TORTS NOTES Trespass: Direct, no damage req.

, onus on defendant, intentional/negligent Action on the case: indirect/consequential, damage needed, onus on plaintiff, unintentional/ action on the case for intentional injury. Direct or Indirect: Hutchins v Maughan [VLR] 131 (1947) Material Facts Complainant was droving a flock of ewes, defendant warned him that he had laid poisoned baits on land in the vicinity. Complainant thought defendant was bluffing, brought his sheep and 2 sheep dogs onto land. Dogs then ate bait and died. Complainant brought issue to Court and was awarded damages for the loss of the dogs. Police magistrate upheld defences of nuisance and negligence, but gave judgment on nuisance claim. Judgments - Defendant contention was that injury suffered was no occasioned by but was merely consequential upon the defendants act complained of, and so was not trespass. - Question is whether the injury the complainant suffered in the loss of dogs was immediate or consequential upon the act. The doing of the act itself did not cause him mischief he had to intervene by coming to the land with his dogs Principle: (Herring CJ) Trespass is the remedy for the direct application of force by the defendant to the plaintiffs person, land or goods. Action on the case is the remedy for indirect (or consequential) injury caused by the defendant to the plaintiff. Battery (elements in bold) (direct refer to Hutchins) A direct and intentional/negligent act by D causing bodily contact with P w/o lawful justification. Intentional/negligent Act: Fagan v Metropolitan Police Commissioner (1969) (only liable for positive act) Material facts Fagan (D) at request of officer(P) moved car, accidently drove on foot of P. P yelled at D to move car, D refused to move car, finally moved car after few minutes. D appealed on grounds that the act was an omission. Judgments - despite failure to comply with moving the car, failure was a positive act initial act of moving car on Ps foot was positive (even if accidental) & failure to move car was an omission occurring during positive act of driving car. I.e. both the driving of car onto foot and failure to move it are part of one continuous positive act. Bodily Contact (consider context) - no need for hostile intent medical procedures w/o content problems as any contact w/o consent can be classified as battery. Exception (i.e. lawful justifications): self defense, prevention of crime/lawful arrest, reasonable punishment of children, consent (both implied as in everyday life and actual) Consent: Brian Rixon v Star City (2001) Material facts Plaintiff [Rixon] wasn't allowed in the casino was playing roulette at the Defendant's premises [Star City Casino], approached by an employee of the Defendant *Mr Sheldon+. Mr Sheldon placed his hand on the Plaintiffs shoulder, and took him to a room. He was detained in the room for approximately 1.5 hours whilst waiting for the police to arrive. (P sued D for battery among other torts) Judgments - Generally any form of contact can be battery, with the exception of conduct which is generally acceptable in the ordinary conduct of everyday life. In this case, the conduct of Sheldon was to engage the Plaintiff's attention and was generally acceptable in everyday life. There was no battery. Assault (elements in bold) (direct refer to Hutchins) A direct & intentional act by D which creates in the P a reasonable apprehension of imminent unlawful contact (i.e. battery) with his/her body. DIRECT AND INTENTIONAL requires action to be direct and positive (Hall v Foncece, Barton V Armstrong, R v Ireland) INTENTION TO CAUSE APPREHENSION requires the defendant to have intend to create an apprehension that harm will occur. It is irrelevant whether the defendant intended to carry out the act or cause harm (Hall v Fonceca). REASONABLE APPREHENSIVE OF IMMINENT BATTERY requires that a reasonable person in the same circumstances as the plaintiff would believe that the contact threatened by the defendant would occur (Zanker v Vartzokas). Whether there was reasonable apprehension would also be determined by whether the plaintiff had the means to carry out the threat (Barton v Armstrong). Fear is not a requirement (Brady v Schatzel). Also words or text via phones/computer may constitute towards apprehension of imminent battery, not just actions (Barton v Armstrong, R v Ireland ).

False Imprisonment (elements in bold) A direct & intentional (negligent) act by the D that totally deprives the P of his/her freedom of movement w/o lawful justification. DIRECT & INTENTIONAL ACT BY DEF requires that D must cause imprisonment. This may be by virtue of the Ds own actions or by actively promoting others to carry out the imprisonment (Dickenson v Waters Ltd) TOTAL RESTRAINT requires that the imprisonment had no reasonable means of escape (Bird v Jones, Balmain New Ferry v Robertson). Methods of escape that are dangerous, not apparent or if the plaintiff reasonably believes that the use of any apparent and safe method would result in the use of physical force by the defendant (Burton v Davies) are not considered to be a reasonable means of escape. Furthermore, the plaintiff needs not to be aware of the false imprisonment (Murray v Ministry of Defence). It is possible that P is totally imprisoned without physical boundaries p may believe that he/she has no choice but to accompany or remain where they are (Symes v Mahon). Action On the Case (elements in bold) (direct refer to Hutchins) Indirect inflection of intentional harm. INTENTION extends to intending to cause harm (Bird v Holbrook), calculated to cause harm (Wilkinson v Downtown), an action will cause substantial certainty of harm (Nationwide News Pty Lty v Naidu) or likely to have the effect (Carrier v Bonham). HARM required that the harm is a natural and probable consequence of tort ( CN Channel Nine v Anning, Palmer Bruyn & Parker Pty Ltd v Parsons) and P cannot claim for all damages such as emotional distress (Giller v Procopets) Trespass to Land (elements in bold) (direct refer to Hutchins) Direct interference with anothers land (title to sue) w/o lawful authority or justification. Serves to all recovery of damage to land caused by trespasser and a means to keep the peace. Protects dignitary interests including occupiers privacy & security INTERFERENCE MUST RELATE TO LAND requires the interference by the defendant must relate to airspace or subsurface strata. The airspace above the plaintiffs land depends on what can be said to be reasonable for the use and enjoyment of the property (Bernsten of Leigh (Baron) v Skyviews & General Ltd ). This concept also the space under the land depending on whether features render the concept of strata to anybody so absurd as to not worth arguing about (Bocardo SA v Star Energy UK Ltd). INTEREFERENCE refers to any unauthorized entry. Entry on land beyond the purpose of that which is authorized (Lincoln Hunt Australia Pty Lty V Willessee) or remaining on land after license is revoked (Kuru v State if Sydney, Powell v Mcfarlane). This also may strech to placing something on someone elses land ( Konskier v Goodman Ltd (rubbish on land)). ANOTHER S LAND(TITLE TO SUE) requires the plaintiff to have some form of proprietary right of the land (Newington V Windeyer, Powell v Mcfarlane). These proprietary rights must be exclusive (Georgeski v Owners Coporation). W/O LAWFUL AUTHORITY OR JUSTIFICATION requires that there is no implied licenses ( Halliday v Nevill) e.g. businesses, no gates, etc. If limited licenses are breached then trespass to land is found (Lincoln Hunt Australia Pty Lty V Willessee). If something is done beyond the preventing breach of peace or statue then trespass to land is found (Kuru v State if Sydney). DAMAGES: assessed as either reinstatement cost or diminution in value of property, according to what is appropriate in the circumstances of the case (that sum of money which will put the party who has been injured in the same position as he/she would have been if he had not sustained the wrong for which he is now getting compensation or reparation). REMEDIES Damages: Compensatory - that sum of money which will put the party who has been injured in the same position as he/she would have been if he had not sustained the wrong for which he is now getting compensation or reparation. This determined by the natural and probable consequence of interference. Aggravated: awarded for deliberate conduct of the defendant, which has resulted in an affront to the plaintiff (Myer Stores v Soo). Exemplary: awarded to punish the defendant and to presumably to serve one or more of the objects of punishment - moral retribution or deterrence. ( defendants behaviour must be considered sufficiently outrageous.) (Lamb v Cotogno, Gray v MAC (punishment issues), Henry v Thompson)

CLA 3B The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct (McCracken v Melbourne Storm Rugby League Football Club does not only apple to criminal acts) Injunction: plaintiff fears that they will be the subject of future assult or battery (an authoritative warning) DEFENCES TO INTENTIONAL TORTS CONSTENT- if element, P must prove lack of consent, if defense, D must prove consent in AU d must prove consent. Must be real and freely given (Norberg v Wynrib (Canada), Aldridge v Booth). If medical procedure, D must explain in board terms the procedure to P (Chatterton v Gerson). Person(s) must have the capacity to consent i.e. under 18 if competent can consent depends on individual child (Gillick v West Nortfolk). If person has a mental/intellectual disability then consent is not real (Marions Case). Consent will not be effective if the Ds conduct exceeds consent given (McNamara v Duncan). SELF DEFENSE Complete self defense D believes behavior is physical aggression Force used was reasonable necessary and not excessive (Fontin v Katapodis) Defense of others (Goss v Nicholas) CLA s 52, 53, 54 pl behaviour unlawful (S 52) D believes beh. necessary, def beh. reasonable (objective not subjective) in crisis as s/he seems them (subjective), if excessive self defense P cant get $ unless unfair not to(s53) if pl involved in crime at time of injury, cant get $ (s54) NECESSITY THREAT of SERIOUS IMMINENT HARM or EMERGENCY to PERSON or PROPERTY (Proudman v Allen, Southwark London Borough Council v William, In Re F) public necessity, private necessity, preserve life or health of person unable to Situation where cant communicate with person harmed (In Re F) Response must be reasonable Cant harm another for own benefit (R v Dudley & Stephens) Harm must be imminent (Southwark London Borough Council v William) If not emergency and person unable to consent must act in best interests of person ( In Re F) Statutory Authority Children and Young Persons (Care and Protection) Act NSW 1998 s 174 Guardianship Act 1987 NSW, Mental Health Act 2007 NSW