Chapter 2 The Nature of Intentional Torts 2.1 Introduction The so-called 'intentional torts' exist to protect an individual's person or property rights from unwanted interference by others. They include the 'trespass torts' as well as several other torts such as detinue and conversion. These are referred to as 'intentional torts' because, historically, they were committed intentionally in the sense that they were deliberate transgressions. Such torts predate the development of negligence and are the more ancient forms of civil liability emerg- ing from a family of original writs which came to be understood as trespass writs. 1 The existence of intentional torts reflects the import which society places upon preventing transgressions that unlawfully interfere with legally recognised rights. In their early formulation, these rights existed to protect the peace, the writs stating that they were issued in respect of wrongs committed 'with force and arms' and 'against the king's peace'. The importance of protecting the peace is also illustrated through the various trespass torts which may potentially also constitute criminal liability, for example, assault and battery. Today, the notion of the protection of the king's peace translates into the protection of individual rights. The trespass torts exist to prevent a right being infringed - a right over one's own person, goods or land. These torts provide an opportunity for remedies in many situations, including human rights abuses, sexual abuse, violence and unauthorised medical procedures. The trespass torts have an important role to play in our society in providing a remedy to individual citizens for infringement of civil liberties and the excessive use of executive power by the State. In Re Bolton; Ex parte Beane (1987) 162 CLR 514, a false imprison- ment case, Deane J said: It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny. (528-529) 1 None of these writs actually used the word 'trespass': see JH Baker, An Introduction to English Legal History (Butterworths, 3rd ed, 1990) 71. Stewart, Pam, and Anita Stuhmcke. Australian Principles of Tort Law, Federation Press, 2021. ProQuest Ebook Central, Created from uts on 2023-08-07 09:26:22. Copyright © 2021. Federation Press. All rights reserved.
THE NATURE OF INTENTIONAL TORTS 39 In Bulsey v Queensland [2015] QCA 187, a case where a citizen successfully sued the Queensland police for the torts of false imprisonment, assault and battery, McMeekin JA held: The executive, through the police, wield enormous power. It is essential that that power be used within the confines of the law. It is important that the courts acknowledge fully the hurt that can be done when the power is misused. 2 ([123]) The following chapters introduce the torts of trespass to the person (assault, battery and false imprisonment) trespass to land and trespass to goods. The defences to these actions are covered in Chapter 7. 2.2 Development of the Intentional Torts: What is the Difference Between Trespass and Case? The historical foundation of the intentional torts is in the writ system developed in 13th century England. This system was the basis of the common law tradition of adversarial litigation. Writs were forms of action giving individuals the right to pursue legal remedies through the courts. If there was no writ which covered the conduct complained of, there was no legal remedy available. The basis of the law of torts in Australia stems from the writ system. The modern law of torts is the product of two principal historic writs: (1) the writ of trespass and (2) the writ of trespass on the case, also called 'case' or 'action on the case'. For convenience, these historic writs are today referred to as (1) 'trespass' and (2) 'case'. While the two historical writs of action of trespass and case were abolished in England by the Judicature Act 1873 , they still exist today as causes of action in tort law. Very broadly, the writ of trespass has become the intentional trespass torts and actions on the case have evolved into the tort of negligence (and various other torts). The relevant historical differences between the two forms of action were: (a) Proof of damage Case: It is necessary for the plaintiff to prove physical injury or property damage - damage is the 'gist of the action'. Trespass: Is actionable 'per se' (by itself). It is not necessary for the plaintiff to prove any damage. (b) The nature of the interference 3 Case: Based on indirect or consequential interference. Trespass: Based on direct interference. (c) Onus of proof Case: The plaintiff bears the burden to prove all elements of the claim including the defendant's fault (actions and intention). 2 For other examples of this type of case, see New South Wales v Delly [2007] NSWCA 303; Houda v New South Wales [2005] NSWSC 1053. 3 For the distinction between direct and indirect interference, see below [2.3.2]. Stewart, Pam, and Anita Stuhmcke. Australian Principles of Tort Law, Federation Press, 2021. ProQuest Ebook Central, Created from uts on 2023-08-07 09:26:22. Copyright © 2021. Federation Press. All rights reserved.
40 AUSTRALIAN PRINCIPLES OF TORT LAW Trespass: The plaintiff bears the burden to prove the facts which constitute the trespass but not the fault of the defendant. The onus is on the defendant to prove lack of fault. 4 The historical differences between trespass and case are clearly referable to the type of interest each aims to protect. Trespass protects a plaintiff from direct interference; case protects a plaintiff from indirect interference. As Fortescue CJ in Reynolds v Clarke (1725) 1 Str 634 explains: [T]he difference between trespass and case is, that in trespass the plaintiff complains of an immediate wrong, and in case, of a wrong that is the conse- quence of another act. (635) The classic illustration of the difference between a trespass (direct interference) and case (indirect interference) is found in the following passage from the judg- ment of Fortescue CJ in Reynolds v Clarke (1725) 1 Str 634: [I]f a man throws a log into the highway, and in that act it hits me; I may maintain trespass, because it is an immediate wrong; but if as it lies there I tumble over it, and receive an injury I must bring an action upon the case. (635) From this example, it is clear that intentionally throwing a log and hitting someone is a trespass, a direct interference by one individual against another's person which is accorded importance by the law. This is reflected in the fact that initially the writ of trespass attracted both criminal and civil sanction. A legal remedy exists for trespass independently of damage as the tort is itself the wrong. In terms of policy, the law of trespass aims to prevent people from intentionally interfering with others. On the other hand, actions on the case are based on indirect interference and it is the damage which the law aims to compensate. In Fortescue CJ's example, anyone could have tripped over the log left on the road. For plaintiffs to recover for indirect interference, they must prove damage and prove that their damage is a consequence of the defendant's action. 2.3 Elements of the Torts Derived from the Action for Trespass The trespass torts comprise Trespass to Person (being Battery, Assault and False Imprisonment), Trespass to Land and Trespass to Goods. All these trespass torts have certain common elements which must be proved. The elements are that the defendant's intentional (or reckless or negligent) 5 act directly caused an interfer- ence with the plaintiff's person, goods or land. 2.3.1 Intentional, reckless or negligent act: fault There is an old line of English authority that suggests that trespass to person, at least, was a tort of strict liability though today it is settled that fault is the basis of liability in trespass. In Leame v Bray (1803) 3 East 593, 600; 102 ER 724 Grose J held: 4 In Australia in a trespass action arising out of a highway accident the onus of proof of fault is on the plaintiff. See discussion at [2.3.4]. 5 See below for a discussion of the divergence between Australian and English authorities on the sufficiency of a negligent act to ground an action in trespass. Stewart, Pam, and Anita Stuhmcke. Australian Principles of Tort Law, Federation Press, 2021. ProQuest Ebook Central, Created from uts on 2023-08-07 09:26:22. Copyright © 2021. Federation Press. All rights reserved.
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