LLB02 Torts Case Note PDF

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LLB02 Torts: Case Summaries: WEEK 1: McHale v Watson (1964) 111 CLR 384 FACTS: McHale, Watson, and another young girl were playing games. Watson was 12 years old at the time. At the end of the game, Watson threw a sharpened metal rod at a piece of wood and it bounced off and hits McHale in the eye causing

permanent blindness. McHale sued Watson under the tort of trespass to person (battery). ISSUE: The intention for Watson to cause any harm on McHale. The defendant had said that he intended for the dart to stick into the piece of wood and not bounce off into a tangent that struck McHale in the eye. Another issue that arises

in this case is if the parents are liable for damages their child may cause. Decision: The court decided that Watson did not intend to cause any harm to McHale. That in fact Watson was aiming for the tree and not McHale. It was also ruled that Watson could no yet foresee any consequences that his action may cause as he is only 12. The court also ruled that it was not negligent for

Watson’s parents to give him the object. This is based on that a parent does not incur responsibility for misuse of an object that is not reasonably foreseeable. Brady v Schatzel [1911] St R Qd 206 FACTS: Schatzel pointed a gun at Brady when he entered her property to question her son over something. Brady is suing Shatzel on trespass to person

(Assault) ISSUEL: Shatzel showed no fear when the gun was pointed at them and did not try to protect themselves on the grounds they didn’t actually think the defendant would shoot. DECISION: The defendant was held guilty of assault. This is centred on the fact that assault is not based on whether the plaintiff was a courageous or a timid

person. Instead, assault is dependant upon the intention of the defendant to carry out the unlawful harm. Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 FACTS: The Plaintif (Rixon) was subject to an exclusion order by the casino but found on the premises. A security guard walked up and placed his hand on the Plaintiff’s shoulder (Trespass to person: Battery).

ISSUE: If the mere placing of a hand on someone’s shoulder is classified as battery. A direct interference on someone’s person without consent DECISION: In this case the purpose of placing a hand on Rixon’s shoulder was to gain his attention. It was also ruled that this contact was within the grounds of everyday contact. It is not deemed as batte LLB02 Torts: Case Summaries

McHale v Watson (1964) 111 CLR 384 FACTS: McHale, Watson, and another young girl were playing games. Watson was 12 years old at the time. At the end of the game, Watson threw a sharpened metal rod at a piece of

wood and it bounced off and hits McHale in the eye causing permanent blindness. McHale sued Watson under the tort of trespass to person (battery). ISSUE: The intention for Watson to cause any harm on McHale. The defendant had said that he intended for the dart to stick into the piece of wood and not bounce off into a tangent that struck McHale in the eye. Another issue that arises in this case is if the parents are liable for damages their child may cause. Decision: The court decided that Watson did not intend to cause any harm to McHale. That in fact Watson was aiming for the tree and not McHale. It was also ruled that Watson could no yet foresee any consequences that his action may cause as he is only 12. The court also ruled that it was not negligent for Watson’s parents to give him the object. This is based on that a parent does not incur responsibility for misuse of an object that is not reasonably foreseeable.

Brady v Schatzel [1911] St R Qd 206 FACTS: Schatzel pointed a gun at Brady when he entered her property to question her son over something. Brady is suing Shatzel on trespass to person (Assault) ISSUE: Shatzel showed no fear when the gun was pointed at them and did not try to protect themselves on the grounds they didn’t actually think the defendant would shoot. DECISION: The defendant was held guilty of assault. This is centred on the fact that assault is not based on whether the plaintiff was a courageous or a timid person. Instead, assault is dependent upon the intention of the defendant to carry out the unlawful harm.

Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 FACTS: The Plaintif (Rixon) was subject to an exclusion order by the casino but found on the premises. A security guard walked up and placed his hand on the Plaintiff’s shoulder (Trespass to person: Battery). ISSUE: If the mere placing of a hand on someone’s shoulder is classified as battery. A direct interference on someone’s person without consent DECISION: In this case the purpose of placing a hand on Rixon’s shoulder was to gain his attention. It was also ruled that this contact was within the grounds of everyday contact. It is not deemed as battery.

Myer Stores Ltd v Soo: false imprisonment (Direct/ Remedy) The case of Myer Stores Ltd v Soo considered the issue of false imprisonment and whether or not an award of damages for a man falsely imprisoned in a department store were appropriate or whether or not they should be increased for an award of aggravated damages. A direct and intentional total confinement of the plaintiff within an area fixed by the defendant without legal justification or statutory authority, with an intention. P reasonably believes than any attempt to escape would involve a risk of public embarrassment/mental harms or physical force by D.

Newington v Windeyer: trespass to land (title to sue) The Plaintiff had common boundaries with the Defendant with an area fronting onto the street. Whilst the Plaintiff did not have title over the area, they had gates giving access to it. Over a period of more than 50 years, they had cultivated the area as a garden and executed other acts of possession, and their visitors and trades people used it. They brought an action for trespass against the Defendant who had a common boundary with the area and claimed the right of possession, but who had no history of the exercise of this right. It was held that there was a trespass as the Plaintiffs had adverse possession of the land.

Halliday v Nevill: trespass to land (Unauthorised: an implied licence for members of the public to enter property for legitimate purpose) Facts: The facts occurred in Melbourne in the State of Victoria. In January 1982 Halliday, who was a disqualified driver, drove a car out of the driveway of 375 Liberty Parade (an inappropriately named street given that the majority judgment paraded very little attachment to liberty). These premises belonged to someone who was known to Halliday. Halliday was seen by Constables Nevill and Brida. They approached. Halliday thereupon drove the car back into the driveway. The constables walked down the open driveway and arrested Halliday who was standing in the driveway beside the car. When Halliday was being escorted down the driveway he broke away from them, ran across Liberty Parade and entered his mother’s house, where he lived, at 370 Liberty Parade. He was pursued there by the constables, they caught him, there was a scuffle and he was finally overcome. Decision: The police officers were not trespassing because they had the implied permission of the owner or occupier of the house. This was a case where “the King is a party” so that “the public interest in the prosecution of criminals prevail over private possessory interests in land”. Hence Halliday was guilty of the offences and the appeal was dismissed.

TCN Channel Nine Pty Ltd v Anning: (trespass to land)(nominal/exemplary/aggravated damages)(No express consent) Facts: A crew from a television program entered the property through an unlocked gate (generally the gate was locked) with members of the Environmental Protection Agency and the police. The plaintiff was filmed by the defendants who attempted to interview him. Decision: An implied licence will be applicable only in certain circumstances. Once an implied licence is revoked the licensee may become a trespasser. The implied licence (given that the gate was unlocked) did not extend to filming on the plaintiff's premises. In addition, the court stated that persons conducting business on private property are entitled to do so without others intruding for purposes unrelated to the business activities that they are conducting.

McNamara v Duncan: any trespass to action (implied consent)

Facts: The defendant deliberately struck the plaintiff during a game of AFL. The plaintiff had just kicked the ball, but the defendant continued to run at him and hit him on the head, fracturing his skull. Decision: There is mutual consent to tackles which are within the rules and commonplace fouls. However, this consent has been exceeded in this case, and therefore the actions amounted to battery.

Hollywood Silver Fox Farm Ltd v Emmett [1936] 1 All ER 825: (private nuisance: substantial and unreasonable interference with plaintiff’s use and enjoyment of land) FACTS: Plaintiff is a silver fox breeder. The Plaintiff refused to remove a sign advertising their farm when asked by the defendant. The defendant’s son upon instruction fired ‘birdscaring’ cartridges on their own but as close as possible to breeding pens on the Plaintiff’s land. As a result it has caused damages to the Plaintiff’s foxes. ISSUE: The shooting did occur on the defendant’s land, which is acceptable however, the motives of why it occurred led to the tort of Nuisance DECISION: It was held that the was a nuisance for which the defendant was liable in damages and an injunction was granted restraining him from discharging guns or making other noises during the breeding season. This decision was based upon the malice intent to cause the nuisance, which cancelled out the argument of abnormal sensitivity towards the foxes.

Hunter v Canary Wharf (private nuisance: title to sue/ interference with a legally recognised right attached to land) Facts: Canary Wharf Ltd were constructing Canary Wharf tower in East London. During construction, hundreds of claimants alleged that, in addition to dust and noise caused by the erection of the building, their television signals had been interrupted by the tower. The claimants, some of whom owned their properties outright, and many others who were renting, sued in both negligence and in nuisance for the harm done to their amenity by the loss of their television signals. At first instance, this was held to be an actionable nuisance. The Court of Appeal then reversed this. The claimants appealed to the House of Lords. Issues: Whether the respondent’s actions in causing the appellant’s television signals to be interfered with through construction of their tower could constitute a private nuisance or not. If this was so, whether or not the appellants who did not have an interest in their properties could have a cause of action or not. Held: The appeal was dismissed. The interference with the television signal caused by the construction of the tower could not amount to a private nuisance at law. The tower had not been constructed with the malicious intent to so cause disruption to the signal, and remedial attempts had been made by the respondents to ensure this problem was solved. A mere licensee could not sue in private nuisance (Donoghue v Stevenson).

Munro v Southern District Dairies Ltd [1955]: (private nuisance: interference with a legally recognised right/ substantial and unreasonable interference)

- Plaintiff lived adjacent to dairy and complain horses were noisy, and smell from urine and faeces attracted flies - Nuisance successful - Loss of a single night's sleep from the noise of the dairy would amount to a substantial interference

Donoghue v Stevenson Facts: Mrs Donoghue went to a cafe with a friend. The friend brought her a bottle of ginger beer and an ice cream. The ginger beer came in an opaque bottle so that the contents could not be seen. Mrs Donoghue poured half the contents of the bottle over her ice cream and also drank some from the bottle. After eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury as a result. She commenced a claim against the manufacturer of the ginger beer. Held: Her claim was successful. This case established the modern law of negligence and established the neighbour test.

Lord Bernstein of Leigh v Skyviews & general Ltc [1979]: trespass to land (Interference with ‘land’) A plaintiff attempted to sue for trespass when aerial photographs were taken of his property. The case established that a property owner does not have unqualified rights over the airspace above their land.

Southport Corporation v Esso petroleum Co. Ltd Fact: Oil was jettisoned from a stranded oil tanker and drifted to shore on the tide. Decision: The interference was not direct but was consequential so that an action in trespass could not be maintained.

Public Transpport Commission of NSW v Perry (1977): trespass to land (fault) Fact: The respondent involuntarily fell onto the rail tract after suffering epileptic fit while waiting for the train. She got hit by an oncoming train and injured. She sued for being owed a duty of care. Decision: The case appealed to High Court, which held that the plaintiff had not been trespassing because she was not at fault or liable to negligence - it was an involuntary act.

St Helens Smelting Co v Tipping (1865): Nuisance and locality Areas of applicable law: Tort law – Private nuisance – Nuisance:

Main arguments in this case: One may need to put up with personal discomfort but not with damage to private property when living in an industrial area. The fact of the case: This case illustrates that when it comes to personal discomfort and nuisance caused by the features of a locality then personal discomfort is something that a person may need to put up with. For example, a person who lives in big city like London would be expected to tolerate some levels of noise pollution compared to living in the country. However, it does not mean that one has to put up with damage to his private property just because he is living in such area. In the case of St Helens Smelting Co v Tipping (1865), the claimant’s house was situated in an industrial estate and the defendant’s factory emitted fumes that caused harm to the claimant’s trees. The defendant argued that the house was situated in an industrial estate and therefore one would expect the fumes and its consequences to be present in the area.

The court disagreed and held that it did not matter if the property was situated in an industrial estate if damage was caused to private property. The court agreed that when someone is living in an area like the one in this case, then he or she has to tolerate some of the features that locality presents. A person who is living in a big city like London cannot expect the peacefulness and quietness as he or she would have expected in the country. Therefore a person who is living in an industrial area has to put up with the noise and fumes etc. as part of the locality. However, a person does not have to put up with a nuisance that actually causes damage to his private property regardless of the locality.

Hollis v Vabu Pty Ltd (2001) 207 CLR 21 (Existence of employment relationship — Vicarious liability) FACTS: The Plaintiff [Hollis] was a cyclist who got hit by an unidentified person, who was working for the Defendant [Vabu] courier services. ISSUE: The status of the couriers who were working for Vabu’s company was undefined and unclear. If they were employees or contractors. Therefore DECISION: Ultimately, the court ruled that an employee employer relationship was present due to these fact:      

The documents signed by the couriers and the work practices Vabu required the couriers to comply with indicate they were employees. The couriers had little control over the manner in which they performed their work. At The couriers were providing unskilled labour and were unable to develop an independent career as a courier. The couriers were required to wear uniforms. The couriers had no opportunity to bargain for their rate of pay. The couriers were not free to take leave whenever they wished. This limited their opportunity to conduct a business on their own account.

Kondis v State Transport Authority (1984) 154 CLR 672 (especially Mason J’s judgment) Issue:

- The appellant was employed by the respondent with a gang at the Joilmont Railway Yards engaged in dismantling a structure. They were to be assisted by a third party crane hire. The appellant was injured when struck by a metal rod falling from the cranes jib while the cranes operator, an employee of the third party, was fitting an extension to the jib. Decision: - Found that the appellant had been instructed to assist in the extension procedure by standing under the jib and picking up the pin as it dropped and that Wallis, Cercone and Clissold were all aware of this but that neither Wallis nor Cercone had made any inquiries of Clissold as to the procedure to be followed I respect of lowering or dropping the rod. He further found that Clissold failed to give any warning that he was about to drop the rod and failed to keep a proper lookout before doing so. Towards the end of the judgement on this point, his Honour said: ‘the court makes express finding that Clissold was at the time acting under the over-all control of the [respondent] and that the [respondent] is liable for his negligence’. If Clissold had kept a proper lookout or if he had given a proper warning before causing the tube to drop the accident to the [appellant] would not have occurred. The appellant was award $228,848 in damages.

State of New South Wales v Lepore; Rich v State of Queensland (2003) 212 CLR 511 Issue: - Sexual assault of a child during corporal punishment Decision: - Case on non-delegable duty of care, not is scope of employment.

Hargrave v Goldman (1963) 110 CLR 40 FACTS: The Defendant’s tree was truck by lightning, which caused it to catch fire. The Defendant then cleared the area adjacent to their property and cut down the tree. However, the defendant did not take the time to extinguish the blaze. As a result the Plaintiff’s property was damaged. ISSUE: Whether respondent responsible for spread of nuisance not personally caused DECISION: Occupier of land responsible for damage caused by nuisance if reasonable care could have rendered nuisance harmless. By cutting down the tree the Defendant created a new hazard, which they are responsible for....