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Torts
A tort is a civil wrong arising out of a breach of a duty imposed by law. This breach gives
rise to a personal civil right of action for a remedy not exclusive to another area of law.

Tort and Crime
Crime Tort
Case brought on by the Crown Case brought on by victims of tort
Objective is punishment (prison time) Objective is compensation (monetary)
Beyond a reasonable doubt On the balance of probabilities

Similarities
Actions from wrongs imposed by the law
Certain crimes fall under both Eg. Trespass and assault
In some criminal cases, judgment may award compensation under criminal
injuries compensation legislation.
Object of compensation is the place victims in position before wrongs committed.

Intention
Deliberate or Wilful conduct
Constructive intent where the consequences of an act are substantially certain: the
consequences are intended.
Where conduct is reckless, whether the consequences are reasonably foreseeable.
Transferred intent (intent to hit A but hits B instead)
When we speak of an intentional act, we speak of the wilful act, & the
consequences that follow.

Negligent
When D is careless in his/her actions/conduct.
When D fails to take reasonable care to avoid a reasonably foreseeable injury to
another.

Strict Liability
No fault is required for strict liability but by mere occurrence & causation.

Actionable Per Se
Where it is not required to show proof of damage
1. Trespass (Wrongful entry onto land or person of another without
consent of the person who has rightful possession).
2. Detinue (Wrongful detention of goods after plaintiffs lawful request
of their return).
3. Conversion (Process of transforming something from one state to
another).

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Defences

1. Trespass
Trespass is actionable per se no evidence of damage required
Elements
Direct interference
Voluntary/Intentional
Without Consent of Person in Possession/ Other legal justifiable excuse

Trespass to Person
Trespass to person includes:
A. Battery
B. Assault
C. False Imprisonment

A. Battery
Battery involves an act by the defendant. It can be either intentional or negligent, that
causes direct physical interference with the body of the plaintiff.
The issue of consent or lawful justification is for the D to prove.

Elements
Actionable per se no damage required and:
I. Physical contact
II. No requirement of Hostility
III. Positive Act
IV. Direct and immediate consequence
V. Fault
VI. Consent/Lawful Authority

I. Physical Contact
Any physical contact, it need not be violent, any contact will do;
McCracken v Melbourne Storm Rugby League Football Club [2005]
NSWSC 107
Injury was not intentional
Contact was not violent in nature
Collins v Wilcock [1984] 1 WLR 1172
Police manhandled a prostitute even though she was not under an
arrest, she sued the officer and won damages. Lord Goff said:
The law cannot draw the line between different degrees of
violence, and therefore totally prohibits the first and lowest
stage of it.

II. Hostility
Hostility is not a requirement for battery, just needs physical contact as above.
Cole v Turner (1704) 6 Mod 149
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the least touching of another in anger is battery Holt CJ. Or if
the act is rude and inordinate in fashion

Boughey v R (1986) 161 CLR 10
Doctor strangling gf for sexual pleasure. Court said hostility not
required for battery.

Rixon v Star City Pty Ltd (2001) 53 NSWLR 98
Social touching is not battery. Hostility not required for battery
but social touching is not battery either.

III. Positive Act
You cannot commit battery by doing nothing at all

Fagan v Metropolitan Police Commissioner [1969] 1 QB 439
Once man knew he was over officers foot and did not drive off
his foot, intent was formed.

IV. Directness
A direct link must be established between the act of the plaintiff and the contact
of plaintiffs person.
If it is direct it is under trespass if action is not direct then it is action on the
case (negligence)

Scott v Shepherd (1773) 96 ER 525
Blackstone J: took the settled distinction to be that where the
injury is immediate, an action of trespass will lie; where it is
only consequential, it must be an action on the case

Reynolds v Clarke (1725) 93 ER 747
D put rainspout on house from which water fell on walls of
plaintiffs house causing Ps walls to rot.
Action failed because the harm was not direct.


V. Fault
Trespass to the person is not a strict liability tort. Defendant must be at fault.
Plaintiff must be able to show this. Two main reasons are:
1. Fault occurred involuntarily or unintentional.
Public Transport Commission (NSW) v Perry (1937) 137 CLR 107
Defendant suffered an epileptic fit while waiting on the platform
of a railway station causing her to fall onto the tracks negating a
cross-claim of trespass to land.

2. Who must prove fault?
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The onus of proof in the old cases was on defendant. In England, the
courts decided it was up to plaintiff that contact was made by
defendants actions.
Fowler v Lanning [1959] 1 QB 426
Diplock J held that the onus of proof for fault in all trespass actions
is on the plaintiff. This was confirmed in Letang v Cooper [1965] 1
QB 232.

In Australia the onus of proving element of fault or lack of, is by
defendant except in highway cases.
McHale v Watson (1964) 111 CLR 384 (Leading case)
Plaintiff only needs to prove the facts, once plaintiff has proved that,
onus is on defendant to prove fault, or lack of.
Venning v Chin (1974) 10 SASR 299
In highway cases, onus of proof is on plaintiff. One of the reasons
for this historical difference is any person has a right to use highway
and anyone with property adjoining to highway must accept a risk
and therefore should bear the onus of proof.
Williams v Milotin (1957) 97 CLR 465
The HC said 2 causes of action here: negligence and trespass to
the person.
In the tort of negligence, the plaintiff must prove fault, plaintiff
must prove negligence.
In Battery, the HC said that P only had to prove the facts, then
the onus was on D to prove lack of fault.

Note: Onus of proving fault or, lack of fault, rests on defendant except
in highway cases where onus of proving fault rests on plaintiff.

Therefore, in non highway battery, the defendant may raise lack of fault
as a defence and bears the burden of proving that there was no
negligence and no intention. However, in highway battery, the plaintiff
must allege and prove fault as part of the cause of action.

VI. Consent/Lawful Authority
Consent of the plaintiff in most cases is a matter for defence in Australia. eg
going to the doctor for an inoculation against a disease, is consent to the
battery. There are situations other than the medical situations for example in
sport.

Sport
McNamara v Duncan (1979) 45 FLR 152
Fox J: ... that the plaintiff consented to receiving a blow such as he
received.. Consent is only given in sporting match pertaining to the
rules which the game is played, once rules are breached then consent is
effectively revoked and battery has occurred.
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Pallante v Stadiums Pty Ltd (No1) [1976] VR 331 at 339
Defendant punched the plaintiff on the nose during a boxing match was
found to be ordinarily and reasonable to be contemplated as incidental
to the sport in question

Medical
Murray v McMurchy [1949] 2 DLR 442
Plaintiff consented to a C-Section birth, doctor also performed tubal
ligation for medical reasons even there was no immediate threat to
life. Court found plaintiffs consent was exceeded and battery had
occurred.
Walker v Bradley (unreported, NSW District Court, 22 December 1993)
Gynaecologist was found to have exceeded his consent when he
performed a hysterectomy upon the plaintiff. Plaintiff made it clear
she would not consent to a hysterectomy in the absence of cancer.
Defendant found an ovarian cyst, but no cancer but still removed
uterus.

Damages
Nominal - to recognise infringement of Ps rights
Compensatory - to compensate P for loss or damage
Aggravated - an extra sum for injury to feelings, indignity, disgrace,
humiliation
Exemplary - to punish & deter conduct. Rarely awarded and only in
Australia for a conscious & contumelious disregard for the plaintiffs
rights (Uren v John Fairfax 1966)
Henry v Thompson (1989) Aust Torts Reports 80-265
Plantiff was arrested for using obscene language and one of the
defendants urinated on him. Exemplary damages was awarded.

B. Assault
Elements
Positive, voluntary, intentional or negligent act;
Directly causing;
Actionable per se and
I. Reasonable apprehension by P;
II. Of imminent contact with Ps person.
III. Words may be enough
IV. Conditional threats must be lawful


I. Reasonable apprehension by P
For plaintiff to have reasonable apprehension, the defendant must have the
present and apparent ability of carrying out the battery.
Bradley v Schatzel [1911] St R Qd 206
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The appellant appeared to load a rifle she was holding and then aimed it at
respondent police officer was held sufficient to constitute assault even
though the gun was found never been loaded. Further, the police officer
was not scared was also considered as irrelevant to establishing assault,
given that a reasonable person in this situation would have been.

II. Imminent Contact
Zanker v Vartzokas (1988) 34 A Crim R 11
Young woman accepted lift from a stranger whom threatened with sexual
assault, though defendant did not physically touch her the threat was real.
In this case, it was reasonably for her to expect apprehension of imminent
contact.

III. Words and threat
Barton v Armstrong [1969] 2 NSWR 451
Plaintiff kept receiving threatening phone calls from respondent early
hours in the morning. It was held the effect on victims mind is the
material factor, and not whether the defendant actually had the intention
or the means to follow it up. Defendant was a person of authority so
plaintiff was generally in fear.

IV. Conditional Threat
Give me money or Ill shoot you is a conditional threat
Rozsa v Sammuels [1969] SASR 205
The plaintiff approached defendant and threatened to punch him in the
head, defendant produced a knife and in response said I will cut you to
bits if you try it. The fact defendant put those terms did not mean it was
not an assault, he had no right to pose those conditions.

C. False Imprisonment
Elements
Actionable per se
I. An intentional act Directly causing
II. Total Restraint of the Plaintiffs liberty (without lawful justification: a
matter for defence)
III. Words can suffice
IV. Knowledge not essential

I. Intention
We know from McHale v Watson negligent battery exists, the question is
whether negligent false imprisonment exists. To date there are no precedent
cases which dictates so.
Sayers v Harlow UDC [1958] 1 WLR 623
Plaintiff was locked in a public toilet due to a faulty lock which was due
to defendants negligence. Plaintiff was injured when she attempted to
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climb out of the cubicle when toilet roll rolled under her foot. Plaintiff
won damages but it was under negligence and not false imprisonment.

II. Restraint must be total
Bird v J ones (1845) 7 QB 742
Plaintiff was blocked along pathway by 2 officials blocking his path. It
was held not false imprisonment as plaintiff had option to turn around and
go back the way he came. The imprisonment was no total. There must be
a total restraint of liberty , and that obstruction in one direction is not
sufficient.
Burton v Davies [1953] QSR 26
Similar to Zanker, when she asked driver to stop and let her out he
kept going.
He imprisoned her as she had no way to get out even though the
door was locked. It is not reasonable means of escape to endanger
life & limb in order to escape. As she would be certain of injury if
she leapt out of the car.

III. Words
In a threatening situation if the perpetrator says Dont move or I will kill
you is an oral imprisonment and can be imprisoned. Words therefore can
constitute an imprisonment.
Symes v Mahon [1922] SASR 447
Defendant, police officer whom wrongly arrested plaintiff, a simple
case of mistaken identity.
Plaintiff was advised he had to accompany defendant to Adelaide,
even though plaintiff was not handcuffed.
Defendants argument was no handcuffs were involved
Court held physical restraint did not matter as P had submitted to
Ds control. P reasonably thought he had no way of escape.

IV. Knowledge
Does a person need to know theyve been imprisoned. Answer is No.
Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44
P works for D, P was accused of theft. D sent 2 officers to take P
into the companys office. Unknown to P, officers were instructed
not to let P leave. P was only told to wait there until the Police
arrived.
Atkin LJ said at 53-54: It appears to me that a person could be
imprisoned without his knowing, while he is in a state of
drunkenness, while he is unconscious, and while he is a lunatic.
be imprisoned by having the key of a door turned against him so that
he is imprisoned in a room in fact although he does not know the
key has been turned. If a man can be imprisoned by having the
key turned upon him without his knowledge, so he can be
imprisoned if, instead of a lock and key or bolts and bars, he is
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prevented from, in fact exercising his liberty by guards and warders
or policemen. They serve the same purpose.
Murray v Ministry of Defence [1988] 1 WLR 692
P was detained on suspicions for involvement with IRA. P was
detained from 7am that day. P was later formally arrested and taken
to the police station. P then later sued for false imprisonment from
the time she was detained to her arrest.
Lord Griffiths speaking for the Court noted, The law attaches
supreme importance to the liberty of the individual and if he suffers
a wrongful interference with that liberty it should remain actionable
even without proof of special damage

Robinson [sic] v Balmain New Ferry Co Ltd [1910] AC 295 (Privy
Council)
P went onto the wharf to catch a ferry but misses the ferry. P wanted
to leave but there was a sign saying 1 pence is payable on entering
and exiting the wharf.
Prima facie false imprisonment but there was a contractual
agreement. Appeal was dismissed.

Herd v WerdaleSteel [1915] AC 67
Miners were mining down the shaft. Upon telling employer they
were on a strike, they asked to be hoisted back up to surface.
Employer did not hoist them up for many hours. Miners sued for
false imprisonment.
Respondent was successful because there was an existing contract
for miners to work, similar to Robinson v Balmain Ferry (1910)

Action on the case for wilful injury
This is not a trespass which is per se: you need not prove damage. Here, damage is an
important part of the action.
Elements
An intentional act
Calculated to cause physical harm
And in fact causing it

An Intentional Act
Bird v Holbrook (1828) 4 Bing 628
D was sick of people entering his prized garden, to protect his
garden he setup a spring gun activated by trip wire to shoot intruders.
P entered to retrieve his pea-hen and was shot by spring gun.
Trespass was not involved as action was not direct, however action
on the case is valid as directness was not involved. P was injured
due to Ds deliberate act. The court found P had suffered physical
damage as a result of Ds intentional act, so P has a remedy in action
on the case.
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Calculated to cause physical harm
Wilkinson v Downton [1897] 2 QB 57
D played a practical joke on P, telling her that her husband was
seriously hurt in an accident. She suffered shock and severe illness.
Wright J upheld the jurys verdict in her favour stating The
defendant has wilfully done an act calculated to cause physical
harm to the plaintiff without more appears to me to state a good
cause of action.
Nationwide News v Naidu (2007) 71 NSWLR 471 Court of Appeals
Respondent was subjected to bullying at work, suffered major
depression and post traumatic stress disorder.
Court found Mr Chaloner (respondents supervisor) through a series
of acts calculated to cause Mr Naidu physical harm, being a
recognised psychiatric injury.
Sufficient to show substantial certainty

Causing it
J anvier v Sweeney [1919] 2 KB 316
Defendant a private investigator posed as a detective from Scotland
Yard and informed plaintiff if she did not hand over certain
documents he would allege that she was a German spy and her
boyfriend was a German.
Jury found the statements were calculated to cause physical injury to
the plaintiff. Plaintiff was awarded damages.

Insantiy
Carrier v Bonham[2001] QCA 234
P a bus driver, D is schizophrenic. Whilst P was driving the bus D
jumped out in front of the bus, P developed a psychiatric disorder
and tremendous stress, as a result had to give up his work.
Court found D liable for to the plaintiff and so did CA on grounds of
Wilkinson v Downton.
Held irrelevant what D as a psychiatric patient can foresee but what
a reasonable person would foresee. It is therefore objective. Cannot
consider insanity in torts.

Trespass to Land
As opposed to personal property that is movable. As with the other trespass torts,
the elements are the same, except the additional element is the exclusive
possession of land.

Elements
Intentional or Negligent act of the defendant Without lawful justification
a. Which Directly
b. interferes
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c. With the Plaintiffs exclusive possession of land

a. Directness
The conduct of P must constitute a direct interference with Ps possession of the
property, an immediate consequence of Ds action. Significant because this
means there is no break in the chain of causation, nor another event which itself
becomes the causation.

Southport Corp v Esso Petroleum Co Ltd [1954] 2 QB 182
A tanker belonging to defendant became stranded, in order to float her the
master discharged fuel oil into the estuary. The oil became deposited on
the plaintiffs foreshore and the sued seeking to recover the cost of clean
up.
Denning LJ (195-6): The discharge of oil was not done directly on to their
foreshore, but outside in the estuary. It was carried by the tide on to their
land, but that was only consequential, not direct. Trespass, therefore does
not lie.

Entick v Carrington (1765) 2 Wils KB 275
Lord Camden LCJ: Every invasion of private property is a trespass. No
man can set his foot upon my ground without my license, but he is liable
to an action. Must cause physical interference.

Hines v Hines [1999] QCA 149
Tennant in possession under a lease can sue for trespass rather than the
landlord.

Continuing Trespass
Kinskier v B Goodman Ltd [1928] 1 KB 421
Defendant is a builder, left some rubbish on the property which he should
have removed under the building contract. Rubbish blocked a gully caused
rainwater to flood the property. This was found to constitute a continuing
trespass until the debris was removed.

b. Implied License
Kuru v New South Wales [2008] HCA 6
Police were called to Appellants residence with a report of a male and
female fighting in a flat. Six officers arrived entered the apartment and
with appellants permission proceed to look around the flat. Upon finding
the female not being in the flat they were asked to leave by appellant.
Police did not leave and a struggle then ensued with appellant being
punched, pepper sprayed then handcuffed. Appellant sued.
The presence of police officers in the appellants flat after they had been
asked to go and a reasonable amount of time elapsed for them to leave,
could not be justified as directed to preventing a breach of the peace.
Upheld.
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Lincoln Hunt v Willesee (1986) 4 NSWLR 457
Defendants entered the plaintiffs business premises to interview plaintiff.
Their entry and questions had nothing to do with the ordinary business
being conducted and accordingly the Court found that there was trespass
from the moment of entry.
Newington v Windeyer (1985) 3 NSWLR 555
Property belonged to deceased estate, but was openly under control of
squatters whom maintained the land as if their own.
Court held since the land was in exclusive possession of squatters they
were able to sue anyone except the actual owner.
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58
CLR 479
P owned a race course. D erected a scaffolding outside (off their property)
to watch the racing.
High Court held no trespass as there were no physical interference.

Police Officers
Unless authorized by law, police officers have no special right of entry into
any premises without consent of P ( Halliday v Neville)
A police officer charged with the duty of serving a summons must obtain the
consent of the party in possession (Plenty v. Dillion )

Co-Ownership
A co-possessor can maintain an action against a trespasser (Newington v
Windeyer)

c. Meaning of Land
Traditionally, the Common Law position was that Land includes the actual soil,
dirt, the structures, plants, and the airspace above it. He who owns land bears also
what is Above & beneath(heaven and hell).

It was changed in:
Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479
Defendant took many aerial photos several hundred feet above the ground
of large estates from an aircraft. Plaintiff objected and sued defendant for
intrusion into the airspace over the Barons land a trespass to his land.
Griffith J: rights are restricted to such height as is necessary for the
ordinary use and enjoyment of his land and the structures up it above
that height (the occupier) has no greater rights in the airspace than any
other member of the public. Case dismissed.

No Damage caused by encroachment
LJ P I nvestments Pty Ltd v Howard Chia I nvestments Pty Ltd (1989) Aust
Torts Reports 80-269
D was constructing a building and sought Ps permission to extend
scaffolding over Ps land. P demanded cost for consent. D rejected but
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built the scaffolding 1.5m over Ps property air space, and at ground level
two posts approximately 100mm inside Ps land. Plaintiff sought
injunction for the removal of the scaffolding.
It was held D committed trespass and a mandatory injunction was granted.

Remedies
Ejectment- Reasonable force may be used to eject the trespasser to regain
possession.
Award of damages where Ds conduct was deliberate with an intention to
outrage P, then exemplary damages may be awarded (XL Petroleum P/L v
Caltex Oil P/L (1985))
Injunction equitable remedy, therefore at courts discretion.

Trespass to Goods
The intentional/negligent act of which directly interferes with the plaintiffs
possession of a chattel without lawful justification.

Title to Sue
The P must have actual or constructive possession at the time of interference for a
title to sue. It may not be actionable per se, without proof of damage (Everitt v
Martin) because we are to expect the nominal physical contact of everyday social
life. (Rixon v Star City)

Exceptions to the need for actual or constructive possession
i. Trustees and beneficiaries;
ii. Executors and administrators of deceased estates;
iii. Owner of a franchise in the wrecks;
iv. The gratuitous bailor at will (Penfolds v Elliot (1946))

In terms of directness, the intentional act must directly interfere with right to
possession.

Hutchins c Maughan (1947)
D laid poisonous baits on unfenced land. He warned P of their existence but
P ignored and Ps dogs ate the bait resulting in death. D argued that Ps
injury was not caused by him, but merely consequential and not direct,
therefore not a trespass.
Herring CJ and court agree it was not trespass:
had the bait been directly occasioned by the act of D, so that
trespass would lie

2. Detinue
Another tort that protects our interest in goods, only one where the court can order
specific restitution of the good. Therefore useful if P wants the object back. It has been
abolished by statute in England in Australia it still exists. The essence of detinue is a
demand for goods and a refusal to return them.
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Elements
i. Title to Sue, Wrongful, Refusal to return goods.
ii. Upon demand of Ps entitlement to possession.

i. Title to Sue
P must be able to show that they are immediately entitled to possession of the
goods. It must be a property right of some sort though not necessarily ownership.

Bolwell Fiberglass Pty Ltd v Foley [1984] VR 97
Young CJ determined it was unnecessary to determine ownership of the
yacht as all that is required to sue in detinune is an immediate right to
possession.
ii. Detinue must have demand and refusal
P must establish that a demand was made. It may be oral or written.

Westpac Banking Coporation v Royal Tongan Airlines [1996] Aust Torts
Reports 63,650 (81-403) (SC NSW)
Creency of value $250 000 was sent from Nuku alofa to Sydney but did
not reach Westpac. Qantas as a carrier of the post, among others, was
sued as a sub-bailee of the currency and was found liable. Qantas was
unable to show they had not been negligent in handling the currency.

3. Conversion
This tort is much broader than detinue

Definition of a conversion
The essence of conversion is dealing with a chattel in a manner repugnant to the
immediate right of possession of the person who has the property or special property
in the chattel provided there is an intention on the part of defendant to deny owners
right or assert a right inconsistent with it and the act results in the plaintiff being
deprived of possession for an indefinite period which renders the chattel useless to the
plaintiff per Dixon J in Penfold Wines v Elliot (1946).

It covers lots of things that are not trespass because of all the directness rules. In fact, a
lot of wrongful dealings with goods can fall under conversion.

Elements
a. Dealing with a chattel
In a matter repugnant
To the immediate right of possession
To the P having the property in the chattel
b. With the intent to deny the owners right or to assert a right inconsistent
And depriving P of possession

Bailment
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Bailment is the delivery or giving of the chattel to another on the condition that it will
be returned after a specified time or purpose. The Giver is the bailor, the keeper is the
bailee, and the relationship is a bailment.

There are 3 types:
i. Bailment at will return of chattel at will
ii. Bailment for a term return of chattel after a certain time subject to other
conditions of the bailment.
iii. Bailment for a particular purpose.

First. What can be converted?
It needs to be capable of being property.

Doodeward v Spence (1908)
Case dealt with a foetus in a bottle of preserving spirit, a medical specimen.
The court had to decide whether the object could be capable of being property
because a dead body cannot be property. The executor of an estate for
example, merely has responsibility of what happens to the body, but there can
be no ownership. The court decided that because it was a medical specimen
as opposed to a dead body, it was property, and therefore capable of
conversion.
It must be tangible. You cannot convert, for example, electricity.

City Motors P/L v Southern Aerial P/L (1961)
In a hire purchase agreement, a finance company wrongfully repossessed car
during contract for apparent default in payment. The bailee had not actually
defaulted, but because of a mistake, the car was repossessed, during the term
of the agreement. P sued the finance company for conversion.
The court agreed, and held that during the term of the contract, providing the
bailee was not in breach, the bailor had no right to possess the goods, and that
the bailee, during the term could sue the bailor for conversion. This is
because the bailee had a right to possession, whereas during the term, the
bailor did not.

Penfolds Wines v Elliot (1946) Leading Australian bailment case.
D was using Ps bottles to put his own wine in, and sold them in a BYO
bottle arrangement. Ps bottles said this bottle always remains the property
of P.
P sought an injunction to restrain D from continuing on the basis of a
conversion. Once empty, the purpose for which the bottles were sold, they
had a right to possession according to the bottles. There is therefore a
bailment arrangement.
Once empty, the court said they did have an immediate right to possession to
the bottles & had title to sue. However, Court said there was no dealing with
the chattel on Ds part, there was no way that D interfered with Ps right of
possession. A few of the bottles however, were given by D to people other
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than those who had given him the bottle on bailment. The court said that this
may be a conversion. However, it was not serious enough to grant an
injunction for.
This case clearly establishes the right to possession gives a title to sue, and
also what kind of a dealing constitutes a conversion. The court couldnt agree
whether Ds use constituted a conversion.
This would not happen today because it would be covered by s52 of TPA
1974.

Other legal rights of possession
Lien
At common law a lien is a limited right to retain possession of goods pending
payment of a debt. Liens include the general lien, artificers lien, the repairs lien
and the lien of the unpaid seller. A lien is a defence, not a right of action, however
a person with a valid lien has sufficient interest to sue 3rd parties and owners of
the title to goods in conversion.

Finders
At law, if you find an object, you have a right to possession of it, and you have a
better right to possess it than the whole world except for the true owner.

Parker v British Airways Board [1982] QB 1004
P found a valuable bracelet in a 1
st
class lounge owned by British Airways. P
gave the bracelet to an employee of British Airways with instructions that if it
was not claimed by the true owner, then it was to be returned to P. British
Airways kept it & P sued for conversion.
Court held that P as finder had abetter title to the bracelet than D even though
D was occupier of premises. D could not claim a better title unless the
occupier had manifested an intention to control the premises and everything
in the premises.
It was a case of finders keepers Donaldson LJ

Chairman of the National Crime Authority v Flack (1998) 86 FCR 16
P had a son who did not live with her but was being investigated by D for
drug offences. D, with a search warrant, conducted a search of her house and
took away a suitcase containing a large sum of money. P was unaware of its
existence. D did not charge the son, but also refused to return the money. P
sued.
Federal Court referred to the Parker case. The court said that it is significant
that it was found in Ps home. When it is a home, you do manifest an intention
to control the premises and everything in it.

Second. What constitutes the required conduct for a conversion?
The conduct must be intentional

Ashby v Tolhurst (1937)
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P left car in a parking station. The attendant allowed a rogue pretending to be
P who was authorised, to have the car and drive away.
Court held you can act bona fide and still commit a conversion if the dealing
was intentional, and since act of handing was intentional, here conversion.

Dealings amounting to conversion
Disposing of the goods, which includes sale of the good (Perpetual Trustees
&National Executors of Tasmania Ltd v Perkins (1989)
Abusing possession Likely in the case of actual damage, Simply using
without abusing may not amount to a conversion (Penfolds wines)
Transferring possession to someone else other than the bailor (Penfolds
where D gave bottles back to bailee, not a conversion, but was when he gave
to 3
rd
parties)
Withholding conversion
Denial of plaintiffs Right

Defences to Intentional Torts
A statement of defence may contain:
The defendants denial of the tortious act e.g. Defendant had an alibi for when the
alleged tortious event occurred.
The defendants objection to a point of law e.g. Defendant admits liability for the
act, but questions whether the act constitutes a tort.
The defendant admits liability but seeks to avoid the responsibility e.g. Defendant
admits liability, but counterclaims on the plaintiff.

Consent
In a strict sense, consent is not a defence as such, because in trespass, the absence of
consent is an element of the tort.

Marions Case (1992) 175 CLR 218
In this case, the court stated that every surgical procedure was a battery, unless
there was consent on behalf of the patient.

Freeman v Home Office[1984] 1 ALL ER 1036
The House of Lords said absence of consent has to be proved by the plaintiff

Valid Consent
Valid consent must be informed and procured without fraud or coercion.

R v Mobilio [1991] 1 VR 339
A radiographer, for his own sexual gratification and unrelated to the required
procedure asked several female patients to insert a transducer into their vaginas.
The patients had consented to the bodily invasion for the purpose of medical
treatment.
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The Court found that the consent was valid as the women had consented to
insertion of the transducer into their vaginas and this is what had occurred.

Consent in Sport
In contact sports e.g. Rugby, consent is not necessarily a defence to foul play
a boxer may consent to accidental fouls but not to deliberate ones, if a tackle
contravenes the rules where to rule then the injury is deliberate and exceeds
consent (McNamara v Duncan)

Consent in Medical Procedures
1. Wrong Medical Procedure
Chatterton v Gerson [1981] QB 432
If a person goes to hospital for a procedure and another procedure is
undertaken, this procedure is a trespass.

2. Actuality of the consent for a specific procedure
Murray v McCurchy (1949) 2 DLR 442
Plaintiff was a patient of the defendant.
Plaintiff had been seeing the defendant regarding a child birth problem,
the plaintiff had mentioned in passing how she would like ot be sterilized.
During the plaintiffs last child birth, the defendant decided to do the
plaintiff a favour and tied her fallopian tubes.
When plaintiff found out, she was irate and sued for trespass. Plaintiff said
that the surgery was not necessary at the time.
The court held that there was no consent, as the procedure wasnt an
essential one.

3. Capacity to consent
Gillick v West Norfolk Health Authority
Plaintiffs were parents of a minor who objected to the defendant giving
their daughter the pill
Court held a minor is capable of giving informed consent when he or she
achieves a sufficient understanding and intelligence to enable him or her
to understand fully what is proposed.

4. Informed consent
F v R (1983)
P had undergone surgery with the D tying of her fallopian tubes. The tubes
subsequently rejoined and the plaintiff fell pregnant, plaintiff sued the
defendant for not telling her that there was a chance of this occurring.
Court held that there was still consent for the operation.
Informed consent cases are issues of negligence not trespass. As it is
not possible to argue that the plaintiff did not consent to the operation, as
there was consent, just not informed consent.

Necessity
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The defence is allowed where an act which is otherwise a tort is done to save life or
property. Generally only permissible in urgent situations of imminent peril.

Southwark London Borough Council v Williams [1971] Ch 734
The defendants were squatters that were trespassing on council land, Council
sued in trespass, defendant argued necessity
The court rejected , as it contravened every persons personal right to property,
as it could be seen that no property would be safe
The court also stated that it was not the place of the law to look after homeless
The defendants act must be reasonably necessary and not just convenient

Malette v Shulman (1990) 67 DLR (4d) 321
P a Jehovahs witness, carried a card that stated that in the event of an accident
she did not wish to receive a blood transfusion but in hospital was given a
transfusion.
The plaintiff sued the defendant, who raised the defence of necessity
Court said that this was not applicable, as the plaintiff had made her position
clear. It was a generous act from the doctors, but not necessary
But the plaintiff only got nominal damages and had to pay her own costs
Necessity is a defence that is only permissible in certain circumstances, as it
has the ability to be abused
Necessity and Medical Intervention
In general, it is permissible to undertake medical procedures relating to the plaintiff
without his or her consent in the following circumstances:
Where its impossible to communicate with the person e.g. patient is unconscious
The act is in the best interest of the assisted person e.g. Life saving surgery
Necessity can extend to routine or permanent contact e.g. Dressing and feeding a
disabled patient

re F
A mentally incapacitated woman was found to be pregnant and doctors wanted
to terminate the pregnancy. They applied to the court to grant such a decision.
It was held that, although such procedures are prima facie acts of trespass, the
court was willing to grant a termination. The situation deemed it necessary to
allow the trespass

Mistake
A mistake is an intentional conduct done under a misapprehension, thus mistake is not
the same as inevitable accident, generally irrelevant in intentional torts, except for
matters of mistaken self defence and therefore the court will consider whether the
belief of the defendant that he or she needed to take Action in self defence, although
mistaken, was in the circumstances reasonable and so justified. Although mistake is
not a defence in tort law, mistake may go to prove an absence of intent.

Symes v Mahon [1922] SASR 447
The defendant police officer arrested the wrong person by mistake
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The court rejected the defence of mistake

Illegality
The traditional common law proposition on illegality is usually summed up in the latin
maxim ex turpi causa no oritor action, which means that no cause of action may be
based on an illegal act.

Gala v Preston (1991) 172 CLR 243
The plaintiff robs a bank and was involved in an accident in the getaway
vehicle.
Court held that they were not able to get damages for injuries suffered, as they
were involved in an illegal act.

Exceptions
There is an actionable tort, if the illegal act is not central to the tort.

Self Defence
In general, a person who is attacked or threatened with an attack and who reasonably
believes his life is in danger, is allowed to use such force as necessary to protect
himself. Force must be proportional to threat, not excessive.

Fontin v Katapodis (1962) 108 CLR 117
The defendant had accused the plaintiff of non-payment.
After manager apologised plaintiff started an altercation with defendant.
Plaintiff hit defendant twice with a piece of wood.
Defendant retaliated with a piece of glass.
Defendant had options of walking away, seeking assistance but did not.
The court said that the defendants use of force was excessive, thus no defence
of self defence.

Defence of other
The defendant may use reasonable force to defend a third party. The defendant is allowed
to use force as may be reasonably necessary in circumstances to defend a third party in
situations where he reasonably believes that third party is about to be attacked or where
the party is actually attacked.

Goss v Nicholas [1960] Tas SR 133
The court held that a person is entitled to use force to defend a third party, the
amount of force one can use is to be proportionate to the degree of injury
anticipated for the stranger.

Defence of Property
The common law allows an individual to use reasonable force to defend his property.

Bird v Holbrook (1828) 4 Bing 628
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Defendant owned a prized garden. To stop people picking his flowers he set up a
spring gun.
Plaintiff entered into garden to retrieve pea-hen, was shot and injured.
Gun was intended to be discharged and cause injury, decision upheld.

Provocation
Provocation is not a defence in tort law; it can only be used to avoid the award of
exemplary damages

Fontin v Katapodis (1962) 108 CLR 117
Provocation cannot be used to mitigate damages, can only be used to mitigate
exemplary damages.

Reasonable Person

Barton v Armstrong (1969)
D threatened P over the phone
The question here was one of reasonable apprehension. It is not whether P is timid
etc, but the test is that of a reasonable person.
The court ruled in this case that certainly, the reasonable person would have a
reasonable apprehension.

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Title: Does A have necessary title to sue?
Conduct: Does Bs various acts of interference qualify as trespass?
Fault: Can Bs several acts be classified as either intentional or negligent interference
with As property and who has proof of these matters
Damage: Does damage have to be shown to succeed?
Defences: Does B have a defence based on necessity?
Remedies: If As request for compensation is unreasonable, does B remain liable for the
trespass? Is an injunction available to restrain future trespass?

Cause of action:
An action for trespass will lie where there is a direct and voluntary interference with land
in the plaintiffs possession without the plaintiffs consent. Liability depends upon proof
of fault.

Title:
The title required for trespass is exclusive possession of land. Possession of the surface
carries with it possession of the airspace to the extent necessary for the ordinary use and
enjoyment of land and structures on it, Bernstein v Skyviews. The occupiers rights are
not limited to areas of actual use but extend to those areas which in the future the
occupier may use as part of the ordinary use of the land, L.J.P Investments v. Howard
Chia.

Applying principle:
As A is the occupier of the adjoining property, A would normally have exclusive
possession of land. But does As possessory rights extend to that area of infringement, 20
metres above As roof. Even if that area is not within an area necessary for the current
use of the land and structures, arguably it is within an area that A may wish to use in the
future. It is also in an area that A may be able to commercially exploit by building or
advertising space. There is also support in the authorities suggesting that intrusion at that
level has been regarded as a trespass. This was conceded in Wollerton Wilson v. Constain
and followed in later cases.

Conclusion:
Consequently, it is likely that A will be held to have sufficient title to sue for trespass.

Conduct required for Liability:
In order to constitute trespassory conduct, Bs conduct must be a direct intereference with
the plaintiffs possession without the plaintiffs consent, Southport Corp v. Esso
Petroleum. Directness is concerned with the causal relationship between the defendants
conduct and the interference with the plaintiff or plaintiffs property. It will be direct
where there is no voluntary conduct or active force intervening between the defendants
conduct and impact with the plaintiff or the plaintiffs property, Southport Corporation v.
Esso; Platt v. Nutt. Turning to each separate incident.

Incidents:
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necessary for the work at hand. On the above tests this would qualify as a direct
intereference.
not notice swing: despite the fact that the conduct might be considered negligent, it is
nevertheless a direct interference with possession.
swung by the wind: this is the least certain of the alternatives.

Arguments:
It is arguable that there is no direct act by B or that even if there is, the interference is
indirect. It is arguable that B simply omits to act, i.e. omits to lock the crane jib
consequently there is no act of B that can amount to an interference. Alternatively, the
interference like Southport v. Esso (oil was dumped from the vessel at sea) is indirect. On
the other hand, there may be thought to be a significant difference between dumping oil
at sea (Esso case) and leaving a crane jib in such a position that it can swing across
adjoining property.

Conclude each scenario:
Consequently despite the possible characterisation of Bs conduct as an omission, it is
thought that the failure to lock the crane jib and its consequent trespass will satisfy the
requirement of directness.

What fault is required and who should prove it:
In an action for trespass the defendant will not be liable in the absence of fault. Despite
contrary English authority, the Australian courts accept that a trespass can be committed
negligently as well as intentionally, Williams v. Milotin, Venning v. Chin. Additionally
the Australian courts have insisted that in relation to accidents off the highway, (as it is in
this case) it is up to the defendant to disprove fault: McHale v. Watson. In this case
therefore even if the conduct of the defendant is negligent a claim in trespass may still be
available. This is significant as a claim in trespass can succeed when a claim in the tort of
negligence may fail, in particular where there is no damage. Where the interference are
negligent, no claim in the tort of negligence would be available as there is no damage.
Although there may be no good policy reason for allowing claims for negligent trespass,
it is a claim which remains available to a plaintiff, Venning v. Chin. Similarly it will be
up to the defendant to disprove fault by way of defence. For convenience, this issue is
dealt with at this stage of enquiry rather than under the heading of defences.

Apply law to each fact:
necessary for the work at hand: this qualifies as an intentional interference. The
necessity to continue may be a matter that can be raised by way of defence.
Not notice crane jib swinging: this could be regarded as negligent if a reasonable
person exercising care would have avoided it. Alternatively if it was substantially certain
to result from the defendants conduct, it might be regarded as intentional.
Swung by the wind: there is no intended interference at most a negligent interference.

Conclusion:
Consequently the various interferences by the defendant would satisfy the requirement of
fault.
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Damage Element:
As trespass protects dignitary interests, there is no requirement that the plaintiff proves
damage. Trespass is actionable per se. Contrast negligence where damage is the gist of
the action.

There is arguably no valid reason for maintaining the action for trespass where the
interference is merely negligent although until the High Court finally decides the issue a
claim is available for negligent trespass in Australia.

Defence and prove on balance of probability:
The defence of necessity may be available where the interference is reasonably necessary
to prevent more serious injury, Produman v. Allen. The defence should be available not
only where the defendant acts to protect her or his safety but also where the defendant
acts to protect the public. In the case at hand, where the jib of the crane was swung over
As premises because it was necessary for the work at hand, it could be argued that the
defence of necessity prevented liability for that incursion. However, it is clear that if the
necessity was brought about by the defendants negligent, it cannot be relied upon:
Southport Corporation v. Esso. The difficulty in this case is that B the contractor is being
sued not the owner of the land. Any negligence of the owner would not be regarded as the
contractors negligence. If this view is correct, it would have the curious result that an
independent contractor employed by the owner of the land would have a defence of
necessity when the owner of the land would not. Perhaps the answer is that the owner of
the land ought to be sued for trespass on the basis that the owner must be taken to have
authorised the conduct which constituted the trespass. It is concluded that the defence of
necessity may be available where the trespass was necessary for the work at hand
provided that there was no other reasonable means by which B could carry out the work.

Remedies:
A may seek an injunction restraining B from continuing to trespass on As airspace.
Relevant issues include inconveniences, likelihood of repetition and adequacy of
damages. The likelihood of repetition is satisfied. If the sum requested by the plaintiff
was unreasonable, this may be relevant to the issue of convenience and adequacy of
damages on the basis that the plaintiff was willing to sell the right to trespass for a
sufficiently high sum. The problem raises the wider question of how far the interests of
development should override individual property rights or allow compulsory purchase of
those entitled to an injunction restraining the trespass. Alternatively that substantial
damages should be awarded for the trespass. It should not be construed as a mere
technical breach of rights as the plaintiff should be able to commercially exploit the right
to airspace and damages should reflect that value.