LLB240 Study Guide - Final Guide: Coles Group, New Ferry, Byron White
DIRECT TORTS:
All intentional torts have a common element of directness and intentionality.
Directness: actions of D must directly cause interference with P
oApply the tests developed in Reynolds v Clarke and Scott v Shepard
oClearly articulated in the unsuccessful case of Hutchins v Maughan [1947] VLR 131
‘…the injury he suffered cannot… be said to have followed so immediately in
point of causation upon the act of the defendant as to be termed a part of the
act’
Intentional: encompasses deliberate, reckless or negligent actions
oThere is no need for D to intend to cause the actual harm, it is sufficient that D
intended to do the act which caused the offensive contact – Sibley v Milutinovic
(1990) Aust Tort Reps 81-013
oRecklessness: result of his or her actions must have or should have been foreseen
oNegligence: compares the acts of D to what a reasonable person would have done in
their position
Availability in trespass claims was solidified in Williams v Milotin (1957), this
is not the position in England
What is a trespass to persons?
ONUS – on P to establish the acts constituting the trespass, then on D to prove the
trespass was not intentional
1. What is a BATTERY?
Elements:
a) Intentional and voluntary act
Deliberate, reckless or negligent
b) Which directly
‘…be said to have followed so immediately in point of causation upon the
act of the defendant as to be termed a part of the act’ – Hutchins v
Maughan [1947] VLR 131
c) Causing contact with the body of another person
Conduct must be outside the accepted contact that comes with everyday life
Hostility is not a necessary element, however it assists in a claim of battery
‘…the absence of anger or hostile attitude by a person touching
another is not a satisfactory basis for concluding that the touching
was not a battery…’ – Rixon v Star City Pty Ltd [2001] NSWCA 265
Must be a positive act
An omission may become a positive act – Fagan v Metropolitan
Commissioner of Police [1969]
oDeliberately ignoring pleas to take action may constitute an act
oMay be committed through mediums e.g weapon or instrument
Contributory negligence does not preclude a claim – Horkin v North
Melbourne Football Club [1983] VR 153
Criminal acts don’t preclude a plaintiffs ability to claim – Henwood v
Muncipal Tramways Trust (1938) 60 CLR
2. What is ASSAULT?
Elements:
a) Intentional voluntary act or threat
Deliberate, reckless or negligent
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