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Intentional torts, https://www.canlii.org/en/commentary/doc/2021CanLIIDocs…

- - - - Dealt with good in a way expressly or impliedly interferes with P right to goods. Concerned with P right to possess of control 18.11 911. Requires more then mere physical contact which is sufficient to trespass 18.11 911
        
        ELEMENTS
        
        WRONGFUL
        
        INTENTIONAL ACT- not negligent
        
        EXERCISE OF CONTROL OVER GOODS
        
        IN A MANNER THAT DENIES P RIGHT TO POSSESSION
        
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        Look at the character of the acts done. Eg Bunnings v CHEP Australia [2011] NSWCA 342 (numerous timber pallets owned by P hired out and in commercial circulation)
        
        Wilson v New Brighton Panel Beaters [1989] 1 NZLR 74- D towed away P car mistaken it was paid for by 3rd party.
        
        Intention: to deny the owner’s rights, or to assert inconsistent rights
        
        D need not be aware of true owners rights and can be acting in good faith
        
        Wrongfully destroying or consuming goods
        
        Taking goods and exercising control over them
        
        Obtaining possession lawfully but then transferring it to someone else unlawfully: Glass v Hollander (1935) 35 SR(NSW) 304= Required to keep up with payments or will be sold- sold to auctioneer- auctioneer took them and so they had committed conversion
        
        Wrongfully detaining goods: Flowfill Packaging v Fytore (1993) ATR 81-244Not all detention amount to conversion- D knew P owned the goods.
        
        Wrongful use of goods: Penfolds Wines v Elliott (1946) 74 CLR 204 Bottles embossed with these words: “This bottle is the property of Penfold Wines” Not trespass Narrow majority held there was conversion
    - - Demand for return of goods and refusal to do so
        
        ELEMENTS
        
        D possesses goods.
        
        P has a right to immediate possession
        
        P demands return of goods.D refuses
        
        D refuses (or is unable) to return goods
        
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        Must be specific demand: Lloyd v Osborne (1899) 20 LR(NSW) 190
        
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        Refusal must be unreasonable and unequivocal: Flowfill Packaging Machines v Fytore (1993) ATR 81‐224
        
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      - Immediate right to possession: Where P needs to show a better right to possession then D
    - - Need actual possession- Intend to hold + have sufficient control
      - Direct act by the D that interferes with the P’s possession of goods
        
        ELEMENTS
        
        D must intentionally or negligently
        
        Directly interfere with
        
        Goods in the possession of the P
        
        Without lawful justification
        
        Dixon J in penfolds wines v elliot- the right to possession, as a title for maintaining trespass, is merely a right in one person to sue for a trespass done to another’s possession.
        
        Type of interference-
        
        Any type of direct interference-
        
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        Cressy v Johnson- P took document and 2 phones belonging to D to use in Family court- D committed trespass and P awarded nominal damages
        
        Damaging P’s goods (Hamps v Darby [1948] 2 KB 311)- direcitn a missile was interference
        
        Mere touching?- not much authority- nelgignet trivial touching was not- how ever intentional could- e.g. museums- use this tort to prevent damage
        
        Actionable per se- actionable without proof of loss or damage 18.6 pg 907- cressy v Johnson.
        
        Unintentional but not negligent- not trespass
        
        Cannot be trespass by a mere accidental touching- everitt v Martin 18.8 909
        
        National Coal Board v Evans [1951] 2 KB 861- Underground electricity cables severed . Not trespass because not at fault- he didnt know or ought to have known the presence of the cable 18.8 909,
        
        Wrong to possession rather than ownership- 18.90 909
  - - - ELEMENTS
        
        unauthorised
        
        intentional/negligent act of the D
        
        directly interfering with P’s possession of Land
        
        Pushing substance onto land: Watson v Cohen [1959] Tas SR 194 (bulldozer pushing soil) even though bulldozer itself didnt go on
        
        Contruction
        
        Continuing trespass: Konskier v B Goodman [1928] 1 KB 421 (builders failed to take away rubbish) - leabind rubbish continuing trespass
        
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        Who can sue
        
        A Plaintiff can bring an action if they have exclusive possession of that land 17.12 ph 887. The court is concerned with possession not owenrship
        
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        implued consetnt oenter?
        
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        'LAND'
        
        How high and low do your rights as an occupier of land extend?
        
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        Tv Crew Cases
        
        Lincoln Hunt Australia P/L v Willesee (1986) 4 NSWLR 457. TV crew entered property and filmed inside offices. Trespass, but damages awarded rather than injunction on screening- deciding damages were more appropriate
        Injunction because would affect their business
        
        Rinsale P/L v ABC (1993) ATR 81‐231; Emcorp P/L v ABC [1988] 2 Qd R 169 Reporters interrogated P’s about alleged criminal activity . Injunctions
        
        Entering needs to be voluntary act (or negligent):
        
        Not necessary to prove intention to trespass- e.g. accidently mow somoeons land
        
        Entry under licence is not a trespass- e.g. taking normal route of entry to knock on front door- case entry okay for back door
        
        Slightest entry may be trespass: Westripp v Baddock [1939] 1 All ER 279 (ladder against wall)
        
        Broad licence given to certain public officials: Plenty v Dillon (1991) 171 CLR 635-
        
        Actionable per se- no need for damages
- - - - The making of the statement on its own was not wrong ful it only became tortful because the defendant objectively knew the damage to the plaintiff- was a natural and probable result of his conduct - these principles reaffirmed below.
    - - Intentional act by D
        
        Calculated to cause harm- damage is essential
        
        In fact causing harm - more then alarm or distress
        
        Provided effect would be produced on a person of ordinary health and mind
        
        What about a plaintiff who is unusually sensitive
        
        Needs to be viewed up against a reasonable person’s sensitivity unless P’s unusual sensitiy is known
        
        Bunyan v Jordan (1937) 57 CLR 1 P was employee of D . P saw D with loaded revolver . P overheard D saying he would shoot someone . P later heard a shot fired (but D was unharmed) . P suffered nervous shock Held: No cause of action. The intentional words had to be uttered directly to P, or at least in P’s presence; also P was overly sensitive- would have been different if the defendant knew of this.
        
        Carrier v Bonham [2001] QCA 234 D mentally ill. Attempted suicide by stepping in front of a moving bus . P bus driver suffered nervous shock. Held: action on the case and negligence made out
        
        “Calculated” ‐ means “objectively likely to happen”, rather than subjectively contemplated or intended
- - - - Direct threat
        
        Reasonable apprehension arose in them of an imminent bodily contact
        
        If all proven, onus shifts to D to prove lack of fault
        
        It is for the D to negate the presence of fault eg hallucinatory drug and thus has no control over what they say
        
        Does not matter if they have no intention of carrying out the threat rixon v starsy
        
        No contact actually needs to happen
        
        There must be at least the possibility of physical contact for the threat to constitute an assualt - 16.6 854
        
        Barton v armstrong= made threats to plaintiff over the phone to sign a deed- held could be an threat
        
        ‘ the defendant does not need to intend to carry it out in order for there to be an assault, provided the plaintiff reasonably believes that the threat will be carried out 16.17 pg 85
        
        Can include calling and not saying anything
        
        apprehension of imminent harmful or offensive contact (Rixon v Star City [2001] NSWCA 265)
        
        Need to look at capacity
        
        E.g. prisoner in cell NO- we know they couldnt possibly act it out- Over the phone YES
        
        Doesnt need to be an immediate threat
        
        Taylor J at 455 held that it depends on the circumstances- can occur if it is clear they may occur sometime in the futur at times unspecified and uncertain
        
        Zanker v Vartokas (1988) 34 A Crim R 11: P accepted a lift from a stranger D. D offered to pay her for sexual favours but P declined and demanded that D stop the vehicle. Instead, D sped up and said that he was taking P to his friend’s house where he “would really fix her up” - plaintiff jumped out of car which was driving 60ks an hour.
        ]
        Held:does not matter that the threat may not have been imment- the weight of threat continued “The fallacy in the D’s argument is the assumption that the words have effect only at the time they were uttered and heard, whereas they were ringing presently in her ears as a continuing threat…” (White J)
        :
        
        Knowledge/Fear
        
        P must have actual knowelde of the threat
        
        P’s apprehension is the gist of the action (a person who is asleep or unconscious cannot be assaulted)- no apphrension will be brought about unless they are awae of the threat
        
        Look objectivley
        
        Timid Plaintiff
        
        Objective test: The threat must be sufficient to be able to raise apprehension in the mind of a reasonable person
        
        Unless the D is aware of the P’s particular vulnerability e.g. timid: MacPherson v Beath (1975) 12 SASR 174
        
        Richardson v Rix (1989) 12 MVR 522 (NSWSC) car collision D grabbed the keys from the ignition of the car of another could nto amount to assault- was not imminemt harm or assualt
        
        Conditional threats can be if accompanied with the right actions
        
        Tuberville v Savage (1669) 86 ER 684 D put his hand upon his sword and said to P: “If it were not assize time, I would not take such language”No assault The threat was a conditional one; and it would not be acted upon (so really, there was no threat)
        
        Rozsa v Samuels [1969] SASR 205 D parked his taxi at the head of a queue. The P remonstrated with D and threatened to punch D in the head. D took a knife from his dashboard and retorted: ‘I will cut you to bits if you try.’Assault The words were not necessary by way of self defence (so, a conditional threat may be sufficient)- there not going to overly dissect the words to see if it was really conditional- need to look at overall context
        
        Where they make threats to the plaintiff if they do a certain thing they will inflict violence
- - - - “[A] 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 … to put a stop to it, but that it should be taken on the responsibility of the community at large.” AG v PYA Quarries Ltd [1957] 2 QB 169, 191 (Denning LJ)- this case also highlighted difficulty of undestany a public nuisance.
        
        Plaintiffs rights on their land dont need to be affected
        
        HOW TO MAKE A CLAIM
        
        By the Attorney General to enforce the public interest
        
        By a private individual who suffers particular interference over above and beyond the general public
        
        ELEMENTS
        
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    - - “An unlawful interference with a person’s use or enjoyment of land, or of some right over, or in connexion with it.” Hargrave v Goldman (1963) 110 CLR 40, 49 (Windeyer J) 15.1 pg 783.
        
        Nuisance protects from other interferences such as noise and vibrations.Protects from outside P’s land eg above, glare…
      - OCCURS (St Helens Smelting Co v Tipping/ Halsey v Esso Petroleum)
        
        By interference with use and enjoyment of property rights
        
        Prima Facie, Nuisance Established
        
        By Material damage to property
        
        Consider all relevant factors
        
        Material damage is More substantial interferencee then mere personal discomfort. The damages itself establish the nuisance
        
        However
        
        ‘Mere interference that causes damage will not constitute nuisance’- riverman orchards v hayden 2017.
        
        Burden of D to prove use of land was reaonsble in the circumstance (hard to prove considering there is material damage)
        
        798 in corbett v pallas the COA NSW relied on Kraemers case to state that the plaintiff may establish a prima facie case of nuisance simply by proving the fact of damage and the plaintiff does not have to prove that the defendants us eof land was unreasonable and that the burden of proof is on the D to establish that its use of land was reaonabel, in which case it has a defence.
        
        ELEMENTS
        
        D's Conduct
        
        Causes serious and unreasonable ineterference
        
        With P's Beneficial use or enjoyment of their land.
        
        Right to sue
        
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        physical damage to property - eg trees killed by fumes intangibles: smoke, noise, fumes, glare, offensive sights(?) … interference with property rights (eg easements)
        
        DOES NOT PROTECT views, privacy, TV reception
        
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        EXAMPLES
        
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        May be a single or continuing factor- Balancing exercise so there is a limiting factor
        
        Factors to be considered
        
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        15.4 pg 785- To establish that an interference with her or his use and enjoyment of property ocntistutes a nusisance, the plaintiff must show that the interference was unreasonable in all the circumstance.
        
        Balances plaintfiss desire to use and enjoy property without interference against defendants desire to undertake activity that causes the interference 786 15.4
        
        Consider if d actions were reoansbale
        
        Nusiance caused by 3rd party or natural event
        
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        Location, timing
        
        planning legislation has taken over- we wont get noisy factory built in suburbiaComing to a nuisance is no defence- e.g. moving to a night club- authority is Stuges v Bridgman.
        
        Gillingham BC v Medway (Chatam) Dock Co [1992] 3 All ER 923 ‐ port traffic- only access through quiet suburbian street- no nuisance because the report changed the nature of the area so it was reoanble in the new cirucmstances
        
        Feiner v Domachuk (1994) 35 NSWLR 485 ‐ mushroom farm- smells were held to bad because they were unreasonable in a normal ‘rural residential’ area- pg 786 15.5
        
        Whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstance; what would be a nuisance in Belgrave square would not necessairyl be so in bermondsey- Thesiger LJ at 865 in sturges v Bridgman
        
        Seidler v Luna Park (unreported, NSW SC,Hodgson J, 21 Sep 1995) the noise of the roller coaster was load enough to be a nuisance even though it had been running for years
        
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        Duration, frequency
        
        Halsey v Esso Petroleum- balances against the duration of the interference caused 15.8 pg 788
        
        Emphatically a question of degree’- see guant v Fynney.
        
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        Precautions
        
        Harris v Carnegie’s Pty Ltd [1917] VLR 95 Material damage caused by dust from renovations. Simple solutions to fix will not look favourably. Even if has taken steps not necessary or relevant
        
        Motive of D
        
        Good motive
        
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        Bad motive
        
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        Nature of P’s interest
        
        Sensitivity of P
        
        D’s interference with P’s use and enjoyment of property may be judged to be not unreasonable if P is abnormally sensitive:
        
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- - - - DIRECT( From trespass)
        
        Intentioanl (or negligent from trespass)
        
        Total Restraint on P's Liberty
        
        Without lawful justification
        
        Brown v GJ Coles (1985) 59 ALR 455 B detained by store detective but later acquitted of larceny store had (on balance of probabilities) reasonable and proper cause to suspect crime had been committed
        
        Myer Stores v Soo [1991] 2 VR 597 - False imprisonment in store, but not at police station
        
        don’t detain beyond sentence Cowell v Corrective Services Commission of NSW (1988) 13 NSWLR 714
        
        ONUS OF PR00F
        
        the P need only establish he or she was imprisoned. They need not prove it was unlawful. It is for the D to prove there was a lawful excuse: Myer Stores v Soo
        
        Does not have to be a prison or for a long time
        
        P can have entered confiment volunatirly
        
        Bird v Jones (1845) 7 QB 742 Parts of public road (Hammersmith Bridge) enclosed P prevented from walking on that part of the road[I]mprisonment is … a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience it may bring on him” Patteson J
        
        McFadzean v Construcion, Forestry, Mining and Energy Union 2004Plaintiffs environmental protestors, defandants put up picket fence- said it was false imprisonment because they feared violence if they crossed
        Held they werent impriosned because the definition of incarceration has been expanded. ‘There can be false imprisonment even if there is a notionall means of escape, provided that an available means is unreasonnabele.
        
        Reasonable Means of escape
        
        R v Macquarie (1877) 13 SCR (NSW) 264 M owed bank $, secured over his yacht . X tried to take possession .M said: “Let the Bank … have her and be damned!” He set the engines to full speed ahead, and cast the boat off .Was X falsely imprisoned- yes the escape was hazardous.
        
        Burton v Davies [1953] St R Qd 26 • Car driven at speed. If the only means of escape is risk of personal injury to the plaintiff then there is false imprionsme
        
        What about conditions on exit?
        
        Balmain New Ferry Co v Robertson (1906) 4 CLR 379 • Fee on entry and exit (notice to this effect)- No total restraint