TRESPASS TO THE PERSON.............................................................................................

3
Assault..................................................................................................................................................................................4 Intention or Negligence...................................................................................................................................................4 Direct Threat....................................................................................................................................................................4 Reasonable apprehension of imminent physical contact.................................................................................................4 Possibility of culmination in Battery...............................................................................................................................4 Without Lawful Justification ..........................................................................................................................................4 Battery.................................................................................................................................................................................5 Intentional or Negligent - Onus of proving Fault............................................................................................................5 Direct act .........................................................................................................................................................................5 Causation.........................................................................................................................................................................5 Bodily contact with P.......................................................................................................................................................5 Without consent or not within Broad General Exception................................................................................................5 False Imprisonment............................................................................................................................................................6 Totally Deprives P of his or her liberty...........................................................................................................................6 Without Lawful Justification ..........................................................................................................................................6

ACTION ON THE CASE FOR WILFUL INJURY..................................................................7

Intentional or Negligent...................................................................................................................................................7 Calculated to cause harm.................................................................................................................................................7 Effect produced would cause harm to a normal person...................................................................................................7

INTENTIONAL TORTS RELATING TO GOODS..................................................................8

Types of Possession (Title).................................................................................................................................................8 Actual Possession .......................................................................................................................................................8 Right to Immediate Possession....................................................................................................................................8 Trespass to Goods...............................................................................................................................................................8 Conversion...........................................................................................................................................................................9 Bailments.........................................................................................................................................................................9 Intangible Property (Choses in Action)...........................................................................................................................9 Detinue...............................................................................................................................................................................10

TRESPASS TO LAND.........................................................................................................11
Plaintiffs title to sue exclusive possession.................................................................................................................11 The extended meaning of land airspace and subsoil................................................................................................11 Physical contact with land.............................................................................................................................................11 Consent and other lawful justifications.........................................................................................................................12 Escape of Dangerous things from land..........................................................................................................................12

NUISANCE..........................................................................................................................13
Private Nuisance v Public Nuisance................................................................................................................................13 Private Nuisance...............................................................................................................................................................13 (i) Serious and unreasonable interference......................................................................................................................13 P has standing - Property Right.....................................................................................................................................13 Ds conduct interferes with Ps use and enjoyment of land..........................................................................................14 Interference is unreasonable..........................................................................................................................................14 (ii) Material Damage .....................................................................................................................................................16 Defence of Statutory Authorisation...............................................................................................................................16

Public Nuisance.................................................................................................................................................................17 What is Interference with a public right?.......................................................................................................................17

DEFENCES TO INTENTIONAL TORTS.............................................................................18

Necessity........................................................................................................................................................................18 Self-Defence/Defence of another...................................................................................................................................18 Self Help and Recaption................................................................................................................................................20 Consent..........................................................................................................................................................................20 Inevitable Accident........................................................................................................................................................20 Illegality.........................................................................................................................................................................20 Incapacity and Involuntariness......................................................................................................................................20 Mistake...........................................................................................................................................................................20 Contributory Negligence................................................................................................................................................20

TRESPASS TO THE PERSON

The tort of Trespass to the person is actionable per se. That is, no need to show damage or loss (However, with no loss proved, may be entitled to only nominal damages). Trespass to the person may constitute three different types of action: Assault, Battery, or False Imprisonment. Where indirect consequence of Ds action, P must plead action on the case and P must show Ds act indirectly caused him or her some loss or damage, as the damage is the basis of the claim (Reynolds v Clarke).

Assault
Intentional or Negligent Direct Threat Reasonable apprehension of some imminent physical contact At least a possibility of threat culminating in battery (present capacity) Without lawful justification

See p 548

INTENTION OR NEGLIGENCE D must have intention to cause P to apprehend some imminent application of unlawful force (Hall v Fonceca) (Rixon v Star City) but need not intend to carry out the battery (Barton v Armstrong). Recklessness could suffice (Hall v Fonceca). P must show direct threat, reasonable apprehension, possibility of culmination (part of reasonableness?). Once this proved, onus shifts to D to show lack of intention, or some lawful justification. If D cannot prove this, assault is actionable per se. DIRECT THREAT Directness Threat must be a direct result of Ds actions (Scott v Shepherd). Courts take broad approach to issue of directness (squib example Scott v Shepherd) The threat may consist of words, actions, or a combination of both look at the whole of Ps actions taken together (Stephens v Myers) Telephoned threats may be an assault depending on circumstances (Barton v Armstrong calls made in early morning in atmosphere of suspense, calculated to instill fear). In R v Ireland, held that silent phone calls could amount to assault where effect is the instilling of fear in recipient. Conditional threats can constitute assault eg pointing a knife at someone and threatening to stab them if they move (Police v Greaves). However, some conditions, if not capable of being fulfilled, are no assault at all (If it were not assize time, I would not take such language from you (IF said when IS assize time) Tuberville v Savage). REASONABLE APPREHENSION OF IMMINENT PHYSICAL CONTACT Apprehension of imminent harmful or offensive (offensive means unwanted) physical contact (Rixon v Star City). Imminent may include a continuing threat which operates on the mind of P (Zanker v Vartokas) P must have actual knowledge of the threat (Ps apprehension is the gist of the action a person who is asleep or unconscious cannot be assaulted) P need not be fearful (Brady v Schatzel) Objective test (reasonableness) Threat must be sufficient to be able to raise apprehension in mind of reasonable person. HOWEVER, exception to this rule is D is aware of the particular vulnerability/timidity of P (MacPherson v Beath) POSSIBILITY OF CULMINATION IN BATTERY The threat cannot constitute assault unless at least some means of carrying it out (Stephens v Myers) WITHOUT LAWFUL JUSTIFICATION 4

Battery
Intentional Direct or Act Negligent causing bodily contact with P Without Ps consent, or (ii) not within broad general exception (i)

See p 544

It is possible to have Assault which does not culminate in Battery, or to have a Battery which occurs without a preceding Assault (struck from behind without warning - Gambriell v Caparelli) INTENTIONAL OR NEGLIGENT - ONUS OF PROVING FAULT Fault is generally assumed P has onus of proving facts of direct act causing bodily contact. (McHale v Watson). Onus then falls on D to disprove fault. However, an exception exists for trespass for injury on the highway. In such cases, the onus lies on P to prove either intention or negligence (Venning v Chin). DIRECT ACT Must be an act of D, rather than passivity such as standing in doorway (Innes v Wylie)

Bodily contact must flow directly from act of D (Reynolds v Clarke). Otherwise, try action on the case for wilful injury (see below) CAUSATION P must prove D caused trespass of which P complains (Platt v Nutt P unable to discharge onus of proving injuries arose directly as a result of Ps actions rather than her own independent action in raising her hand to stop a glass door being slammed shut by D) BODILY CONTACT WITH P Bodily contact does not have to consist of D touching P could be such things as spitting, (Cotesworth case), or using an instrument (police dog nudging genitals may be battery by dog handler (Darby v DPP) WITHOUT CONSENT OR NOT WITHIN BROAD GENERAL EXCEPTION Physical conduct which is generally acceptable in ordinary conduct of daily life does not constitute battery (Rixon v Star City Pty Ltd) Consent may be express, or may be inferred from the circumstances (eg getting on crowded bus). Inferred consent may also be viewed as a general exception to the requirement for consent where type of touching falls within physical contact which is generally acceptable in the ordinary conduct of everyday life(Collins v Wilcock) Even where consent can be implied to bodily contact, this will not necessarily cover all types of contact a player participating in contact sport may be implied as consenting to such contact as is permitted within the rules, and even to contact occurring as common infringements of those rules not however consenting to physical violence where opposing playing intends 5

bodily harm, or knows or ought to know such harm is likely result of action. (Giumelli v Johnston) Onus of proof of consent for medical treatment will lie on D (Marions case)

False Imprisonment
Intentional Direct Act Totally deprives P of his or her liberty ***Without lawful justification***

See p550

Imprisonment is a direct act of D which totally deprives P of his or her liberty. False imprisonment is where this imprisonment occurs without lawful justification ***Burden of Proof *** - P has burden to prove the imprisonment. P need not show imprisonment was not lawfully justified. (Carnegie v Victoria). D may escape liability (has a defence) if can meet burden of proving lawful justification for the imprisonment. TOTALLY DEPRIVES P OF HIS OR HER LIBERTY Deprivation of liberty must be total (refusing to allow someone to cross a bridge not false imprisonment as can cross on other side, or retreat from it (Bird v Jones). Question of whether false imprisonment if P consents to restraint on liberty (eg conditional entry, pay a sum of money to leave Balmain New Ferry v Robertson). Can be imprisonment, no matter how short a time (Bird v Jones) Can be false imprisonment even where means of escape available, if means of escape is unreasonable eg risk to life and limb (McFadzean v CFMEU) Possible to be falsely imprisoned even if P was not aware of it at time (Murray v Ministry of Defence). Not falsely imprisoned if P remains in place for own reasons, knowing of but uninfluenced by actions of another (McFadzean v CFMEU) May be imprisoned without being physically restrained P kept in custody whilst in transit to court turns out not person for whom warrant was issued (Symes v Mahon). Where no application of physical means of restraint, must be evidence of complete submission to control of D by P(showing reasonable belief of no reasonable means of escape) (Symes v Mahon). Where voluntary compliance with police request to attend station or some other place may not be false imprisonment (Myer Stores v Soo, McFadzean v CFMEU) WITHOUT LAWFUL JUSTIFICATION Imprisonment of convicted criminal for proper term of sentence is lawful, but detaining beyond end of sentence may become false imprisonment (Cowell v Corrective Services). False imprisonment if put in gaol by court order if no power vested in court to make such order (Spautz v Butterworth), or to arrest someone without statutory authority to do so (Cth v Graves) or without warrant or explanation (NSW v Riley).

ACTION ON THE CASE FOR WILFUL INJURY

Intentional act of D Calculated to cause some harm (objectively likely to happen) Indirectly causes harm (physical or psychological) effect would be produced on person of ordinary health and mind* unless peculiar vulnerability known to D

OR Negligent act (unintentional) of D Calculated to cause some harm (objectively likely to happen) Directly causes harm (could also be sued as trespass) OR Indirectly causes Harm effect would be produced on person of ordinary health and mind* unless peculiar vulnerability known to D

INTENTIONAL OR NEGLIGENT A person who does an act intending to cause injury to another person may be liable in damages where indirect consequence (Bird v Holbrook) Also applies to negligent act which indirectly causes harm (Wilkinson v Downton) CALCULATED TO CAUSE HARM Means objectively likely to happen rather than subjectively contemplated (Carrier v Bonham) EFFECT PRODUCED WOULD CAUSE HARM TO A NORMAL PERSON D can be liable, so long as effect would be produced on person of ordinary health and mind, unless peculiar sensitivity or vulnerability of P is known.(Bunyan v Jordan)

INTENTIONAL TORTS RELATING TO GOODS

The torts of Trespass to Goods, Conversion and Detinue are concerned with wrongs against Ps rights of possession, rather than against ownership.

Types of Possession (Title)

The law distinguishes between Actual Possession and the Right to Immediate Possession. ACTUAL POSSESSION means that either the item is in Ps factual possession (physical custody), or that the item is in Ps constructive possession (not in physical custody, but nonetheless item can be construed as being within Ps sphere of control). For example, a car parked in a carpark may reasonably be construed as within constructive possession (rather than abandoned). This possession in the legal sense (Wilson v Lombank) RIGHT TO IMMEDIATE POSSESSION means that the item is not in actual possession, but that P has a right to expect to receive the item on demand.

Trespass to Goods
See p 582 Goods in actual possession of P at time of act Intentional act of D Directly causes interference in Ps possession of goods

actual possession means either factual or constructive possession of P (Wilson v Lombank). Must intend the act, need not intend the result. Interference must have been a direct result of Ds act. (Hutchins v Maughan). If interference is intentional but indirect, gives rise to action on the case. (Reynolds v Clarke) see p543 text) Interference may be damage (Hamps v Darby) asportation (taking away), dispossession (Kirk v Gregory). Authorities are unclear as to whether just touching goods is trespass, although trespass to person and land is actionable per se without proof of damage. (Penfolds Wines, compare Everitt v Martin)

Conversion
See p 585 (i) Goods in actual possession of P at time of act OR (ii) P has right to immediate possession Intentional conduct which deals with goods in a manner inconsistent with Ps possession or rights Such that P is dispossessed OR Ps right to immediate possession is derogated from in some way

P must either have goods in actual possession (factual or constructive (Wilson v Lombank), or have the right to immediate possession (Burnett v Randwick City Council) Conversion is concerned with Ps rights to possess or control goods, rather than state of the goods. Ps claim of conversion is based on having better title to the goods than anyone but the true owner (Chairman, National Crime Authority v Flack, Esanda v Gibbons) Conduct must be intentional (Ashby v Tolhurst) need not intend to dispossess eg purchase of a car from a caryard without knowledge of the plaintiffs existence or right to the car (Citicorp v BS Stillwell Ford) BAILMENTS Bailee may sue in conversion as has actual possession (The Winkfield)

A bailor with right to immediate possession may sue (Penfolds Wines v Elliott), but dealing must be in a manner inconsistent with Ps rights If bailment is revocable at bailors will, bailor may sue bailee for wrongfully withholding goods (Perpetual Trustee& National Executors of Tasmania v Perkins) If bailment for specified period, bailee may sue in conversion, but not bailor, as lacking immediate right to possession (Wertheim v Cheel, Howe v Teefy). Bailee may even sue bailor for terminating bailment without justification (City Motors v Southern Aerial Super Service). Where terms of bailment breached, may have right to terminate (Citycorp v BS Stillwell Ford) INTANGIBLE PROPERTY (CHOSES IN ACTION) At present not possible to sue in conversion of intangible property (Hoath v Connect Internet Services). In English law, conversion limited to interference in physical chattels (OBG Ltd (in liquidation) v Allan) However, can convert cheques as there is a physical piece of paper representing the chose in action, and damages recoverable for the conversion of the physical piece of paper are assessed as equivalent to the value which the cheque represents (Australian Guarantee Corp Ltd v Commissioners of the State Bank of Victoria)

Detinue
See p 594 P has right to immediate possession Wrongful failure to return goods by D After demand for their return made by P

Most often, the facts which give rise to detinue also constitute a conversion, because the withholding (by keeping, selling or giving way) the goods derogates from Ps right to immediate possession. Unintentional loss of goods by a bailee may constitute detinue but not conversion (which requires intentional act). Detinue can arise due to negligence eg, allowing strangers to take goods away (John F Goulding v Vic Railways Commissioners) The claim for detinue arises in the failure of D to respond by returning goods after an appropriate demand by P (John F Goulding v Vic Railways Commissioners) Usual remedy for detinue is order for return of goods. Usual remedy for conversion is damages. A plaintiff who wished to recover goods may therefore choose to sue in detinue even though conversion also open. (Perpetual Trustee v Perkins) What constitutes wrongful detention depends on nature of demand. (Flowfill Packaging v Fytore . Law in detinue requires holder of goods only to notify whereabouts of goods for collection by plaintiff and to indicate no interference offered to the retaking of possession (Von Lieven v Sherlock). Need not be owner, can sue if has better right to title than D (Premier Group v Followmont Transport)

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TRESPASS TO LAND
See p 565 Trespass to land is actionable per se --without need for proof of damage (Dumont v Miller) P has exclusive possession of land Direct act of D causing physical contact with Ps land (either D or some object making contact) ***without consent or lawful justification***

PLAINTIFFS TITLE TO SUE EXCLUSIVE POSSESSION P needs exclusive possession rather than ownership (Newington v Windeyer) Exclusive possession means to the exclusion of others. Owner has right to exclusive possession unless leased to a tenant. Thus, where trespass to leased property, the proper plaintiff is the tenant (Rodrigues v Ufton) Where dispute arises over person in actual possession, and person with right of exclusive possession, the person with right of exclusive possession wins (Delaney v Smith). Occupation of the land in a physical sense is not the same as possession (Georgeski v Owners Corporation, Bropho v WA) THE EXTENDED MEANING OF LAND AIRSPACE AND SUBSOIL Plaintiffs land is stated by maxim cuius est solum eius est usque ad coelum et ad inferos (whoever has the earth also has the heavens above it and the depths beneath it) Land for purpose of tort of trespass to land literally would include everything over and under surface of land. However in modern times this maxim is not applied literally (Bernstein of Leigh v Skyviews)
the relevant test is not whether the incursion actually interferes with the occupiers actual use of land at the time, but rather whether it is of a nature and at a height which may interfere with any ordinary uses of the land which the occupier may see fit to undertake (LJP Investments v Chia, Hodgson J @ 495)

Landowners rights in airspace extend to such a height is as necessary for the ordinary use and enjoyment of his or her land and the structures upon it (Bernstein of Leigh v Skyviews) Similar approach adopted in subsoil cases (Di Napoli v New Beach Apartments)

PHYSICAL CONTACT WITH LAND Trespass to land comprises direct interference without lawful authority (Halliday v Nevill Continuing trespass is an ongoing physical contact (eg standing on someones doorstep after being told to leave) Firing a gun over someones land may constitute trespass to land as it interferes with ordinary use and enjoyment of land (Davies v Bennison) Damage by Aircraft Act 1952 (NSW) s2(1) provides there can be no liability for trespass or nuisance for flight of aircraft over land at reasonable height, with regard to wind, weather, and all the circumstances)

11

CONSENT AND OTHER LAWFUL JUSTIFICATIONS Involuntary Act Consent Consent may be express or implied. The law will generally imply a licence for members of the public to enter premises in the absence of locked gates/fences or notices prohibiting entry, for the purposes of lawful communication with, or delivery to any person in the house (Halliday v Nevill). Licence may be implied as limited to certain types of entrants -- eg, bona fide customers, but not bank robbers or intrusive film crews (Lincoln Hunt Australia v Willesee) licence can be revoked or precluded by express or implied refusal or withdrawal. (Halliday v Nevill). A person who entered under licence becomes a trespasser if given notice that consent is withdrawn after reasonable time to remove has elapsed (Cowell v Rosehill Racecourse) Consent does not automatically roll over if exclusive possession passes to new possessor. It terminates on transfer of possession unless renewed by new possessor (Di Napoli v Beach Apartments) Statutory authorisation Statutory authorisation to engage in what would otherwise be tortious conduct (eg trespass) must be clearly expressed in unmistakeable and unambiguous language (Coco v R) If a person enters under lawful authority, but then engages in some unlawful act outside that authority, the whole of their entry becomes trespassory (trespass ab initio -- The Six Carpenters case) ESCAPE OF DANGEROUS THINGS FROM LAND
the person who for own purposes brings onto his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for damage caused (Rylands v Fletcher, Blackburn J @279-80)

Act done involuntarily (epileptic fit) cannot be trespass (NSW Rail v Perry)

This rule now absorbed by law of negligence, as a relationship of proximity will inevitably give rise to duty of care to person at risk of injury or damage in the event of escape (Burnie Port Authority v General Jones) Where owner or occupier of premises introduces a dangerous substance, or carries on a dangerous activity, or allow someone else to do that, he or she owes duty to take reasonable care to avoid reasonably foreseeable risk of injury to person or property of another. (Burnie Port Authority v General Jones)

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NUISANCE
Private Nuisance v Public Nuisance
Nuisance involves Ds annoying conduct. The distinction is that Private nuisance involves interference with Ps beneficial use of land, whilst Public Nuisance involves interference with a public right (eg, use of a highway or waterway).

Private Nuisance
P has standing /title to sue (i) causes serious and unreasonable interference with Ps use of land, OR (ii) causes material damage to land (prima facie unreasonable interference established by facts)

Ds conduct

Without lawful justification/ defence

See pp 495-531
an unlawful interference with a persons use or enjoyment of land, or some right over, or in connexion with it (Hargrave v Goldman, Windeyer J @ 49)

(I) SERIOUS AND UNREASONABLE INTERFERENCE P has property right to use and enjoy land Ds conduct interferes with Ps beneficial use or enjoyment of land Interference is unreasonable in all circumstances

P HAS STANDING - PROPERTY RIGHT See p 516

Orthodox English position is right to sue stems from holding a right to exclusive possession (Hunter v Canary Wharf) freeholder, tenant in possession, licencee with exclusive possession, or in an exceptional case, a tolerated trespasser in actual possession after the lease had expired) Australian Position less clear fact of occupation may be sufficient to give plaintiff standing to sue in private nuisance (McLeod v Rub-a-Dub Car Wash, Animal Liberation v Gasser) However these cases decided before Hunter v Canary Wharf. Must be a recognised property right which is interfered with - eg. affecting suitability of land for Ps use eg. broadcast of horseracing did not interfere with suitability of property to run horseraces (Victoria Park Racing v Taylor) eg. parking restrictions did not affect property rights of restaurant (Deepcliffe v Council of City of Gold Coast)

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eg. Interference of tall office building with television reception held to not be private nuisance as TV reception not a recognised property right (Hunter v Canary Wharf) DS CONDUCT INTERFERES WITH PS USE AND ENJOYMENT OF LAND See p519

Usually will be owner or occupier of premises from which nuisance emanates. However, D need not have any property rights over premises from which nuisance comes (Fennell v Robson Excavations) Can also be liable as creator of nuisance after ceases to be owner or occupier of premises (eg, if tree roots began encroaching on neighbours property whilst were owners (South Australia v Simionato) If aware or ought to be aware of nuisance, the new owner can be sued in respect of preexisting nuisance where can be seen to have continued or adopted the nuisance created by 3rd party or previous owners an occupier of land continues a nuisance if with knowledge or presumed knowledge of its existence..fails to take any reasonable means to bring it to an end though with ample time to do so (Sedleigh-Denfield v OCallaghan, Torette House v Berkman).) Ds failure to take reasonable steps to end the nuisance takes into account subjective ability of D (Goldman v Hargrave) Owner of land hired out can be liable for nuisance created by hirer where a particular use was authorised and the nuisance was a natural and inevitable consequence of that use (White v Jameson, Walker v Corporation of the City of Adelaide) Lessor will not ordinarily be liable for nuisance created by tenant, nor under obligation to bring tenancy to an end when discovers tenant is creating a nuisance (Peden v Bortolazzo). Lessor only liable if premises let for a purpose calculated to cause a nuisance (either express authorisation, or in circumstances where the nuisance was an inevitable consequence of premises being let (Peden v Bortolazzo) INTERFERENCE IS UNREASONABLE In determining reasonableness of interference Court balances rights of P to enjoy his or her property without interference from D with Ds right to participate in the activity causing the interference rule of give and take, live and let live (Bamford v Turnley, Bramwell B@33). No single test is conclusive, but the Court will consider: (a) Locality, (b) Nature of Interference, (c) Sensitivity of Plaintiff, (d) Malice (if any) of Defendant. As yet no tort of unjustified invasion of privacy exists, but door remains open. Some authority for proposition that deliberate violation of Ps privacy may amount to nuisance (Raciti v Hughes, setting up motion activated video to tape Ps backyard)\ The law does not protect a view per se, but there is some support for suggestion that what can be seen from Ps property may constitute unreasonable interference in Ps enjoyment of land -- prostitutes comings and goings (Thompson-Schwab v Costaki), visual pollution (Elwood v Pioneer Concrete)

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(a) Locality Ordinary standards of comfort for the locality (Munro v Southern Dairies) What is reasonable in an industrial area may be different to a residential or agricultural area (Sturges v Bridgman, Feiner v Domachuk) coming to the nuisance is no defence if P moves to an area where Ds activity had already created existing interference not relevant to outcome of case (Sturges v Bridgman, Miller v Jackson(cricket balls from long established club landing on newly built residences) (b) Nature of Interference - Duration, Time, Frequency and Extent Considerable interference for short period of time may be unreasonable, as may less intrusive interference over long period (Halsey v Esso) Question of whether noise is nuisance is emphatically one of degree (Gaunt v Fynney, Lord Selborne @12) eg. Construction noise in CBD may be nuisance during office hours, but not outside those hours (Wherry v KB Hutcherson) eg. Operation of roller coaster may be nuisance to neighbouring residential areas outside of 5.30-10pm Friday, and 10am -11pm Saturday (Seidler v Luna Park) eg. construction work causing noise and dust which was necessarily temporary did not constitute nuisance to nearby hotel business if reasonably carried on and proper steps taken to ensure no undue convenience caused to neighbours(Andreae v Selfridge). However, demolition and construction work occurring at night DID constitute nuisance as unreasonable at that time, though reasonable during the day (Andreae v Selfridge) (c) Sensitivity of Plaintiff Unreasonableness judged according to plain sober and simple notions (Walter v Selfe) Interference may not be unreasonable if plaintiff unduly sensitive (Walter v Selfe) cannot complain of injury by neighbour doing something lawful if something that would not injure anything but exceptionally delicate eg. Very delicate paper damaged by rising heat (Robinson v Kilvert) If interference would have interfered with ordinary robust use of plaintiffs premises, can constitute a nuisance, even where in this instance, use of Ps premises is sensitive. In such circumstances, can claim for loss beyond what normally sensitive person would have suffered ((McKinnon Industries v Walker - orchids damaged by sulphur dioxide from neighbour) (d) Malice (if any) of Defendant Malice may render unreasonable interference which might otherwise have been reasonable. D acting maliciously cannot be regarded as reasonable use of property (Christie v Davey knocking on walls, beating trays, whistling and mimicking during musical lessons and soirees) Malice may also outweigh particular sensitivity of Plaintiff (Hollywood Fox Farms v Emmett)

15

(II) MATERIAL DAMAGE See p 503

Where material or substantial injury to property is caused nothing more need by shown by the plaintiff. The criterion the law applies to the plaintiffs entitlement to sue is material injury to his property it is for the defendant to allege and prove lawful justification(Kraemers v Attorney-General (Tas) Burbury CJ @122-3)

Material (or substantial) damage to Property of P

Caused by Defendants use of land

***without lawful justification***

Because of material damage, P does not need to show Ds use unreasonable. (strict liability Harris v Carnegie)) ***Burden of Proof*** strict liability case is established if P can prove material or substantial damage caused (this establishes prima facie a kind of unreasonable interference). D may however escape liability if can show lawful justification for example that D was a natural and reasonable user causing the damage which could not reasonably have been avoided (Kraemers v AG(Tas) Burbury CJ@123) Important to distinguish between reasonable user and reasonable care where user is reasonable, will not be liable for consequent harm, but if user not reasonable, will be liable even though may have exercised reasonable care to avoid the harm (Cambridge Water Co v Eastern Counties Leather) In order to succeed in claim for damage caused by escape of dangerous things (eg wastes, fumes etc), P must show D failed to exercise reasonable care (Burnie Port Authority v General Jones) DEFENCE OF STATUTORY AUTHORISATION See p525

No action for nuisance possible where Parliament has authorised a certain thing to be made or done in a certain place, where nuisance inevitable consequence of this activity (Manchester Corporation v Farnsworth). Where authorised activity can be achieved without creating the nuisance, this defence not available. (York Bros v Commissioner of Main Roads, Cohen v City of Perth) Onus on Defendant to show could not reasonably have avoided the damaging consequences of authorised work (Symons Nominees v RTA of NSW) Note modern statutes may confer immunity, where activities undertaken in good faith thus D may be able to escape liability if can show acted in good faith (Bankstown City Council v Alamdo Holdings)

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Public Nuisance
See p532
public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it (AG v PYA Quarries, Denning LJ@190-1)

(i) P is Attorney-General, OR (ii) P has suffered different damage than public at large, or interference above and beyond public at large Interferes with a public right Nuisance affects public at large - is such that not reasonable to expect one person to take proceedings

Public nuisance concerns the public at large no exact number see Denning above Action against D must generally be brought by Attorney-General on behalf of public.

Individuals may only bring action in Public nuisance where they have suffered particular damage different to, or over and above that suffered by public in general (Benjamin v Storr) P need not have property rights in or over land sufficient that has suffered particular interference with a public right- eg personal injury (golf balls being hit across public road Castle v St Augustines Links) (slipped and fell on mud on public footpath (Volman v Lobb) WHAT IS INTERFERENCE WITH A PUBLIC RIGHT? Examples of interference with public right:

Use of public place, eg. highway Walsh v Ervin loss of custom, delay and inconvenience of a substantial character (D erected barriers across a road then ploughed it up to use as part of his farm) Castle v St Augustines Links personal injury caused by golf balls being hit across public road Volman v Lobb P slipped and fell on mud on public footpath Use of public waterway (public right to fish/navigate) Selling food unfit for consumption

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Defences to Intentional Torts

NECESSITY May be raised as defence to intentional interference with person (Leigh v Gladstone), property (Cope v Sharpe (No2)) or goods (Proudman v Allen) Necessity confined to narrow limits (London Borough of Southwark v Williams). Interference is reasonably necessary to avert some imminent threatened harm ((squatters on plaintiffs premises necessity not available) London Borough of Southwark v Williams) only available if the harm caused is in proportion to the harm he or she seeks to avoid. Leigh v Gladstone D may claim necessity on basis of seeking to avoid (a) harm to plaintiff (Leighs case), harm to goods (Copes case) or goods belonging to 3rd party (Proudmans case), or harm to plaintiff, defendant AND 3rd parties (Mouses case). If seeking to avoid harm to Defendant caused by plaintiff, proper defence is selfdefence. SELF-DEFENCE/DEFENCE OF ANOTHER Threat of harm to D arises from plaintiffs own actions. (McLelland v Symons)

Covers acts which are reasonable (Howard v Wing) Threat of harm to another also covered by this defence (Goss v Nicholas) Provocation is NOT a defence, but may reduce exemplary(punitive) damages(Fontin v Katapodis) S52 Civil Liabilities Act self-defence covers person who acts in self-defence, the defence of another person, false imprisonment of self or another, protection of property or of land where they: (a) responded to unlawful act (b) believed conduct was necessary (c) responded reasonably in the circumstances as he or she perceived them. Does not preclude liability if D uses intentional or reckless force that results in death. See p608 re damages.
52 No civil liability for acts in self-defence (1) (a) (b) (2) (a) (b) (c) (d) (3) (a) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding: was unlawful, or would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct. A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: to defend himself or herself or another person, or to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or to protect property from unlawful taking, destruction, damage or interference, or to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. This section does not apply if the person uses force that involves the intentional or reckless infliction of death only: to protect property, or

18

(b) to prevent criminal trespass or to remove a person committing criminal trespass.

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SELF HELP AND RECAPTION See p608

To raise defence of reasonable protection of land, must have title such that could sue for trespass. Landlord may have right of reentry (so no trespass) where tenant defaults on rent (Haniotis v Dimitriou) CONSENT If D can prove consent there is no wrong (eg. Giumelli v Johnston (sporting contact)

Also consider broad general exception kinds of physical contact generally acceptable in conduct of ordinary everyday life. INEVITABLE ACCIDENT An alternative expression of the absence of the fault element (see p613) Absence of fault must generally be proved by defendant, and can be described as inevitable accident. (NSW Rail v Perry) ILLEGALITY INCAPACITY AND INVOLUNTARINESS MISTAKE Generally mistake is not a defence (Symes v Mahon) Acts done in self-defence or defence of another may be justified if basis for reasonable but mistaken belief action is necessary (Branson v South Australian Police Force) CONTRIBUTORY NEGLIGENCE For actions founded on negligence, complete defence see p336 cases on torts book) Inevitable accident could not have been prevented by reasonable care? (see p613)

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