuine, it may be vitiated (Latter v
Braddell)
(v) Revocation of consent
• Consent may be revoked at any time provided it will not create significant
danger, inconvenience or expense to the D (Balmain, Herd)
• Effective withdrawal of consent requires it to be unambiguous and
communicated to D (Cowell)
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Self Defence, Defence of another and Defence of Property
(i) Self defence
• Comes from Zecevic
• Argued where unlawful affliction of force to D’s person OR
• D under reasonable apprehension that force is about to be unlawfully inflicted
to her person
• D must have believed upon reasonable grounds that it was necessary to perform
that act.
o Minor defence of mistaken belief: can be argued provided that it was
honest and reasonable (Ashley v Chief Constable of Sussex Police)
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• Burden is on D to show the amount of force used was necessary/reasonable.
Court will look at:
o Were there any alternative means of resolution (Fontin v Katapodis)
o Whether level of force used by D was in proportion with that which he/
she was threatened/subjected to (Zecevic, Fontin v Katapodis),
o Whether the D could have escaped/avoided threat or force (Zecevic,
Fontin v Katapodis, Rosza v Samuels)
o Whether D continued after threat was removed (Zecevic, Fontin v
Katapodis)
o Whether D acted with any malice
(ii) Defence of another
• Same elements as self-defence, difference is that there is a present infliction of
force on another
• It is conceivable that a relevant factor may be the relationship between D and
the third person.
(iii) Defence of property
• Defence of property is similar to self-defence; applies to real property and to
moveables on land
• Must be one’s own property
• No force is justified until the trespasser has refused to leave after warning and
had reasonable opportunity (Halliday v Nevill)
Necessity
• Usually an issue where there is no consent
• Threat must be real and imminent; urgent situation of imminent peril
(Southwark v Williams)
o The situation must not have been created by the D (Southwark)
o Judged by what D knew at the time
• The steps taken by D must, in the light of the facts, be reasonably necessary
o Protecting human life considered proper ground for inflicting such
damage (Esso)
o Policy considerations relevant in determining necessity (Southwark)
o Steps need not be successful
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(ii) Property
• High threshold. Only favourable if to protect property from danger/damage
(Southwark)
• If D caused the danger, then the defence will fail (Esso)
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(ii) Person
• Where D’s actions are involuntary or entirely necessary for personal
preservation (Scott v Shepherd)
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o In the instance of suicide, a person may do what is reasonably necessary
to stop someone killing themselves (per s463B of the Crimes Act 1958
(Vic))
(ii) Medical Procedures
• Usually a lack of consent because:
o P temporarily/permanently unconscious (Murray v McMurchy)
o P otherwise unable to consent e.g. disability (Re F (Mental Patient:
sterilisation))
• Look for the following factors: (Re F)
o It is impracticable to communicate with assisted person; and
o A reasonable doctor would have acted in the same way; and
o D’s actions were necessary to preserve P’s life or health
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Lawful Authority – Arrest
• Power of arrest in Victoria is wholly statutory
• Crimes Act (1958) s458 (1) provides that any person, whether or not a member
of the police, may arrest someone without a warrant in three situations
o They believe on reasonable grounds, that a person is escaping legal
custody or evading arrest; OR
o Have been instructed to arrest someone by a member of the police; OR
o If they believe on reasonable grounds that the apprehension is necessary
▪ To ensure the appearance of the offender before a court; or
▪ To preserve the public order; or
▪ To prevent the continuation or repetition of the offence, or the
commission of a future offence; or
▪ For the safety or welfare of members of the public or of the
offender
• If P wasn’t actually committing an offence, D’s arrest will be lawful if, given P’s
conduct, D believes on reasonable grounds that P was committing an offence (s
461(1))
(i) Reasonable force
• Arrest must be made with no more force than reasonably necessary (Wilshire v
Barrett)
(ii) Common law
• P must be told at time of offence why they are being arrested (Christie v
Leachinsky)
o But NOT if they have been caught “red handed” or D presumed to have
known by virtue of the surrounding circumstances (Christie) OR
o The person acts in a fashion that makes it impossible to inform them
(Christie)
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o Test: “Would a reasonable man, assumed to know the law and possessed
of the information which was in fact possessed by the D, believe that
there was reasonable and probably cases?” (Dallison v Caffery)
(iii) Whilst in custody
• Person in custody must be released or brought before a Magistrate/given bail/
released unconditionally within a reasonable time (s 464 Crimes Act 1958)
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Inevitable Accident
• If a D can demonstrate that the act he committed was neither intentional nor
careless, he will disprove fault on his part, and therefore will escape liability in
trespass (McHale v Watson)
• Look to whether there was reasonable care and skill exercised by D
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TORTS TO GOODS
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Bailment
• A bailment is an act of delivering the goods to a bailee for a specific purpose,
transferring possession without the transfer of ownership (Ashby v Tolhurst)
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Establishing a bailment
• A bailee must accept the possession of something voluntarily for a bailment to
have occurred (Ashby v Tolhurst)
• Contractual terms may create a bailment or prevent one from being created
e.g. Ashby v Tolhurst and the difference between ‘custody’ and assumption of
possession
Type of bailment
• Gratuitous: No consideration
o Where a bailment is without consideration, the bailee must be ‘grossly
negligent’ in order to have failed to fulfil her or his duty (Houghland v
R.R. Low)
• Fixed term
o Comes to an end at a specified time or completion of specified event.
During the bailment, the bailor does not retain a RTIP, but will if the
bailee does something repugnant to the terms of the bailment (Hill v
Reglon)
• Bailment at will
o A bailment that can be brought to an end at any time by the bailor. The
bailor maintains a RTIP
Acts repugnant to the contract
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• Bailment can be terminated by an act that is wholly repugnant to the terms of
the agreement. If apparent, the bailor will gain a RTIP (Penfolds Wines v
Elliot)
• Thus, the bailor is re-vested with the right to demand the return of the good
(Hill v Reglon)
• A contract can be relevant where there are express terms stipulating otherwise
Duties of the bailee
• The onus lies with the bailee to prove the following has been done: (Morris v
C.W. Martin)
o To return the goods at the end of the bailment to the bailor
o To deal with the goods as directed by the bailor
o Take reasonable care of the goods
o Not to convert the goods
Conclusion: Who has what right of possession?
Trespass to Goods
• A PVA by the D that either intentionally/negligently interferes with P’s
possession of goods without lawful excuse (Penfolds Wines v Elliot)
• To establish trespass to goods, P will have to prove all of the elements of the
tort on the BoP.
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Is it a good?
• A good is something that is tangible, capable of being possessed and not
attached to land.
• This includes physical money as well as negotiable instruments (e.g. rights
attached to cheques). Also includes domesticated animals.
Standing?
• Based on a possessory interest. Thee types:
• Actual possession: P has physical control and evidenced an intention to
exercise that control (Penfolds Wines v Elliot)
• Constructive Possession (Penfolds Wines v Elliot)
o P had possession
o P did not intend to relinquish possession
o No-one else has assumed possession
o This is sufficient to sue in trespass e.g. where a chattel was wrongfully taken
(Wilson v Lombank)
• Immediate right to possession (RTIP)
o A RTIP does not give P a standing to sue in trespass, as trespass is a wrong
against goods in the possession of the P
o If P only has a RTIP, P may use the ‘piggyback principle’ on an interference
done to the goods in the actual possession of another person
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o However, this is only allowed when the third party has actual possession of
the good as:
▪ An agent or employee of the P or
▪ A bailee under a bailment terminable at will with the P
o And only when the interference is with that possession does P have right
to sue e.g. third party steals goods from bailee.
o The bailor will be unable to “piggyback” where the bailee voluntarily
gave up possession. Can only use the principle if TP’s act was a trespass
against the bailee’s interest (Penfolds).
o Ordinarily bailor cannot sue bailee unless goods are destroyed (rendered
unfit for purpose or irreversibly changed in form) (Penfolds)
PVA see above
Interference
• Any unpermitted taking, asporting, damaging, using or destroying will
constitute an interference
Directness see above
Fault see above
Actual damage?
• Relevant where trespass to good is minimal
• Trespass to goods is actionable per se, so no damage required (Trindade &
Cane) c.f. suggestion actual damage is required (Everitt v Martin, Wilson v
Marshall)
Other Defences?
• Consent
• Necessity
• Defence of property
• Jus Tertii
o Relevant where D can point to the better interest of a third party in relation
to the good to defeat P’s claim
o Defence will succeed only where:
▪ D acted with authority of the true owner of the good; or
▪ D defending action on behalf of and with the authority of the true
owner of the good; or
▪ P only had a RTIP of the good (Wilson v Lombank)
o A bailee can rely on the defence against his bailor when:
▪ He committed the act of conversion on the authority of the person
with the superior interest; OR
▪ He defends the action on behalf of and by the authority of the
person with the superior interest; OR
▪ He has already made satisfaction to person with superior interest
by giving goods back
Remedies and conclusion
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• Actionable per se?
• Damages
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Action on the Case
• A PVA of D that either directly/indirectly, and either intentionally or negligently,
permanently damages goods in which the plaintiff has a reversionary interest
• Reversionary interests refers to the ultimate interest of the legal owner in
maintaining possession
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Is it a good? see above
Standing?
• P must be the owner of the good and have a reversionary interest (e.g. owner,
bailor, vendor or mortgagee) (Hall v Pickard)
PVA see above
Permanent damage?
• Damage must be such as to “enure to the reversioner” (Penfolds) i.e. when
returned to the owner, the damage is of a kind that will last until it is repaired
(Mears v London)
Fault
• The act must be intentional or negligent (Hall v Pickard) (Hurnell v Elliss)
• NB: Irrelevant whether damage directly or indirectly flowed from D’s act (no
directness)
Remedies and conclusion
• Remember NOT APS
• Damages
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Conversion
• Intentional dealing with goods which is seriously inconsistent with the
possession or right to immediate possession of another person
• Protects P’s interest in the dominion and control of goods, but not P’s interest
in their physical condition
• Conversion is inherently broad and is difficult to define
• To establish conversion, P will have to prove all of the elements of the tort on
the BoP
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Is it a good? see above
Standing?
• P must have a superior possessory right at the time of the conversion (Oakley v
Lister)
• Actual/constructive/RTIP
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o In the case of RTIP, a mere contractual right will not support a tortious action
unless something, like a trust, elevates it to something stronger (Int Factors
v Rodriguez)
• Other standings:
o Finders title is sufficient except: (as per Armony v Delamirie)
▪ Against owner
▪ Against person with previous possessory title not voluntarily
surrendered (lost it)
▪ Against occupier of land where finding made of object fixed to or
under land
▪ Against occupier of land where finding made of object on surface
of land provided occupier has, before finding, manifested an
intention to exercise control over the buildings and thing (Parker
v British Airways Board)
o Contractual right to hand over goods: insufficient to bring an action (Int
Factors v Rodriguez)
▪ Exception is when the contract speculated immediate delivery of
goods or where the transfer of goods is a trust arrangement
Intentional conduct
• D must intend to commit the act itself (but no need to intend to deprive the P
of the full benefit of their superior possessory rights) (Fouldes v Willoughby,
Ashby v Tolhurst)
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Assumption of superior rights
• D must have assumed some possessory right of the P’s. Six main categories:
• By transfer
o Sale (Glass v Hollander), Gift, Pledge or delivery to someone not entitled
• Selling or transferring possession is always conversionary (Willis v British Car
Auctions)
• By taking or receiving possession
o Taking a good, without lawful authority, may be conversionary (Fouldes)
o Factors to consider include: extent, duration and motive of D
• By withholding or failing to return goods
o Simple withholding may not suffice. There must be some element of defiance
of P’s rights (Oakley v Lister)
• By destruction, damage or use (Penfolds, Moorgate Mercantile v Finch)
• By asserting ownership in other ways
o Unequivocal assertion of ownership by anyone in actual control of the chattel
is likely to be conversion (Oakley v Lister)
• Contractual cases
o It is possible to define, per the terms of the contract, actions that will
constitute conversion (Hill v Reglon, Moorgate Mercantile)
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Defences same as trespass to goods, and:
• Mere casual dealing: mere casual handling of goods, rather than exercising
dominion over them, may be conversionary. However, this is not clear
(Penfolds)
Remedies and conclusion
• Damages will be awarded by reference to the value of the goods at the date of
the conversion
• If damaged, compensatory damages to account for change in value
• If there are improvement to the chattel you will have to pay whoever fixed it so
you are not unjustly enriched (Greenwood v Bennet) Requirements:
o Work conferred an incontrovertible benefit of P; and
o Work was done with full and free acceptance of P, or D honestly thought to
himself to be the true owner of the goods when making improvements.
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Detinue
• Wrongful detention of a chattel for which a proper demand for return has been
made by the person with a RTIP of those goods
• To establish detinue, P will have to prove all of the elements of the tort on the
BoP.
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Is it a good? see above
Standing to sue?
• Must have an RTIP
Proper demand?
• P’s proper demand must be clear and express for return of goods (Lloyd v
Osborne)
o Oral/Written
o Some authority to suggest demand need not be made where it would be
pointless
o Must be clear P is requesting return of the goods
o Must be sufficiently clear instructions regarding how the goods are to be
returned (how/when/where)
Was there a refusal?
• D must wrongfully and unequivocally fail or refuse to comply with a demand for
return
• Refusal can take several forms:
o Express refusal
o Failure to reply
o An inability to return the goods, where they have been lost or destroyed as a
result of the D’s intentional act of carelessness (Houghland v RR Low)
o Refusal to say where they are (Houghland v RR Low)
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• NB: If D is disabled from delivery through loss or destruction of goods which
reasonable care and skill on his part could not avoid, no detinue
Fault
• Intention/negligence (Houghland v RR Low)
Defences same as trespass to goods
Remedies and conclusion (General and Finance Facilities Ltd v Cook Cars)
• Three options
o Damages for value of the good and period of detention
o Specific restitution and damages for period of detention
o Either damages for the value of the good OR SR + damages for period of
detention
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• Damages for detinue are assessed at time of judgment
• Damages (as per Lord Diplock in General and Finance Facilities Ltd v Cook
Cars)
o When ordinary article of commerce: damages for the value of the good +
damages for the detention of the good
• Specific restitution: legal remedy for a person to recover goods unlawfully
withheld. Requires D to return specific good to P.
o Only awarded if damages are inappropriate
o (Return of good) + damages for its detention
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• Has the D improved the good? If yes, the measure of damages will be the true
value of the property the P has lost i.e. less the value of the improvements
o The court may make it a condition that before the goods are returned the P
must pay the D the value of the improvements. This will only occur where:
(Greenwood v Bennett)
▪ The work confers an “incontrovertible benefit upon the P”
▪ The work was done with the full and free acceptance of the P
▪ D genuinely thought he was the true owner at the time which the
improvement were made
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RIGHTS AND DUTIES ASSOCIATED WITH LAND
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Trespass to Land
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Definition
• A PVA by the D that either intentionally/negligently interferes with the P’s
exclusive possession of land without lawful excuse
• To establish trespass to land the P will need to prove all elements of the tort to
the BoP.
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Land
• Land includes not only the surface but any fixtures (Blackstone), the airspace
above (Bernstein) and the earth below the surface (Bocardo SA v Star Energy)
Was the airspace protected?
• Airspace will be P’s only to a such a height necessary for the ordinary use and
enjoyment of the land (LJP Investments v Howard Chia)
The Wrongs Act 1958 (specific to planes)
• s30: “No action shall lie in respect of trespass or nuisance by reason only of
the flight of an aircraft over any property at a height above the ground which…
is reasonable, or the ordinary incidents of such flight…”
• s31: There needs to be intention/negligence when damage is caused to
property by way of a plane dropping any part or material
Chattels
• Land extends to chattels on the land (Davies v Bennison)
Standing to sue
• P must have exclusive possession: a right to use of the land to the exclusion of
all others (Lavender v Betts)
• A mere licence to be on land is not sufficient (Vaughan v Shire of Benalla)
• De Facto possession may be sufficient even where the P doesn’t have legal title
to the land
o This is determined when looking at whether the acts of possession are such
that they entitled them to exclusive possession of the land (Newington v
Windeyer)
o This does not apply to scenarios where D acted with authority and consent of
the rightful owner
PVA see above
Interference
• “An act will be considered a trespass if the act involves the slightest physical
crossing of the boundary of the land in question” (Lavender v Betts)
o Doesn’t matter how transient it is (Davies v Bennison)
o Also includes where D directly causes objects (Davies v Bennison) or animals
(League Against Cruel Sports v Scott) to cross the land
o Also includes failing to leave land in a reasonable time after licence is
revoked (Cowell v Rosehill Racecourse)
• Is it a case of continuing trespass?
o Where, after an initial trespass, the person or object giving rise to the
trespass continues to remain on the land it is a continuing trespass (Konskier
v Goodman). This includes an omission to rectify the initial act.
o A person may sue even when they didn’t have exclusive possession at the time
of the initial trespass (Konskier v Goodman)
Directness see above
Fault
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• D must disprove intention or negligence (League Against Cruel Sports v Scott)
Other defences
The same defence apply to trespass to land as those that apply to trespass to
person
• Implied licence: Home
o Generally there is an implied license to enter up to the door of a house, via a
driveway or designated path, in a absence of any obstruction or notice to the
contrary, for a ‘legitimate purpose’ (Halliday v Nevill)
• Implied licence: Business
o An implied licence may be evident if D entered on to the land for the bona
fide purpose of doing business, seeking information or as a potential customer
(Lincoln Hunt v Willesse)
• Express licence
o The defendant may have entered the land as per the conditions stipulated on
a sign or notice
• Scope of licence:
o Is there a territorial or purpose limitation? If D is outside this scope, it is
trespass
o The implied licence to walk up a driveway only allows someone to enter for
the purpose of making themselves known only for some genuine and
legitimate purpose, not to wander about at will. (Lincoln Hunt v Willesse)
• Revocation of express/implied licence:
o A license to enter upon land may be revoked by the owner at any time by an
express or implied refusal or withdrawal (Halliday v Nevill)
o To be effective:(Cowell v Rosehill Racecourse)
▪ The revocation must be brought to the defendant’s attention
▪ The defendant must be allowed a reasonable amount of time to
leave the plaintiff’s land.
o Exception: Cannot be revoked when D has an interest that is granted by a
licence.
o An implied license will not exist where the plaintiff has expressly indicated in
advance that permission is refused (Rinsale v ABC)
• Self-defence
• Necessity
• Inevitable Accident
Remedies and conclusion
• Actionable per se
• Self-help: The onus is on the person self-helping to justify any trespass
undertaken whilst abating the nuisance/tortfeasor. Must be reasonable (Cowell
v Rosehill Racecourse)
• Damages: Most common remedy (Lenah)
• Injunction:
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o Can only be imposed on person who committed the trespass (ABC v Lenah
Game Meats)
o The court will issue an injunction only where damages would be insufficient or
unquantifiable. Most likely where (Lincoln v Willesee, Rinsale v ABC)
▪ D’s behaviour has been unconscionable
▪ D will gain economic advantage from having committed trespass
▪ Likely that D will trespass again
PRIVATE NUISANCE
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Definition
• “An unreasonable interference with a person’s right to use and enjoyment of
their land”
• To establish PN P will have to prove all of the element of the tort on the BoP
Is there land? See above
Standing to sue
• P must have exclusive possession (Hunter v Canary Wharf)
• Mere licence is insufficient(Hunter v Canary Wharf)
• A reversioner cannot sue unless for cases involving physical damage (Oldhem v
Lawson)
Is D legally responsible?
D can be liable by three means:
• Creator
o D created the nuisance (Fennell v Robson Excavations Pty Ltd)
• Adopter / Continuer:
o D is said to have continued the nuisance they do not, with knowledge of its
existence, take any reasonable steps to bring it an end (Sedliegh-Denflied v
O’Callaghan)
o D adopts the nuisance if he ‘makes any use of… [that which] constitutes the
nuisance’
o An occupier can be held liable for a nuisance spreading, even if done so
passively (Hargrave v Goldman)
o D can be liable irrespective of their state of awareness of the inception of the
damage (City of Richmond v Scantelbury)
• Occupier
o D may be liable if she or he permitted the actual creator of the nuisance to
enter her or his property (Fennell v Robson Excavations Pty Ltd)
Is the interest protected?
• Aesthetic values, right to light, profit or privacy are not protected (Victoria
Park Racing v Taylor)
• Three categories are recognised: (Hunter v Canary Wharf)
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o Nuisance by encroachment on a neighbour’s land
o Nuisance by physical injury to a neighbour’s land
o Nuisance by interference with a person’s quiet enjoyment of land
Was the interference unreasonable?
• Physical, then:
o Damage must be more than trivial (St Helens Smelting Co. V Tipping, Halsey
v Esso)
• Sensibilities, consider the following factors:
o Live and let: A general principle that in an urban setting, one forfeit’s a
complete right to zero interference from neighbours and noise (Clarey v
Women’s College). However, this notion has a narrow application (Andreas v
Selfridge)
o Locality: The less appropriate/common the act is in that locality, the more
likely the nuisance will be unreasonable. (Sturges v Brigman, Pittar v
Alvarez, Jeffrey v Honig)
o Intensity: The more intense the interference, the more likely the nuisance
will be deemed unreasonable. (Feiner v Domachuk, Polsue Alfieri v
Rushmer)
o Time/Duration/Frequency: The more peculiar the time/greater the duration/
greater the frequency, the more likely the nuisance will be deemed
unreasonable. (Seidler v Luna Park)
o Easily avoided: The more practical it is for D to avoid the interference, the
more likely the interference will be unreasonable. (Clarey v Principal &
Council of Women’s College)
o Malice: If the interference is attended by malice, it will be more likely to be
deemed unreasonable. (Hollywood Silver Fox Farm)
• Defences
o Social Utility: An interference will be deemed less unreasonable where it
benefits society as a whole. However this is a weak argument (Miller v
Jackson, Kennaway v Thompson)
o Hypersensitivity: An abnormally sensitive plaintiff is not entitled to relief
simply because he is especially sensitive (Robinson v Kilvert, Walter v Selfe)
o However, an exception exists where the nuisance is malicious – if this is the
case, unreasonableness will be made out (Hollywood Silver Fox Farm)
o Coming to the nuisance: Not a viable defence, although may impact damages
awarded (Miller v Jackson)
o Statutory Authorisation: D must show that the statute imposed a duty
(Lester-Travers) and the nuisance was inevitable in performing the act
(Manchester Corporation)
o Negligence will nullify this defence (Geddis v Proprietors of Bann Reservoir)
Remedies and conclusion
• Self-help/abatement
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• Injunctive relief
o Discretionary, only granted where (Luna Park)
▪ Nuisance is grave;
▪ Damages are likely to continue; and
▪ Nuisance is likely to continue
o Will not be awarded if P:
▪ Came to the nuisance
▪ P was grossly hypersensitive
▪ Where injunction would force D to relocate; or
▪ Where there is a public interest in the nuisance (Miller v Jackson)
o Two other types of injunctions:
▪ Quia Timet: Only awarded as a precautionary injunction to stop
someone commencing an activity
▪ Interlocutory: Temporary stoppage whilst case is in court.
• Damages for past loss/injunction/equitable damages for future suffering
VICARIOUS LIABILITY
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Definition
• Doctrine of VL states an employer will be liable for torts committed by an
employee in the course of their employment.
Is there a tort/by whom?
Employers and independent contractors distinguished
• Conclusion is arrived at by balancing a number of indicia (Hollis v Vabu Pty
Ltd)
o Control: Emphasis on right to control (Vabu)
o Identification: If primary tortfeasor is an ‘emanation’ of employer, then more
likely (Vabu)
o Holidays (Vabu)
o Skill level (Vabu)
o Equipment: If primary tortfeasor has to supply their own equipment, then
more likely an independent contractor (Vabu)
o Type of payment: Wage or invoice? Does company or primary tortfeasor pay
tax? If the former than more likely employee (Stevens v Brodribb)
o Setting own hours (Stevens)
o Negotiate own payment (Stevens)
o Obligation to work (Stevens)
o Ability to work for others (Stevens)
o Ability to delegate work (Stevens)
o Organisation test: How central is the individual to the core business activity?
(Vabu)
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Conclusion
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In the course of employment
• Assuming D is found to be an employee, it is relevant to whether the alleged
tort was in the course of employment
• Salmond test
o An authorised act (Bugge v Browne) OR
o An improper mode of performing an authorised act (Limpus v London General
Omnibus)
▪ ‘Authorised’: when employee has actual (express or implied) or
apparent authority (Beard v London General Omnibus)
o Express prohibition by employer may inadvertently show tortious act was
within the ‘sphere of employment’ (Bugge v Browne)
• Employer benefit / Gummow and Hayne JJ test (NSW v Lepore)
o Employer will be liable even if act was purely for the D’s personal gain and
conferred no benefit on the employer (Morris, Deatons Pty Ltd v Flew)
o 1) Was the employee’s conduct was done in intended pursuit of the
employer’s interests or intended performance of the contract of employment?
o 2) Was the employee’s conduct done in the ostensible pursuit of the
employer’s business or the apparent execution of the authority that the
employer held her out as having?
• Criminal conduct (Lepore)
o Callinan J: Employers should precluded from liability for criminal acts of
employees
• Sufficiently close connection test
o The employer will be liable only if the wrongful act is sufficiently closely
related to conduct authorised by the employer to justify the imposition of
vicarious liability (Lepore, Bazley v Curry)
o Following factors are relevant:
▪ Opportunity employee had to abuse
▪ Whether employee was furthering employer’s aims
▪ Extent to which the wrongful act was friction, confrontation or
intimacy inherent in the employer’s enterprise
▪ Power employee had over the victim
▪ Vulnerability of the victim
Conclusion
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