LWB147 Week Three Lecture Notes
Introduction and Trespass to Person
Brief introduction to Torts
Classification of Torts
Specifically looking at Trespass and Actions on the Case
Characteristics of all Trespass Actions
Trespass to the Person
o False Imprisonment (next week)
What is torts law?
“It is an area of the law which enables a person who has been privately wronged by another to seek compensation
or some other remedy, through the court system.”
The word ‘tort’ derived from old French word meaning a wrong.
An act or omission that infringes a right.
It is different to other areas of law:
o Cf. criminal law
Criminal law aims to exact a penalty on a person who has done wrong with the purpose of
protecting society as a whole; in contrast, torts law aims to compensate the particular victim
of a wrongdoing.
o Cf. contract law
Contract law focuses on the rights and obligations as agreed between parties; on the other
hand, torts law imposes an expectation of conduct on people to begin with.
Remedies in Torts
Common Law Damages
Nominal – damages are awarded when the plaintiff has proven their action but have no suffered any loss as
a result of the defendant’s interference. Common in trespass where no loss suffered.
Compensatory – monetary compensation for a loss as a result of the interference of the defendant.
Aggravated – awarded where the plaintiff has been humiliated in some way, common in defamation cases.
Contemptuous – where the matter is so trivial, that the court is contemptuous of the plaintiff and believes
they are pursuing the case because they have a right to, and not for any good reason. A waste of court’s
time. Very small damages awarded.
Exemplary (or Punitive) – damages to punish the wrongdoer and to send the message that the behaviour is
o Injunction – a court order that either requires a person to do something or to stop doing something.
Relevant to trespass to land (e.g. overhanging object over house, court order prevents object from
continuing to overhang).
Legislation and Torts Law
While torts law is common law, there may be cases in which the wrongs encountered have no remedy
provided in torts law.
In this case, the torts law must be supplemented by legislation.
o Civil Liability Act 2003 (Qld)
o Law Reform Act 1995 (Qld)
o Workers’ Compensation and Rehabilitation Act 2003 (Qld) Therefore, a tort action is…
A private cause of action
Designed to provide a remedy for a civil wrong
Usually located within an existing category of action
Based upon the common law and supplemented by legislation
Classification of Torts
The law of torts protects against a number of recognised interests including:
Person – e.g. tort of battery
Chattels (property) – e.g. tort of conversion
Land – e.g. torts of trespass and nuisance
Reputation – e.g. tort of defamation
There are two separate categories/forms of action of torts law:
Trespass – a direct interference. Can be to a person (e.g. battery, assault, false imprisonment), to land or to
personal property (e.g. trespass to chattels, conversion, detinue).
Actions on the Case – a non-direct interference. Can be classified as either nominate or innominate.
Nominate means there is a name for the action (e.g. negligence, nuisance, defamation) and innominate
refers to when there is indirect interference and damage but it does not fit into one of the nominate torts.
TRESPASS ACTION ON THE CASE
Type of Interference Interference is immediate result of Consequential interference
Fault Act must be intentional or careless e.g. in negligence, fault refers to
failing to achieve a legal standard
Actionable per se Plaintiff must prove loss/damage to
Damage Plaintiff does not have prove
damage/loss to succeed succeed
Plaintiff prove direct
interference, then Onus on plaintiff throughout
Onus of Proof defendant disprove fault no distinction between highway
Highway and non-highway
Onus on plaintiff
EXCEPTION: Direct + unintentional + damage → Plaintiff can sue in trespass AND case. Trespass
Must be a direct interference.
May be an unbroken series of consequences (see for example Hillier v Leitch).
o Example: Person A punches Person B who is holding a child. This causes the child to fall to the
ground and be harmed. Person A, through a series of consequences, could be considered to have
directly interfered with the child.
The interference in trespass must be intentional or done through a lack of care. That is, it is voluntary either
through intention or carelessness. This implies fault.
It is not necessary to prove that the defendant intended for the consequences to happen, it is enough to
simply be able to prove that the defendant intended to perform the action and that there was substantial
reason to believe that the outcome was possible.
o Example: In one case, a boy moved a chair that the plaintiff had been sitting on and upon returning
to sit down the plaintiff fell to the ground and injured themselves. Although the boy did not intend
to injure the person, the movement of the chair was a direct interference and the boy was found to
be at fault because there was substantial certainty of the result.
Onus of Proof
o Non-highway (did not occur on a road or footpath)