TORTS WEEK 10 Case Summaries

Scott v Shepherd (1773) 96 ER 525 Firecracker Facts: Shepherd threw a squib into a crowd of people, igniting a chain of catching a re-tossing the squib. Finally, it landed in Scotts lap where it exploded, causing him to lose sight in one eye. Scott brought an action of trespass to the courts. Principle: (Blackstone J) The settled distinction is that, where the injury is immediate (direct), an action for trespass will lie. Where the injury is consequential (indirect) it must be an action on the case. The solid distinction is between direct injuries on the one hand, and consequential on the other. And trespass never lay for the latter. Reynolds v Clarke (1725) 92 ER 410 Log on Highway Principle: (Fortescue J) The difference between trespass and case is that in trespass the plaintiff complains of an immediate (direct) wrong, and in case the plaintiff complains of a wrong that is the consequence of another act. If a man throws a log into the highway and in the act it hits me, I may maintain trespass, because it is a direct wrong; but if, as it lies there, I tumble over it and receive injury, I must bring an action upon the case; because it is only prejudicial in consequence, for which originally I could have no action at all. Hutchins v Maughan [1974] VLR 131 Poisonous Bait Facts: Two sheep dogs were killed as a result of consuming poison that the defendant had put down. The plaintiff laid the claim in both negligence and trespass. Principle: (Herring CJ) Trespass is the remedy for the direct application of force by the defendant to the plaintiffs person, land or goods. Action on the case is the remedy for indirect (or consequential) injury caused by the defendant to the plaintiff. Williams v Holland (1883) 131 ER 848 Horse n Cart Facts: Plaintiffs son and daughter hurt by the defendants careless riding of horse and cart. Principle: (Tidal CJ) Where the plaintiff is injured by the defendants direct act, the plaintiff may elect to bring an action on the case (rather than trespass) provided that the defendants act is negligent. However, where the defendants act is both direct and intentional, the only cause of action available to the plaintiff is trespass. Venning v Chin (1974) 10 SASR 299 Highway Exception Facts: Plaintiff suffered personal injuries when she was struck by a car, driven by the defendant, while crossing a public road. Principle: (Bray CJ) As a general rule, in trespass the onus is on the defendant to disprove fault. However, in trespass caused in a highway accident, the onus is on the plaintiff to prove fault on the part of the defendant. Those who use the highway of have premises adjoining the highway must be taken to have impliedly accepted the risk of injury from contacts on the highway caused neither intentionally nor negligently. Platt v Nutt (1988) 12 NSWLR 231 Glass Panel Facts: Women (Plaintiff) and son-in-law (defendant) had domestic dispute. Son-in-law slammed glass paneled door, to which women placed had before. Her hand penetrated the door.

Principle: (Clarke JA) Onus of the trespassory action is an issue distinct from onus of proof of fault. The plaintiff in trespass must prove that the defendant caused the trespassory act of which the plaintiff complains. Letang v Cooper [1965] 1 QB 232 (English distinction) Principle: (Lord Denning MR) The distinction between trespass and case is obsolete; instead of dividing actions for personal injury into trespass (direct damage) or case (consequential damage), we now inquire whether the defendant acted intentionally or unintentionally. Williams v Milotin (1957) 97 CLR 465 (Australian distinction contrary to Cooper) Principle: (High Court of Australia) If damage is caused both directly and unintentionally, the plaintiff might sue either in trespass or on the case. Parsons v Patridge (1992) 111 ALR 257 (Consolidation of Australian diversion from Cooper) Principle: (Morling CJ) Applying the reasoning in Williams v Milotin, an action on the case is maintainable for the negligent driving of a motor vehicle causing personal injury in a collision even although this injury caused by the defendants direct act. Wilson v Horne (1999) 8 Tas R 363 Principle: (Evans J) Query whether, in respect of a direct and intentional act (eg sexual assault), negligence is maintainable as a cause of action in respect of damage which is a consequence of that act (eg psychiatric injury). Williams v Milotin makes plain, negligently inflicted injury to the person can, in at least some circumstances, be pleaded as trespass to the person, but the intentional infliction of harm cannot be pleaded as negligence. Carrier v Bonham [2002] 1 Qd R 474 Principle: (McPherson JA) It no longer matters whether the act was done intentionally or negligently, or partly one and partly the other. What matters is whether the consequences of the conduct, whether foreseen or not, were reasonably foreseeable and are such as should have been averted or avoided. What we really have now is not two distinct torts of trespass and negligence, but a single tort of failing to use reasonable care to avoid damage however caused.