LAWS1012 Study Guide - Final Guide: Exxon, Coles Group, Myer
16 May 2018
School
Department
Course
Professor
1
Torts Final Notes: LAWS1012
Battery
1. Collins v Wilcock: Any touching of a person, however slight, may amount to a battery
2. Direct?
o Scott v Shepherd – firecracker
o Hutchins v Maughan – sheepdoggies
3. Not consequential?
o Southport Corp v Esso Petroleum Co – petrol leaking onto shore
o Reynolds v Clarke – rainwater from roof
4. Fault? Without intention, there cannot be an action in trespass (needs to be an
action in case i.e. negligence)
o Weaver v Ward – military training: Sir Henry Hobart: no man should be
excused of trespass except it be adjuged utterly without his fault
o Holmes v Mather – crazy horse: not negligent, not intentional = no fault = no
trespass
o Stanley v Powell – pheasant shoot: not negligent, not intentional = no fault =
no trespass
o McHale v Watson – child hit in eye: not negligent (given age), not intentional
5. Onus of proof of fault?
o High way case: onus on plaintiff: Venning v Chin
o Non highway case: onus on defendant
o D)plock J in Fowler v Lanning: the plaintiff must today in this crowded world
be considered as taking upon himself the risk of inevitable injury from any
acts of his neighbour which, in the absence of damage to the plaintiff, would
not in themselves be unlawful.
6. Defences
o Acting in self defence (Fontin v Katapodis, Hall v Fonceca)
o Plaintiffs provocation? )ssue for damages…
7. Damages
o Fontin v Katapodis – cannot reduce compensatory damages as this would
deprive the plaintiff, pro tanto, of a legal right; deal with through mitigating
exemplary or aggravated damages
find more resources at oneclass.com
find more resources at oneclass.com
2
Assault
1. Immediate apprehension of imminent application of force
o Stephens v Myer: parish
o Hall v Fonceca: hockey club, self defence
2. SUBJECTIVE not OBJECTIVE intention on part of defendant:
o Connex Trains Melbourne v Chetcuti
3. OBJECTIVE not SUBJECTIVE intention on part of plaintiff:
o Brady v Schatzel
4. Conditional threat?
o Police v Greaves – Bogans swearing at police with knife: Just because a threat is
conditional does not mean it is not assault
5. No actual threat of imminent application of force?
o Tuberville v Savage: no actual threat at the time
6. Unknown time that threat will be carried out?
o Barton v Armstrong – telephone threats: uncertain times may still constitute assault,
particularly considering other things such as frequency of calls and time period
o R v Ireland – heavy breathing: even though unknown time of threat, heavy breathing
was consistent and frequent = assault
7. Defences
8. Damages
False imprisonment
1. Complete deprivation of liberty (not mere obstruction)
o Bird v Jones – mere obstruction
o R v Macquarie – stuck on boat
o State of SA v Lampard-Trevorrow – 10 year foster home: care and protection of child
in a way that a typical parent would restrict their child is NOT deprivation of liberty
2. Reasonable means of escape?
o R v Macquarie – stuck on boat = exposed to other dangers
o Burton v Davies – creepy thigh guy: unreasonable to jump out window
o Symes v Mahon – Adelaide fuck up: would have been prevented from escaping from
carriage
3. Potential defenses:
a) Was it consensual in some way?
o Balmain New Ferry – bad first date impression: reasonable notice of signs, contract
of entry and exit, plaintiff was aware of conditions, can be legally restrained until
contract conditions fulfilled
o Herd v Weardale Steel, Coal and Coke Co – tfw you argue and you want to leave but
you cant: conditions of employment
b) Unawareness of deprivation of liberty? NOT A BAR! But may reduce damages
o Herring v Boyle - boy unaware of false imprisonment so no false imprisonment:
OVERTURNED
o Meering v Grahame-White Aviation Co – munitions and security guards outside:
Lord Atkin says no element of awareness in tort of false imprisonment
find more resources at oneclass.com
find more resources at oneclass.com
3
o Murray v Ministry of Defence – 7am-7:30am: Lord Griffiths says unawareness to
be dealt with through damages; damages may only be nominal and arguably less
significant
o Myer Stores v Soo – Asian discrimination :
c) Care of a child:
o State of SA v Lampard-Trevorrow – 10 year foster home: care and protection of
child in a way that a typical parent would restrict their child is NOT deprivation
of liberty
4. Damages
o McDonald v Coles Myer – label switching, accusations of kleptomania:
AGGRAVATED DAMAGES
o Myer Stores v Soo – Asian discrimination + search warrant : AGGRAVATED
DAMAGES; may consider actions after tort has been committed
Action on the case for willful injury
Distinctions:
1. Direct and immediate acts + Intentional fault = Trespass
2. Direct and immediate acts + reckless/negligent fault = Trespass OR action on the case
3. Indirect and consequential acts = Action on the case
Establishment of which form of action to take:
1. Need to establish whether the act is direct or consequential
Direct acts are those that immediately cause injury
Consequential act is upon the part of the defendant and then subsequently an injury
occurs as a result of that act
2. Need to establish the type of fault
3. When established: In trespass, forcible direct interference means you do not need to show
proof of damage. In action on the case, indirect damage is the gist of the action and must be
established in every case
1. Indirect injury?
o Bird v Holbrook - tulip stealer, spring traps and pea hens
2. Was it a willful act intended to cause harm (physical or psychiatric)?
o Wilkinson v Downton – smashed up: defendant liable for plaintiff for damages
incurred
o Janvier v Sweeny – undercover to get info: similar to Wilkinson v Downton
o Bunyan v Jordan – threatening to shoot, plaintiff a lil bitch: defendant cannot sue for
causing harm with willful intent because statements not addressed to her, and a
reasonable person would not have been seriously harmed
o GIller v Procopets – revealing sex tapes maliciously: intention to be malicious or
cause injury must be established
o Nationwide News Pty Ltd v Naidu – supervisor being racist, humiliating her and
harassing her: obiter; imputed intention may be recognised
3. Was it an invasion of privacy?
o Wainwright v Home Office – strip search: There was no common law tort of invasion
of privacy; that creation of such a tort required a detailed approach which could only
be achieved by legislation rather than the broad brush of common law principle. NO
INTENTION TO CAUSE HARM ESTABLISHED therefore NO action for willful injury
4. Defences? Bars?
o Inability to establish intention is the biggest one: Wainwright v Home Office, Bunyan
v Jordan
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Lord atkin says no element of awareness in tort of false imprisonment. Damages; may consider actions after tort has been committed. Distinctions: direct and immediate acts + intentional fault = trespass, direct and immediate acts + reckless/negligent fault = trespass or action on the case. Indirect and consequential acts = action on the case. Establishment of which form of action to take: need to establish whether the act is direct or consequential. Direct acts are those that immediately cause injury. Inability to establish intention is the biggest one: wainwright v home office, bunyan v jordan. Interference with ordinary and reasonable use of land: s 72 cla: No action in trespass if only of flight or ordinary incidents of the flight, at a reasonable height above ground, as long as air navigation regulations followed. Interference with ordinary and reasonable use of land: damage by aircraft, legislation to use: damage by aircraft act 1999 (cth) or s 73 of cla.
