Please enable JavaScript.

Coggle requires JavaScript to display documents.

Week 8 Defences (Self-Help (Self-defence) (Defence of another (must only…

- - - - Goss v Nicholas [1960] Tas SR 133
        
        P was stuck in the face by the D after the P had an argument with an associate of the D regarding the behaviour of the associates daughter, in which threatening comments were made by the P about being on the 'war path' if associated daughter was not punished. It was held that the D had exceeded the bounds that was reasonably necessary given the nature of the threat.
  - - - Defence not available if the D exceeds the bounds of reasonable self defence
        
        Fontin v Katapodis (1962) 108 CLR 177
        
        . D action of throwing an off-cut of glass at the P who had hit him with a T-square was deemed to exceed the bounds of the emergency confronting him.
        The altercation began because the P had abused the D, and as a result the amount of damages payable was reduced on account of provocation. The High Court held that provocation can only reduce exemplary damages, and not compensatory damages, it is also not a defence.
      - • For civil actions in Queensland, the Criminal Code provides this statutory defence in ss 271, 272.
  - - - Lemmon v Webb [1895] AC 1
- - - - Usually awarded in false imprisonment and trespass to land cases (unless the P has suffered physical damage as a result)
        
        However there have been cases where a P succeed in trespass without being awarded nominal damages
        
        Battiato v Lagana [1992] 2 Qd R 234
        
        Stephens v Myers (1830) 171 ER 735
        
        Nominal damages of one shilling were awarded as the P did not suffer any injury
        
        Dumont v Miller (1873) 4 AKR 152
        
        P awarded one shilling for trespass to land as there was no damage recorded
        
        Gregory v Kirk (1876) 1 Ex D 55
        
        D committed trespass to good merely by asportation without damaging the goods, P was awarded one shilling
      - All jurisdictions except QLD and ACT have enacted a statutory threshold for nominal damages for non-pecuniary loss in personal injury cases, so that there can be no award of damages in a sum falling below the threshold
  - - - compensation is measured on the difference in the value of the good before the damage and immediately after the damage was done
        
        Dryden v Orr (1928) 28 SR (NSW) 216
        
        However although the cost of repair may provide guidance on this, the cost of repair is not the measure of the damage itself
        
        Private Parking Services (Vic) Pty Ltd v Huggard (1996) Aust Torts Reps
        
        P cannot recover the cost of repairs if it exceeds the difference value
        
        Van der Wal v Harris [1961] WAR 124
        
        If the cost of repair is less than the value the P is still entitled to cover the difference as this is the measure
        
        Davidson v JS Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1
        
        If the goods are profit earning the P may recover for profits lost while the goods are being repaired
        
        William Holyman & Sons Pty Ltd v Marine Board of Launceston (1929) 24 Tas LR 64
        
        D damaged the P ship, who recovered the cost of the repairs plus an amount for net profits it would have made with the ship in repair
        
        referred to as consequential economic loss
    - - Measure of damages is the full market value of the goods at the time of conversion
        Because the value of goods changes, courts must focus on the market value of the goods at the time on conversion and the form the were in
        
        Ley v Lewis [1952] VLR 119
        
        Anderson Formrite Pty Ltd v Baulderstone Pty Ltd (no 7) [2010] FCA 921
        
        If the goods are returned to the P, credit must be given for their value, so the damages are the diminution in value between the date of conversion and the date of return
        
        Sadcas Pty Ltd v Business and Professional Finance Pty Ltd
        
        If the P only has limited interest in the goods they can only claim to the extent of that interest
        
        City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477
        
        P was baliee of a truck, and succeeded in an action of conversion against the bailor D. The P purchased the truck on hire purchase from the D, and it recovered as damages the value of the truck minus the value of the bailors interest in it, which was the purchase price that remained unpaid.
    - - Usual remedy for detinue is the return of the goods, although this may also occur as an action of conversion
        
        Perpetual Trustees & National Executors of Tasmania Ltd v Perkins (1989) Aust Torts Reps 80-295
        
        see bailment at will in conversion torts map
      - If the D cannot return the goods they must pay damages to compensate the P for their loss. In judgement the court will order the D to return the goods, if not pay the P damages to the value at the time plus damages to compensate the P for their detention.
        
        In detinue the value of the goods are taken at the time of judgement
        
        Egan v State Transport Authority (1982) 31 SASR 481
        
        D converted in the P goods in 1966, but the court did not give judgement until 1982. The judgement held that the P should be awarded damages in conversion based on the market price of the goods in 1982, as that was the proper value of the goods had had in 1966.
    - - Compensatory damages calculated as the difference between the value of the property immediately before the damage and the value of the property immediately after the damage, or the reason repairs, which ever is less.
        
        Hansen v Gloucester Developments Pty Ltd [1992] 1 Qld R 14
        
        Diminution in value of the land as a result of the D trespass was $17k but the cost of restoring the property would have been $60k, the court only awarded damages of $17k.
        
        Value of land must be calculated by reference to the circumstances known at the time of trespass
        
        Port Stephens Shire Council v Tellamist Pty Ltd [2004] 135 LGERA 98
        
        The D shire council trespassed on the P land and felled trees that formed a barrier between the D and P land. The P intended to develop its land as a sub development, the D intended to develop its land for industrial purposes. The D would have compulsory purchased the land to install a drain for its development, however the P claimed that the removal of the trees decreased the value of the land for development as the trees would have formed a barrier screening from the industrial development. The questions is whether the P was entitled to compensatory damages as a result of the D actions in trespass to its land. It was held that the P had suffered no loss as a result of the D actions. This saw the application of the Spencer test, in that the value of the land is the same as without or without the trees, so the difference in the value of the land before and after the trespass was zero
        
        Spencer test - Spencer v Commonwealth (1907) 5 CLR 418
      - Mesne Profits;
        When a tenant fails to vacate a leased premises at the end of a lease., land lord in entitle to damage for trespass. The value of the use of the land from the date when the lease can to an end to the date when the land lord actually regained possession.
        
        The value of the use of the land from the date when the lease can to an end to the date when the land lord actually regained possession.
        Land lord must first can possession of the property through an action of ejectment before they can bring action for mesne profits - known as 'trespass by relation back'
        Land lord can not seek possession of the land and mesne profits in the same action.
        
        Hampton v BHP Billiton Minerals Pty Ltd [2012] WASC 285
  - - - Can be awarded in cases of wrongful dispossession of goods to compensate the P for resultant distress and aggrevation
        
        Moore v Lamberth Country Court Registrar (No 2) [1970] 1 QB 560
        
        Myers Stores Ltd V Soo (1991) Aust Torts Reps 81 - 077
        
        Aggravated damages awarded for an action in false imprisonment to compensate the plaintiff for stress caused
        
        Can only be awarded in Qld cases for personal injury on line with the Civil Liability Act 2003 s 52
  - - - XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR
        
        The P took over a service station previously owned by the D. Just before handing over possession to the P, the D arranged a third party to spike the underground storage tanks. The tanks were spiked just after the P took possession and could no longer be used. The P sued the D for trespass to land. The P was awarded compensatory damages and exemplary damages. The High Court said that exemplary damages are intended to punish the D for showing conscious and contumelious disregard for the P rights, and to deter him from conducting such conduct again.
      - Lamb v Cotogno (1987) 164 CLR 1
        
        P was awarded exemplary damages after the D drove off while the P was on the bonnet of the D car. The HC ruled that the exemplary damages should still be paid by the insurer as its purpose is to also to deter others from conducting the same act.
- - - - Although there was false imprisonment, the detention of the prisoner had been conducted lawfully
- - - - Necessity cannot be used as a defence where the P has negligently contributed
        
        Simon v Condran [2013] NSWCA 388
        
        P was bitten by the D dogs while trying to break up a dog fight on the D property involving the P dog. The D argued that the P had been a trespasser to her property where the attack occurred. The P argued that the entry was necessary to protect her dog from harm (essentially her goods). However it was ruled that the P had negligently allowed her dog to enter onto the D property, and as such the defence of necessity was denied with regards to the right of trespass to the D land.
      - Person
        Leigh v Gladstone (1909) 26 TLR 139
        
        It was held that the D had not committed trespass to person by force feeding a prisoner who was on hunger strike who would have died had it not been for the D actions
        
        However this has been challenged with rulings in H Ltd v J (2010) 107 SASR 352
        
        It was found that the aged care provider had no duty to provide sustenance to a resident who refused to take food, water or medication
      - Goods
        Cope v Sharpe (No 2) [1912] 1 KB 496
        
        Held that the D had not committed trespass to land by setting fire to strips on the P land in order to prevent a bushfire from spreading to the D land to protect nests of pheasants owned by the D, even though the bushfire burned out before reaching them
- - - - Fontin v Katapodis #
    - - White v Connolly [1927] St R Qld 75
- - - - Toyota Finance Australia Ltd v Dennis (2002) 58 NSWLR 101
        
        The D pulled on the P arm while attempting to repossess a car the P was driving. The D had been engaged by a finance company to retrieve that car due to falling behind in payments, as such the P was entitled to repossess the car. The D was not allowed to rely on the defence of the recaption of goods as a defence to assault and battery. It was also held that as the P husband had come into possession of the car lawfully by leasing it there was no adverse possession that was wrong from its inception.
        
        QLD Criminal Code s 276 allows a person to take goods from a person who is in possession of them but does not hold them under a claim of right and to use such force as is necessary to overcome resistance as is necessary to obtain possession, provided such force does not result in death of GBH. This is equivalent to Blades v Higgs (1861) 10 CB (NS) 713
      - Blades v Higgs (1861) 10 CB (NS) 713
        
        Held that the D had not committed battery y using reasonable force to remove from the P possession some rabbits that belonged to the D #
    - - Haniotis v Dimitriou [1983] 1 VR 498
        
        Landlord had not committed trespass to land or to goods by re-entering a factory he has leased to a tenant and removing the tenants goods and changing the locks to exclude the tenant as the tenant had refused paid the rent
- - - - Wilton v Commonwealth Trading Bank of Australia [1973] 2 NSWLR 644
    - - P wrist was broken after being detained by police officers and taken to a mental hospital for evaluation. The P struggled and as throughout resulting in his wrist breaking. The P sued for false imprisonment as the police had not explained why he had been apprehended. The court found that the P wrist would not have broken had it not been for the false imprisonment, but reduced the cost due to contributory negligence on the P part.
    - - P was injured when ejected from a nightclub by a bouncer. Cases were argued even though there is no defence to battery in common law as a result of contributory negligence. It was held that the P had not been contributory negligent on the facts provided.
- - - - Giumelli v Johnston (1991) Aust Torts Reps 81-085 (SA FC)
        
        D hit the P with a elbow and broke his cheek bone during a game of AFL. The P sued the D in battery. The D argued that the P had consented to the contact by participating in the game. It was held that the contact amounted to battery as it was outside the rules of the game. Some allowance can be given to common infringements, but such consent cannot be granted to include physical violence applied in contravention of the rules who knows or ought to know their actions can cause bodily harm.
      - McNamara v Duncon (1971) 26 ALR 584
        
        P had not consented to being stuck after he had released the ball in a game of AFL
    - - See Kuru v State of New South Wales (2008) 246 ALR 260 (Trespass to property)
      - Withdrawal can also occur through contractual terms
        
        Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379
- - - - D had an epileptic fit and fell onto the railway tracks involuntary. As a result it was deemed that this was an inevitable accident
- - - - The P was required to accompany the D to Adelaide mistakenly believing the plaintiff to be the subject of an arrest warrant. It was held that the P was false imprisoned, despite the honest mistake of the D.
    - - Civil wrong of trespass can be committed even if the person entering did so under the mistaken belief that they had an a right to entry.
    - - prison authority was liable in false imprisonment for not releasing the prisoner on a specific date in the mistaken belief that he was not due for release