INTENTIONAL TORTS

Onus of Proof: P proves elements of trespass burden shifts to D, to prove lack of fault/defence on balance of
probabilities (exception of highway accidents where P must prove fault: Venning v Chin (1974))

TRESPASS TO PERSON
Any type of unwanted or unjustified interference with a person’s body/liberty, or a creation of fear of such
interference, is actionable at law
Actionable per se - no proof of damages needed, injury to P need not be proven as damages not part of the cause
of action (only needs some unlawful interference) infringement of civil liberty
- i.e. damages may be awarded not only in respect of physical injury, but also injury in the form of insult,
hurt feelings, indignity, disgrace, any mental suffering: Fogg v McKnight (1967)
Positive voluntary act - which interferes with a protected interest of P, must be intentional, reckless (as to
possibility of harm), or negligent (as to a reasonable foreseeable risk): Williams v Milotin (1957)
- judged by act and its consequences, i.e. trespass to person may operate as a form of strict liability
- intention to do tortious act, not necs. to cause harm, no hostility necessary: Sibley v Milutinovic (1990)
Directness - interference to P must be a direct result of D’s action, NOT conseqential: Hutchins v Maughan [1947]
Immediate action: Reynolds v Clark [1725] where log thrown and hits someone = immediate, not
immediate = someone trips over log thrown onto path
Natural and probable consequence of D’s act: Scott v Shepard (1773) firework thrown in a marketplace,
tossed by person to other, then again, exploded injured P.
Lack of intervening act: intervening act disperses directness, Hutchins v Maughan [1947] where D placed
poison on unfenced land, warned P who went onto land nonetheless, P’s dog consumed and died, HELD:
consequential act, no trespass, laying bait, didn’t interfere with P’s property
Damages: aggravated = compensation for injury to plaintiff resulting from the circumstances and manner of D’s
wrongdoing, exemplary = punishment and deterrent, damages claimable even where no physical injury

Assault
Any direct threat by D, which intentionally or negligently creates in P an apprehension of imminent harmful contact
- Apprehension P must have knowledge of the threat/imminent contact (not necessarily fear)
- OBJECTIVE test of whether a reasonable person in the same situation would have been apprehensive of
harmful contact (but person of unusual timidity can recover where D knows of this disposition)
- Look at effect on victim’s mind, NOT whether D had intention or means to carry out threat
a) Direct,
Assault must be caused by a direct act of D: Stephens v Myers (1830), including the continuation (natural and
probable consequences) of an act: Scott v Shepherd (1773)
b) Threat by D,
Threats may be conduct, words, or both
- Barton v Armstrong (1969): threat by words over phone may constitute assault if it creates an
apprehension of imminent bodily contact, consider circumstances
- Look at whole of circumstances of D’s conduct; words may contradict action, e.g. Tuberville v Savage (1669)
where D drew sword but stated ‘if it were not assize time, I would not take such language’ no assault
- Mere silence may constitute assault: R v Ireland [1977]
- Violent gestures, e.g. clenched fists: Stephens v Myers (1830)
c) Intentionally or recklessly, (voluntary)
D must intend consequences of their act, intention to cause in P apprehension of imminent bodily contact
- Brady v Schatzel (1911): P pointed unloaded pistol at D, HELD: assault (not relevant that D is incapable of
carrying out threat, look only at effect on P’s apprehension of any physical interference)
- But no assault where it is obvious that D has no ability to carry out threat, e.g. D from behind locked door
- D’s act is accidental or without fault = no assault, e.g. Stanley v Powell (1891) where D member of shooting
party fired at pheasant, bullet ricocheted off tree and wounded P D not liable for assault
- Recklessness may constitute intention – where consequences of D’s acts uncertain but D indifferent as to
such consequences even where result must have or should have been foreseen: Morris v Marsden (1952)
 INTENTIONAL TORTS

d) Apprehension of imminent harmful contact

OBJECTIVE test of whether a reasonable person in P’s position would have been apprehensive of imminent
harmful contact – cannot consider P’s subjective bravery/cowardness
- Exception where D knows of P’s unusual timidity and plays on that fact: Macpherson v Beath (1975)
- Imminence of harm relevant: Zanker v Vartzokas (1988) where P offered lift by D, while driving D offered
money for sexual favours, P requested to be let out, D refused and accelerated, saying he would ‘take you
to my mate’s house. He will really fix you up’ HELD: assault, imminent threat even though of future
violence as violence threatened would occur immediately at end of imprisonment – present fear can be
immediate and continuing + threats must be unavoidable (P had no option to escape)
- Possibility of imminent harm: Barton v Armstrong (1969) where threats by phone did not specify when they
would be carried out, by possibly could be immediate/impending
Conditional threats:
Rozsa v Samuels (1969): P taxi driver threatened to punch D for cutting in line, D responded by pulling knife from
dash, saying ‘I will cut you to bits if you try’, and moved to get out of own vehicle, HELD: assault, conditional threat
(assault dependent on P punching) BUT response was unreasonable/excessive to P’s threat

Battery
Direct and intentional act of D which causes actual bodily contact with P, without P’s consent, may be intentional,
reckless, or careless where physical force used to bring about unwanted contact with another person
- No requirement of actual physical harm; contact alone is sufficient: Cole v Turner (1704), ‘the least touching
of another in anger is a battery’ (N.B. anger/hostility not required)
- Non-highway cases = onus of proof on D, once P has proven direct contact, burden of proof shifts to D to
show that the act was involuntary or that they were otherwise not at fault: McHale v Watson (1964)
- Highway cases = onus of proof on P, to prove fault (intention or recklessness) by D: Venning v Chin (1974)
a) Direct act,
Includes continuation of an act:
- Scott v Shepherd (1773) where D threw lighted squib of gunpowder, landed on stall, owner picked up and
threw + again, eventually exploded injuring P, HELD: D liable for battery, acts of stall-owners did not break
chain of directness (acted under compulsion, not as free agents, inevitable consequence of D’s act)
b) Intentional/reckless/negligent act, (voluntary)
D must have intended, or had reckless disregard as to, or been negligent as to consequences of their actions –
no trespass to person if caused directly, but unintentionally and without negligence: Fowler v Lanning (1959)
- NOT omission (but consider Fagan v Metropolitan Police Commissioner [1968], failure to move car not
omission but continuing act)
c) Bodily contact with P,
Least touching of another sufficient to constitute battery: Cole v Turner (1704), hostility NOT necessary
- Includes spitting: R v Cotesworth (1704); use of weapon or missile, taking something from hand of another:
Fisher v Carousel Motor Hotel Inc (1967), throwing water: Pursell v Horn (1838), shining light in eyes of
another: Kaye v Robertson (1991)
- P does not have to be aware of contact at time it is made: Chatterton v Gerson (1981) where P under
anaesthetic for operation
- Must exceed the accepted usages and accidental contacts of daily life: Wilson v Pringle (1987)
- Hostility not a requirement but may affect amount of damages awarded to P
Collins v Wilcock (1984): D police officer took arm of P to restrain, not carrying out an arrest, HELD: battery D went
beyond generally acceptable conduct of touching to gain attention
Rixon v Star City Casino (2001): P subject to exclusion order from casino, on premises, employee approached, placed
hand on P’s shoulder and asked to identify, HELD: no assault or battery, no intention to create apprehension of
imminent bodily harm, physical contact purpose of engaging P’s attention, not in excess of that used in everyday life
- any touching of a person, no matter how slight, is a battery, EXCEPTIONS of reasonable punishment for
children, people subjected to lawful arrest, reasonable force for self-defence or prevention of a crime,
consent, physical contacts of ordinary life by implied consent
 INTENTIONAL TORTS

False Imprisonment
Wrongful total restraint on the liberty of P, directly brought about by D, may in intentional, reckless, or negligent
a) Wrongful,
Must be against P’s will, divided authority as to requirement that P knows of their false imprisonment
- Meering v Grahame-White Aviation Co (1919): P went to employer’s office to answer questions re stolen
items, unaware that detectives stationed outside, HELD: false imprisonment
- Herring v Boyle (1834): P mother went to pick up son from boarding school for holidays, headmaster
refused to allow until fees paid, HELD: no false imprisonment
- Knowledge of imprisonment/lack of may affect amount of damages awarded: Myer Stores Ltd v Soo (1991)
b) Total restraint,
Any form of total deprivation of liberty, even if for a short period, total restriction of freedom of movement
- Bird v Jones (1845) per Coleridge J: ‘A prison may have its boundary large or narrow, visible and tangible…
may itself be moveable or fixed’, more than ‘mere loss of freedom of movement’
- Symes v Mahon (1922): P told by officer there was warrant for his arrest, accompanied officer to town on
train, paying own fare and sitting in separate compartment, HELD: false imprisonment, submitted to D’s
power under reasonable belief that P had no means of reasonable escape
- No reasonable alternative path/escape available: Bird v Jones (1845) where P on path by police, no
false imprisonment as other directions available, Burton v Davies [1953] where car driving at high speed
no reasonable means of safely exiting
- Knowledge of P: Robinson v Balmain New Ferry Co Ltd (1910) where P regular user of wharf, decided not
to board, refused to pay exit fee no false imprisonment, P knew conditions of entry
- Voluntary submission: Herd v Weardale Steel [1915] where P miner preventing from leaving mineshaft, D
claiming he had not completed contractual obligations to complete shift no false imprisonment
- Duration can be for any period of time, even a short period, per Murray v Ministry of Defence [1988]
where imprisonment lasted 30 minutes false imprisonment
- Trevorrow v State of South Australia (No 5) (2007): child of Stolen Generations placed with foster family
no false imprisonment, no total restraint on liberty
c) Directly caused by D,
Need not involve force or contact, e.g. turning and locking key
- Watson v Marshall (1971) where D police officer asked P to accompany to psychiatric hospital, P believed
he would be forced to do so if refused, false imprisonment
- Omission, e.g. failure to release prisoner at end of sentence: Cowell v Corrective Services Commission (1988)
S 3B excludes intentional acts done with intent to cause injury or death, or sexual assault/other sexual misconduct
Preferable to claim intentional tort from P’s perspective to avoid damage restrictions + difficulties of proof under CLA

ACTIONS ON THE CASE

Development of tort to protect from indirect interference (where trespass protects only against direct interference)
Differences between trespass and action on the case
- DAMAGE: actions on case require proof of injury, aim to provide compensation for actual injury suffered
rather than interferences with rights (whereas trespasses are actionable per se, no requirement of damage)
- DIRECTNESS: actions on case indirect, consequential causal connection between D’s conduct and P’s injury,
(whereas trespasses require direct causal connection between D’s conduct and P‘s injury, sense of
immediacy/voluntariness)
- BURDEN OF PROOF: actions on case require P to prove D’s lack of care and causation of P’s injury by D’s acts
(whereas in trespass P only proves D’s direct contact, except for highway cases)

Physical injury inflicted by indirect intentional acts

D’s deliberate act (not merely negligent) + intention to do injury + P suffered injury
Compensation for physical injury caused by indirect acts: Bird v Holbrook (1828) where D placed spring gun in
garden following theft of plants, no warning or notices, P entered garden to retrieve peafowl which had strayed,
injured by gun, HELD: D liable, intention to injure and not deter evidenced by failure to warn