LAWS1203 Chapter Notes - Chapter 1: Hammersmith Bridge, Coles Group, Fide
TRESPASS 1: Introduction
Introduction and historical overview: 11.1.1 – 11.1.15 (skip 11.1.11)
• Intentional interference with the person. Two themes:
o Law and social change: paramount value to bodily integrity and the liberty of the individual and the undisturbed
possession of land and goods. Must adapt adequately to social change.
o Civil liberties: the tort of trespass provides a means of bringing issues of civil liberties before the courts.
• History: trespass and case
o In early common law, the ability of an injured person to shift a loss to the party responsible depended first on
procedural criteria determined by the King’s writ. The writ of trespass emerged at the end of the 20th century as
the form of action to cater for those wrongs which even the most rudimentary legal system must deal with.
o Direct and forcible interference with the person, land or goods of another
o Writ/peace keeping function explains the tie between trespass and criminal law
▪ Directness: the interference with the plaintiff must be direct
▪ Actionable per se (without proof of damage): trespass is actionable without proof of damage, unlike
negligence. Demonstrates the paramount value of the interests its protects. Makes an action which is
not harmful but offensive.
▪ Onus of proof: on plaintiff. The defendant must prove any defence by way of justification,
authorisation or excuse.
o Landmark decision Williams v Holland 1833 established that a plaintiff could choose between trespass and case
if the injury, although not direct, was not wilful. Trespass: a remedy for intentional wrongdoing
o Change in relationship between negligence and trespass – writ reforms
Directness
Hutchins v Maughan* 11.2.1C
• The complainant was droving a flock of ewes. The defendant warned him that he had laid poisoned bait on land in the
vicinity. The complainant thought the defendant was bluffing, and he brought his sheep and his two sheep dogs on to the
land. The dogs picked up the bait and died. The complainant was awarded damages for the loss of the dogs. The
defendant obtained an order which allowed an appeal only on the law. The injury suffered by the complainant was
consequential and not directly occasioned, as the bait wasn’t thrown at the dogs, but intercepted by them later. If he had
not passed that way, there would’ve been no injury.
Rural Export & Trading (WA) Pty Ltd v Hahnheuser 11.2.2
• The respondent fed pork to sheep destined to be live exported to the Middle East. The Commonwealth officer refused to
permit for the sheep’ export as it conflicted with halal values in the destination country. Although owned by the
applicant, the sheep concerned were in the land owner’s (third party’s) possession at the time when the respondent
engaged in his conduct. There is no evidence that the respondent interfered directly with the sheep. The sheep may or
may not choose to eat the food.
Reynolds v Clarke 11.2.3
• The defendant put a rain-spout on his house, from which water poured on to the walls of the plaintiff’s house and rotted
them. The plaintiff’s action in trespass failed: the harm was not direct but consequential.
Southport Corporation v Esso Petroleum Co Ltd 11.2.3
• Oil which had been discharged from a tanker stranded in an estuary and by the tide on to the plaintiff’s foreshore did not
constitute a trespass to land; as the oil was not discharged directly on to the foreshore but was carried by the tide so the
interference was consequential.
Scott v Shepherd 11.2.3
• The defendant threw a lighted miniature explosive into a crowded market. It fell on Yates’ stall. Willis intercepted and
threw it away and it fell on Ryal’s stall. He instantly threw it away when it struck the plaintiff in the face causing harm.
The plaintiff’s action in trespass succeeded. The court held that the defendant directly inflicted the plaintiff’s injury, as
Willis and Ryal had acted, not as free agents, but under ‘a compulsive necessity for their own safety and self-
preservation’. However, in the strictness of law, one justice suggested trespass would lie against Ryal, the immediate
actor; the plaintiff would have had an action against Shepherd but he could not concur and rule in favour of the plaintiff.
Voluntariness and intention: 11.3.15
• Distinction between intention and motive, mistake and involuntariness.
• The intention that is required is an intention to do the act that amounts to a direct interference with another’s person, land
or goods. The persons motive will not prevent the act from being trespass.
The distinction between intention and involuntariness is illustrated by the following cases:
Gibbons v Pepper 11.3.17
• For if I ride upon a horse and J S whips the horse, as that he runs away with me and runs over any other person, he who
whipped the horse is guilty of battery. But if I by spurring was the cause of such accident, then I am guilty.
• If A takes the hand of B and strikes C, A is the trespasser and not B
Morris v Marsden* 11.3.17
• The defendant, a schizophrenic, attacked the plaintiff. He was charged with criminal assault but found unfit to plead.
Stable J had to consider the circumstances in which mental illness can be a defence to an action for trespass to the person.
As the defendant knew the nature and quality of his act, but, did not know what he was doing was wrong:
o That if a person in a condition of complete automatism inflicted grievous injury, that would not be actionable.
Knowledge of wrongdoing is immaterial and where there is the capacity to know the nature and quality of the
act, that is sufficient although the mind directing the hand that did the wrong was diseased.
find more resources at oneclass.com
find more resources at oneclass.com
TRESPASS 2: Battery & Assault/Trespass to Person
Matters considered in our study of battery include the nature of the intention required for this tort (that is, what is meant by
‘intention’ in the context of battery) and the sorts of contact that may not be ‘generally acceptable in the ordinary conduct of daily
life’. Our analysis of assault will include consideration of the nature of the intention required for this tort, the notion of
‘conditional threats’ and the elements of ‘apprehension’ and ‘imminence’.
(1) Battery: a voluntary act which directly and intentionally causes contact with the body of the plaintiff, where that contact is not
‘generally acceptable in the ordinary conduct of daily life’ (Collins v Wilcock [1984] 1 WLR 1172, 1177, adopted in Rixon v Star
City Pty Ltd (2001) 53 NSWLR 98, 113).
(2) Assault: a voluntary act which directly and intentionally creates a reasonable apprehension in the plaintiff of an imminent
battery.
Introduction: 11.4.1–11.4.3
Battery and assault are usually committed in close succession
• Battery without assault: a punch from behind or an offensive touching of a sleeping person
• Assault without battery: the assailant points a gun at the victim
Battery
Rixon v Star City Pty Ltd* 11.4.6C
The Casino Control Act 1992 (NSW) authorised the operator of a casino, using no more force than is reasonable in the
circumstances, to remove an excluded person from the casino. An employee who suspects on reasonable grounds that an
excluded person was in the casino may detain the suspected person in a suitable place in the casino until the arrival of a police
officer. The plaintiff, an excluded person, was approached by an employee who used no force, told him that he was an excluded
person and required him to go to an interview room where he was detained for more than an hour until police officers arrived.
They took him to a police station and charged him. The plaintiff appealed from the dismissal of his actions for unlawful arrest,
false imprisonment, and assault and battery. The Court of Appeal held that the exclusion order was valid and his detention
complied with the requirements of the Act. The actions for unlawful arrest and false imprisonment failed. The action for assault
and battery was based on the initial encounter between the plaintiff and the employee who approached him.
• Mr Rixon’s case in battery was rejected on the basis that the touching lacked the ‘requisite anger or hostile attitude’
Collins v Wilcock [1984] 3 All ER 374
A police woman took hold of a woman's arm to stop her walking off when she was questioning her. The woman scratched the
police woman and was charged with assaulting a police officer in the course of her duty.
Held: The police woman's actions amounted to a battery. The defendant's action was therefore in self defence and her conviction
was quashed.
Goff LJ stated that implied consent existed where there was jostling in crowded places, handshakes, back slapping, tapping to gain
attention provided no more force was used than is reasonably necessary in the circumstances. There was no consent given for the
grabbing of the arm.
Assault
Rixon v Star City Pty Ltd* 11.4.6C
• The judge rejected the case in assault by finding that ‘the actions of the defendant’s employee lacked ‘the requisite
intention in relation to assault’.
• There was no intention to create in Mr Rixon an apprehension of imminent harmful or offensive contact
Rozsa v Samuels* 11.4.11C
The appellant, a taxi driver, placed his taxi at the head of a queue of taxis, instead of waiting his turn. Drummond, whose taxi had
been at the head of the line, got out of his taxi and remonstrated with the appellant, who replied “I am here and I am staying here”.
Drummond said that he would punch the appellant in the head. The appellant then reached under the dashboard of his taxi and
produced a knife, saying “I will cut you to bits if you try it”. He started to get out of his taxi but Drummond prevented this by
slamming the door. Drummond then ‘backed off’. The appellant was convicted of assault and appealed.
• The action of the appellant in threatening Drummond with the knife, even though the threat was accompanied by words
of conditional threat, constituted an assault. The appeal will be dismissed.
Zanker v Vartzokas* 11.4.12C
• A police prosecutor appealed against the dismissal by a magistrate of a complaint alleging assault.
• The plaintiff accepted a lift from the defendant. The defendant started to make unwanted sexual advances. When she
asked him to stop so that she could get out he speeded up. The defendant then said “I am going to take you to my mate’s
house. He will really fix you up.” She was threatened so much that she jumped out of the moving vehicle and sustained
injuries.
• ‘The young woman was in immediate and continuing fear so long as she was imprisoned by the defendant. … The threat
was, it was true, to be carried out in the future but there was no indication by the defendant whether the “mate’s house”
was around the next corner or several or more streets away in the suburban area. A present fear of relatively immediate
imminent violence was instilled in her mind from the moment the words were uttered and that fear was kept alive in her
mind, in the continuing present, by continuing progress, with her as prisoner, towards the house where the feared sexual
violence was to occur.’
TRESPASS 3: False Imprisonment
• What is meant by ‘total restraint’ and what considerations are taken into account to determine whether there is a total
restraint?
find more resources at oneclass.com
find more resources at oneclass.com
• Can a plaintiff consent, by way of contract, to have his or her liberty restrained for a period? Can such a consent be
revoked?
• Does a plaintiff need to have knowledge of the restraint?
• How does the directness element (which, as we discussed in the first lecture, is a general requirement for all of the
trespass torts) operate in the context of the tort of false imprisonment?
(3) False imprisonment: a voluntary act which directly and intentionally totally restrains the plaintiff’s liberty.
Introduction: 11.5.1
The tort of false (or unlawful) imprisonment is committed by the direct and intentional (or negligent) total restraint of the freedom
of movement of the plaintiff by the defendant, without legal authority.
• The action is the mere imprisonment. The plaintiff carries the burden of establishing no more than imprisonment. He
need not prove it was unlawful. If imprisonment is proved it is for the defendant if he is so escape liability to prove a
lawful justification for the imprisonment either at common law or by statute.
Cowell v Corrective Services Commission (NSW) 11.3.16
• The plaintiff had been released from prison after remissions on his sentence had been calculated in accordance with the
interpretation of the relevant legislation in a decision of the Supreme Court of NSW. That decision was later reversed by
the High Court, which interpreted the legislation in a way that would have increased the remissions due to the plaintiff.
The plaintiff had been imprisoned beyond the completion of his sentence. He succeeded in an action to trespass for false
imprisonment. The defendant had no intention to imprison him; the lack of negligence or of awareness that the
imprisonment was unlawful was irrelevant.
Total restraint
Bird v Jones* 11.5.5
• The plaintiff brought an action for false imprisonment to challenge the defendant’s appropriation of part of the public
footway on Hammersmith Bridge by setting up temporary fencing in order to provide seats for spectators at a regatta.
The plaintiff was forcibly prevented from climbing over the fence to use that part of the footway. He could have used the
footway on the other side of the bridge. It was held that this was not false imprisonment, as “imprisonment is…not a
partial obstruction of his will, whatever inconvenience it may bring on him”
Symes v Mahon* 11.5.6C
• The defendant, a police constable in a small country town, had impressed on a plaintiff, Mahon, that there was a warrant
out for his arrest for failing to maintain his ex-nuptial child and that he should ‘come to town to have matters cleared up’.
In fact, the wanted man was named McMahon. Mahon travelled to Adelaide in the same train as the defendant, but in a
different compartment. When they finally confronted the complainant at the Adelaide watch-house, she looked at the
plaintiff and said ‘No; that is not the main; I haven’t seen him before’. The plaintiff was never formally arrested by the
defendant, who maintained that he was merely ‘taking Mahon up for questioning’.
• Decision: the plaintiff had submitted to the power of the defendant, reasonably thinking that he had no way of escape
which could reasonably be taken by him
McFadzean v Construction, Forestry, Mining and Energy Union* 11.5.10C
• A group of anti-logging protesters camped near logging operations in native forest. They were confronted by another
group whose operations were disrupted by the protest. The logging group said they would picket the protest site and the
protesters would not be permitted to leave while the picket was in place. The loggers blocked the road in two places and
maintained the picket for five days. They engaged in various activities to harass the protesters.
• The loggers told the police of the picket. Police attended to prevent breaches of the peace. The loggers did not claim that
the protesters were free to leave if they asked the police to facilitate their departure, provided they did not pass through
the picket. It was possible to leave the site by walking for about 1.5km through dense bushland and then seeking
assistance from other people to take them away. To walk out through the bush would necessitate leaving some personal
property, including motor vehicles, behind.
• Eleven protesters sued fifteen loggers, claiming for damages for false imprisonment, assault and battery, public nuisance,
and intentional infliction of emotional distress. Ashley J dismissed all claims except for two for assault and five for
intentional infliction of emotional distress. He dismissed the claims for false imprisonment on two grounds: the
availability of police assistance provided a reasonable means of egress, and the route through bushland was also a
reasonable means of egress. The plaintiffs appealed but their claims were dismissed.
Contractual consent
The Balmain New Ferry Co Ltd v Robertson 11.5.11C
• A ferry company placed over the entrance to its private wharf a notice stating that a fare of one penny must be paid by all
persons entering or leaving the wharf, whether or not they had travelled by the company’s ferries. The plaintiff, a
barrister, was aware of these conditions. He paid the fare and was admitted to the wharf through a turnstile. Having
missed the ferry, he attempted to leave the wharf by another turnstile, the only means of exit except by water. He refused
to pay another penny as required by the notice. After 20 minutes’ argument, during which the defendant’s employees
tried to prevent him from leaving through a small opening beside the turnstile, he eventually forced his way through.
• No assault or false imprisonment as the plaintiff agreed to the contract by paying the first penny.
Knowledge
State of South Australia v Lampard-Trevorrow* 11.5.18C also for total restraint
• The first successful action in tort by a member of the stolen generation. The plaintiff, Trevorrow, when aged 13 months,
was unlawfully taken from a hospital by government officers without knowledge of his parents and placed in informal
foster care. Although his mother sought his return, her efforts were unsuccessful. Almost 10 years later, after he
developed behavioural problems, he was returned to his mother without adequate preparation. This arrangement lasted
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Introduction and historical overview: 11. 1. 1 11. 1. 15 (skip 11. 1. 11) Two themes: law and social change: paramount value to bodily integrity and the liberty of the individual and the undisturbed possession of land and goods. Must adapt adequately to social change: civil liberties: the tort of trespass provides a means of bringing issues of civil liberties before the courts, history: trespass and case. In early common law, the ability of an injured person to shift a loss to the party responsible depended first on procedural criteria determined by the king"s writ. Demonstrates the paramount value of the interests its protects. Makes an action which is not harmful but offensive: onus of proof: on plaintiff. The defendant must prove any defence by way of justification, authorisation or excuse: landmark decision williams v holland 1833 established that a plaintiff could choose between trespass and case if the injury, although not direct, was not wilful.
