TORTS SUMMARY - WEEK 3

MALICIOUS PROSECUTION INTENTIONAL HARM EMOTIONAL DISTRESS PRIVACY

MALICIOUS PROSECUTION - B & D p 688

a) Distinction from False Imprisonment is an action on the case - not trespass so must show actual harm Davis v Gell (1924) 35 CLR 275 at 284, per Issacs ACJ. "malice" needed, not just intention or negligence Rapley v Rapley (1930) SR (NSW) 94 at 99. once committed for trial false imprisonment no longer available judicial immunity: Lock v Ashton (1848) 12 QB 871. Judges or Magistrates who decide to commit someone to prison, have immunity to malicious prosecution tort: Jamieson v R (1993) 177 CLR 574, esp 594. but no immunity for private person who initiated legal action 1 b) Elements A v NSW [2007] HCA 10: for a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (i) (ii) (iii) (iv) 2 (i) Institution of proceedings almost exclusively criminal, including court martial: Foster v McDonald (1995) 127 DLR (4th) 184 (Alta CA) civil disciplinary proceedings not be actionable in this way: Gregory v Portsmouth City Council [2000] 1 AC 419. High Court not ruled on this. but - Noye v Robbins; Noye v Crimmins [2007] WASC 98 (30 April 2007) followed Gregory and refused to allow an action for malicious prosecution in relation to mere disciplinary proceedings. 2 What does it mean for defendant to have instituted proceedings? more than drawing attention or giving information to police must have had active role in pursuing proceedings that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; that the proceedings terminated in favour of the plaintiff; that the defendant, in initiating or maintaining the proceedings acted maliciously; and that the defendant acted without reasonable and probable cause

TORTS SUMMARY - WEEK 3 Martin v Watson [1995] 3 WLR 318 - plaintiff only witness, also complainant (of indecent exposure), therefore active role in pursuing proceedings. stating facts as defendant believes to the police is not an institution of proceedings: Commonwealth Life Assurance Society Ltd v Brain (1935). Police acting on information defendant knew to be false is unlikely to be sufficient: Davis v Gell (1924) 35 CLR 275, 283 per Isaacs ACJ. 3 Police use of discretion to act: - Sourian v State of NSW [1999] NSWSC 1173 arson police made own decision about strength of evidence. - Evans v London Hospital and Medical College [1981] 1 All ER 715 results of post mortem - police made independent decision whether to commence prosecution. Police compelled to act - instigator put the police in possession of information which virtually compels an officer to bring a charge - A v NSW [2007] HCA 10 [35]. 3 (ii) Termination in favour of plaintiff does not have to be total acquittal; almost any outcome other than finding of plea of guilty will support later action in Malicious Prosecution Commonwealth Life Assurance Society Limited v Smith (1938) 59 CLR 527 guilt or innocence irrelevant, issue is favourable termination. if proceedings abandoned - Noye v Robbins; Noye v Crimmins [2007] WASC 98 (30 April 2007) - previous criminal proceedings terminated by Attorney General (filed a nolle prosequi; a decision not to prosecute does not determine guilt or innocence - this does not entitle P to sue for M.P. however, where plaintiff could prove on the balance of probabilities that he was not guilty, he would be able to sue - Noye [246] termination of trial on technicality - still in favour of plaintiff - Varawa v Howard Smith Co Ltd (1911) 13 CLR 35, 72 per O Connor J. earlier proceedings will have been terminated adversely if guilt was found but no conviction recorded - Cameron and James [1945] VLR 113. 3/4 (iii) Lack of reasonable or probable cause should be no action where someone in good faith reports an offence, even if later proved wrong, or a court not satisfied beyond reasonable doubt question of reasonable cause is to be addressed when prosecution is commenced - A v NSW [2007] HCA 10 [59]. prosecutor must have honest belief of the validity of the charges - Hicks v Faulkner (1881) 8 QBD 167. prosecutors state of mind two part test - A v NSW [2007] HCA 10. subjective - must believe the case is worth pursuing - Sharp v Biggs (1932) 48 CLR 81 - the prosecutor does not have to believe in the guilt of

TORTS SUMMARY - WEEK 3 the accused, merely that the evidence is strong enough that upon general grounds of justice a charge against him is warranted - A at [59]. relevant question is whether the prosecutor not honestly concluded evidence warranted prosecution - A at [80]. objective - would a reasonable person, knowing what the prosecutor knew, think the same - A at [83]. plaintiff must show (on the balance of probabilities) that the defendant had no reasonable and probable cause for bringing the prosecution. private prosecution for perjury failed in MP action it was shown that belief in the guilt was unreasonable - McFarlane v National Australia Bank Ltd [2007] VSCA 275 [31]. 4/5 jury to settle facts in dispute judge then upon whole case to decide whether there is reasonable and probable cause: Bain v Commonwealth Life Assurance Society Ltd (1934) 35 SR (NSW) 36 at 42-3. 5

(iv) Malice purposes other than a proper purpose of instituting criminal proceedings - A v NSW [2007] HCA 10 [88]. desire to put pressure on plaintiff for ulterior ends landlord initiated prosecution for larceny because he wanted to remove tenant - Turner v Ambler (1847) 10 QB 252 malice shown, but not lack of reasonable cause, so failed. laying of charges done to further their campaign to retain or win back their properties. This was as an ulterior purpose sufficient to constitute malice. McFarlane v National Australia Bank Ltd [2007] VSCA 275 [34]. son falsely charged mother under Lunacy Act, - no reasonable cause, but his motive was to protect her interests so malice not found - Rapley v Rapley (1930) SR (NSW) 94 at 99. What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law an illegitimate or oblique motive. That improper purpose must be the sole or dominant purpose actuating the prosecutor. A v NSW [2007] HCA 10 at [91]. 6/7 (v) Damage a) plaintiff must demonstrate that he or she has suffered damage in one of three specific categories: Savile v Roberts (1698) 1 Ld Raym 374 at 378; 91 ER 1147 at 1149-50: (1) damage to reputation; (2) damage to life, limb or liberty; (3) damage in an economic sense, particularly cost of defending proceedings b) this list of potential heads of damage reaffirmed more recently in Manley v Commissioner of Police of the Metropolis [2006] EWCA Civ 879. c) once proved, damages are at large, subject to proportionality - Commonwealth Life Assurance Society Ltd v Brain (1935) at 386, per Dixon J. 8

TORTS SUMMARY - WEEK 3 INTENTIONAL HARM EMOTIONAL HARM - B & D p 45

a) Wilkinson v Downton WiIkinson v Downton [1897] 2 QB 57 D told W husband badly injured, was a lie, W suffered breakdown, awarded 100. action on the case for physical injury; it is distinguishable from trespass to the person because actual harm must be shown an intention to cause harm (not merely an intention to do a particular act) must be shown harm may be indirect 8 tortfeasor can also be held liable for harm caused to those foreseeably connected to the victim - Battista v Cooper (1976) 14 SASR 225. 9 Giller v Procopets [2008] VSCA 236 (10 Dec 2008) was an action in Wilkinson v Downton was available? yes, there was clearly a deliberate course of action calculated to cause mental distress, but failed no recognised psychiatric illness WiIkinson v Downton applied in NSW most recently in Nationwide News Pty Ltd v Naidu [2007] NSWCA 377. 9 b) Intention sufficient to have fully-formed intention to actually do harm to the plaintiff, or a group of persons involving the plaintiff by use of actions or words. Bird v Holbrook (1828) 130 ER 911 - set a spring-gun to catch trespassers held defendant had intention to cause harm to anyone who entered the garden alternatively, courts will often accept reckless of the consequences as equivalent of intention 10 doing an act calculated to cause physical harm calculated is equivalent to natural and probable result - Palmer Bruyn & Parker Pty Ld v Parsons [2001] HCA 69 [73]. does not need to be foreseeable Palmer Bruyn & Parker Pty Ld v Parsons [2001] HCA 69 [78]. reckless indifference is sufficient to establish intention - Nationwide News Pty Ltd v Naidu [2007] NSWCA 377 [80], per Spigleman CJ. 12/13 c) What type of harm must be intended? Wilkinson refers to physical harm but on facts of the case this must include psychological damage which then has an impact on the body intention to cause mere distress may be sufficient - McFadzean and ors v CMFEU and ors [2004] VSC 289 [123] per Ashley J. 13 d) Type of harm actually caused to the plaintiff

TORTS SUMMARY - WEEK 3 Wilkinson - more than mere distress actual physical injury ...the plaintiffs emotional distress must have been accompanied by objective and substantially harmful physical or psychopathological consequences, such as an actual illness. Mere anguish or fright will not do. - McFadzean at [127], per Ashley J quoting Wilkinson 15

TORTS SUMMARY - WEEK 3 e) Type of action done by defendant Can be based on words as well as actions - McFadzean at [125]. f) The result in McFadzean and ors v CMFEU and ors [2004] VSC 289 conduct taken to have intended to alarm or frighten however, relevant proven psychological or physical harm was necessary, and five claims found proven 16
Type of Intention Full-blown intention- aim to bring about harm; includes recklessness (couldnt care less) and doing something calculated to cause harm (of which harm is the natural and probable consequence) Full intention etc Full intention etc Type of Harm actually suffered Physical harm Is there a possible tort action? Yes Authority Bird v Holbrook (clear intention); Bunyan v Jordan & PalmerBruyn v Parsons for the natural and probable consequences test Wilkinson v Downton (recklessness); McFadzean McFadzean v CFMEU (Aust); Wainwright v Home Office (UK) but maybe needs a course of behaviour Donoghue v Stevenson; Annetts v Australian Stations (see next semester)

Psychological damage Emotional distress Physical harm or psychological damage

Yes No in Australia; possibly in the UK Yes, but not as an intentional tort- action can be taken in the law of negligence No

To do an action the foreseeable consequence of which is harm

Foreseeable harm

Emotional distress not amounting to psychological injury

Annetts and other cases (see next semester)

17

TORTS SUMMARY - WEEK 3 BREACH OF PRIVACY AS A TORT Generally no right to privacy in Australia: Victoria Park Racing & Recreation Grounds v Taylor (1937) 58 CLR 479 Although, suggestion this might change - Callinan J in ABC v Lenah Game Meats [2001] HCA 63 at [317]. But floodlights and video cameras aimed at neighbours back yard did constitute nuisance - Raciti v Hughes (Sup Ct NSW, Young J; 19 October 1995). 18 Breach of confidence - equity courts developed an action for breach of confidence which was used when someone had promised not to disclose some secret, now may be used to protect private information or privacy for individuals, where improperly or surreptitiously obtained defence of public interest available. ABC v Lenah Game Meats [2001] HCA 63 video obtained by trespass, of possums being killed, passed on to ABC injunction against broadcast sought. ABC did not make promise not to broadcast. There was no relationship of trust and confidence. If the activities concerned were private (and/or domestic as opposed to commercial) then broadcast could have been restrained. Equity may impose obligations of confidentiality. Matter of political influence and public interests overrides rights to privacy 18 Grosse v Purvis [2003] QDC 151: recognised a separate tort of invasion of privacy - at District court level so authority unsure. Doe v Australian Broadcasting Commission [2007] VCC (County Court) - victim of rape named in radio broadcast in breach of statute (succeeded in BSD). Hampel J held that tort of breach of privacy should be available when there is unjustified publication of personal information where there is no public interest in publishing, and where there is prohibition on its publication. In Giller v Procopets [2008] VSCA 236 (10 December 2008) on appeal, Neave JA held that separate tort not necessary because an action was available for breach of confidence. 19 General damages - $40,000 Aggravated damages - $10,000 No exemplary damages could be awarded in equity followed NSWCA in Harris v Digital Pulse Pty Ltd (2002) 56 NSWLR 298 No need in equity to establish recognised psychological condition, mere distress was sufficient to base monetary award. 22/23 Breach of Confidence in UK Douglas v Hello! Ltd [2001] QB 976 CA generally recognised a right to privacy Douglas v Hello! Ltd (No 3) [2005] QB 125

TORTS SUMMARY - WEEK 3 Actions which protect privacy can be maintained under the equitable action for breach of confidence Moved towards protection of personal image. 20

TORTS SUMMARY - WEEK 3 Campbell v Mirror Group Newspapers [2002] EWHC 499, in first instance Breach of confidence now includes private information Attendance at Narcotic Anonymous had necessary quality of confidence. Photos obtained while she was engaged in private activity Overturned: Campbell v MGN Ltd [2002] EWCA Civ 1373 Was in the public interest - for lie to be exposed Miss Campbell had been taking drugs. 21 Overturned: Campbell v MGN Ltd [2004] UKHL 22 Law of breach of confidence should now include these types of noncommercial claims where private information was misused. The standard should simply be whether or not the person in question had a reasonable expectation of privacy and not whether disclosure of the material would be highly offensive, per Lord Nicholls at [21]. 21/22 Murray v Express Newspapers [2008] EWCA Civ 446 English CA held an actionable breach of confidence when press published photos of young child Mrs Murray (aka J K Rowling); held child David had reasonable expectation of privacy which was breached by publication (court noted David entitled to expectation of privacy but his mother may not be). 24