Topic 1 - Historical background of Modern Tort law

Question 1

fault and injury elements of & authority of:

1. Trespass (actionable per se)
2. Action on the case (not actionable per se)
3. Both

Answer 1

1. injury is direct and fault is intentional (Scott v Shephard (1773))
2. Injury is indirect and fault is intentional (Hutchins v Maughan (1947)) and injury is indirect and unintentional/negligent
3. Injury is direct and fault is unintentional /negligent (Williams v Holland (1833) and Williams v Milotin (1957))

Question 2

DIRECT/INDIRECT INTERFERENCE
Scott v shephard (1773)
1. Facts 
2. Issue
3. Principle 
4. Dissenting judgment

Answer 2

1. Shepherd threw a firecracker into a marketplace, two other people (Willis and Ryal) picked it up and threw it before it hit the plaintiff, exploding and causing him to lose an eye
2. Was Scotts injury immediate enough for an action of trespass?
3. Injury is immediate/direct = an action for trespass. Injury is consequential = an action on the case
4. Blackstone J - throwing log onto the highway.

Question 3

DIRECT/INDIRECT INTERFERENCE
Hutchins v Maughan (1947)
1. Facts
3. Principle

Answer 3

1. Two dogs died as a result of picking up poisonous bait laid down by the defendant. The complainant’s claim was laid alternatively in negligence, nuisance or trespass. It was held that the harm should be regarded as consequential as the defendant had laid the baits on the land before the plaintiff arrived.
2. Injury is trespass when it follows so immediately and directly from the act that it can be said to be a part of the act

Question 4

DIRECT/INDIRECT INTERFERENCE
Williams v Holland (1833)
1. Facts
2. Principle

Answer 4

1. A highway collision occurred between the plaintiffs horse-drawn cart and the defendants horse drawn carriage.
2. Where the Plaintiff is injured by the defendant’s direct (or immediate) act, the plaintiff may elect to bring an action on the case (rather than trespass) provided that the defendants act is negligent

Question 5

DIRECT/INDIRECT INTERFERENCE
Williams v Milotin (1957)
1. Facts
2. Principle

Answer 5

1. Plaintiff alleged to be struck while riding his bike in the street by a motor truck which was driven by the defendant in a negligent manner.
2. The principle in Williams v Holland is part of Australian law now

Question 6

FAULT IN TRESPASS
Weaver v ward (1617)
1. facts
2. principle

Answer 6

1. The plaintiff alleged that the defendant had shot and wounded him during a military exercise. Weaver brought an action of trespass of assault and batter against Ward. Judgment for the plaintiff.
2. there is no liability when the trespass occurred utterly without fault of the defendant

Question 7

FAULT IN TRESPASS

Name 5 cases

Answer 7

*Weaver v Ward (1617)
Holmes v Mather (1875) 
Stanley v Powell [1891] 
*Williams v Milotin (1957)
*Venning v Chin (1974)

Question 8

FAULT IN TRESPASS
Venning v Chin (1974)
1. Facts
2. Principle

Answer 8

1. Venning was hit by a car crossing a road in Adelaide – brought a claim to HC of Aus a claim in negligence and trespass to the defendant. The SC held the defendant was guilty of negligence causing the P’s injuries. Appeal allowed and cross appeal dismissed
2. (BINDING AUTHORITY) The plaintiff will bear the onus of proof that the defendant acted intentionally or negligently in cases of trespass occurring on a highway

Question 9

ONUS OF PROOF OF FAULT IN TRESPASS

1. Where does the onus of proof lie in a trespass case and the authority?
2. and what is the exception?

Answer 9

1. the plaintiff must prove trespassory impact (platt v Nutt) then the defendant must prove against the balance of probabilities that the act occurred without the defendants fault (Blacker v Waters, McHale v Watson)
2. exception - in highway cases, The plaintiff will bear the onus of proof that the defendant acted intentionally or negligently in cases of trespass occurring on a highway (venning v Chin)

Question 10

ONUS OF PROOF OF FAULT IN TRESPASS
Platt v Nutt (1988)
1. Facts
2. Principle

Answer 10

1. Plaintiff failed to establish on the balance of probabilities that her injuries were caused by the appellants use of force rather than as a consequence of her own wilful act
2. Onus of proof of the trespassory act is an issue distinct from onus of proof of fault.

Question 11

ONUS OF PROOF OF FAULT IN TRESPASS
Croucher v Cachia [2016]
1. Facts
2. Principle

Answer 11

1. Altercation between neighbours. Plaintiff Cachia was cut by sheers wielded by the defendant. P brought proceedings on D for battery and negligence. D appealed.
2. Battery as a form of trespass to the person is maintainable where the conduct of the defendant is intentional or negligent. In an action of battery, the onus is on the defendant to prove absence of intent and negligence on their part.