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Sample/practice exam 11 May 2012, questions and answers - Sample IRAC Responses
Torts (LAW203)
Macquarie University
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SAMPLE WORKED ANSWERS
Sample One: Annie forced her way into Bernie's house and was helping herself to the silverware when Bernie discovered her. She drew a knife on Bernie and told him to leave her to it. Bernie grabbed a heavy silver candlestick and struck her over the head causing a serious injury.
- Does Annie have any action in tort against Bernie?
- Does Bernie have any action in tort against Annie? If so, what damages (if any) will be recoverable?
- Annie v Bernie Bernie has struck Annie with an object. The elements of the tort of battery are: (i) an act (not an omission): Holmes v Mather; (ii) that is direct: Hutchins v Maughan; (iii) the act is intentional or careless: Williams v Holland; (iv) and causes physical contact with the plaintiff: Collins v Wilcock; (v) without the plaintiff's consent: In Re F. Contributory negligence is no defence to the intentional torts: Horkin v Nth Melb Football Club Social Club. Necessity is a defence to battery: In Re F. The facts that must be proved by the defendant in order to fully rely on the defence are: (i) that there existed a situation of imminent danger or, at least, what a reasonable person would consider so; and (ii) the steps taken by the defendant in the light of the facts must have been reasonably necessary: Southwark LBC v Williams. Self defence and defence of property - an application of the minimum force necessary to protect one's self or property is a defence to the intentional torts: Hall v Fonceca.
It is currently uncertain as to whether the defendant must disprove the elements of a non-highway battery (McHale v Watson) or whether the plaintiff must prove the elements of the tort. In Platt v Nutt, Kirby P. said that the principle, s/he who asserts must prove, ought to apply in non-highway trespasses so that these torts are brought in line with all the other torts. Justices Hope and Clarke, however, agreed that on the facts before them the plaintiff ought to have proved the elements of the tort, particularly that the defendant's conduct caused the plaintiff's injuries, but their Honours declined to express views in relation to burden of proof.
The standard of proof is proof on the balance of probabilities.
Bernie striking Annie was a positive act. That act was direct and was done intentionally by Bernie. He meant to do it. Contact with Annie's person occurred and it can be inferred that Annie did not consent to the act.
On the facts given, Bernie will not be liable to Annie for battery if he can prove self defence or defence of property. It is doubtful though that his life was imperilled (Annie wielded a knife, not a gun) and so the defence of necessity may not apply.
If for some reason the defence of self defence and defence of property fails (for example, that the force used was excessive), it is clear that Bernie was provoked in his actions. Therefore, whereas compensatory damages awarded to Annie will not be reduced for her provocation of Bernie (Fontin v Katapodis), aggravated or exemplary damages claimed by her may be reduced. It is submitted, though, that on these facts they ought not be claimed and should not be awarded (cf. Myers Stores v Soo; Lamb v Cotogno). 2(a). Bernie v Annie Annie entered and remained upon Bernie's land; she attempted to take his silverware and she waved a knife at him. These facts give rise to the following tort actions:
(a) Trespass to Land The elements of trespass to land are: (i) The defendant intentionally or carelessly: William v Holland; (ii) Enters or remains on or directly causes any physical matter to come in contact with (iii) Land in the possession of the plaintiff: Rodriguez v Ufton.
Annie intentionally entered Bernie's land. On the facts she is liable for this tort. (b) Trespass to goods The elements to trespass to goods are: (i) a direct: Hutchins v Maughan, and (ii) intentional or careless: Williams v Holland (iii) interference with goods in the possession of the plaintiff: Penfolds Wines v Elliot. Annie 'helping herself' to Bernie's goods comprises a direct and intentional interference with his goods. On the facts she is liable for this tort. (c) Assault The elements of an assault are: (i) an act (not an omission): Holmes v Mather (ii) that is direct: Hutchins v Maughan (iii) the act is intentional or careless: Williams v Holland (iv) and causes the plaintiff to apprehend contact to its person: Barton v Armstrong
The first three elements of the assault are proven by Annie intentionally wielding the knife (not a gun) at Bernie. On the facts given, it is not possible to tell whether upon that event occurring Bernie apprehended contact to his person. If he did, then Annie is liable for this tort. (d) Conversion Conversion is an intentional dealing with goods inconsistent with the possession or the immediate right to possession.
Annie intended to 'help herself' to the goods in Bernie's house. Annie's act of 'helping herself' is a sufficient dealing for the purposes of conversion. It is neither here nor there that Annie may not have managed to take the goods. These goods are deemed to be in Bernie's possession and, if not, then he has an immediate right to possession of them. Annie is liable to Bernie in conversion. Bernie, however, has not suffered any loss or damage. Conversion is not trespass and therefore is not actionable per se. 2(b) Damages It is unclear if Bernie has suffered any harm or loss in his altercation with Annie. If no harm or loss was suffered then as trespass is actionable per se, he will be awarded damages for trespass.
Any damage or loss caused by Annie in the commission of the above torts will be met by an award of compensatory damages. The aim of compensatory damages is to put the plaintiff in the position s/he would have been in but for the tort. If Bernie can show that Annie acted with contumelious disregard of his rights then he may seek and be awarded exemplary damages: Lamb v Cotogno. Sample Two: Cathy borrowed a book from the Dunswood Library on a thirty-day loan. Edward who wanted the book urgently took it from Cathy's briefcase the day after she borrowed it. Does the library have any rights against Edward?
A book owned by a library has been removed from the borrower by a third party during a thirty day lending term. Whether or not the library has any rights against the third party will depend on whether or not the borrower breached the lending terms and also on when the library attempts to bring an action.
During a bailment for a term a bailor has no rights against a third party converter of or trespasser to the goods: Wertheim v Cheel, unless the bailee has done some act to revoke the bailment: Penfolds Wines v Elliot. In the latter case the bailment for a term reverts to a bailment at will and the bailor acquires the immediate right to possession it enjoys in any bailment at will.
A third party who takes goods may be liable in:
(A) conversion, which involves an intentional dealing with goods inconsistent with the rights of the person in possession of the goods or the person in a position to assert a right to immediate possession of the goods.
(B) trespass to goods, which involves: 1. a positive act and not an omission: Holmes v Mather 2. that is direct: Hutchins v Maughan 3. and intentional or negligent: Williams v Holland; Williams v Milotin 4. and causes an interference with goods: Kirk v Gregory 5. in the possession of the plaintiff: Penfolds Wines v Elliot. (C) detinue, which involves a wrongful detention of goods after a demand for their return has been made by the person with an immediate right to possession.
If Cathy as borrower/bailee has dealt negligently with the book then the Library as lender/bailor accrues an immediate right to possession of the book when the bailment is breached. Hence the Library can sue Edward in conversion and trespass to goods: Penfolds Wines v Elliot.
If, on the other hand, Cathy as borrower/bailee has not breached any term of the bailment then the Library as lender/bailor in a bailment for a term has no title to sue Edward: Wertheim v Cheel, until the term of the bailment is over. That is, after the thirty day period has elapsed. Only then when the Library acquires an immediate right to possession of the book, can it sue Edward in conversion and trespass to goods.
In an action by the Library for conversion, the damages are assessed at the date of the conversion: The Mediana. Trespass is actionable per se and damages are assessed at the date of the trial.
On the facts as given there is insufficient basis on which to found a cause of action in detinue.
In conclusion, the library as bailor only has rights against Edward in circumstances where:
- the bailment has been breached during the term by the bailee, or
- the bailment for a term is over after thirty days and has reverted to a bailment at will.
Sample Three:
Gay called in to see her next-door neighbour Freda. She found Freda lying unconscious on her kitchen floor. Freda had suffered an electric shock while probing a power point with a screwdriver. Gay, in her haste to get to a
(i) pecuniary losses such as hospital and medical expenses incurred in the time period between the accident and the death (ii) cost of a funeral: s(2)(c).
As Freda received sick pay in the relevant period then George cannot claim loss of income: Graham v Baker.
Damages for pain and suffering, bodily and mental harm and loss of expectation of life are not payable: s(2)(d).
B. George as husband v IP
As a husband, George is entitled to bring an action under the Compensation to Relatives Act 1897 (CRA) s(1), providing the conditions stipulated in s are met. Those conditions are: (i) that the death was caused by the "act, neglect or default" of the defendant: Woolworths v Crotty; and (ii) that the deceased, if she had lived, would have had an action against the defendant for her injuries: Harding v Lithgow Council. As the kiln was negligently manufactured by IP and Freda suffered injuries as a result then it is submitted that both these conditions are met.
Emotional losses were recoverable for the children upon the death of a parent in Swan v Williams Demolitions. If these damages were available to a spouse then George may recover them.
George will be compensated for his having to pay Freda's share of the rent.
The courts take into consideration the value, if any, to George of the opportunity to remarry: Jones v Schiffman. As George and Freda were each paid a salary by Hands On then it is unlikely that George had any valid expectation of financial support from Freda. Such an expectation is essential to recovery: Davies v Taylor.
C. Hands On (HO) v IP
Action for loss of services. HO can seek recovery of the sick pay paid to Freda when she was in hospital: Graham v Baker. No compensation will be paid for the profits lost when Freda is replaced by a person less successful in effecting sales than Freda.
No damages for the death are recoverable: Swan. Sample Five: Regulations under the Employees' Safety Act require sawmillers to fence circular saws in order to contain timber ends propelled by the blades. In Ron's sawmill one of the circular saws was not fenced as required and a timber end propelled from the saw struck Sam, Ron's employee, on the head, causing serious injury. Tina, Sam's fiancée, entered the work area just before the accident although she knew that the area was restricted to employees. Seeing Sam collapse from the blow, she suffered nervous shock. Ron claims that he had strictly instructed all his employees, including Sam, to wear a helmet when working near the unfenced saw. A helmet would have avoided serious injury.
Discuss Ron's liability in tort to both (i) Sam and (ii) Tina, including any defences which may be raised in either case. (i) Sam v Ron A. Breach of Statutory Dutv. The elements of this tort are: 1 The statute imposes a duty and not merely a discretion: Galashields. The Act in question "requires", which is interpreted as an obligation and not a power. 2. The statute must fix a duty upon the defendant. The Act here imposes a duty on sawmillers and Ron is a sawmiller. 3. The statute must allow a personal action in tort: O'Connor v Bray; Abela v Giew; Tassone v MWSB. In circumstances where the words of the statute do not expressly provide a private right to sue in tort, the High Court in O'Connor said that where the Act in question is one dealing with safety and where the facts also give rise to a duty to take care owed by the defendant to the plaintiff in the tort of Negligence, then the court will find that a private right to sue exists unless the words of the statute clearly show a contrary legislative intention. 4. The harm suffered must be within the risk guarded against: Gorris v Scott. Sam sustained an injury from a propelled timber end - thus he suffered harm contemplated by the statute. 5. The plaintiff is one of the persons protected by the statute: Knapp v The Railway Executive. Sam is an employee and so is protected by a statute entitled Employees' Safety Act. 6. The defendant failed to do what was required by the statute. Ron failed to fence a circular saw as required. 7. The breach of duty must have caused the plaintiff's harm: Bonnington Castings v Wardlaw; Sherman v Nymboida Collieries. A failure to fence the saw has allowed the timber end to hit Sam's head.
Subject to the statute giving Sam a private right to sue, it is submitted that he can sue Ron in this tort. Even if element 3 above is not satisfied then Sam can rely on his proof of the remaining elements of the breach of statutory duty as evidence of a breach of duty of care in Negligence: Tassone.
Contributory Negligence as a defence to personal injury as a result of breach of statutory duty is unavailable by virtue of s. of the Statutory Duties (Contributory Negligence) Act 1945. B. Negligence The elements of this tort are:
- the defendant owes the plaintiff a duty to take care: Kondis v STA,
- the defendant has breached the duty: Wyong SC v Shirt, by failing to deliver the minimum standard of care expected: Cook v Cook, thereby causing: March v Stramare,
- the plaintiff to suffer harm that is reasonably foreseeable and not too remote: Wagon Mound No. 1.
Ron as employer owes Sam as employee a duty to keep the workplace safe. Ron has failed to fence a circular saw. This involves a real (not far-fetched or fanciful) risk and therefore a reasonably foreseeable risk that a person may be injured by a propelled wood end. When examining the magnitude of the risk (a head injury), the probability of the risk occurring (significant) and the cost of taking alleviating action (low) then it is apparent that the reasonable person would have fenced the saw. As Ron's conduct has fallen short of what the reasonable person would have done, then Ron has breached his duty of care to Sam by failing to fence the circular saw. This failure has caused Sam to suffer harm that is reasonably foreseeable and not too remote.
Sam has contributed to his own harm (Froom v Butcher) by failing to wear a helmet. He has suffered injury within the risk to which he exposed himself: Jones v Livox Quarries. Therefore a defence of contributory negligence, if raised by Ron, would be successful. Damages would then be apportioned according to where the fault lay: s 10(1) Law Reform (Misc Prov) Act (LRMPA) 1965.
In order for a defence of voluntary assumption of risk to be successful, Ron must prove that Sam consented to the saw being unfenced and to being hit in the head with the wood end: Joseph Smith v Charles Baker. Further, Ron must show that Sam had full appreciation and knowledge of the risk: ICI v Shatwell. It is submitted that on the facts this defence would not be made out. If, however, it were made out, then it would be a complete defence. (ii) Tina v Ron Nervous Shock. (i) Under the s of the LRMPA44 Tina may have a cause of action if she lives with Sam on a bona fide domestic basis: s(5). (ii) At common law: Jaensch v Coffey. Tina must prove the elements of the tort of Negligence outlined above. Ron owes all entrants a duty of care, even trespassers: Hackshaw v Shaw. The standard of care owed to a trespasser could be quite low so that Ron may not have breached his duty to Tina. Tina's suffering nervous shock is not too remote a consequence of a (if any) breach of duty. If Ron is liable in negligence, then he can raise the defences of contributory negligence and voluntary assumption of risk, outlined above. (iii) As Tina is not an employee she derives no protection from the Employees' Safety Act and could not sue for breach of statutory duty. Sample 6: Harold took his valuable Swiss watch to Jane, a jeweller, for cleaning. Jane, who was in pressing financial circumstances, took the watch, intending to use it as security for a loan from a pawnbroker. On her way to the pawnbroker, she called in to Karla's sandwich shop to buy lunch. As she was leaving Jane inadvertently left the watch on the shop counter and took two packets of chewing gum from a counter stand without paying. Karla saw Jane take the gum, but, seeing the watch on the counter called out: "you can have this back when you pay for the gum". Jane ran from the shop and into Lionel who was walking along the footpath outside the entrance to the shop. Both Jane and Lionel were injured.
Harold has traced the watch to Karla but she refuses to hand it over until she has been paid for the gum.
Discuss the causes of action in tort arising out of the above, without regard to any questions of contribution. A. HAROLD V JANE Harold as owner/bailor of his watch has entered into a bailment on the condition that it be cleaned by Jane as bailee. He parts with possession of his watch. At this point, Jane has already decided to use the watch as security for a loan from a pawnbroker. It could be argued that in these circumstances the bailment never crystallised and that Harold always retained a right to immediate possession of his watch. If, on the other hand the bailment is created, then it is surely breached when Jane treats the bailor's goods in a manner repugnant to the terms of the bailment, that is, by setting off to the pawnbroker's to fulfil her mal-intent. Such a bailment then reverts to a bailment at will and the bailor acquires an immediate right to possession: Penfold Wines v Elliott (1946) 74 CLR 204 ("Penfolds Wines"). (a) Trespass to goods The elements of a trespass to goods are: 1. a direct: Hutchins v Maughan [1947] VLR 131; and 2. intentional or careless: Williams v Milotin (1957) 97 CLR 465; 3. interference with goods in the possession of the plaintiff: Penfold Wines.
It is unclear whether this is a highway or non-highway battery. If it is the former, then the plaintiff must prove all the elements of the cause of action: Venning v Chin (1974) 10 SASR 299. If it is the latter, then the plaintiff must only prove unwanted contact by a direct act and it is then the burden of the defendant to disprove their intention or carelessness: Platt v Nutt (1988) 12 NSWLR 231. E. JANE V KARLA Jane inadvertently leaves the watch on Karla's shop counter. Karla then takes the watch and uses it as leverage against Jane to extract from her payment for the gum.
Under the common law a plaintiff (Jane) often succeeded in conversion even though the defendant (Karla) could show that a third party (Harold) had a better title to the goods than the plaintiff (Jane). Hence, under this rule, Jane retains a better possessory title to the watch than Karla, notwithstanding that Jane's possession, by her own dealings with the watch, became wrongful. For a fuller discussion of this area see Balkin & Davis, Law of Torts, Butterworths 2nd ed. 1996, page 72ff. Sample Seven: Windyshire Council is the owner of the Windyshire Olympic Pool complex. It has leased the pool complex to Poolworld Ltd which takes over the responsibility of maintaining and operating the pool. Windyshire Council is aware that the filter in the pool will soon need replacement. One aspect of the maintenance is the chlorination of the pool which requires the weekly application of large amounts of chlorine.
One morning, Scott, a Poolworld employee, carries out the weekly application of chlorine to the water. Due to a sudden fault in the filter system, the chlorine levels remain unsafe for swimming. At lunchtime a mate, Geoff, arrives for a swim and, in contravention of Poolworld's explicit standing instructions, Scott allows him to dive in before Scott has tested the chlorine levels of the water.
Geoff's eyesight is seriously affected.
Advise (a) Geoff on the appropriate defendants for any claim and the basis of their liability; and (b) the defendants on possible contribution proceedings. (a) APPROPRIATE DEFENDANTS
(i) Geoff v Scott Negligence The elements of Negligence are as follows:
(i) the defendant owes the plaintiff a duty to take care to avoid causing personal injury: Donoghue v Stevenson [19321 AC 562; and (ii) the defendant breaches that duty: Wyong Shire Council v Shirt (1980) 146 CLR 40 by failing to deliver to the plaintiff the minimum standard of care expected: Cook v Cook (1986) 162 CLR 376, thereby causing: March v Stramare (1991) 171 CLR 506 (iii) the plaintiff to suffer harm that is reasonably foreseeable and not too remote: Wagon Mound No 1 [19611 AC 388.
Scott owes Geoff a duty to avoid reasonably foreseeable harm. There is a real (not far-fetched or fanciful) and therefore a reasonably foreseeable risk involved in Scott allowing a person to swim in the pool without first ascertaining that the pool chlorine levels are safe. The magnitude of the risk is large (damaged eyesight), its probability high, and Scott cannot raise any competing factors in answer to his carelessness. In the circumstances, a reasonable person faced with this risk would check the chlorine levels and alert those persons either in charge of entry to the pool or those persons about to swim in the pool that it is unsafe to do so. Therefore, Scott's conduct falls short of that expected from a reasonable person delivering the minimum standard of care and so comprises a breach of the duty of care owed by him to Geoff. A failure to check the chlorine levels and report adverse findings has resulted in Geoff diving into the pool. There are no facts provided that support the contention that despite the warning Geoff would have dived in anyway. Therefore the cause, arrived at by an application of common sense, of Geoff's injury is Scott's careless conduct. The injury that has resulted is of a kind that could be reasonably foreseen.
On the facts given, it is submitted that Scott will be liable to Geoff in Negligence and therefore would be an appropriate defendant. (ii) Geoff v Poolworld Ltd ("PW") (a) Direct Liability Negligence The elements of Negligence are stated above.
The legal basis of a duty owed by PW to Geoff is that of occupier to invitee: Australian Safeways Stores v Zaluzna (1987) 162 CLR 479. Additionally, PW in taking advantage of its occupation of premises to do something dangerous owes Geoff a duty to ensure that care is taken of his safety: Burnie Port Authority v General Jones (994) 179 CLR 520. Whether or not the operation of a pool is a dangerous activity is a matter for the court to decide.
PW specifically instructed its employee, Scott, to prevent entrants to the pool from swimming prior to Scott testing the chlorine levels of the water. If this is regarded as equal or more than what the reasonable pool operator would do then PW has not breached its duty to Geoff. If, however the reasonable person would have had a checking system in place so that the pool would not be opened to the public before the chlorine levels were known, or if there ought to have been more supervision of Scott's work, then PW will be in breach of its duty to Geoff.
If the operation of a pool can be regarded as a dangerous activity then evidence of PW's breach of its duty to ensure that care is taken is found in the fact that the pool has been made available for the use of swimmers when its chlorine levels are unsafe.
The questions of causation and reasonably foreseeable harm were dealt with above.
Geoff is advised that PW could be an appropriate defendant. (b) Vicarious liability An employer is liable for the torts of their employees committed in the course of employment.
We are told that Scott is an employee. The question then becomes: is his contravention of PW's specific standing instructions in allowing Geoff to dive in prior to Scott's testing the water within the course of employment? The answer is a question of fact: Bugge v Brown (1919) 26 CLR 110. If Scott's conduct is in the course of employment then PW will be liable to indemnify him. (iii) Geoff v Windyshire Council ("WSC") Negligence The elements of negligence are stated above.
The legal basis of a duty owed by WSC to Geoff is that of landlord to one who makes the tenancy viable: Northern Sandblasting v Harris (1997) 146 ALR 572. The determination of the rights and responsibilities of WSC and PW in relation to the replacement of a faulty filter are probably dictated in the lease binding them. As such it is impossible to state that WSC's mere knowledge that the filter would soon need replacing and its failure to replace it sooner rather than later are sufficient to render it liable for a breach of duty to Geoff. Further, we do not know if the sudden fault in the filter was caused by its needing replacement. We have no evidence as to whether or not new filters can manifest this sudden fault that leads to high chlorine levels in the pool water.
WSC can argue that questions about the filter are unimportant because the faulty filter was not the cause of Geoff's injury. The real cause was Scott's failure to check the levels and exclude Geoff from using the pool. High chlorine levels, however caused, would probably not result in injury to those prevented from entering the pool.
Geoff is advised that WSC's carelessness (if any) in relation to the pool filter is probably not the cause of Geoff's injuries and therefore it will probably not be liable to him in Negligence. WSC will not, on this basis, be an appropriate defendant. (B) CONTRIBUTION PROCEEDINGS It is important to note that each of the damages awarded to Geoff will be for a total sum against each party. It is then up to the defendants to recover from each other under section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 ("LRMPA 46").
Joint tortfeasors act in concert to cause the same damage. Several tortfeasors act independently to cause the same damage. Scott and PW, if liable, are joint tortfeasors whereas PW and WSC, if liable, are several tortfeasors. (i) Scott v PW Scott and PW are joint tortfeasors.
Providing the conditions of Section 5 of the Employees Liability Act 1991 are met, then under Section 3 of that Act, PW cannot seek to recover from Scott the damages it was ordered to pay out on his behalf.
If, on the other hand, Scott's torts cannot be regarded as being in the course of employment or else they were the result of wilful misconduct, then he and PW are treated as joint tortfeasors under the LRMPA and damages will be apportioned under section 5(2) of that Act. The existence of wilful misconduct is unlikely, though, given that Geoff is Scott's mate. (ii) PW v WSC Providing both parties are liable, then contribution proceedings between them will result in apportionment of damages pursuant to s(2) of the LRMPA46.
A party that is not liable will not be required to contribute damages: Bitumen and Oil Refineries (Australia) v Commissioner for Government Transport (1955) 92 CLR 200.
CASE NOTE EXAMPLE
PENFOLDS WINES PTY LTD V ELLIOTT (1946) 74 CLR 204
FACTS
The facts reveal no trespass because there is, on Elliott's part, no infringement of another's possession (at 224).
An immediate right to possession is insufficient to support an action in trespass. If it were sufficient then conversion would have been an unnecessary remedy. The correct view is that the right to possession as entitlement for suing in trespass is merely a right in one person to sue for a trespass done to another's possession: and this right exists whenever the person whose actual possession was violated held as servant, agent or bailee under a revocable bailment for or on behalf of the person having the right to possession (at 227).
The determination of the bailment may enable the bailor to sue in conversion or detinue but not in trespass. Such determination revests the bailor's right to possession and therefore the bailor's immediate right to sue in conversion or detinue (at 227).
There is no conversion because on Elliott's part, there is no act and no intent inconsistent with Penfolds' rights to possession (at 224). The essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who owns the goods. Use of a chattel is not conversion. An intent to do that which would deprive the "true owner" of their immediate right to possession or impair it is the essential basis of conversion (at 229). The re-delivery by Elliott of filled bottles to those who left them with him to be filled involved a transfer of possession but not for the purpose of conferring any right over the property in the bottles.
His honour found that there was no basis for an injunction. McTiernan J His honour concludes that the only wrong committed by Elliott is a conversion of two of Penfolds' bottles and that the case is not a proper one for an injunction (at 232). Williams J There was no violation by Elliott of his brother's possession of the bottles. There was therefore no asportation of the bottles from the person in actual possession and so Penfolds have no case against Elliott in trespass (at 242). For Elliott to fill the bottles as he did knowing that they were the property of Penfolds amounted to a conversion (at 243). His honour granted an injunction. OUTCOME OF THE APPEAL Trespass was found only by Latham CJ. Conversion was found by all except Dixon J. The appeal was dismissed by Starke, Dixon and McTieman JJ. The appeal was allowed by Latham CJ and Williams J. IMPACT ON CURRENT LAW The majority decision in Penfolds affirmed that only a person in possession can sue for trespass except where that person is the bailor, master or principal of a person who, having suffered a violation of actual possession, was a bailee under a revocable bailment or servant or agent of the former. Further, an unjustified use of goods will amount to a conversion provided there is an intention to exercise dominion over them.
The case is unfortunate in that there is conflict between opinions supporting an order. As such, its judicial force may be diminished as it is difficult to distinguish ratio from obiter: see Paton GW and Sawer G "Ratio Decidendi and Obiter Dictum in Appellate Courts" [1947] 63 LQR 461.
Torts Hypothetical
Facts:
Peter and Doug are neighbors who hate one another.
One day, Doug is nailing some boards together on the common sidewalk that he shares with Peter.
In a classic slapstick comedy move, Doug picks up a board just as Peter is passing behind him and swings around
so that the back end hits Peter in the head.
The smack in the head causes substantial injury to Peter.
Issue:
Is existing malice between two people enough to show the intent necessary for liability for battery?
Rule:
The three elements of battery are: 1) a harmful touching of another person 2) the defendant caused the touching
to occur directly or indirectly and 3) the touching was intentional.
Analysis:
Element 1) The hitting of Peter in the head with a board is considered harmful since it caused substantial injury.
Element 2) Doug directly caused the injury since he was physically holding the board as it swung into Peter.
Element 3) The question of whether Doug intended to hit Peter is a matter of fact that must be decided by a jury.
The fact that Doug hated Peter may weigh in the matter but is not dispositive. Doug must have known that Peter
was behind him and intentionally swung the board so as to purposefully harm Peter.
Conclusion:
Without further evidence, the facts do not appear to indicate the intent necessary for Peter to sue Doug for the
tort of battery.
Sample/practice exam 11 May 2012, questions and answers - Sample IRAC Responses
Course: Torts (LAW203)
University: Macquarie University
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