Case List for Torts
Week Two A) Battery
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Battiato v Lagana [1992] 2 Qld R 234. Battery - element of direct and intentional See J Moynihan: ‘the direct intentional imposition of any unwanted physical contact on another person constitutes the tort of battery’
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Innes v Wylie (1844) 174 ER 800. Battery – must be a positive act Plaintiff was a member of a London society and used menacing language towards other members of the society. Members voted that he should be expelled from the society. Policeman stood in door way (passive act) Policeman then lay his hands on the plaintiff and shoved the plaintiff (positive act = trespass)
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Cole v Turner (1794) 6 Mod. 149 ‘The least touching of another in anger is a battery'.
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In Re F (Mental Patient: Steralisation) [1990] 2 AC 1 at 72-73 Battery – hostile touching Any touching to which consent was not given amounts to battery
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Gray v Barr [1971] 2 QB 554 Battery – intentional act It is the action of the defendant which must be intended not the harm caused
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Marion’s Case (1992) 175 CLR 218 Onus is on the defendant to prove consent
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McNamara v Duncan (1971) 26 ALR 584 Established that consent was a defence rather than an element of the tort
B) Assault -
Stephens v Myers (1830) 172 ER 735 Assault – positive and direct physical act
Plaintiff was chairman of parish meeting. Vote was taken to exclude the defendant. Defendant said he would rather pull the plaintiff out of his chair than be excluded from the meeting. Defendant advanced with clenched fists. Tindal CJ: the defendant had the means of carrying out the attack
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Zanker v Vartzokas (1988) 34 A Crim R 11 Assault – imminent contact Woman accepts lift from man who offers her money for sexual favours. She declines. He says he will take her to his mate’s house and ‘really fix her up’. Despite the fact that it is future violence appeal court found that she was in immediate fear so long as she was with the defendant.
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Brady v Schatzel, Ex parte Brady [1911] St R QLD 206 Assault – Reasonably apprehend Woman pointed rifle towards respondent and said ‘this is my law for you bastards. If the lot of you don’t clear out I will put something in your bloody arses. Police officer (respondent) said he was not a bit sacred.’ Regardless of this the appellant had assaulted the respondent.
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Tuberville v Savage (1669) 86 ER 684 Assault – conditional threat The plaintiff put his hand upon his sword and said: ‘If it were not for the fact that the judges were in town, I would not take such language from you’. The issue for the court was whether this constituted an assault. Held: No assault (because the plaintiff stated that he was not going to do anything).
C) False Imprisonment -
Myer Stores v Soo [1991] 2 VR 597 False imprisonment – total restraint of plaintiff’s liability According to O’Bryan J at page 621: The gist of the action for false imprisonment is the mere imprisonment and the respondent carried the burden of establishing the imprisonment. It is enough to prove there was a constraint upon the respondent's will so great as to induce him to submit to deprivation of liberty. Actual physical force does not have to be proved
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Symes v Mahon [1922] SASR 447 False imprisonment – total restraint of liberty P was informed by a police officer that he had a warrant for his arrest and he had to accompany him to Adelaide. Police officer had found that the plaintiff was not actually the man for whom the warrant had been issued. P successfully sued for false imprisonment.
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Bird v Jones (1845) 7 QB 742 False imprisonment – total restraint of liberty The plaintiff was prevented by the defendant from using part of a bridge that was normally used a footway. Plaintiff was told that he could use the other part of the bridge but declined. When he tried to force his was through and assaulted D he was taken into custody by police who were stationed there to prevent plaintiff from using the bridge. Court held that P had not been wrongfully imprisoned.
Week Four – Trespass to Land -
Delaney v T. P. Smith Ltd [1946] KB 393 Interference must be with land in lawful possession of the plaintiff The plaintiff, Delaney, was anxious to obtain tenancy of the Smith’s house upon the completion of repairs. In April 1944, an oral tenancy agreement was made between the plaintiff and Miss Kelly who was acting on behalf of the defendant. At a subsequent interview with a director of the defendant company, the plaintiff was told that he could not rent the house. After the interview the plaintiff (somehow) managed to get a key to the house and took possession on 11 December 1944. On 20 December 1944 the directors of the defendant company forcibly ejected the plaintiff from the house. The plaintiff claimed that he was a tenant of the house and as such, could commence an action for trespass to land. In other words, the plaintiff failed in his action for trespass to land because he was not a lawful tenant under the Law of Property Act 1925
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Esso Petroleum Co Ltd v Southport Corporation [1954] 2 QB 182 Must be a positive act and a direct interference An oil tanker was stranded in a river estuary and, to prevent her breaking her back, the master jettisoned 400 tons of her oil cargo which the tide carried to a foreshore, causing damage. The plaintiff foreshore owners (Southport Corporation), brought an action against the defendant shipowners (Esso Petroleum), based on trespass to land, nuisance and negligence, alleging that the stranding was caused by faulty navigation. The House of Lords allowed the appeal on the basis of the findings of fact by the trial judge. According to Lord Tucker at page 244: ‘…trespass (to land) does not lie on the facts of this case, as the discharge of the oil was not done directly on to the foreshore but outside in the estuary.’ The tide carried the oil from where it had been discharged by the master outside the river estuary to the plaintiff’s foreshore
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Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] 1 QB 479 What constitutes land?
The plaintiff, Baron Bernstein of Leigh, alleged that the defendant, Skyviews & General Ltd, aerial photographers, were guilty of trespass (to land) in that on a date late in 1974 they, their servants or agents, wrongfully entered the airspace above the plaintiff's premises in order to take aerial photographs of the plaintiff's residence. I can find no support in authority for the view that a landowner's rights in the air space above his property extend to an unlimited height.
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Public Transport Commission of New South Wales v Perry (1977) 137 CLR 107 Must be fault Plaintiff, Perry, suffered an epileptic fit while waiting for a train and fell onto the tracks. P sued the Commission in the Supreme Court of New South Wales alleging that the driver of the train was negligent in failing to keep a proper lookout and failing to take all reasonable steps to avoid injuring her. The defence put forward by the Commission was that it was not liable for the negligence of the driver as the plaintiff was trespassing on its railway line after she had fallen as a consequence of epileptic attack. The High Court held that the plaintiff had not been trespassing. The requirement of intention or negligence was absent as the plaintiff had fallen onto the railway line after suffering an epileptic attack.
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Halliday v Nevill and Another (1984) 155 CLR 1 Must be consent Halliday was charged by Victorian Police Constables Nevill and Brida with escaping from legal custody (one charge), resisting police in the execution of their duty (two charges) and assault (two charges). Police Constables Nevill and Brida were on patrol in a car in Liberty Parade, West Heidelberg when Halliday, who was known to them as a disqualified driver, reversed a car out of the driveway of 375 Liberty Parade. When Halliday saw the police car he drove back into the driveway of 375 Liberty Parade. The officers walked down the open driveway and arrested Halliday for driving whilst disqualified When the police officers were escorting Halliday back down the driveway of 375 Liberty Parade towards the police car, he broke away from them, ran across Liberty Parade and entered his own house at 370 Liberty Parade. The officers pursued him into the house where there was a scuffle before he was finally overcome. The two charges of resisting the police officers and the two charges of assault all related to the scuffle that occurred in Halliday’s home. The magistrate held that the arrest of Halliday in the driveway of 375 Liberty Parade was unlawful because the arresting
officer (Neville) was a trespasser on those premises at the time of the arrest. On appeal, Brooking J in the Supreme Court of Victoria concluded that even if police officer Nevill was a trespasser at 375 Liberty Parade at the time of the arrest, the arrest was lawf
