05 2015 Answers Trespass to Goods & defences lp PDF

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comprehensive notes on the doctrine involving trespass to goods and possible defences that may be available ...

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ANSWERS Intentional torts relating to goods & defences, 2015 P Ryan

Chapter 6 Connecting with Tort Law by Julia Davis; Chapter 8 The New Law of Torts 2 nd ed by D. Mendelson Chapter 21 page 377 Torts by Davies + Malkin 5th rd edition; Chapter 6 Torts Law in principle 4 th ed by Blay, Gibson & Richards and Australian Torts Law by McGlone + Stickley chapter 5. Revision: the characteristics of trespass actions can be summarised as follows:  A direct interference with person or property of the plaintiff;  The defendant must be at fault (intention or lack of care);  It is actionable per se (without PROOF of damage);  Onus of proof on plaintiff to prove direct interference and then shifts to defendant to prove no fault. There are 3 separate intentional torts relating to goods: 1. Trespass to goods. 2. Conversion. 3. Detinue. Note: they overlap and almost everything that constitutes detinue is also conversion. Trespass to Goods Definition: Trespass to goods is an unjustified act by one person that directly and either intentionally, recklessly or negligently causes physical interference with another person’s exclusive possession of goods. (Julia Davis p184 - Connecting with Tort Law). McGlone refers to trespass to “personal property” whereas Blay to “chattels” and Davies + Malkin and Julia Davis “to goods”. McGlone says the term “personal property” describes moveable property and is interchangeable with the words “goods and chattels.” A chattel or goods may be defined as any tangible property that is not land or attached to land. It includes cheques (they are regarded as tangible), animals and substances such as gases. 1

In order to sue for trespass to goods (called s………… to sue or ‘locus standi’), the plaintiff must be in actual possession , or be entitled to immediate possession on demand, or be in constructive possession. The defendant’s interference must be direct and result in an immediate contact with the goods of the plaintiff. In the dog bait case of Hutchins v Maughan [1947] VLR 131(Davies p377) it was held the defendant’s acts of laying poisonous baits on plaintiff’s unfenced land which killed the plaintiff’s dogs did not constitute trespass to the plaintiff’s goods (his dogs) as they were not the direct result, but consequential. If threw bait to dog would be direct. Directness does cover where the initial wrongful intentional act sets in motion an unbroken chain of continuing circumstances Trespass to goods can occur by simply moving goods (jewellery) from one room of a house to another ( Kirk v Douglas 1876 p.378 D+M). The technical term is asportation. It is unclear whether there can be trespass to goods without damage, dispossession or asportation. The consensus of the academic writers is that an intentional touching of goods is trespass, even in the absence of damage. Similarly to trespass to land or the person, there can be no liability for trespass to goods without fault on the part of the defendant. In National Coal Board v Evans & Co (1951 p379) Held: defendant’s act of cutting the plaintiff’s underground electricity cable did not constitute trespass, as the defendant had neither intentionally severed the cable, nor had it been negligent, as it neither knew nor ought to have known of the presence of the cable. Trespass to goods (like trespass to land) is a wrong to possession rather than ownership. A person who has possession of goods may sue for trespass to them, even if not the true owner (see Wilson v Lombank Ltd [1963] 1All ER 740 – p.379 D+M) Another interesting case is Parker v British Airways (1982) where plaintiff found gold bracelet in airport lounge. True owner did not come forward. Finder had rights of possession except against true owner. If someone takes away another’s goods or deliberately damages or destroys them he will be liable in the tort of trespass. The wrong-doer may also have committed the criminal offence of theft or malicious damage. However, the act need not be criminal to constitute trespass. If someone has the mistaken, but genuine belief that he has a right to possession of my stereo he will be liable in trespass although he might have a defence to a charge of theft. Trespass to goods has been held to encompass unauthorised digital contacts with the plaintiff’s personal property such as computer systems.

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In Ebay, Inc v Bidder’s Edge (2000) it was said that a plaintiff who claims damages or injunctive relief for electronic or digital trespass must establish (1) the defendant intentionally without authorisation interfered with the plaintiff’s possessory interest in the computer system and (2) damage resulted.

You be the Judge! Are the following trespasses to goods? a) Luke shoots Antonio’s pigeons. YES PIGEONS ARE GOODS & TRESPASS AS DIRECT ACT INTERFERING WITH ANTONIO’S POSSESSION OF PIGEONS b) Bondy takes Hardy’s yacht and sails it from Freemantle to Sydney and it is not damaged. YES TRESPASS TO GOODS_ c) Jethro chases Betty’s cattle off her property. TRESPASS TO LAND & GOODS

Conversion (trover) Definition: conversion of goods is an unjustified and deliberate act of dealing with goods, which causes a serious interference with those goods that it deprives the true owner or possessor of the goods or their right to use them, control them or exercise dominion over them. (Julia Davis p.189) Conversion requires more than physical contact as in trespass to goods. The defendant must dispossess the plaintiff or derogate in some way from their right to possess the goods. Taking goods can constitute both trespass and conversion. Danuta Mendelson says conversion protects the person in possession of a chattel (including rights contained or evidenced in documents or negotiable instruments), or with a right of possession, from having the chattel wrongfully interfered with by wrongful dealing, exploitation or disposal through use, alteration, sale or destruction. The old cases indicate the tort of conversion is a remedy for major interferences with the chattel, or with the plaintiff’s rights in it resulting in serious loss, damage or destruction. Trespass remains a remedy for minor interference. Therefore in Schemmell v Pomeroy (1989) 50 SASR 450, the court held where there was substantial damage to a car in the course of a ‘joy ride’ it transformed an initial trespass to goods into conversion. The fact of possession may be sufficient to entitle the plaintiff to sue in conversion. In Armory v Delamire (1722) the plaintiff, a chimney sweep, found a jewel and took it to the defendant’s shop. Defendant jeweller

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refused to give it back and plaintiff successfully sued in trover (now conversion) by the jeweller. See also case of Parker v British Airways [1982] 1 QB 1004 (found gold bracelet) and on NCA v Flack (1998) 86 FCR 15; 156 ALR 501 (NCA search warrant & found $433,000 in briefcase in mum’s bedroom son suspected drug dealer, but not charged). Another interesting case is Perpetual Trustees Tasmania V Perkins (1989) Aust Torts Rep 80 - 3 sisters inherited from their parents portraits of their great-grand parents. They passed the portraits to their brother Bill Perkins on “long loan” and Bill passed them to another brother who died. His widow and son sold the portraits to the Art Gallery of South Australia, the defendant. One of the sisters demanded return of the portraits and when the Art Gallery refused they commenced proceedings. Held: Conversion by Art Gallery, as the plaintiffs’ title to the portraits was better than the defendant’s. What constitutes conversion? In Penfold’s Case, Dixon,J said that the essence of conversion is “dealing with goods in a manner repugnant to the immediate right of possession of the person who has the property in them.” Intentional acts: it is a requirement of conversion that the defendant’s conduct be intentional. In Ashby v Tolhurst (1937) 2KB 242- plaintiff parked his car in defendant’s carpark and attendant negligently allowed a stranger to drive it away. Held not conversion as attendant had not intentionally dealt with car in a manner inconsistent with pl’s right to immediate possession. Detinue Definition: Detinue is an unjustified and unreasonable refusal to yield possession of goods to the person, who, having the legal right to immediate possession, has made a clear and proper demand for the goods. (Julia Davis p. 197) The gist of detinue is the failure to respond to the plaintiff’s demand for the goods, rather than the physical dealings with the goods that led to the failure to respond.

In John F Goulding P/L v Victorian Railways (1932p333) Plaintiff company delivered goods to the defendant VR for carriage by rail to specified destinations. The goods arrived safely at their destinations, but they then were either removed by, or finished up with people not authorised by the plaintiff to receive them. Plaintif subsequently demanded VR deliver the goods to it which VR was unable to do. Held: although the loss of the goods might or might not have constituted conversion of them by VR, a separate cause of action arose in detinue on VR’s failure to deliver the goods on the plaintiff’s request. 4

This case also shows how detinue can arise out of negligent acts on the part of VR’s employees. It would not have constituted conversion which requires an intentional act (remember Ashby v Tolhurst) Note most cases of detinue also constitute conversion, because any refusal to deliver the goods by a defendant who intends to keep them or who has given or sold them to someone else would constitute conversion as it would be a dealing with them that was inconsistent with the plaintiff’s right of immediate possession. Possible defence to action in detinue is for person in possession alleging entitled to a lien. What is a lien? Trespass to goods

Conversion

Detinue

Positive act by D that: Directly causes physical interference with P’s exclusive possession of goods & done intentionally, negligently or recklessly by D

Positive act of dealing with goods by D that: causes P to be deprived of the dominion over goods & done intentionally or recklessly by D

Positive refusal by D to yield to P’s demand for possession of goods that: Is unreasonable in the circumstances & which causes P to be deprived of possession of goods.

Distinguishing focus

Distinguishing focus

Distinguishing focus

Interference with P’s exclusive possession (i.e. the right to exclude others from physical interference with the goods) e.g. * mere ‘asportation’ * damaging goods

Inconsistent and serious dealing e.g. * destruction of goods; * changing nature of goods; * taking, withholding or refusing possession of goods; * using for D’s purposes; * disposing of goods by sale or misdelivery.

Unreasonable refusal to yield possession of goods to P after demand e.g. Detaining goods if the goods are in D’s possession or An inability to return goods, if D had wrongfully lost or destroyed the goods.

Questions to answer using your notes: Has a tort occurred in the following situations. If so, what is the nature of the tort? (a) In return for payment of $3,000 Fred lent his car to Robert for 6 months. Three months after the start of the loan Jim deliberately scratched an offensive word on the duco of the bonnet. What tort? Who has locus standi or s tanding to sue

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FRED HAS NO RIGHT TO SUE AS NOT ENTITLED TO IMMEDIATE POSSESSION. Jim trespass to goods – direct act interfering with Robert’s possession of car. It is a wrong to possession (Parker v British Airways) (b) Liberace sold his piano to his friend Stephen who lives at 12 Musical Street, Tortville. He engaged a carrier to transport the piano, but the carrier misread the address and delivered it to 13 Musical Street, Tortville, which was occupied by Fagin who made off with the piano and cannot be found. Conversion as dealing with piano inconsistent with Liberace’s possession. Has to be intentional – does not matter if carrier made mistake and still liable. (c) Melissa took her car to The Big Garage to have the leaking radiator repaired. The mechanic promptly attended to the necessary work and left the car in a parking bay outside the workshop ready for Melissa to pick up later that day. However, George, another customer of the garage accidentally collided with it while dropping off his car for service. When Melissa returned to pick up the car she was furious about the damage. She got in the car and despite the protests of the mechanic drove off without paying the repair bill. Big Garage has possessory lien and until Melissa pays it has possession and entitlement to sue. Once she pays she can sue George in negligence for damage to her car. Melissa could possibly, in the alternative, sue the Big Garage for breach of contract for failing to keep car safe & also, for negligence. (d) Fiddler lent his violin to Morris. However, Morris’ house was destroyed by fire and the violin went up in flames. The fire was caused by Morris smoking in bed. Fiddler has demanded the return of the violin, but of course Morris is unable to comply. Not conversion as not intentional. Detinue does not matter violin no longer exists. Has been demand for possession Goulding v VR

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Defences Torts

and Remedies

for Intentional

See previous lecture notes on Assault & Battery and False Imprisonment. Chapter 13 L + H; Davies + Malkin chapter 22; Blay chapter 8 and chapter 9 Mendelson’s New Law of Torts.

Example: Good Samaritan v The Law is an Good Samaritan Sam sees a man about to stab a woman in the front room of a house. If Sam runs into the house, she trespasses on the land; if she grapples with the man there is the tort of battery; if she forcibly takes the knife away from the man there is trespass to goods and conversion. Should Sam be liable? In general defences are available because in some way they justify what Sam did. Necessity: an intentional interference with the person, property or goods of another may be justified if the interference is reasonably necessary to avert some threatened harm sought to be avoided. In Leigh v Gladsone (1909-p393 Davies + Malkin) held not battery by force-feeding the plaintiff who was on a hunger strike in prison as she would have died if she had not done so (cf Robb 1995). Cope v Sharp (1912) no trespass to land by defendant in setting fire to strips of plaintiff’s land in order to prevent bush fire spreading to nests of pheasants owned by defendant. In Proudman v Allen 1954] SASR 336 LH 13.3.13 -no trespass to goods by diverting plaintiff’s empty car over a cliff, as it would have crashed into other cars if he had not done so. The necessity of the defendant’s actions may arise from an imminent threat of grave harm to the plaintiff herself (Leigh’s case), or to the defendant’s goods (Cope’s case) or to goods belonging to the third party (Proudman). Questions? If the need for Olympia’s actions arises from a grave and imminent threat to her safety caused by Daria’s actions then Olympia’s proper defence is NECESSITY Do you consider a court would find acceptable a squatter’s defence to trespass to land as being homeless and therefore a necessity? NO THREAT TO SAFETY LONDON BOROUGH V WILLIAMS P.394 D + M

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An anti abortionist argued her trespass into a hospital was a necessity to protect unborn children of mothers who were about to have their pregnancies terminated. Successful defence? NO – POLICE V O/NEILL Self-defence, provocation and defence of another: see Fontin v Katapodis (1962) 108 CLR 177 and earlier notes re assault and battery. Break into pairs and you have 10 minutes to consider: Facts: plaintiff customer and defendant employed to cut glass. Defendant told his boss plaintiff had not paid his account when he had. Defendant refused to apologise. Plaintiff grabbed set square from beside defendant’s workbench and used it to hit defendant on shoulder. Defendant threw an offcut of glass at the plaintiff’s face. Plaintiff put up his hands to protect his face and the glass made a deep cut in his arm. Should plaintiff succeed in action for battery? DIRECT ACT IN THROWING GLASS CAUSING BODILY INJURY TO PLAINTIFF W/O CONSENT OR LAWFUL JUSTIFICATION Should defence of self-defence succeed? Why? NO OUT OF ALL PROPORTION TO EMERGENCY .Should the provocative abuse and attack by the plaintiff reduce the compensatory damages? NO, BUT REDUCES EXEMPLARY DAMAGES

Protection of property and goods, re-entry on land and re-capitation of goods: A person may use reasonable force to protect land or goods in their possession. As in self-defence, the question of what constitutes reasonable force depends on the nature of the threat posed by the plaintiff. The courts are less willing to hold that force is justified in the protection of land or goods than they are in the protection of people. Remember (i) Bird v Holibrook where defendant put spring-gun in his garden to prevent thieves. Held to be excessive force. (ii) Horkin v North Melbourne Football Club where excessive force used to evict drunken footy fan whose licence to stay had been revoked. Held to be battery and no contributory negligence available to reduce plaintiff’s damages. Similarly, contributory negligence is not a defence to an action in conversion. Consent, inevitable accident and mistake: Undoubtedly, we all recall consent is a defence to trespassory torts, but the onus is on the defendant to prove consent. 8

Mistake is not generally a defence to an intentional tort. However, selfdefence or defence of another may be justified if there were reasonable grounds for believing actions necessary (Branson v SA Police (1993) 60 SASR 325. There are excellent notes in Danuta Mendelson’s text on consent of adults to medical procedures; rights to refuse life saving treatment; refusal of consent to treatment and the welfare of viable foetus; consent of minors and incompetent persons; and consent to blood transfusion of a child. However, in Victoria trespassory aspects of medical treatment have been codified under the Medical Treatment Act, 1988 (Vic). Statutory authorisation: As in the tort of nuisance , it is a defence to an action in the intentional torts to show the act in question was authorised by Parliament. Note the High Court held in Coco v R (1994)– illegal tape recordings of bribing police officers) that statutory authority to engage in otherwise tortious conduct (trespass) must be expressed in clear and unambiguous language as it is giving away the individuals fundamental rights. Recall Rixon v Star City – How is it relevant? Casino Control Act gave casino power to detain Rixon as excluded person and therefore no false imprisonment. Summary of Defences (see Julia Davis p. 235) Necessity o There was an urgent situation of imminent peril to life or property; o D’s response was reasonably necessary in the circumstances (& not just convenience); o D’s own negligence must not have contributed to the peril. Relevant case(s)…………………………………………………………… Claims without fault o ‘utterly without fault’ (arguably this is not a defence, but merely P being unable to prove the elements of the tort); o Inevitable accident – D may claim on the facts, the offending contact or interference with P’s interests was an inevitable accident. o Incapacity (minor or mental illness) – So long as D is aware of the nature and quality of the act, it is immaterial that by reason of defect of mind, they are unable to appreciate it is wrongful (Case:………………). Same applies with infants, so long as they are old enough to know better (Case: ………………………………………………………………..) o Mistake of either fact or law is not a defence. Discipline o Defence of lawful chastisement may be claimed only if the force was moderate; reasonable in the circumstances and carried with reasonable means. Consent o Competence / capacity of P – adults are presumed to have capacity,

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but presumption rebuttable. Special rules apply to children and those with a mental illness. o Understanding P must have understood in broad terms the nature of what was being proposed. o Voluntarily given – There ...