Case Law Torts

Battery, Assault, False Imprisonment, Trespass to land, Nuissance

Battery: Direct

Hutchins

"Injury is direct when it follows so immediately upon defendant’s act that it may be termed part of that act"

Battery: Positive

Innes (act)

A battery necessitates an active measure taken by the defendant

Fagan (omission)

Battery: Intentional

Battiato

The direct intentional imposition of any unwanted physical contact on another person constitutes the tort of battery. There is no requirement to prove that the contact caused or threatened any physical harm.

Battery: Touching

In re F

if the contact went beyond that which is generally acceptable in the ordinary conduct of everyday life

Croucher

Implement

Assault: Direct

Hutchins

"Injury is direct when it follows so immediately upon defendant’s act that it may be termed part of that act"

Assault: Intentional

Rixon

The required intention is an intention to bring about the plaintiff’s apprehension, not an intention to carry out the threat

Tubberville

Conditional

Assault: Positive/Threat

Barton

Words and communication over the phone can be a sufficient threat

Assault: Reasonable Apprehension

Schatzel

There is no requirement that the plaintiff be put in fear — merely that he or she apprehend that some violence is to ensue.

Stephens

physical capacity

Assault: Imminence

Zanker

Continuing fear

False Imprisonment: Direct

Myer Stores

it must be the act of the defendant or his agent that imprisons the plaintiff or the defendant must be active in promoting and causing the imprisonment

Coles Myer Ltd

third person - The court held that a store detective could be held liable for false imprisonment even when the actual arrest was conducted by police officers

False Imprisonment: Intentional

Myer Stores

The deprivation of liberty was a purpose of the defendant’s action

Ruddock

The defendant knew that deprivation was an inevitable consequence of their action

Knowledge of imprisonment: Murray

Malicious Intent: Scott

False Imprisonment: Total Restraint

Symes

the defendant feels you have no alternative but to accompany someone so you feel totally restricted.

Bird

reasonable means of escape

Trespass to person defences: Necessity

Dudley and Stephens

To a void a greater wrong you can do a lesser wrong but not if that means killing someone

Trespass to person defences: Self Defence

Rosza v Samuels

only use reasonable force

Trespass to person defences: Provocation

Fontin

Provocation something that is so outrageous is causes the person to lose themselves and do something unlawful

Trespass to person defences: consent

Lergesner

Can’t go beyond the “rules of the game”

Trespass to person defences: lawful authority and justification

The Balmain New Ferry Company

implied contractual consent

Trespass to Land: Direct, Positive

Esso Petroleum

The court ruled that since the act was not a direct act on the plaintiff’s land but a consequential act, trespass did not apply.

Trespass to Land: Intentional

Public Transport Commission of New South Wales

if he falls, or is pushed, on to a forbidden area he does not thereby become a trespasser. Plaintiff, who had a seizure, fell onto train tracks. The court agreed she was not trespassing at the time since she did not enter voluntarily.

Trespass to Land: interference with land

Kelsen (above)

Bocardo (below)

Graham (transient, above)

Bernstein of Leigh (above, not indefinitely)

Trespass to Land: exclusive possession

Delaney

requires a written agreement, ownership supersedes possession

Trespass to Land defences: license

Cowell

you don’t become a trespasser the instant your asked to leave you need to be given a reasonable amount of time to go and during that period you are not a trespasser. If the licensee refuses to leave, the occupier can forcibly remove him or her without being liable for trespass to the person.

Trespass to Land defences: lawful authority

Kuru

consent revoked - quiet enjoyment of land principle

Trespass to land remedies: compensatory damages

Annin

 recovery of all ‘natural and probable consequences’ of the trespass, which could include any damage to the land, consequential financial loss and even, in some circumstances, personal injury and mental trauma

Trespass to land remedies: aggravated damages

Ibbett

particular affront to the plaintiff’s dignity on account of the officious, abusive, insulting or humiliating way in which the trespass has taken place

Trespass to land remedies: user fee damages

Ashma

This is a sum of damages representing a reasonable rent for the defendant’s use of the plaintiff’s land

Trespass to land remedies: Account of profits

Edwards

In account of profits is a monetary remedy calculated not by reference to the plaintiff’s loss, but by reference to the profit a defendant made through the trespas

Private Nuisance: title to sue

Hunter

The case established that only individuals with legal ownership (title) in the affected land have the capacity to sue for private nuisance.

The court emphasised that occupancy alone does not confer the right to pursue such claims.

Private Nuisance: creator, continuer/adopter, authoriser

Creator (Fennell)

dont need to be in possession of land

Adopter/continuer (Sedleigh-Denfield)

can be liable without creation, cannot be an omission

Authoriser (Peden)

A lessor is not responsible for a nuisance created by a tenant unless the lessor let the premises for a purpose calculated to cause a nuisance, that is, by express authorisation of the nuisance or in circumstances where the nuisance was certain to result from the purposes for which the property was being let.

Private Nuisance: interference with use and enjoyment

Hunter

A man's right to build on his land is not restricted by the fact that the presence of the building may of itself interfere with his neighbour's enjoyment of his land

Private Nuisance: unreasonable

St Helen's Smelting

where material damage to property occurs, it is prima facie unreasonable regardless of location or any other factual circumstance, unless defence of reasonable use

Private Nuisance: substantial

Walter

inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living

Private Nuisance: give or take

Kennaway

what other occupiers in the neighbourhood can be expected to bear. The other man can use his property in a reasonable way and there must be a measure of give and take, live and let live.

Private Nuisance: locality

Gillingham Borough Council

If the locality is changed from residential to industrial there is no grounds for private nuisance.

Private Nuisance: time, duration, frequency, extent

Luna Park Reserve Trust

injunctive relief, which reflected his view of what needed to be done to negate the nuisance, without unduly impacting upon the defendant’s right to operate its business.

Private Nuisance: hypersensitivity

Robinson

if an interference is not objectively unreasonable, the fact that the plaintiff or the plaintiff’s use of their premises is sensitive does not convert the interference into an unreasonable one.

Private Nuisance: motive

Hollywood Silver Fox Farm

the defendant did this not for the purposes of hunting on his own land, but in order to disrupt the plaintiff’s business.

Private Nuisance: public benefit

Bolton

Cricket Game

Private Nuisance remedies: injunctions

Shelfer

(1) If the injury to the plaintiff’s legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction: then damages in substitution for an injunction may be given.

Private Nuisance Defences: Statutory Authority

Lester-Travers

planning permission or license

Private Nuisance Defences: Moving to the nuisance

Challen

By coming towards something known to be a nuisance, has the plaintiff impliedly consented to the nuisance? even two or three balls a week, with the risk of physical harm or property damage, amounted to material interference with the enjoyment of property.