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Intentional Trespass to Person Aim: to protect person from unlawful interference by others.

Onus of proof: P must prove elements, then D must show tort not intentional/negligent (lack of fault). Exception: P must prove fault in highway accidents (traffic accident on public road), Venning v Chin. Elements of Intentional Trespass: 1. Positive voluntary act 2. Direct injury of some kind a. Immediacy: example of log being thrown on highway and hitting someone (direct), as opposed to be lying on the highway and later injuring someone by driving into it (consequential) Reynolds v Clarke. b. Not consequential: A trespass occurs when follows so immediately upon the act of the defendant that it may be termed part of that act; it is consequential on the other hand, when, by reason of some obvious and visible intervening cause, it is regarded, not as part of the defendants act but merely as a consequence of it Hutchins v Maughan (1947): D put poison baits on property. P brought dogs to land, dogs died. c. Need not be physical contact between P and D: Scott v Shepard (1773): firework thrown in marketplace, tossed by person to other, then again, then finally exploding and injuring P. Court: justified that two others acted in agony of the moment. Criticised decision. 3. Injury/interference: a. Actionable per se: no proof of damage needed. 4. Intentional/negligent act: a. Fault is essential (McHale v Watson): wrongfully wilful or negligent (Holmes v Mather: horses out of control, injured P. Held no tort as Ds servant tried best to guide horses away from P) or (Stanley v Powell: shooting party, shot glanced off tree and hit P). b. Intention: simply to do the act. No need for hostility or intention to injure. c. Negligence: trespass includes negligence (Williams v Milotin: child + bike run over by truck driven neg). Does not exist in England (Letang v Cooper: sunbathing girl overrun by car). i. Platt v Nutt: D slammed door and P put arm out, injured. Trial: D failed to prove absence of negligence, even though no intention. Held: trespass failed as the action was not direct enough. Kirby dissented saying P should bear onus in all situations. Three types: 1. Battery 2. Assault 3. False Imprisonment ___________________________________________ Battery 1. causes physical bodily contact a. Examples: Spitting (R v Cotesworth), taking something from Ps hand (Fisher v Carrousel Motor Hotel Inc), pouring scalding water (Pursell v Horn). b. Offensive: outside accepted usages of contact in daily life. Collins v Wilcock: prostitute seen by officer. Officer grabbed her arm to stop her and talk to her. Held: officer went beyond acceptance conduct (tapping shoulder). c. Need not be hostile: Referred to as touching in anger (Cole v Turner). Does that mean need hostility? Yes (Wilson v Pringle), but preferred view in Aus is NO; battery is unwanted contact, hostile or not. Rixon v Star City: R playing roulette when spun around by person asking if he was R. d. Positive act: mere omission does not suffice. Innes v Wylie: officer stood at door to prevent P from entering. Held not battery. Except: Fagan v Metropolitan Commissioner of Police. e. Amount: any touching of another person, however slight might amount to battery (Collins v Wilcock per Robert Goff). Wilson v Pringle per Croom-Johnson LJ It is the act and not the injury which must be intentional. An intention to injure is not essential to an action for trespass to the person. It is the mere trespass by itself which is the offence. Assault 1. Act or threat a. Words or actions: No clear authority as to whether words alone can be assault. If over telephone: can be assault if imminent body contact (Barton v Armstrong). b. Conditional threats:

2. 3.

i. Tuberville v Savage: T put hand to sword and said since judges in town, he would not fight. Held: no assault. ii. Rozsa v Samuels: P taxi threatened to punch D. D took knife and conditionally threatened P. Held: assault. iii. Test: reasonable for P to anticipate imminent force if he disobeys? Eg. Police v Greaves: G threatened officer with knife saying if he came closer etc. P to reasonably apprehend a. Reasonably: need not experience fear. Except where D knows P to be timid and manipulates (MacPherson v Beath). b. Need not be able to carry it out: Brady v Schatzel: pointed empty pistol. Imminent physical bodily contact: a. Not necessarily in time: Zanker v Vartzokas: woman got in car, man threatened to take her to friends place where they would fix her up. Rolled out of car to escape. Held: continuing fear, imminent danger once out of car. b. Phone calls can be imminent: Barton v Armstrong.

False Imprisonment 1. No authority for negligent FI. 2. Act: a. Psychological intimidation (need not be physical): Symes v Mahon: P told officer had warrant for arrest. Went on train, paid own fare and was in separate compartment. Held: FI. b. Omission: Cowell v Corrective Services Commissioner of NSW: failing to release prisoner at end of sentence. c. Participation in arrest: no if D just provides info leading to arrest. Yes if D signs charge sheet leading to arrest (Dickenson v Waters). 3. Total restraint a. Examples: driving car too fast (Burton v Davies and General Accident), held on boat (R v Macquarie and Budge). b. Extent of restraint: It is necessary that the detention be total and not just a constraint of freedom of movement (Bird v Jones). c. No reasonable means of escape: i. Bird v Jones: P blocked from going forward on path by officers. Held: could have gone in opposite direction. ii. Depends on risk: Townley J in Burton v Davies and General Accident: eg. Locked person in room with window in which he may jump to ground at risk of life/limb. iii. Depends on knowledge: Robinson v Balmain New Ferry Co: P paid to enter wharf to take ferry. Decided not togo on ferry anymore, wanted to leave and refused to pay again to exit. Held: P knew conditions of entry when going in wharf. When a person surrenders their own liberty, they cannot within the terms of their lawful surrender complain of false imprisonment. Also could have escaped by swimming. ALSO Herd v Weardale: coalminer wanted to get out of mine halfway through shift, refused as only allowed to use lift at end and start of shift. Held: not FI as he knew he was going to be down there. d. Knowledge: need not know restrained (Murray v Ministry of Defence: P held in house while inspected by RARA, had no idea what was going on until afterwards). i. Meering v Grahame-White Aviation Co: P went in office, did not know officers stationed outside room. ii. Hart v Herron: P given sleep therapy and electro therapy was FI even though could not remember. iii. HOWEVER, some contrary authorities eg. Herring v Boyle. The protestors did a direct (hutchins v maughan)act (holmes v mather) when they gathered outside the house and shouted out out. Their act was intentional (zanker) . Anna also did a direct intentional act when she shouted on the megaphone. In the case of Macpherson v Brown being surrounded by a crowd of protestors was only held to constitute assault, if the circumstances, the crowd had an intention to cause a reasonable apprehension of immediate contact. The crowd of protestors were gathered around peters home; however in peters case the crowds behaviour was different that they were also chanting out which might cause a reasonable person to apprehend that the crowd might enter his home drag him out, however the crowd might not reasonably be expected to do this as they would be arrested. In Zanker v Vartazokas a combination of words acts and circumstances was held to create a reasonable apprehension of immediate unlawful conduct. Annas threat was conditional (tuberville v savage). Worlds alone can constitute assault (barton v armstrong) as can silence (RV v Ireland) where the words/silence cause peter to reasonably apprehend immediate unlawful conduct. A conditional threat can be assault if what is threatened can be carried out immediately (tuberville). Annas verbal threat could be carried out if peter left the house and Anna has threatened to enter the house peter might be safe if he stays in I house and therefore perhaps Annas conditional threats is not assault as I will only be carried out if he leaves the house. Fault Their act was Intentional (Zanker) Defences

The protestors might try to argue a necessity defence, however this is unlikely to succeed as the threat is not imminent (south walk London borough council v Williams) on public policy grounds vigilantism would not be seen as a necessity. Remedies If the protestors /annas actions were done with intention to cause injury, which includes humiliation, detriment deprivation of liberty (Ibbett) which means the CLA does not apply-sB. Peter could claim compensatory damages for the natural and probable consequences of the assault (palmer bruyn) and perhaps aggravated damages given the deliberate vigilante conduct and exemplary damages to deter future vigilantes. Remedies Civil Liability Act 2002 (NSW) s 3B Was there an actual intent on the part of D to cause injury or death to P, or was Ds conduct sexual assault or other sexual misconduct? If so, the CLA does not apply to the calculation of an award of damages for personal injury suffered by P (McCracken v Melbourne Storm Rugby League Football Club [2005] NSW SC 107). Injury in s 3B CLA Injury includes harm to reputation, deprivation of liberty, injured feelings such as outrage, humiliation, indignity and insult or to mental suffering, such as grief, anxiety and distress, not involving a recognised psychological condition (NSW v Ibbett (2005) 65 NSWLR 168). Contrast intentional trespass with negligent trespass the CLA applies to awards of damages for negligent trespass (NSW v Ibbett (2005) 65 NSWLR 168). Civil Liability Act 2002 (NSW) s 21 Aggravated and exemplary damages cannot be awarded in claims to which the CLA applies. This means that aggravated and exemplary damages can be awarded (if justifiable) for intentional torts (NSW v Ibbett (2005) 65 NSWLR 168). Civil Liability Act 2002 (NSW) Part 7 Self Defence and Recovery by Criminals s 51 applies to personal injury and property damage (but not injury excluded by s 3B)

s52 complete defence if D believed conduct necessary to defend self or others; prevent or terminate unlawful deprivation of liberty of self or others; protect property from unlawful taking, damage, destruction or interference; prevent criminal trespass to land or remove person committing criminal trespass AND Ds conduct is a reasonable response in the circumstances D perceives them. Does not apply if D uses force that involves the intentional or reckless infliction of death only to protect property, or to prevent criminal trespass or to remove a person committing criminal trespass.

s 53 even if Ds response unreasonable, P not awarded damages unless the circumstances of the case are exceptional, and a failure to award damages would be harsh and unjust. s 54 P not awarded damages if Ps injury occurred at the time of, or following, conduct of P that, on the balance of probabilities, constitutes a serious offence (offence carrying 6 months sentence or more), and Ps conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage. Does not apply if Ds conduct that caused the death, injury or damage was an offence. s 54A the Presland section. Nominal damages Awarded for a trespass where P has suffered no actual damage other than the trespass itself. Trespass is actionable per se without having to prove damage.

Damages 1.

2.

Compensatory damages The sum of money that will, as far as money can do, put P back in the position P would have been in had the tort not occurred. P is to be compensated for the probable and natural consequences of the tort, whether battery, assault, false imprisonment, or action on the case for the indirect intentional infliction of personal injury (Palmer Bruyn & Parker Ltd v Parsons (2001) 76 ALJR 164, text p63.) Consequential damages for trespass to land are based on an assessment of the natural and probable consequences of the trespass (TCN Channel Nine v Anning (2002) 54 NSWLR 333).

3.

Aggravated damages Awarded to recognise the effect on P of Ds deliberate conduct, and the affront to the rights of P ( NSW v Ibbett (2005) 65 NSWLR 168)). Humiliation, insult, affront are relevant factors. Exemplary damages Awarded to punish Ds conduct in contumelious disregard of Ps rights (Henry v Thompson (1989) Aust Torts Reports 80-265). Can be reduced if P provoked Ds behaviour (Fontin v Katapodis (1962) 108 CLR 177).

4.

Injunction Defences Defences: Consent Express (e.g. medical consent form, court order, oral) Implied (from circumstances, e.g. Rixon). Real and freely given Plaintiff has capacity Consent has limits - must not be exceeded or the consent is ineffective. Onus on defendant to prove consent Marions Case (1992) 175 CLR 218 Malette v Shulman (1990) Murray v McMurchy (1949) Noberg v Wynrib [1992] McNamara v Duncan (1979) 45 FLR 152 Giumelli v Johnson (1991) Aust Tort Reports 81-085 Rootes v Shelton (1967) 116 CLR 383

Defences: Necessity An imminent threat of grave harm to the plaintiff, property or goods and a reasonable apparent necessity for taking such action. Southwark London Borough Council v Williams [1971] Ch 734 Defences: Self-defence Fontin v Katapodis (1962) 108 CLR 177 D to prove: 1. D had reasonable apprehension of physical aggression 2. D did was reasonably proportionate and necessary in response Can apply to protection of others and to protection of land. NOTE provocation is not a defence; but may reduce or prevent exemplary damages