Property Torts

Question 1

Elements of Trespass

Answer 1

1) Plaintiff in possession
2) Intentional (physical) act by the defendant
3) Intentional act constitutes unlawful interference

Question 2

Wilson v New Brighton Panel Beaters

Answer 2

NBP was liable under trespass; trespass includes simply intentional conduct (not morally guilty), not just blameworthy/dishonest conduct
Conversion; occurred when truck driver delivered goods, knowing it was to signify transfer of ownership

Question 3

Penfolds Wines v Elliot

Answer 3

Penfolds owned the wine bottles but was not in possession so there was no trespass

Question 4

Thurston v Charles

Answer 4

Trespassed and got material which resulted in co-worker being fired; the plaintiff was able to get consequential damages to cover the loss which flowed from the trespass

Question 5

Elements of Conversion

Answer 5

1) Plaintiff has the right to immediate possession
2) Defendant intentionally acts or deals with the chattel
3) The act or dealing was inconsistent with the plaintiff’s right to immediate possession

Question 6

Hollins v Fowler

Answer 6

Conversion of cotton bales; Hollins (agent) was liable because he knowingly and intentionally assisted in the transfer of the domain and property
Railway men would not be liable for simply moving, but would be liable if they knew property was being transferred
Exceptions: finders can take steps to move around and store an object without converting it

Question 7

Stephens v Elwall

Answer 7

Clerk sent goods to master in US knowing property was to pass so he converted to goods even though he didn’t know of their stolen nature

Question 8

Kuwait Airways Corporation v Iraqi Airways Company

Answer 8

The act of treating the planes as their own (painting and using them for flights) amounted for conversion

Question 9

Elements of Detinue

Answer 9

1) Plaintiff has right to immediate possession
2) Plaintiff has demanded the return of the chattel
3) Defendant refuses the return
4) Refusal is unlawful

Question 10

Remedies of Detinue

Answer 10

Damages are calculated at the time of judgement if chattel is not returned
Court will order the return of the chattel if it has special value

Question 11

Remedies of Conversion

Answer 11

Damages are calculated at the time of conversion
Creates a ‘fictional sale’

Question 12

Remedies of Trespass

Answer 12

Compensation for loss/damage to property
Consequential damages
Vindicatory damages

Question 13

McKeown v Cavalier Yachts

Answer 13

Additions were made to McKeown’s yacht, greatly increasing the value
The additions acceded to the hull because they were made gradually; things will accede if it would require damage to remove it
Cavalier was not an innocent bystander due to specific facts (manager was the same)
Return of the boat was ordered because of it’s special value
May have been appropriate to order compensation for Cavalier’s additions

Question 14

What is a Bailment?

Answer 14

Someone takes voluntary possession of someone else’s chattel, knowing that it belongs to someone else

Question 15

Defences for breach of bailment

Answer 15

No fault: took reasonable care and damage occurred anyway
No casual link: failed to take reasonable care, but that didn’t cause the damage or loss

Question 16

Conway v Cockram Motors

Answer 16

Expensive BMW was left as Motors showroom but it was broken into and damaged (bailment relationship)
Foreseeable risks; it was foreseeable that there could be theft
What would a careful and diligent person have done;
- No fault: a reasonable person would have taken more precautions
- No causal link: Motors had not proven that an alarm would not have prevented the damage

Question 17

Skyway Service Station v McDonald

Answer 17

Car park near airport without fence but cars were chained together (bailment)
They had not limited their duty to take reasonable care Fencing would have amounted to reasonable care

Question 18

Southland Hospital Board v Perkins

Answer 18

Perkins died with diamond ring that the hospital then could not find after death (constructive bailment)
They failed to take reasonable care because they took 6 days to sort out valuables
If there is ambiguity in the exclusion clause, it will be interpreted against the writer

Question 19

Morris v Martin

Answer 19

Sub-bailee owes a duty of care to the head bailor because they knew that the coat was owned by someone other then the bailee

Question 20

The Pioneer Container

Answer 20

Direct bailment relationship between the sub-bailee and head bailor
The head bailor was bound by the terms of the contract between the bailee and sub-bailee if they had expressly or impliedly given consent to these terms

Question 21

Elements to Reversionary Injury

Answer 21

1) Damage to goods
2) Damage will last beyond the term of the bailment
3) Damage is to the claimant’s revisionary interest
4) The damage would be claimable by the bailor through trespass or conversion if the bailor had the title to sue

Question 22

HSBC Rail v Network Rail

Answer 22

HSBC leased rolling stock but this derailed due to negligence of third party
The damage was repaired with insurance money
There was no injury to HSBC’s reversionary interest because the damage had been remedied prior to the lease expiring