Lecture 1 LAW1124 - Civil Obligations C (Torts)

Text & Materials

 Civil Liability Act 2003 (Qld).
 Defamation Act 2005 (Qld).

 Online Test (20 Marks) 14 Dec – 21 Dec - 2 hours - 20 multiple choice questions (modules 1-5). 
 Assignment (20 marks) – Due 11 Jan - 1400 words
 Two hour Examination (60 marks) 3 questions (20 marks each)

Duty of Care
 Donoghue v Stevenson [1932] AC 562 - You must take reasonable care to avoid conduct which you can foresee would be likely to cause
personal injury and property damage to another person = Duty of Care
 Bryan v Maloney (1995) 182 CLR 609 Novel Cases
 Anns v Merton London Borough Council [1978] AC 728 - Anns Test
 Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417 - The Proximity Approach
 Caparo Industries PLC v Dickman & ors [1990] 2 AC 605 Caparo Approach
 Sutherland Shire Council v Heyman (1985) CLR 424 Incremental Approach
 Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad' (1976) 136 CLR 529; 11 ALR 227 The Salient Features Approach
 Perre v Apand (1999) 198 CLR 180 The Salient Features Approach
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 Marsh v Baxter, CIV 1561 of 2012

Novel Cases
 Novel cases: facts of a case do not fit into the accepted categories of where a duty of care will arise.
 There is no test that can be applied across the board to automatically determine the duty issue.
 Bryan v Maloney (1995) 182 CLR 609 is an example of where the Courts had the opportunity to determine the position regarding
omissions & the duty issue, but did not. No guidance was offered regarding the manner in which lower courts or subsequent novel
cases should approach the issue. Bryan v Maloney High Court held that the builder of a dwelling house owed a duty of care to a
subsequent purchaser of the house, which could be breached by careless construction leading to latent defects, supporting an
action in negligence for economic loss. In that case, the existence of a duty of care to the prior owner supported a duty of care to
the subsequent purchaser.).
 The law should develop by analogy with the decided cases and that when analysing the decided cases and determining whether
the liability should be extended to cover the novel case in hand, it is important to identify the material or salient features.

Historical Tests for Novel Cases

Anns Test
 First, one has to ask whether, as between the alleged wrongdoer and the person who suffered the damage that there is a sufficient
relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may
be likely to cause damage to the latter – in which case a prima facie duty of care arises.
 Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which
ought to negate, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a
breach of it may give rise. - Lord Wilberforce in Anns v Merton London Borough Council [1978] AC 728 at 751-752 - (The

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 claimants were tenants in flats. flats suffered from structural defects due to inadequate foundations. The council was responsible for inspecting
the foundations during the construction. Held: The Lords held that the defendant did owe a duty of care. Overruled by Caparo v Dickman.)

The Proximity Approach

1. [Proximity] involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time)
between, the person or property of the plaintiff and the person or property of the defendant,
2. circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client
3. and causal proximity in the sense of the closeness or directness of the relationship between the particular act or cause of action
and the injury sustained ...
 Deane J stated in Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417 (The husband was injured. She saw his injuries at hospital
and was affected. She claimed damages for her own shock. Held: The driver owed her a duty of care, and was liable for
negligence which caused nervous shock. Duty of care characterized as arising from injury which is reasonably foreseeable and
sufficient proximity between plaintiff and defendant. A finding at first instance that she had normal fortitude, her predisposition to
anxiety and depression gave no defence)

Caparo Approach
To decide whether a legal duty of care exists the decision-maker must ask three questions:
1. Was it reasonably foreseeable to the alleged wrong-doer that particular conduct or an omission on its part would be likely to cause
harm to the person who has suffered damage or a person in the same position? (Foreseeability)
2. Does there exist between the alleged wrong-doer and such person a relationship characterised by the law as one of “proximity” or
“neighbourhood”? (Proximity)

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3. If so, is it fair, just and reasonable that the law should impose a duty of a given scope upon the alleged wrong-doer for the benefit
of such person? The third point raises the manner in which the Courts are progressively trying to define/ determine/ limit the scope
liability when it comes to omissions.
Caparo Industries PLC v Dickman & ors [1990] 2 AC 605: Caparo Industries purchased shares in Fidelity Plc in reliance of the
accounts which stated that the company had made a pre-tax profit of £1.3M. In fact Fidelity had made a loss of over £400,000. Caparo
brought an action against the auditors claiming they were negligent in certifying the accounts. Held: No duty of care was owed. There
was not sufficient proximity between Caparo and the auditors since the auditors were not aware of the existence of Caparo nor the
purpose for which the accounts were being used by them.

Incremental Approach
It is preferable in my view, that the law should develop novel categories of negligence incrementally and by analogy with the
established categories rather than by a massive extension of a prima facie duty of care restrained only by indefinable considerations
which ought to negate, or reduce or limit the scope of the duty of the class of persons to who it is owed. Brennan J, Sutherland Shire
Council v Heyman (1985) CLR 424 (D the council had approved plans for C's house that suffered subsidence because of inadequate footings,
Held: As a general rule, the ordinary principles of the law of negligence apply to public authorities.

The Salient Features Approach

[The salient factors] approach recognises what has been said to be the use of foreseeability at a higher level of generality and the
involvement of normative considerations of judgment and policy. This approach requires not only an assessment of foreseeability, but
also attention to such considerations as control, vulnerability, assumption of responsibility and nearness or proximity.
Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad' (1976) 136 CLR 529; 11 ALR 227 (D while carrying out a dredging operations in
Botany Bay, fractured a pipeline which carried petroleum products from a refinery on one side of the bay to the plaintiff's terminal on the other side.
The pipeline was not owned by Caltex. As a result of the damage to the pipeline, Caltex had to use other, and more expensive means of
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transporting the petroleum products. The P had not suffered any damage to its property, but the HCA upheld its claim to recover the purely
economic loss of the additional costs of transportation.)

Perre v Apand (1999) 198 CLR 180 (The plaintiffs/appellants, potato growers in South Australia, suffered considerable financial harm when
the D's sold to another potato grower in the vicinity seed potatoes which turned out to be infected with bacterial wilt. The reason for the P's
financial loss was that they had previously sold most of their crop in Western Australia but, but legislation in that state imposed an embargo on the
importation from interstate of any potatoes grown on a property within 20 km of any outbreak of bacterial wilt in the previously five years. The
conduct of the D in selling the infected potatoes, while not affecting any property owned by the Ps, caused them to lose their highly profitable
market in Western Australia for at least five years. A unanimous HCA found in their favour. Held, allowing the appeal: Per Gaudron J: (i) Where a
person knows or ought to know that his or her acts or omissions may cause the loss or impairment of legal rights possessed, enjoyed or exercised
by another, whether as an individual or as a member of a class, and that that latter person is in no position to protect his or her own interests, there
is a relationship such that the law should impose a duty of care on the former to take reasonable steps to avoid a foreseeable risk of economic loss
resulting from the loss or impairment of those rights).

The Current Approach of the High Court

Compare similar fact cases and their prominent features
 Assess reasonable foreseeability
 Look at the nature of the harm
 Control & Vulnerability of parties
 Nature of the relationship
 Characteristics of the activity
 Coherence of the law
 Indeterminacy issues

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 Law reform, overseas decisions

The HIGH COURT unanimously rejected the Caparo test in Sullivan v Moody

Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 (Psychiatric Harm: Father suffered psychiatric harm as a result of accusations of
abuse of his child. Issue: Was there a duty of care to prevent harm to a parent? Held: No, as this was inconsistent with the statutory duty to
protect children - made allegations on obligations to protect the children)

Lecture 2 - Psychiatric Harm (Nervous Shock)

Key Cases
 Victorian Railways Commissioner v. Coultas [1888]
 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
 Jaensch v Coffey (1984) 155 CLR 549
 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449
 Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60; 267 ALR 23

 Common law has been reluctant to recognise pure psychiatric injury as a foreseeable kind of damage.

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 One of the earliest cases to consider recovery for nervous shock was Victorian Railways Commissioner v. Coultas [1888]. A
gatekeeper of a railway crossing had left the gate open negligently, thereby allowing Mr and Mrs Coultas to cross while a train was
approaching. The near miss they had with the train, resulted in Mrs Coultas suffering psychiatric injury, and her claim for damages was initially
successful. On appeal to the Privy Council however, HELD no that damages ‘arising from mere sudden horror, unaccompanied by physical
injury, but resulting in psychiatric injury could not be considered a consequence which would follow from a negligent gatekeeper.’

 After the decision in Donoghue, the courts tested whether a duty of care was owed for pure psychiatric injury by seeing if the
defendants negligence would have reasonably foreseen the mental harm.

 The first Australian case to consider purely mental harm resulting from a defendant’s negligence was Mount Isa Mines Ltd v
Pusey (1971) 125 CLR 383; [1971] ALR 253: Facts: Two of the defendant’s employees suffered severe burns when they were
electrocuted while working on a switchboard in the defendant’s powerhouse. It was later found that the defendant had negligently failed to give
the men proper instructions about their duties. The plaintiff, also employed by the defendant, went to the scene of the accident and saw one of
the badly burned men. He carried the man to an ambulance. Nine days later, the plaintiff found out that the man had died. About four weeks
later, the plaintiff developed acute schizophrenia. He sued his employer, alleging that his schizophrenia had been caused by its negligence.
Issue: Was schizophrenia a reasonably foreseeable consequence of the defendant’s negligence? HELD: The High Court of Australia held
unanimously that the plaintiff’s schizophrenia was not too remote a consequence of the defendant’s negligence, and that mental disturbance
of some kind was a reasonably foreseeable consequence. It was immaterial that the extent of the mental disturbance was not reasonably
foreseeable. Windeyer J: “Foreseeability does not mean foresight of the particular course of events causing the harm. Nor does it suppose
foresight of the particular harm which occurred, but only of some harm of a like kind. That is well established by many cases, including
Chapman v Hearse and Hughes v Lord Advocate. This comfortable latitudinarian doctrine has, however, the obvious difficulty that it leaves the
criterion for classification of kinds or types of harm undefined and at large.”

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 The next significant development was that duty of care could be owed even to people who were not physically there. The duty of
care was characterised as arising from the injury being reasonably foreseeable and sufficient proximity between the plaintiff and
the defendant. Jaensch v Coffey (1984) 155 CLR 549. The victim (Mr Coffey) was a motor cycle police officer. One day, he was
involved in a motor vehicle accident with a car. He was critically injured (it was the other driver’s fault). Mr Coffey was taken to hospital and his
wife was notified. Mrs Coffey saw her husband in a very bad state. She saw him after the operation and was told to go home. Early the next
morning, she was phoned, was advised that Mr Coffey was in a critical condition and was told that she should come back to the hospital. Mr
Coffey survived but Mrs Coffey developed a psychiatric illness. Held: Yes, duty of care owed. The High Court extended the class of persons to
whom a duty of care is owed to those who, although not present at the scene of an accident, are at risk of suffering psychiatric injury by
personally perceiving the direct and immediate aftermath of the accident in which a person with whom they are in a close or intimate
relationship with is negligently injured or killed.

1. Key Concepts: Mental Harm & Pure Mental Harm v& Consequential Mental Harm
 Mental Harm - the Civil Liability legislation defines mental harm as “impairment of a person’s mental condition”. You must
distinguish between Pure Mental Harm & Consequential Mental Harm
1. Pure Mental Harm - Mental harm other than consequential harm, which is usually pleaded where the defendant’s negligence
has incidentally harmed another person.
2. Consequential Mental Harm - Mental harm that is a consequence of a personal injury of any other kind. These cases are
treated as positive infliction of harm cases – see semester 1. Personal injury for those purposes is defined in the Civil Liability
Act (Schedule 2. P66) as:
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 (a) pre-natal injury, and
(b) impairment of a person’s physical or mental condition, and
(c) disease.

Key Concepts: Nervous Shock

 The term ‘Nervous shock’ incorporates all diagnosable psychiatric injuries (commonly established by using the DSM-5).
 The onus to prove a psychiatric injury rests with the plaintiff.
 In order to bring an action in negligence for “nervous shock” or pure psychiatric injury, the plaintiff must show that it was
reasonably foreseeable that a person in the plaintiff’s position would suffer psychiatric harm if the defendant carried out the act
contemplated.
 Note: [The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) is the 2013 update to the American
Psychiatric Association's (APA) classification and diagnostic tool.]
 Nervous shock is beyond mere grief & sorrow – it must be so extensive as to warrant a diagnosis by an independent expert in the
field.
 Grief and sorrow are among the ordinary and inevitable incidents of life; the very universality of those emotions denies to them the
character of compensable loss under the tort of negligence.
 The 2 cases that defined nervous shock were Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR
317; 191 ALR 449.

Tame v New South Wales: Facts. a police officer gave a blood alcohol test to the plaintiff after she was involved in a motor vehicle collision.
The test showed she had no alcohol in her blood at all, but the police officer mistakenly recorded a reading of 0.14. Although the error was
corrected within a month, the plaintiff became obsessed by the mistake and developed a psychotic depressive illness, worrying that people would

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think that she had been drinking heavily before the accident. She sued the state of New South Wales, the police officer’s employer, alleging that
she had suffered emotional harm as a result of his negligence in recording the test results. HELD. NO duty of care.
1. The police officer's primary duty is to make a police report with the purpose of giving it to his superiors. It is not his duty to take measures to
make sure that a person doesn't suffer mental harm as a result. Even if he also had this duty, there would then be a conflict of duties, and as a
general principle the main duty will prevail in a conflict.
2. The harm itself was not reasonably foreseeable at all - who would have known that a mistake about blood tests in a police report would lead to
mental illness?
The court held unanimously that the plaintiff’s appeal in Tame should be dismissed, because the psychiatric injury suffered by the plaintiff was not
reasonably foreseeable. Both the Court of Appeal and the High Court dismissed the claim - nervous shock and depression is not a reasonable
general consequence of filling out a form erroneously.

Annetts v Australian Stations Pty Ltd (2001) 211 CLR 317: Facts The victim was a 16 yr-old boy. His parents contacted Australian
Stations to check the circumstances of the son’s employment. The parents sought assurances from the employer regarding where the son would
work and live. Australian Stations gave assurances that the son would be safe and would be supervised, and would only work at one station. The
son commenced work and was then sent to an outlying property alone. The son became lost and perished. When the police phoned the father that
the son was missing, the father collapsed. Eventually, the corpse was found. During the period of the search, the parents were kept informed. Both
parents suffered psychiatric harm.
The court held unanimously that the plaintiffs’ appeal in Annetts should be allowed, because the relationship between the defendant and the
plaintiffs was such that the defendant owed the plaintiffs a duty of care.

No damages for shock, but … Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383” Sorrow does not sound in damages. A plaintiff in an
action of negligence cannot recover damages for a ‘shock’, however grievous which was no more than an immediate emotional response to a
distressing experience in sudden, severe and saddening. It is however, today a known medical fact that severe emotional distress can be the

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starting point of a lasting disorder of mind or body, some form of psychoneurosis or a psychosomatic illness. For that, if it be the result of a tortious
act, damages may be had”

The sudden sensory perception (no longer applies after Tame)Brennan J in Jaensch v Coffey (1984) 155 CLR 549 - The sudden
sensory perception – that is, by seeing, hearing or touching – of a person, thing or event, which is so distressing that the perception of
the phenomenon affronts or insults the plaintiff’s mind and causes a recognisable psychiatric illness.

Nervous Shock Actions: Typical Scenarios

1. Type 1 –P involved in accident – not physically injured: ‘near miss’ case. – Victorian Railway Commissioners v Coultas (1888)
2. Type 2 – P witnesses injury to another: ‘secondary victim’ case – Annetts v Australian Stations; Also: Gifford v Strang, Anderson v
Smith (deathbed vigil case), Jaensch v Coffey, Alcock v Chief Constable of South Yorkshire Police (Hillsborough Stadium)]
3. Type 3 – P suffers stress at work – employer duty to employee Mount Isa Mines Ltd v Pusey
4. Type 4 - P is falsely accused/ false info disseminated - Tame v NSW 211 CLR 317 (HCA)

Why Are Nervous Shock Cases Different? Policy Concerns

The Court has traditionally held concerns about making a determination with regard to nervous shock claims because of:
1. The potential for imaginary or fabricated claims;
2. The difficulty in distinguishing emotional responses from psychiatric conditions, and;
3. The prospect of clogging the courts and the defendant being exposed to a large number of suits. See Alcock v Chief Constable of
the South Yorkshire Police [1992] 1 AC 310 regarding the difficulty the issue of unlimited liability can place on the Courts. This
case arose from the disaster that occurred at Hillsborough football stadium in Sheffield in the FA cup semi-final match between
Liverpool and Nottingham Forest in 1989. South Yorkshire Police had been responsible for crowd control at the football match and
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 had been negligent in directing an excessively large number of spectators to one end of the stadium which resulted in the fatal
crush in which 95 people were killed and over 400 were physically injured. The scenes were broadcast live on television and were
also repeated on news broadcasts. Sixteen claims were brought against the defendant for nervous shock resulting in psychiatric
injury. At trial ten of the claims were successful. The defendant appealed against the findings in nine and the unsuccessful
claimants appealed. The Court of Appeal found for the defendants in all of the claims. Ten appeals were made to the House of
Lords. These included claims made by brothers, sisters, parents, a grand-parent and a fiancé. Two of the claimants had been at
the ground but in a different area. Some had seen the events unfold on the television, some had heard about the events in other
ways. Some had identified bodies at the makeshift mortuary. Held: The appeals were dismissed. Lord Oliver set out the distinction
between primary and secondary victims. A primary victim one involved mediately or immediately as a participant and a secondary
victim one who is no more than a passive and unwilling witness of injury to others. The claimants were all classed as secondary
victims since they were not in the physical zone of danger.
For secondary victims to succeed in a claim for psychiatric harm they must meet the following criteria:
1. A close tie of love and affection to a primary victim
2. Witness the event with their own unaided senses
3. Proximity to the event or its immediate aftermath
4. The psychiatric injury must be caused by a shocking event
 
Lord Ackner: 'Shock', in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently
agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the
nervous system."

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Policy Concerns
1. Imaginary or fabricated claims
2. Claims difficult to prove
 Because psychiatric harm is intangible, it is stereotyped as more difficult to prove.
 Note that it is the admission by a psychiatrist (not a psychologist) that is required in a court of law.
3. Lack of medical understanding regarding aetiology (cause)
Counter-argument:
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  The medical field is sufficiently advanced to deal with this.
 Psychiatric injury is no longer thought of in terms of ‘lacking moral fibre’ as it was in World War I.
 Studies show that psychiatric illness is caused but in an individual but also in external factors irrespective of normal fortitude.
4. Insufficiently serious to merit concern?
5. Compensation neurosis?
 A kind of medical condition brought on as a result of entering into litigation.
 Argument is that there should be no duty of care to protect people against psychiatric illness because the litigation might lead to
further harm.
 Counter-argument: This isn’t an adequate reason to compromise a plaintiff’s rights.
6. Disproportionate burden of liability?
 Only when P witnesses injury to another
 Danger is that there will be very large liability for a small moral fault.
 Counter-argument: The law of tort doesn’t apportion damages according to fault; this is more the domain of criminal law; in
civil law the goal is to compensate the plaintiff/ attempt to return P to the position they were in before they suffered harm.
7. Floodgates Argument
 too big a cost to throw open the doors to indeterminate liability; courts might get clogged.
 Counter-argument: Not a good argument – it is akin to saying to a plaintiff that ‘if we give you rights, everybody would want
them therefore we’re not going to.’
 Ultimately 5% of all claims make it to courts – if the rules are clear, settlement will suffice. Not likely courts will be clogged.
8. Defendant Autonomy
 Increased liability –especially in regards to abnormally fragile people- could lead to restrictions on a defendant’s person
freedoms.
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  Solution-normal fortitude: there is no duty owed unless damage is reasonably foreseeable to a person of reasonable fortitude

Legislative Development
After 2002, all Australian States (other than QLD) and the Australian Capital Territory introduced Civil liability legislation, which applies
to any claim for damages for mental harm resulting from negligence, regardless of whether the claim is brought in tort, in contract,
under statute or otherwise.
 Civil Law (Wrongs) Act 2002 (ACT), s 34(2);
 Civil Liability Act 2002 (NSW), s 32(2);
 Civil Liability Act 1936 (SA), s 33(2)(a);
 Civil Liability Act 2002 (Tas), s 34(2) (first and fourth factors only);
 Wrongs Act 1958 (Vic), s 72(2);
 Civil Liability Act 2002 (WA), s 5S(2).

3. Determining the Existence of Psychiatric Injury: General Rules

Some factors in determining whether a person of normal fortitude would suffer a recognised psychiatric illness in the circumstances:
(a) whether or not the mental harm was suffered as the result of a sudden shock; and
(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger; and
(c) the nature of the relationship between the plaintiff and anyone killed, injured or put in danger; and
(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

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3.1 Historic Limitations
 Historically, duty of care only owed to sufferer of psychiatric harm if: ‘sudden shock’, direct perception, proximity in time and space
and P related to primary victim…[Bourhill v Young [1943] AC 92]
 Nader expressed discontent for ‘sudden shock’ requirement…[Anderson v Smith (1990)]
 General Rules:
(a) whether or not the mental harm was suffered as the result of a sudden shock; and
(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger; and
(c) the nature of the relationship between the plaintiff and anyone killed, injured or put in danger; and
(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

3.2 Important Liberalisations

Development of ‘aftermath principle’…
Jaensch v Coffey (1984): the ‘sudden shock’ principle was overruled.
1. the reasonable foreseeability of harm of the kind suffered by the plaintiff or a member of that class;
2. the existence of the requisite element of proximity in the relationship between the parties; and
3. the absence of any statutory provision or common law rule which operates to preclude the imposition of such a duty of care in
the circumstances of the case.
 Establishment that nervous shock from witnessing the destruction of personal property may be actionable [Attia v British Gas plc.
[1988] QB 304]
 Most important liberalisations of common law approach to psychiatric harm occurred in: Tame v NSW; Annetts v Australian
Stations Pty Ltd (2001) 211 CLR 317 (HCA) & Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33.

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3.3 The Modern Approach:
(1) ‘Recognisable’ Psychiatric Illness
 The psychiatric illness must be ‘recognisable’ (per Lord Denning)…(Hinz v Berry [1970] 2 QB 40)
 ‘Sorrow does not sound in damages’ (Mount Isa Mines Ltd v Pusey)
‘Sorrow does not sound in damages. A plaintiff in an action of negligence cannot recover damages for a ‘shock’, however grievous
which was no more than an immediate emotional response to a distressing experience in sudden, severe and saddening. It is

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 however, today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind or body,
some form of psychoneurosis or a psychosomatic illness. For that, if it be the result of a tortious act, damages may be had.’
 When infliction intentional, must still be ‘recognisable psychiatric harm’…(Giller v Procopets [2008] VSCS 236)

(2) Reasonable Foreseeability

The psychiatric harm to P must be reasonably foreseeable (Tame/ Annetts – YES. Gifford v Strang Patrick Stevedoring Pty Ltd - NO).
Two parts to reasonable foreseeability:
(1) Could D have subjectively appreciated injury to P prior to fault?
(2) Policy concern. Is it reasonable to impose liability on D/ what could D be held to have reasonably foreseen?
 Gifford v Strang Patrick Stevedoring Pty Ltd; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR 355. ‘The issue
of reasonable foreseeability may be influenced by the factual context (including any contractual or statutory duties and
obligations) of the relationships between the parties to the action.’
(3) Limiting (control) Devices within Reasonable Foreseeability
(i) Relationship between P and victim - Hayne J held in Annetts v Australian Stations Pty Ltd (2002) - ‘The connections
between the parties indicate the existence of a duty of care. An antecedent relationship between the plaintiff and the defendant,
especially where the latter has assumed some responsibility to the former to avoid exposing him or her to a risk of psychiatric
harm, may supply the basis for importing a duty of care.’
(ii) Proximity in time and space – ‘direct perception or immediate aftermath’ - The existence of ‘direct perception’ requirement
is most often traced in Australia to Brennan J’s decision in Jaensch v Coffey (1984) 155 CLR 549 at 567. His Honour there
expressed the view that perception ‘by seeing, hearing or touching’ a sufficiently distressing event was a pre-requisite to
recovery for negligently inflicted psychiatric harm. ► This rule is now not a requirement of the Australian common law.
(iii) Sudden shock?

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  The requirement of sudden shock is now not a part of Australian law
 There is no requirement that the mental harm be the consequence of a sudden shock. That was made clear by the High
Court in Annetts v Australian Stations (2002).
(iv) Normal Fortitude
 Standard of foreseeability - Basically question of whether D just has to foresee harm to normal people or whether D’s
foreseeability extends to people predisposed to psychiatric harm as well.
 Normal Fortitude remains relevant to reasonable foreseeability but not a requirement* (Gaudron in Tame v NSW).
 Assumed by Ipp Committee that P must foresee psychiatric harm to person of normal fortitude.
*[Note] These factors are irrelevant if the defendant knew, or ought reasonably to have known, that the plaintiff was a
person of less than normal fortitude. In such a case, the defendant would owe the plaintiff a duty because of that knowledge of
the plaintiff’s special vulnerability.
(v) Relationship between P and D
 Hayne J held in Annetts v Australian Stations (2002) - ‘The connections between the parties indicate the existence of a
duty of care. An antecedent relationship between the plaintiff and the defendant, especially where the latter has assumed
some responsibility to the former to avoid exposing him or her to a risk of psychiatric harm, may supply the basis for
importing a duty of care.’
How does this affect reasonable foreseeability?
o Because knowledge of mother’s concern by D increases appreciation of psychiatric harm P might suffer should her
children suffer harm.
o More likely to do with policy. Helps to solve indeterminate liability

(vi) Relationship between D and victim

 In Gifford v Strang primary victim was employee of D
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  Courts take employer/ employee relationships into consideration as a way of saying employers owe a duty not only to an
employee but to the employee’s family in respect of psychiatric health (para. 19, 99 – 200)

Gifford v Strang Patrick Stevedoring Pry Ltd (2003) 214 CLR 269; 198 ALR 100 at [48] McHugh - ‘In a claim for nervous
shock at common law, the reasonable foresight of the defendant extends to all those with whom the victim has or had a
close and loving relationship.’ (even friends)

All 6 listed factors above go ‘in the mix’ to determine whether a duty of care is owed.You don’t need all
though

4. General Statutory Limits on Nervous Shock Claims

Queensland & Northern Territory
 If psychiatric injury is consequential upon physical injury, the common law allows recovery for mental harm.
Other jurisdictions of Australia
 Consequential mental harm is compensable only if it amounts to a ‘recognised psychiatric illness’.

(1) Recognised Psychiatric Injury

Recognised Psychiatric Illness

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Mental harm may only be compensated by the common law in circumstances where that harm constitutes a “recognised psychiatric
illness” - Mount Isa Mines Ltd v Pusey (1970); Jaensch v Coffey (1984)
Pure Mental Harm
There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised
psychiatric illness. - s 31 of the Civil Liability Act 2002 (NSW)
Consequential Mental Harm
A court cannot make an award of damages for economic loss for consequential mental harm resulting from negligence unless the
harm consists of a recognised psychiatric illness. - s 33 of the Civil Liability Act 2002 (NSW)

(2) How to Determine A Recognised Psychiatric Condition?

 International Statistical Classification of Mental and Behavioural Disorders (ICD-10), Compiled by the World Health Organization
(WHO).
 American Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), compiled by the American Psychiatric Association.
 DSM-IV-TR recognises the following categories of psychiatric illness -• Adjustment disorders • Psychotic disorders • Anxiety
disorders • Sexual dysfunctions • Dissociative disorders • Somatoform disorders • Eating disorders • Substance disorders •
Impulse-control disorders • Personality disorders • Mood disorders •Sleep disorders
(3) Onus of proof
 In order to bring an action in negligence for “nervous shock” or pure psychiatric injury, the plaintiff must show that it was
reasonably foreseeable that a person in the plaintiff’s position would suffer psychiatric harm if the defendant carried out the act
contemplated.

Summary and Conclusions

 Significant developments have been made in Australia – there remain concerns regarding defendant autonomy.

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 Duties in respect of personal injury and psychiatric injury are almost the same at common law (e.g. in QLD) – not quite just yet due
to residual concerns.
 NSW – unlikely to permit developments to allow bystanders/ mere friends to recover in type 2 cases. (Type 2 – P witnesses injury
to another: ‘secondary victim’ case)
 In QLD – advise P to attach mental harm to physical injury when possible.
 Fragmentation of approach across Australia is unhelpful.

Lecture 3 Intentional Torts: Trespass

Key Cases
Scott v Shepherd (1773) 2 Wm Bl 892; 96 ER 525
Stanley v Powell [1891] 1 QB 86
Rixon v Star City Pty Ltd (2001) 53 NSWLR 98
ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti (2008) 21 VR 559
Tuberville v Savage (1669) 1 Mod 3; 86 ER 684
Bird v Jones (1845) 7 QB 742; 115 ER 668
McHale v Watson (1964) 111 CLR 384

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Wilkinson v Downton [1897] 2 QB 57
Giller v Procopets (2008) 24 VR 1

What is Trespass?
Intentional or negligent act of D which directly causes an injury to the Plaintiff or his /her property without lawful justification

The Elements of Trespass:

1. fault: intentional or negligent act
2. injury must be direct - injury may be to the Plaintiff or to his/her property
3. No lawful justification

Injury in Trespass
 Injury = a breach of right, not necessarily actual damage
 Trespass requires only proof of injury not actual damage

Trespass and Action on the Case: Historical Development

 Before the development in the nineteenth century of the tort of negligence as a separate, recognisable tort, there were two types
of action that were concerned with the P’s person.
1. They were trespass (directly caused) and
2. the action on the case (indirectly caused)
 The distinction between trespass and case was the distinction between directly caused and indirectly caused damage. Scott v
Shepherd (1773) 2 Wm Bl 892; 96 ER 525

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 Trespass in the history covered cases of forcible direct injury to the person, or direct interference with land or goods. Trespass at
this early period was both a crime and a tort, both aspects being disposed of by the court in one proceeding.
 The action on the case of trespass was a civil action for damages in respect of injury or damage which was the indirect or
consequential result of the D's act

How to Distinguish Trespass and Case?

Reynolds v Clarke (1726) 93 ER 747 - The distinction is well instanced by the example of a man’s throwing a log onto the highway; if
at any time of its being thrown it hit any person, it is trespass; but if after it be thrown, any person going along the road receives an
injury by falling over it as it lies there, it is case.

Trespass Case

Direct + actionable per se Indirect + need damage

Later Development
 [1800s] the English legislature abolished the forms of action, and the distinction between trespass and case disappeared, the P no
longer need to identify the cause of action as trespass or case.
 Today in Australia, trespass lies for direct voluntary contacts without the need of proof of actual damage, but in cases of direct
unintentional interference causing actual damage the P may sue either in trespass or negligence.

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 Today in Australia, trespass lies for direct voluntary contacts without the need of proof of actual damage,
 but in cases of direct unintentional interference causing actual damage the P may sue either in trespass or negligence.

Trespass and Case in Modern Tort Law

1. Trespass to the person: - assault, battery and false imprisonment
2. Trespass to goods / chattels – conversion and detinue
3. Trespass to land

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The Characteristics of the Trespass Actions in Australia
 A direct interference with person or property of the P; - Stanley v Powell [1891] 1 QB 86
 The D must be at fault (either intentional or negligent);
 It is actionable per se (no damage or actual financial loss is required); and
 Onus of proof differs upon the trespass being classified as highway (public-ish) or non-highway.

General Elements of Trespass

All forms of civil Trespass have the following features in common
1. Intentional/negligent act;
2. Direct interference with person or property;
3. Absence of lawful justification
4. + X element (person, chattels, land)
= a specific form of Trespass

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Fault: the Intentional Act in Trespass
 A central element in trespass is that the act of the D must be ‘intentional’.
 The D's intention is judged in relation to the consequences of the act, not the act itself (to which a test of ‘voluntariness’ rather than
intention is applied).
 It is not necessary for the D to intend to trespass. So a man who embraces a woman thinking her to be his wife commits battery,
no matter how reasonable his belief, since mistake is not a defence to trespass.

Trespass to Person

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Battery (actual violence)
 Battery: Definition - A battery is the intentional or negligent act of the D which directly causes a physical interference with the body
of the P without lawful justification.
 Any form of touching may constitute a battery: as trespass to the person is actionable per se, the P need not have suffered any
injury in order to be able to bring an action.

General Elements of Battery

1. Voluntary act;
2. Directness;
3. Physical interference with the P (offensive contact) which is the distinguishing element of battery;
4. Fault;
5. Absence of lawful justification (absence of consent)
Battery - Direct Application of Interference
 Direct means whether the interference followed so closely on the D's act that it could be considered part of that act - Hutchins v
Maughan [1947] VLR 131 at 133
NOTE: In QLD the Criminal Code s 245 also applies the definition of assault to civil claims of battery, and an indirect application of
force is also actionable
 Injury should be the immediate:
- Scott v Shepherd ( Lit squib/fireworks in market place)
- Hutchins v Maughan (poisoned bait left for dog)
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 - Southport v Esso Petroleum (Spilt oil on P’s beach)
 It must be body contact but not actual D touch P. E.g., punching a person; throwing of an object at a person; to cut a person's hair
against their will; to strike a horse so it throws its rider; to pull a chair from a person so that they are thrown to the floor, using a
weapon.

Battery - Physical Interference/Offensive Contact

 The essence of the tort is the protection of the person of P. D’s act short of physical contact is therefore not a battery
 The least touching of another (in anger) could be battery - Cole v Turner (dicta per Holt CJ)
 ‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate’ ( per Goff LJ, Collins v Wilcock)

Battery - Physical Interference/Offensive Contact

 Without P’s consent or against the P’s will - Giumelli v Johnston (1991) Aust Torts Reps 81–085
 Anger or hostility is not required - Re F (Mental patient: sterilisation) [1990] 2 AC 1 at 73
 Contacts as part of everyday life does not constitute battery - Rixon v Star City Pty Ltd (2001) 53 NSWLR 98;
 Knowledge of contact is not an essential element of battery (eg unconscious)
 The contact must be the direct result of the D’s act; it is not necessary that the D physically touch the P: - Innes v Wylie (1844) 1
Car & K 257; 174 ER 800

Fault in Battery
Fault in battery is judged in relation to:
- whether contact with the P was intended; or
- the contact was the substantially certain result of the D's act; or

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 - the contact was the result of the D's reckless disregard or lack of care.
See Carter v Walker (2010) Aust Torts Reports 782-076 at [215].

Assault (a threat of violence)

 Assault: Definition - Assault occurs when one person creates in another an apprehension of imminent harmful or offensive direct
contact and there is a reasonable belief that they have the ability to carry out that threat. [see Amanda, Australian Torts Law, 3ed,
p37]
 Assault is the intentional or negligent act or threat of the D that directly places the P in reasonable apprehension of an imminent
psychical interference with his or her person, or the person of someone under his or her control. [see Richards, Tort Law
Principles, p59]
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Elements of Assault Hargrave AJA stated the five elements Connex Trains Melbourne Pty Ltd) v Chetcuti
(1) A threat by the D, by words or conduct, to inflict harmful or offensive contact upon the P forthwith. It is enough if the threat is to
make contact to the body of the P without the P’s consent or without any legal justification.
(2) A subjective intention on the part of the D that the threat will create in the mind of the P an apprehension that the threat will be
carried out forthwith. It is not necessary to prove that the D in fact intends to carry out the threat.
(3) The threat must in fact create in the mind of the P an apprehension that the threat will be carried out forthwith. It is not necessary
for the P to fear the threat, in the sense of being frightened by it. It is enough if the P apprehends that the threat will be carried out
without his or her consent.
(4) The apprehension in the mind of the P must be objectively reasonable.
(5) The P’s reasonable apprehension caused injury, loss or damage to the P. This requirement attracts the ordinary common law
concept of causation by reference to common-sense and, where appropriate, consideration of normative factors such as value
judgments and policy considerations.

Hargrave AJA stated the five elements of the tort of assault in ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v
Chetcuti (2008) 21 VR 559 at 565
Features of Assault
 There must be a direct threat;
 Threats can be made by words alone, words and act or act alone; BUT
- Although physical contact with the P is not an element of assault, there must be at least the possibility of physical contact for
the threat to constitute an assault - Stephens v Myers (1830) 4 Car & P 349; 172 ER 735
 P’s apprehension must be reasonable: the test is objective

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 Although there must be the means of carrying out the threat, the D does not need to intend to carry it out in order for there to be an
assault. The D must, however, intend for the P to believe that the threat will be carried out - ACN 087 528 774 Pty Ltd (formerly
Connex Trains Melbourne Pty Ltd) v Chetcuti (2008) 21 VR 559
 Words can resolve ambiguity in the D's behaviour
- Whether or not purely verbal threats constitute an assault, it is clear that words can render harmless a threat that would
otherwise constitute an assault - Tuberville v Savage (1669) 1 Mod 3; 86 ER 684 (had on sword, but his words indicated no
threat)
 The threatened interference must be imminent.
- The threat causes the P to fear immediate physical contact, rather than contact at some time in the future:
 Barton v Armstrong [1969] 2 NSWR 451
 Slaveski (by his litigation guardian Slaveska) v Victoria [2010] VSC 441

False Imprisonment (deprivation of liberty)

 False Imprisonment: Definition - False imprisonment is the direct total restraint of the liberty of the P by an intentional or negligent
act of the D without lawful justification.
 ‘the essence of the action of false imprisonment is the compelling of a person to stay at a particular place against his or her will’.
McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 at [41]

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Elements of False Imprisonment
 It requires all the basic elements of trespass:
- Intentional/negligent act
- Directness
- absence of lawful justification/consent , and
 The D is at fault (without lawful justification)
NOTE: (knowledge is not necessary )

A Direct Interference
 Physical threat (not necessary) - to arrest somebody, or to lock someone in a confined space - Symes v Mahon [1922] SASR 447
 Psychological Issue – Did P submit to the D’s power, reasonably thinking there was no way of escape that he/she could
reasonably take? Symes v Mahon [1922] SASR 447

Restraint In False Imprisonment

 The restraint must be total (in all directions)
- Bird v Jones (passage over bridge)
- The Balmain New Ferry Co v Robertson
 Total restraint implies the absence of a reasonable means of escape: - Patteson J in Bird v Jones (1845) 7 QB 742; 115 ER 668 at
QB 751-2; ER 672 - I cannot bring my mind to the conclusion that, if one man merely obstructs the passage of another in a

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 particular direction … leaving him at liberty to stay where he is or to go in any other direction if he pleases, he can be said thereby
to imprison him.
 Restraint may be total where D subjects P to his/her authority with no option to leave - Symes v Mahon (police officer arrests P by
mistake) - Myer Stores v Soo
 In general, there is no False imprisonment where one voluntarily submits to a form of restraint - Herd v Weardale (D refuses to
allow P out of mine shaft) - Robinson v The Balmain New Ferry Co. (D refuses to allow P to leave unless P pays fare) - Lippl v
Haines
 Where there is no volition for restraint, the confinement may be False imprisonment (Bahner v Marwest Hotels Co.)

Physical restraint not necessary

The High Court held that no action lay at the suit of a solicitor who had been “imprisoned” on a ferry wharf, because there was a
means of escape, albeit that the means of escape would have involved leaving the wharf via the ocean - Balmain New Ferry Co Ltd v
Robertson (1906) 4 CLR 379.

Words and False Imprisonment

In general, words can constitute False imprisonment
E.g., in Balkin & Davis pp. 55 to 56: ‘restraint… even by mere threat of force which intimidates a person into compliance without any
laying on of hands’ may be false imprisonment.
-Symes v Mahon

Knowledge in False Imprisonment

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The knowledge of the P at the moment of restraint is not essential.
- A P need not have had knowledge of his confinement or be aware of their deprivation of liberty - Meering v Grahame-White
Aviation Co Ltd (1919) 122 LT 44.
- Australian courts have expressed the view that it is possible for a person to be falsely imprisoned without knowing it: - South
Australia v Lampard-Trevarrow (2010) 106 SASR 331

Fault in FI: Without Lawful Justification

D must prove some legal justification for their acts.
For a total deprivation of liberty to constitute false imprisonment, it must be done without lawful justification: White v South Australia
(2010) 106 SASR 521

Examples of Lawful Justification

 Right to release governed by contract - The Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 (High Court of
Australia); Robinson v Balmain New Ferry Co Ltd [1910] AC 295 (Privy Council)
 Power of arrest - Police arrest , Civil arrest
 Prison authorities - Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714
 Statutory authority
The ‘Mentally Ill’ and False Imprisonment
 In Common Law, the lawfulness of an act of detention of a person must depend on ‘overriding necessity for the protection of
himself and others’ per Harvey J in In re Hawke (1923) 40 WN (NSW) 58
 The situation under statute: - Watson v Marshall and Cade (1971) 124 CLR 621
 The Vic Mental Health Act 1959: Any person may be admitted into and detained in a psychiatric hospital upon the production of:
(a) a request under the hand of some person in the prescribed form;
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 (b) a statement of the prescribed particulars; and
(c) a recommendation in the prescribed form of a medical practitioner based upon a personal examination of such person made
not more than seven clear days before the admission of such person.

The Onus of Proof in Negligent Trespass Trespass

 In the tort of negligence, the onus of proving that the D was negligent lies on the
Plaintiff.
Highway Off highway
 In the tort of trespass to the person, the onus is on the Plaintiff to prove the facts
that constitute the trespass (that is, the fact of contact, the threat or deprivation of
liberty)
Defendant disproves fault
Plaintiff proves fault
 It is then for the Defendant to prove that the trespass was neither intentional nor
negligent.-McHale v Watson (1964) 111 CLR 384
 The Plaintiff need only prove the fact of the trespass, and that it was the direct act of the D, to establish a prima facie cause of
action. Platt v Nutt (1988) 12 NSWLR 231
 There is an important exception to the Australian rule that the onus of proof of the absence of intention or negligence is on the
Defendant in an action in trespass to the person.
 In cases involving highway accidents, the Australian position is the same as the English, and the onus of proof of intention or
negligence is on the Plaintiff.

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Lecture 4 Trespass to Land
Key Cases
 Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] Q 479
 Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380

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  Newington v Windeyer (1985) 3 NSWLR 555
 Halliday v Nevill (1984) 155 CLR 1; 57 ALR 331
 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605
 Coco v R (1994) 179 CLR 427; 120 ALR 415

Trespass to Land:
 Definition - The intentional or negligent act of D which directly interferes with the plaintiff’s exclusive possession of land
- An action in trespass to land is available only where the contact with the P’s property is the direct result of the D’s acts.
- The D can be liable in trespass to land only if the trespass was intentional or negligent.
 Land includes the actual soil/dirt, the structures/plants on it and the airspace above it
 This actionable per se and plaintiff doesn’t have to prove damage

Our law holds the property of every man so sacred that no man can set foot upon his neighbour’s close without his leave. If he does, he is a
trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground he must justify it by law, ...[E]very invasion of private
property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the
damage be nothing.... If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him by
Lord Camden LCJ in Entick v Carrington (1765)

 NOTE: Today policy has placed restrictions on what is trespass

The Nature of Exclusive Possession
 Exclusive possession is distinct from ownership.
 Ownership refers to title in the land. Exclusive possession refers to physical holding of the land
 Possession may be immediate or constructive
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 The nature of possession depends on the material possessed

3 Elements of Trespass to Land

(1) the P must have the requisite title to sue;
(2) there must be an actionable interference with land; and
(3) the D must be at fault.

(1) Title to Sue: General Principles

 Processor rather than the owner is entitled to sue – “The modern law of real property continues to invoke the mediaeval doctrine
that possession is prima facie evidence of seisin in fee and that an estate gained by wrong is nevertheless an estate in fee simple”
Newington v Windeyer (1985) 3 NSWLR 555 (McHugh JA at 563)
 The possession of the P need not be lawful (EX a squatter may be able to sue, unless the other can show a better legal right of
possession)
 If there is a dispute between someone who is in possession as a matter of fact and someone who has a legal right to exclusive
possession, the latter wins: Delaney v TP Smith Ltd [1946] KB 393
 However, the unlawful processor could not maintain the action against the true owner or someone acting on the authority of the
true owner: NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Ltd (1947) 47 SR (NSW) 273
 A licence to occupy land for a stated purpose does not confer possession: Georgeski v Owners Corporation SP49833 (2004) 62
NSWLR 534
 A statutory right to occupy land does not amount to a right to exclusive possession: Bropho v Western Australia [2007] FCA 519

Who Can Sue?

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 Tenants and Lessors(√)
 Licensees (√)
- Easement (e.g. A right of way)
- Profit á prendre
 Co-owners (√)
- In general, a co-owner cannot be liable in trespass in respect of the land he/she owns; but this is debatable where the
’trespassing’ co-owner is not in possession. (Greig v Greig)
- A co-possessor can maintain an action against a trespasser (Coles Smith v Smith and Ors)

Who Cannot Sue?

 Purchaser under Contract of Sale (x) Cousins v Wilson [1994] 1 NZLR 463.

(2) Actionable Interference

Tests for Actionable Interference
- Test 1: Direct interference;
- Test 2: An interference with land;

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 - Test 3: Unauthorised

Test 1: Directness of Interference - Southport Corporation v Esso petroleum Co Ltd [1954] 2 QB 182 (boat got stuck, dumped oil to re-
float. Held – not a direct act for oil to wash up on shore – but liable for public nuisance)

Tests 2: Interferences to ‘Land’

 Subsoil as ‘Land’ for the Purposes of Trespass - Intrusion into the subsoil constitutes trespass even if it does not interfere with the
ordinary and reasonable use (or potential use) of the P’s land: ‘The Crown has asserted ownership of the petroleum, but it does
not assert ownership of the strata that surround it. The only plausible candidate is the registered owner of the land above.’
Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380 Lord Hope of Craighead DPSC at 394, [15]
 Airspace as ‘Land’ for the Purposes of Trespass. The heavens above it and the depths beneath it’: ‘This balance is in my judgment
best struck in our present society by restricting the rights of an owner in the air space above his land to such height as is
necessary for the ordinary use and enjoyment of his land and the structures upon it, and declaring that above that height he has
no greater rights in the air space than any other member of the public.’ Griffiths J in Bernstein of Leigh (Baron) v Skyviews &
General Ltd [1978] at 487-8
 More Recent Airspace Cases - LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490: held that
scaffolding overhanging property did constitute a trespass;
 Schleter (t/as Cape Crawford Tourism) v Brazakka Pty Ltd (2002) 12 NTLR 76 - held that helicopter tours at 600 feet did not
constitute a trespass
Test 3: Unauthorised Interference
 Entering land does not constitute trespass if it is done with the consent of the person in exclusive possession.
- Express Licence [definitely stated]
- Implied Licence [not expressly asserted]
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 A licence to occupy land for a stated purpose does not confer possession: Georgeski v Owners Corporation SP49833 (2004) 62
NSWLR 534 & Halliday v Nevill (1984) 155 CLR 1; 57 ALR 331 (police arrest on driveway - no trespass as they had implied
licence – driveway was unobstructed)
 A statutory right to occupy land does not amount to a right to exclusive possession: Bropho v Western Australia [2007] FCA 519
 A person who originally entered the P’s land with the P’s consent (express or implied) becomes a trespasser if the P withdraws
that consent: - ‘A licensee does not become a trespasser until he has received notice that the licence is countermanded and until a
reasonable time has elapsed in which he may withdraw from the land and remove whatever property he has brought in pursuance
of the licence. Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605
 Revocation of consent to be on premises occurs if the person giving the consent transfers the right to exclusive possession to
another.
 The consent does not ‘roll over’ automatically until revoked by the new possessor.
 It terminates on transfer of the property unless renewed by the new possessor.

Entry May be Authorised by Law

‘Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and
unambiguous language. ... General words will rarely be sufficient for that purpose if they do not specifically deal with the question’
Coco v R (1994) 179 CLR 427; 120 ALR 415, at CLR435-7; ALR 417-19)
- Police Powers and Responsibilities Act (2000) (Qld)
- Fire and Rescue Service Act (1990)
- Electricity Act (1994) (Qld)
- Animal Care and Protection Act (2001)

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Exception: If the D enters the P’s land with lawful authority, but then does some unlawful act outside that authority, the whole of his or
her entry becomes trespassory.

The Position of 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)

Limited Licence for Media

 Lincoln Hunt & Willesee (1986) 4 NSWLR 457 (took pics, Held trespass as premises were limited to bona fide clients)
 Channel Nine & Anning [2002] NSWCA 82 (motorcycle track – also stored tyres. EPA & media entered through an open gate, no
trespass
 Craftsmen Homes Australia Pty Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC
 Rinsdale & ABC (1993) Torts Reports 81-231.

Trespass Relating to Personal Property:

Key Cases
 Wilson v Lombank Ltd [1963] 1 All ER 740
 Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204
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  Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566
 Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reps ¶81–244
 John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157

NOTE: Chattels means moveable goods

There are 3 intentional torts relating to goods
1. Trespass to goods/chattels
2. Conversion (almost everything than constitutes Detinue also constituter conversion)
3. Detinue (but not everything than constitutes conversion constituter detinue)

Trespass to Goods/Chattels: Definition

 The intentional / negligent act of D which directly interferes with the P’s possession of a chattel without lawful justification.
 It is not necessary for there to be actual damage
 Just moving the goods is a trespass - asportation

(!) It may not be actionable per se

 Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 (hotel owner sold bulk wine and put in any bottle the customer brought in,
Penfold said bottles were their property and the hotel owner had converted the bottles by filling them with non Penfold wine. HELD
– no injunction cause not conversion)
 Everitt v Martin [1953] NZLR 298

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Trespass to Goods/Chattels: Features
 The P must have actual or constructive (inference) possession at the time of interference.
 Subject Matter—Goods
o Goods incapable of being regarded as property cannot be subject matter of actions to trespass (corpse)
o Intangible property: domain name, IP addresses; AS number - Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566
EG - Real property would be a trespass to land

Exception
4 exceptions to when you can sue even through you are not possessor albeit active or constructive possession
1. Trustee can sue for trespass to chattels
2. A personal representative may sue. Representative of deceased person
3. Owner of franchise
4. Person with a right to immediate possession

Fault
 There can be no liability for trespass to goods without some kind of fault on the part of the D.

Elements of Trespass to Goods/Chattels

 Title to sue;

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 Direct interference with possession of goods; and
 The D must be at fault

Who Can Sue for Trespass to Goods/Chattels?

Possessor
 A person who has possession of goods may sue for trespass to them, even if he or she is not the true owner, as the fact of
possession gives the P standing to sue anyone but the true owner for interference with that possession.
 ‘In my judgment the P was in possession of the car; not only did he have the right to immediate possession, but I do not think that,
in the circumstances of this case, the P ever lost possession of the car.’ Hinchcliffe J in Wilson v Lombank Ltd [1963] 1 All ER 740:
at 743)

Typical Scenarios
 Direct and intentional damage to goods
- Hamps v Darby [1948] 2 KB 311
 Asportation (moving something)
- Kirk v Gregory (1876) 1 Ex D 55 (moving jewellery from 1 room to another was trespass)
- Pargiter v Alexander (1995) 5 Tas R 158
- Slaveski v Victoria [2010] VSC 441 (police officer handed over documents for copying that were not part of search warrant.
Held trespass)

Computer / Internet Related Cases

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 US - In re iPhone Application Litigation, 844 F Supp 2d 1040 (ND Cal 2012) & In re Facebook Internet Tracking Litigation, 844 F
Supp 2d 1374 & Fidlar Technologies v LPS Real Estate Data Solutions Inc, unreported, 2013 WL 5973938 (CD Ill 2013)
 Australia - No similar decisions in Australia - Websyte Corp Pty Ltd v Alexander (No 2) [2012] FCA 562

Conversion: Definition
 The act of D in relation to another’s chattel which constitutes an unjustifiable denial of his/her title - Formerly known as Trover .
 Refusal to surrender goods on demand from the P may constitute conversion
- ‘there was a conversion of the P’s goods because the D was treating the goods as if they were its own ... there was clear
indication by the P that it wanted its goods returned and a demand followed by a refusal to restore goods usually amounts to a
conversion in itself.’ Young J in Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reps ¶81–244: at 62,
520-1

Elements for Conversion

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 Title to sue;
 A direct interference with the goods that amounts to a repugnant dealing; and
 fault of the D.

Conversion: Title to Sue

 P in (actual or physical) possession or with a right to immediate possession may sue for conversion of the goods, even if he or she
does not have actual possession of them at the time of the conversion:
- The P was entitled to sue in conversion, even though it did not have actual possession of the bottles at the relevant time,
because it had a right to immediate possession of them as owner. Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204

Conversion: Who Can Sue?

 Bailees and Bailors - Perpetual Trustees & National Executors of Tasmania Ltd v Perkins (1989)
 Occupiers of Land (occupier of land is regarded os possessor of chattels on the land)
 Mortgagors and Mortgagees - Citicorp Australia v B.S. Stillwell
 Finders - Parker v British Airways; Armory v Delmirie
 Co-owners must usually sue jointly (unless something has happed like the goods destroyed)

General principles
 The P may sue in conversion if it has a better right to possession than the D.
 The fact of physical possession may be sufficient to entitle the P to sue in conversion.
 The fact of possession confers a right to possession that can be enforced against anyone other than the true owner.- Chairman,
National Crime Authority v Flack (1998) 86 FCR 16; 156 ALR 501

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Repugnant Dealing
'the essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who
has property or special property in the chattel'. Dixon J in Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204
Acts of Conversion
 Wrongful destruction or alteration - Hollins v Fowler (1875) LR 7 HL 757.
 Wrongful taking - Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883; 3 All ER 20
 Wrongful delivery - Glass v Hollander (1935) 35 SR (NSW) 304; & Consolidated Co v Curtis (r Son [1892] 1 QB 495.
 Wrongful detention of goods - Baldwin v Cole (1704) 6 Mod Rep 212; 87 ER 964.
 Wrongful use - Penfolds Wines Pty Ltd v Elliott
Fault in Conversion
 It is a requirement of the tort of conversion that the D’s conduct be intentional.
 although the D’s act must be intentional, it is not necessary that the D must intend to dispossess the P by that act.
 The D may convert the P’s goods without even knowing of the P’s existence, and without any dishonest intent.

Lecture 5 Trespass to Land and Chattels - Detinue

Key Cases
 Fontin v Katapodis (1962) 108 CLR 177
 Toyota Finance Australia Ltd v Dennis (2002) 58 NSWLR 101
 New South Wales v Riley (2003) 57 NSWLR 496
 Horkin v North Melbourne Football Club Social Club [1983] 1 VR
 Wilton v Commonwealth Trading Bank of Australia [1973] 2 NSWLR 644

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  Port Stephens Shire Council v Tellamist Pty Ltd (2004) 135 LGERA 98; [2004] NSWCA 353
 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; 57 ALR 639
 Lamb v Cotogno (1987) 164 CLR 1;
 Gray v Motor Accident Commission (1998) 196 CLR 1; 158 ALR 485

Detinue: Definition
Detinue is the wrongful detention of the P’s goods after there has been a demand for the return of the goods made by the person with
a right to immediate possession and a refusal to comply.

Demand and Refusal

What constitutes a refusal by the defendant to return the goods depends upon the nature of the demand made by the plaintiff:
o ‘the defendant must merely make available the plaintiff’s goods again to the plaintiff by informing the plaintiff of the whereabouts
of the goods and by indicating that there would be no interference with the plaintiff retaking possession.’ Young J in Flowfill
Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reps ¶81–244, at 62, 522

Detinue and Conversion

 A cause of action in detinue arose upon the defendant’s failure to deliver the goods on the plaintiff’s request.
 Detinue can arise out of negligent acts on the part of the defendant, whereas conversion requires an intentional act.John F
Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157
 An unintentional loss of goods by a bailee is probably the only situation that can give rise to detinue, but not conversion.

Damages in Conversion and Detinue

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 In conversion, damages usually take the form of pecuniary compensation
 In detinue, the court may in appropriate circumstances order the return of the chattel
 Damages in conversion are calculated as at the time of conversion; in detinue it is as at the time of judgment (so one must be
careful what to use as $ value could be different – eg – fruit is now more expensive so detinue would be better)

Remedies and Defences for Trespass

Key Cases
 Fontin v Katapodis (1962) 108 CLR 177
 Toyota Finance Australia Ltd v Dennis (2002) 58 NSWLR 101
 New South Wales v Riley (2003) 57 NSWLR 496
 Horkin v North Melbourne Football Club Social Club [1983] 1 VR
 Wilton v Commonwealth Trading Bank of Australia [1973] 2 NSWLR 644
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  Port Stephens Shire Council v Tellamist Pty Ltd (2004) 135 LGERA 98; [2004] NSWCA 353
 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; 57 ALR 639
 Lamb v Cotogno (1987) 164 CLR 1;
 Gray v Motor Accident Commission (1998) 196 CLR 1; 158 ALR 485

Remedies for Trespass to Person

 Self-help - Fontin v Katapodis (1962) 108 CLR 177
 Damages (place in original position)
o No loss suffered
o Loss suffered
o Exemplary and aggravated damages
 Injunctions
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Remedies for Trespass to Personal Property/ (Goods/ Chattels)
 Self-help
 Damages
 Injunction
 Replevin

Self-help
1. P can retake a chattel from a trespasser using reasonable force short of bodily harm;
2. Force is not justified unless reasonable attempts have been made to regain peaceably - Blades v Higgs (1861) 10 CBNS 713 at
720; 142 ER 634);
3. The right to retake possession may extend to entry onto land of the actual wrongdoer or another who has helped or is aware of the
wrongdoing - Huet v Lawrence [ 1948] St R Qd 168.
QLD Criminal Code allows reasonable as long as no bodily harm occurs

Damages: General Principles

 In all trespass actions involving personal property, a P need not prove damage in order to succeed.
 The P can only recover damages to the extent of their own interest in the goods.
 If the goods are damaged or destroyed, a P is entitled to compensation - Sernenov v Pirvu [2011] VSC 605
 It is possible to claim exemplary - Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584

Damages for Trespass to Chattels

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 If P’s goods have been taken away or destroyed, full value as at the date of the trespass can be recovered.
 In cases of damage falling short of destruction, the compensatory damages awarded are for actual loss suffered.
 Foreseeable consequential loss is recoverable
 Non-economic loss (loss of the use and enjoyment) is recoverable

Damages for Conversion

 The value of the converted goods is generally assessed at the date of the conversion;
 P should be entitled to recover this increased value if the P neither knew nor ought to have known of the conversion before
commencing the action;
 In the case of conversion of a cheque, damages are prima facie the face value of the cheque at the time of conversion.

General Factors for Determining Actual Loss

 the extent and duration of the D's exercise of dominion;
 the nature of the D's intention in asserting a right inconsistent with the P's right to possession;
 the extent and duration of the resulting interference with the plaintiff's right to possession;
 the injury done to the chattel;
 the resulting expense and inconvenience caused to the P;
 any lost earnings from interference to a chattel used to earn;
 any payments made by the D to the plaintiff;
 the D's good faith; and
 return of the goods

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Damages for Detinue
 Damages are assessed from the time of refusal until the date of judgment -General and Finance Facilities Ltd v Cook's Cars
(Romford) Ltd [1963] 1 WLR 644;
 Damages are assessed on the basis that the goods are of the best quality - Armory v Delamirie (1722) 1 Stra 505; 93 ER 664.
 P cannot make a profit through an award of damages (Accession Doctrine) - Butler v Egg and Egg Pulp Marketing Board (1966)
114 CLR 185.
 Consequential damages is recoverable - Macrocom Pty Ltd v City West Centre Pty Ltd [2003] NSWSC 898 at [45]
 Non-economic loss is recoverable - Private Parking Services (Vic) Pty Ltd v Huggard (1996) Aust Torts Reports 781-397

Injunction
 Injunction for Conversion
o Injunction can be granted only if damages would be inadequate - Gedbury Pty Ltd v Michael David Kennedy Autos [1986] 1 Qd
R 103. & Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204
 Injunction for Detinue
o Injunction for return of the chattel or recovery of its value
o A court will not order the return of a chattel if it can readily be replaced in the market, as damages are an adequate remedy.

Replevin (rarely used)

 Definition: A procedure whereby seized goods may be provisionally restored to their owner pending the outcome of an action to
determine the rights of the parties concerned.
 Characters:
 It is provisional, based on P’s application to the court;
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 If the P's action fails, they must return the goods to the D
 City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477.

Limitation Period
 6 years (except in the Northern Territory ) Limitation of Actions Act 1974 (Qld) s 10(1)(a)
 From the date of interference
 If there is more than one wrongful act constituting conversion or detinue, the cause of action is barred 6 years from the date of the
first act

Defences to Trespass
The Concept of Defence
Broader Concept
o The content of the Statement of Defence (The response to the P’s Statement of Claim-The basis for non-liability)
Statement of Defence may contain:

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 o Denial
o Objection to a point of law
o Confession and avoidance

Mistake
 An intentional conduct done under a misapprehension
 Mistake is thus not the same as inevitable accident
 Mistake is generally not a defence to the intentional tort Symes v Mahon [1922] SASR 447

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 - McHugh
J in Secretary DHCS v JWB (Marion’s Case) 1992 175 CLR 310
 There can be no trespass if the interference occurs with the P’s consent
 The onus of proof lies upon the defendant

Valid Consent
To be valid consent:
1. The interference must be within the scope of the consent - Barker v R (1983) 153 CLR 338

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2. It must be voluntary, that is, it cannot have been procured by fraud or duress - Papadimitropoulos v R (1957) 98 CLR 249; Symes v
Mahon [1922] SASR 447 (case of false imprisonment).
3. the plaintiff must have the legal capacity to give consent - Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112 at
188

Consent to Medical Treatment

 The treatment was within the scope of the patient's consent; Department of Health & Community Services v J W B (Marion's case)
(1992) 175 CLR 218
 The patient had the capacity to either consent or refuse to consent to the treatment (discussion: adult & child)
 It is permissible to provide treatment in an emergency without obtaining consent Rogers v Whitaker (1992) 175 CLR 479;
Secretary, DHCS v J W B (Marion's case) (1992)175 CLR 218 at 310

Consent in Sports
 In contact sports, consent is not necessarily a defence to foul play - McNamara v Duncan (1971) 26 ALR 584
 To succeed in an action for trespass in contact sports, the P must of course prove the relevant elements of the tort Giumelli v
Johnston (1991) Aust Torts Reports 81-085

Revocation or Withdrawal of Consent

 Consent may be revoked or withdrawn
 Revocation or withdrawal may take place before or after the act consented to has taken place
 A contractual term may prevent the withdrawal of the plaintiff's consent having immediate effect - Balmain New Ferry Co Ltd v
Robertson (1906) 4 CLR 379, and see 3.64.

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Burden of Proof
 Since the absence of consent is a definitional element in trespass, it is for the P to prove absence of consent and not for the D to
prove consent.

Self-defence, Defence of Another

 P who is under attack or threaten of attack, is allowed to use reasonable force to defend him/herself
 In each case, the force used must be reasonably proportioned to the threat; it must not be excessive. (Fontin v Katapodis)
 D may also use reasonable force to defend a third party where he/she reasonably believes that the party is being attacked or
being threatened

Defence of Property
 D may use reasonable force to defend his/her property if he/she reasonably believes that the property is under attack or
threatened
 Norton v Hoare (No 1) (1913) 17 CLR 310

What is reasonable force will depend on the facts of each case, but it is debatable whether reasonable force includes ‘deadly force’

Provocation (Queensland)
 Provocation is not a defence in tort law. Fontin v Katapodis (1962) 108 CLR 177

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 It can only be used to reduce or avoid the award of exemplary damages Fontin v Katapodis; Downham Ballett and Others
Queensland Criminal Code 1899
‘A person is not criminally responsible for an assault committed upon a person who gives the person provocation for the assault, if the
person is in fact deprived by the provocation of the power of self-control, and acts upon on the sudden and before there is time for the
person’s passion to cool, and if the force used is not disproportionate to the provocation and is not intended, and is not such as is
likely to cause death or grievous bodily harm’.
--S 269

Necessity
 The defence is allowed where an act which is otherwise a tort is done to save life or property: urgent situations of imminent peril

Urgent Situations of Imminent Peril

 The situation must pose an imminent threat to life or property to warrant the act London Borough of Southwark v Williams [1971]
Ch 734
 D’s act must be reasonably necessary and not just convenient Murray v McMurchy [1949] 2 DLR 442, Cope v Sharpe (No 2)
[1912] 1 KB 496, Re A (children)(Conjoined twins: Surgical Separation) [2000] 4 ALL ER 961
 Imminent threat is not due to the D - Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985; [1985] 1 WLR 1242. 

Defences Specific to Trespass to Personal Property

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 Jus Tertii (which means the right to immediate possession is vested in a third party) – Leake v Loveday (1842) 4 Man & G 972;
134 ER 399.
 Loss of Possession - Ashby v Tolhurst [1937] 2 KB 242.
 Distress Damage - Feasant Gilchrist, Watt & Cunningharn v Logan [1927] St R Qd 185.

Discipline Power
 Parents - A parent may use reasonable and moderate force to discipline a child. What is reasonable will depend on the age,
mentality, and physique of the child and on the means and instrument used. R v Terry [1955] VLR 114 at 116
 Captains of Vessels - Robinson v Balmain New Ferry Co Ltd [1910] AC 295.
 Teachers - Smith v O'Byrne (1894) 5 QLJ 126

Insanity and Involuntarism

 Insanity is not a defence as such to an intentional tort.
 What is essential is whether D by reason of insanity was capable of forming the intent to commit the tort.(only good for reduction in
damages) Weaver v Ward (1617) Hob 134; 80 ER 284, Morris v Marsden [1952] 1 All ER 925
 Involuntary may be a good defence Roberts v Ramsbottom [1980] 1 All ER 7

Illegality: Ex turpi causa non oritur action

 Persons who join in committing an illegal act have no legal rights inter se in relation to torts arising directly from that act. Thomas
Brown & Sons Ltd v Fazal Deen (1962) 108 CLR 391

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