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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



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


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.


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.


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 plaintiff’s lawful request of their return).

3. Conversion (Process of transforming something from one state to another).


1. Trespass Trespass is actionable per se no evidence of damage required Elements

Direct interference


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.


Actionable per se no damage required and:


Physical contact


No requirement of Hostility


Positive Act


Direct and immediate consequence




Consent/Lawful Authority


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.


Hostility Hostility is not a requirement for battery, just needs physical contact as above.

Cole v Turner (1704) 6 Mod 149

„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.


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 officer‟s foot and did not drive off his foot, intent was formed.


Directness A direct link must be established between the act of the plaintiff and the contact of plaintiff‟s 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.


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?

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 defendant‟s 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.


McNamara v Duncan (1979) 45 FLR 152

that the plaintiff consented to receiving a blow such as he

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.

Fox J: “ received

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”


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 plaintiff‟s 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.


Nominal - to recognise infringement of P‟s 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 plaintiff‟s 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


Positive, voluntary, intentional or negligent act; Directly causing; Actionable per se and


Reasonable apprehension by P;


Of imminent contact with P‟s person.


Words may be enough


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

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.


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.


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 victim‟s 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.


Conditional Threat “Give me money or I‟ll 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.


False Imprisonment Elements Actionable per se


An intentional act Directly causing


Total Restraint of the Plaintiff‟s liberty (without lawful justification: a matter for defence)


Words can suffice


Knowledge not essential


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 defendant‟s negligence. Plaintiff was injured when she attempted to

climb out of the cubicle when toilet roll rolled under her foot. Plaintiff won damages but it was under negligence and not false imprisonment.


Restraint must be total

Bird v Jones (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.


Words In a threatening situation if the perpetrator says “Don‟t 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.

Defendant‟s argument was no handcuffs were involved

Court held physical restraint did not matter as P had submitted to D‟s control. P reasonably thought he had no way of escape.


Knowledge Does a person need to know they‟ve 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 company‟s 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

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)


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 Werdale Steel [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 D‟s deliberate act. The court found P had suffered physical damage as a result of D‟s intentional act, so P has a remedy in action on the case.

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 jury‟s 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 (respondent‟s 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

Janvier 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.


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


With the Plaintiff’s exclusive possession of land

a. Directness The conduct of P must constitute a direct interference with P‟s possession of the property, an “immediate” consequence of D‟s 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 plaintiff‟s 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 Appellant‟s residence with a report of a male and female fighting in a flat. Six officers arrived entered the apartment and with appellant‟s 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 appellant‟s 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.

Lincoln Hunt v Willesee (1986) 4 NSWLR 457

Defendants entered the plaintiff‟s 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 )


A co-possessor




action against


trespasser (Newington



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 Baron‟s land a trespass to his land.

Griffith J: right‟s 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

LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) Aust Torts Reports 80-269

D was constructing a building and sought P‟s permission to extend scaffolding over P‟s land. P demanded cost for consent. D rejected but

built the scaffolding 1.5m over P‟s property air space, and at ground level two posts approximately 100mm inside P‟s land. Plaintiff sought injunction for the removal of the scaffolding.

It was held D committed trespass and a mandatory injunction was granted.


Ejectment- Reasonable force may be used to eject the trespasser to regain possession.

Award of damages – where D‟s 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 court‟s discretion.

Trespass to Goods The intentional/negligent act of which directly interferes with the plaintiff‟s 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 P‟s 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.


i. Title to Sue, Wrongful, Refusal to return goods.

ii. Upon demand of P’s 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.


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 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:


Bailment at will return of chattel at will


Bailment for a term return of chattel after a certain time subject to other conditions of the bailment.


Bailment for a particular purpose.


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 P‟s bottles to put his own wine in, and sold them in a BYO bottle arrangement. P‟s 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

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 couldn‟t agree whether Ds use constituted a conversion.

This would not happen today because it would be covered by s52 of TPA


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.


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

Ashby v Tolhurst (1937)

left car in a parking station. The attendant allowed a rogue pretending to be



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 plaintiff‟s Right

Defences to Intentional Torts

A statement of defence may contain:

The defendant‟s denial of the tortious act e.g. Defendant had an alibi for when the alleged tortious event occurred.

The defendant‟s 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.

Marion’s 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.

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 plaintiff‟s 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 wasn‟t 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.


Allen Hsu 2010

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 Jehovah‟s 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

Allen Hsu 2010

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 defendant‟s 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

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.

Title: Does A have necessary title to sue? Conduct: Does B‟s various acts of interference qualify as trespass? Fault: Can B‟s several acts be classified as either intentional or negligent interference with A‟s 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 A‟s 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 plaintiff‟s possession without the plaintiff‟s consent. Liability depends upon proof of fault.


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 occupier‟s 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 A‟s possessory rights extend to that area of infringement, 20 metres above A‟s 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.


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, B‟s conduct must be a direct intereference with the plaintiff‟s possession without the plaintiff‟s consent, Southport Corp v. Esso Petroleum. Directness is concerned with the causal relationship between the defendant‟s conduct and the interference with the plaintiff or plaintiff‟s property. It will be direct where there is no voluntary conduct or active force intervening between the defendant‟s conduct and impact with the plaintiff or the plaintiff‟s property, Southport Corporation v. Esso; Platt v. Nutt. Turning to each separate incident.


“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.


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 B‟s 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 defendant‟s conduct, it might be regarded as intentional. “Swung by the wind”: there is no intended interference at most a negligent interference.


Consequently the various interferences by the defendant would satisfy the requirement of fault.

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 A‟s 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 defendant‟s 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 contractor‟s 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.


A may seek an injunction restraining B from continuing to trespass on A‟s 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.