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Tort - TRESPASS [CLA (Civil Liability Act 2002) application]

If it is Trespass (batter/assault/TP to goods & land/conversion/detinue) The intentional acts are excluded from the operation of the CLA: s3B(1)(a) of the CLA except Part 7, which does apply to the question regarding self-defence. Negligent trespass However, negligent trespass might be arguably be governed by the CLA as it is not form intentional act. When did the proceedings commence? The operation of the CLA depends on when proceedings were commenced (regardless of the date of injury): s.2 CLA. So the student should pick up on this trick in the question and provide two answers: 1. If the injury occurred pre-20/3/02 and proceedings were commenced pre-20/3/05, then the common law will apply; and 2. If the injury occurred pre-20/3/02 but the proceedings were commenced on or after 20/3/02, then the CLA will apply However, as (a) of the question related to the operation of the CLA, the student should assume (b) only relates to the operation of the common law

[Vicarious liability]
X (employer) is vicariously liable for the tortuous acts (or omissions) by Y (his employee) in the course of his/her employment whether or not such act or omission was specifically authorised by the employer : Lepore v NSW Requirement: For the vicarious liability to be held, the tortfeasor must (a) be a servant (not independent contractor), and (b) in the course of his or her employment (a)Servant (is under a contract of services) v Contractor (is under a contract for services) Control test (if the Master controls what/how employee does, then servant):Zuijs v Wirth Bros Totality of the relationship: Hollis v Vabu (bicycle couriers -> servants upon circumstances) (b) Whether the torts is committed in the course of employment or not, turns on: whether his/her tasks are authorised: Deaton v Flew whether the employees tortuous act so connected to authorised tasks that it can be seen as a mode of carrying out the task albeit wrongfully: Morris v Martin In general the employer is not liable where the employee commits a torts while on frolic of his or her own(eg horseplay): Harvey v ODell (detour to get tool and lunch) Where the employer expressly prohibits a particular conduct, the employees act in breach of the prohibition is generally considered to be outside the scope of the employees services. (not liable) Non-Delegable Duties: reasonable care to be taken in the carrying out of any work delegated s5Q of the CLA FACT: We are told that Scott is an employee. The question then becomes: is his contravention of PW (employer)s specific standing instructions in allowing Geoff to dive in prior to Scott's testing the water within the course of employment? The answer is a question of fact: Bugge v Brown. If Scott's conduct is in the course of employment then PW will be liable to indemnify him.)

Noel Kim 2010

[Onus of Proof]
On/off highway In trespass, once the P proves injury caused by the Ds act, the burden of proof shifts to the D to show that the act was involuntary or they were not at fault: McHale v Watson The only exception to this rule is a highway trespass. Where a trespass occurs on or near a highway, the P must prove either intention or negligence on the part of the D: Venning v Chin. on highway: P proves Ds intention/negligent off highway: D disprove that his act was involuntary or at at fault. FACT: (In this Q, it is unclear whether it is on or off highway..) Discussion in Blay, Onus of Proof of Consent in an Action for Trespass to the Person Vol. 61 ALJ (1987) 25. The specific issue of proving or disproving consent in trespass to the person was never arisen for determination by the Australian Courts. After surveying the authorities in England, US and Canada, Blay comes down that absence of consent is an ingredient of trespass and must therefore be alleged and proved by the P.

[TRESPASS to Person> BATTERY]


Elements In order to succeed an action of battery, the following elements must satisfy on the balance of probability. a) intentional or negligent act: Hart v A-G (Tas) b) that is direct: Scott v Shepherd, Hutchins v Maughan c) causes physical contact: Collins v Wilcock, Rixon v Star City Casino d) and without lawful justification/consent: McNamara v Duncan, Giunmelli v Johnston *Intervening act does not break the chain: Socott v Shepherd (firework) *The least touching of another could be battery: Cole v Turner *Was it reasonable force to exercise? Circumstance?: Collins v Wilcock, Rixon v Star City Casino * If it is a Sports There is no consent to deliberate acts of violence not direct towards the playing game: McNamara v Duncan Person engaged in a sport involving some degree of physical contact impliedly consent to those contacts that arise incidentally to the playing of the game within its rule. They may also be held to consent to certain rule infringements such as tripping or pushing: Giumelli v Johnston **NEGLIGENT TRESSPASS (Unintentional/Carelessly) Where a negligent, direct injury to the person is complained of, the two cause of action are still available and the P is entitled to choose between negligence and trespass: Williams v Milotin According to s3B(1)(a) of the CLA, the CLA does not apply to intentional act except Part 7 of the CLA, however, negligent trespass might be arguably be governed by the CLA as it is not form intentional act. (every elements are same except intentional act (doesnt need to prove) FACT: (X striking Y was a positive act. That act was direct and was done intentionally by X. He meant to do it. Contact with Y occurred and it can be inferred that Y did not consent to the act) (On the given facts, X clearly causes physical injury to Y intentionally, or at least recklessly or carelessly. If X was reckless, this may constitute the requisite intention: Stanley v Powell. The tree was not regarded as breaking the chain of directness: Scott v Shepherd, That X is a participant in completion does not mean that he consented to be physically interfered because such risk is not a Noel Kim 2010

part of the game and contrary to the rule: McNamara v Duncan)

[TRESPASS to person> ASSAULT]


Elements In order to succeed an action of assault, the following elements must satisfy on the balance of probability. a) intentional or negligent act: Hart v A-G (Tas) b) that is direct: Scott v Shepherd, Hutchins v Maughan c) causes apprehension of imminent physical interference: Barton v Armstrong d) and without lawful justification/consent: McNamara v Duncan, Giunmelli v Johnston OR (As above with the x factor of apprehension of imminent physical interference) Knowledge: Unless the P has knowledge of the threat, there can be no apprehension of imminent physical contact as the formation of apprehension arises from knowledge. (eg. Assault may arise only if P saw the gun pointed at him) Words: In mere words are not actionable but it depends on the circumstances: Police v Greaves, Rozsa v Samuels Telephone threat of future violence may be form an assault: Barton v Armstrong (test: how immediate does the fear of physical violence have to be) Conditional threat: conditional threat of force, which the D is entitled to use, is not assault (eg occupier of land may legitimately threaten a trespasser on the land with the use of reasonable force in order to induce the trespassers departure, is not an assault: Holmes v Bagge; Stroud v Bradbury) Words spoken by the D may be relevant in interpreting physical gestures that would otherwise be threatening or ambiguous: Tuberville v Savage Intention It does not require an intention to actually do the physical interference: Rixon v Star City Future violence: the interference must be imminent, but future violence can be an assault: Zanker v Vartzokas FACT: (After addressing battery elements) the elements (a)(b)&(d) are proven by X intentionally wielding the knife (not a gun) at Y. On the facts given, it is not possible to tell whether upon that event occurring Y apprehended contact to his person. If he did, then X is liable for this tort) (Jane running from the shop was a direct and intentional act to further her escape with the stolen chewing gum. She meant to do it. If Lionel can prove that he apprehended unwanted physical contact then Jane will be liable in this tort)

[TRESPASS to person> Indirect Injury (Action on the case)]


Action on the case for physical injuries or nervous shock refers to actions based on injuries that are caused indirectly or consequentially. The elements of this tort are: the act must be intentional It must be one calculated to cause harm/damage It must in fact cause harm/actual damage. INDIRECT INJURY D is liable in an action on the case for damages for intentional acts which are meant to cause damage to P and which in fact cause damage to P: Bird v Holbrook (trap set in garden) NERVOUS SHOCK (Indirect & Unintentional but Intention may be imputed) Where the D intends no harm from the act but the harm caused is reasonably foreseeable, the Ds intention to cause the resulting harm can be imputed/implied (test for the inference is objective): Wilkinson v Downton * Practical joke -> cause mental harm -> can brinag on action: Wilkinson v Downton Noel Kim 2010

But, Bunyan v Joradan is not because of circumstance that harm was not foreseeable FACT: Y can bring an action on the case against X for causing Ys mental harm following the principles of Wilkinson v Downton. This action requires proof of intent and proof of damage, that is, proof that the D subjectively intended to shock the P and that the damage was objectively likely to result. Statements made to the P that are intended to cause harm are actionable if they cause mental harm.

[TRESPASS to person> FALSE IMPRISONMNET]


Elements In order to succeed an action of false imprisonment, the following elements must satisfy on the balance of probability. a) intentional or negligent act: Hart v A-G (Tas) b) that is direct: Scott v Shepherd, Hutchins v Maughan c) causes apprehension of total restraint: Bird v Jones, Symes v Mahon d) and without lawful justification/consent: McNamara v Duncan, Giunmelli v Johnston OR (As above with the x factor of apprehension of imminent physical interference) Knowledge: Ps knowledge at the moment of restraint is not essential: Meering v Graham Restraint must be total: If a reasonable escape route exists it is not FI: Bird v Jones (bridge), Balmain Ferry (water). Restraint may be total where D subjects P to his/her authorities with no option to leave: Symes v Mahon Voluntary: Herd v Werdale , Where there is no volition for restraint, the confinement may be FI: Bahner v Marwest Hotel

[REMEDIES (DAMAGE) for TP to person]


It is unclear if Y has suffered any harm or loss in his altercation with X. Even if no harm or loss was suffered then as trespass is actionable per se, he will be awarded damages for trespass. Any damage or loss caused by X in the commission of the trespass will be met by an award of compensatory damages. The aim of compensatory damages is to put the P in the position s/he would have been in but for the tort. If Y can show that X acted with contumelious (rude) disregard of his rights then he may seek and be awarded exemplary damages: Lamb v Cotogno An injunction may be obtained against a future apprehended assault and battery. The case law is concerned with case of domestic violence (Parry v Crooks); but this is no limitation on the right to obtain an injunction to cases of this sort: OKane v Fogarty

Re: if Self-defence involved IF Question says Advise the types of damages he may receive. Do not attempt to quantify damages
According to s3B(1)(a) of the CLA, restricted damages does not apply in respect of an intentional act. However, if Part 7 applies (-which it does not on these facts-), then s53(2)(a) may operate to restrict damage under CLA even though there was an intentional act which are: general damage: past and future pain & suffering, loss of enjoyment of life, etc economic loss: past & future, includes loss of wages/loss of upper/loss of opportunity: Malec v Hutton, use 3% Tables to assess future economic loss under s16(3) of the CLA out-of-pocket expenses: past and future treatment expense gratuitous care: past and future; Griffinths v Kerkemeyer Interest on past heads of damage refer to above: rate on Schedule J of Supreme Court of NSW for past economic loss (but see Gojic re general damage) exemplary damage (available most likely in this case) s53(1)(a)&(b), unless the circumstances are exceptional and a failure to award damage would be Noel Kim 2010

harsh and unjust, a court is not to award against the D, even if the conduct of self defence was not a reasonable response. This section has a 2 limb test and both (exceptional and harsh & unjust) must be satisfied. The terms exceptional and harsh & unjust are not defined in the Act, so the ordinary meaning can be adapted: s34 of the Interpretation Act 1987. If s53(1)(a)&(b) test passed, the court is to award damage to P: s53(2)(a), but no damage may be awarded for non-economic loss: s53(2)(b). s54(1)&(2) Criminal cannot be awarded damages. A court is not award damage if the conduct of P, on the balance of probabilities, constitutes a serious offence (punishable by imprisonment for 6 months or more) unless the conduct of D constitutes offence (whether or not serious offence) but these offence are kind of criminal wrongs not civil wrongs.

Noel Kim 2010

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