Distinction grade assignment - Torts Law


Memorandum of Advice


Dear James,


At your request I have prepared a Memorandum of Advice in relation to the dispute between our client and Davis, focusing on their respective legal entitlements, remedies and defences, specifically in the area of intentional torts.[1]






  1. The client may rely upon the tort of trespass to argue Davis directly interfered with his land and/or goods and should pay for replacement of the glass panel.

  2. Doubt exists as to whether trespass to goods is actionable per se,[2] but things attached to land such as houses, and therefore fixtures such as glass panels on doors are defined as land.[3]

  3. Whilst it is clear that there existed a direct and causal nexus between Davis’ act of knocking on the door and the glass breaking, causation may be difficult to establish in circumstances where the client admits a crack in the glass panel existed prior to the incident.  Although he alleges that the panel would not have broken had it not been hammered “pretty hard” this may need to be supported by expert opinion.[4]

  4. In the light of the above, it could well be argued that Davis acted carelessly by knocking as hard as he did, regardless of any intent (League Against Cruel Sports Ltd v Scott).[5]

  5. Our client will need to be advised of technicalities associated with an action for trespass which may give rise to a defence for Davis, such that the client would need to prove the interference was part of Davis’ act of knocking on the panel and not merely a consequence of it.[6]

  6. In terms of encouraging Davis to back off, consider advising him that even the slightest physical crossing of a boundary is considered an act of trespass (Lavender v Betts).[7]  You could also cite a decision of the Court of the King’s Bench.[8]

  7. However, in applying a commonsense attitude,[9] a court may find an implied invitation existed for Davis to enter onto the neighbouring client’s land, which ceased once Davis knocked on the door and broke the glass panel (Halliday v Nevill).[10]




  1. If the client succeeded in an action for trespass to land, he may recover the monetary value of his legal right in this regard, as determined by a court, which is likely to be small.

  2. Although trespass is actionable without proof of damage, in present circumstances our client could evidence his loss, being the cost of repairing the damage done to the door/panel, by obtaining a quote from a glazier.[11]

  3. Our client should however be warned the literature suggests compensatory damages as a remedy to the tort of trespass to land, are limited and are offered only where the damage was reasonably foreseeable (Cambridge Water Co v Eastern Countries).[12]

  4. In the event our client is found not to have suffered a loss, he may still be entitled to nominal damages of an insignificant amount.








  1. In pursuing medical expenses associated with his injured hip,[13] a cause of action available to the client is trespass to person, in the form of battery.

  2. A battery is defined as a voluntary and positive act of the defendant which directly and intentionally (or negligently) results in harmful or offensive contact with the person of another without lawful excuse.[14]  For the client to succeed in this action, all elements in relation to battery need to be present.

  3. As above, in establishing the tort of trespass to person, the client needs first to prove direct interference arising from Davis’ act, which, on the facts , was satisfied when Davis pushed the client away, representing a voluntary (Morris v Marsden)[15], positive (Innes v Wile)[16]and direct (Hutchins v Maugham)[17] act.

  4. Secondly, and in relation to fault, the act causing the bodily contact must be intentional, reckless or negligent.  Even if it held that Davis’ actions were not intentional, they may well be defined as negligent in that he knew, or ought to have known, that bodily contact with the client might ensue from the act of pushing, and therefore acted with less care than a reasonable person given the circumstances.

  5. Thirdly, the contact must occur without consent, which was clearly the case on instructions.  This would likely be accepted by a court despite the fact that he moved forward to assist Davis.






  1. In defences of trespass to person, Davis may rely upon self defence and allege his action of pushing our client was because he had reasonable grounds to believe he was likely to be the subject of an imminent attack (Hall v Fonceca).[18]  In relying upon such defence, the onus of proof rests on Davis (McClelland v Symons),[19] such that he must prove it was reasonable to defend himself and that the force used to do was reasonable and not excessive (Zecevic v DPP (Vic)).[20]

  2. If our client believed that he in fact said to Davis’ ‘let me help you mate’ with genuine intent and tone, it is unlikely Davis will succeed in establishing self defence, unless it is found he held a genuine fear of being hit with the cricket bat in the client’s hand.  Davis may seek to strengthen such a claim by citing the client’s comment ‘go away or I’ll knock your block off’, but this is fettered by the fact that it was put in the alternative (Rozsa v Samuels).[21]

  3. All in all, subject to our client’s version of events being believed over Davis’, it is unlikely Davis would succeed in self defence.

  4. Conversely, Davis may rely upon trespass to person, in the form of assault, to allege our client, in stating the threatening words cited above, whilst holding the cricket bat, intentionally caused him an apprehension of imminent harmful or offensive contact without lawful excuse (Zanker v Vartzokas).[22]  Such combination has been found as sufficient behaviour constituting assault (Tuberville v Savage).[23]

  5. In response, it is likely our client could successfully avail himself of self defence,[24] in circumstances where he was reacting to loud banging and breaking of the window panel which he honestly and reasonably believed was caused by a burglar at the door (Goss v Nichols).[25]

  6. The fact that the client didn’t physically strike Davis immediately may show he took care to question the situation even in a moment of imminent peril (Southwark London Borough Council v Williams).[26]




  1. A successful claim in assault and/or battery could not only result in compensation for the value of associated medical expenses for the treatment of the client’s hip, but also aggravated damages if found to have occurred in circumstances that are humiliating or insulting (Fogg v McKnight).[27]  Factually, Davis may have a better case for this.

  2. If the client establishes intentional assault on the part of Davis, he may also be entitled to exemplary damages, if a court took the view that the nominal sum to be awarded was inadequate to punish Davis for outrageous conduct.  However, in considering all the facts, I am unsure Davis would be found to have behaved outrageously.

  3. Any attempt by Davis to mitigate the quantum of damages awarded against him, by claiming he was provoked, is likely to unsuccessful, given the High Court’s decision in Fontin v Katapodis.[28]  Here, provocation had no application to damages awarded by way of compensation, suggesting neither ordinary compensatory nor aggravated compensatory damages can be reduced where the plaintiff provoked the assault/battery.






  1. It may be the client’s wife can argue Davis assaulted her – in that he, by knocking heavily, smashing the panel, pushing and yelling at her husband, intentionally caused her an apprehension of imminent harmful or offensive contact.  If successful, she may be awarded aggravated damages for ‘injury to feelings’ (Fogg v McKnight).[30]

  2. Whilst the tort of trespass involves the intentional infliction of a direct injury,[31] action on the case is an alternative cause of action for an indirect intentional injuries that are caused indirectly or consequentially.  Here the onus of proof lies with the plaintiff (the client’s wife).

  3. Establishing success in such a tort requires the client’s wife to prove that Davis’ intentional act was deliberate and preconceived (Bird v Holbrook).[32]  Failing that, she may argue that even if Davis meant no harm, the harm caused was in fact reasonably foreseeable, thereby intention was inferred or implied (Wilkinson v Downton).[33]

  4. Action on the case does not cover mere fright (Bunyan v Jordan),[34] arguably a natural reaction to the events on the verandah, so the clients wife would need to show that she suffers from particular sensitivities that rendered her reaction severe (Stevenson v Basham),[35] although there is no suggestion of this on the instructions to hand.






  1. If the client wishes to attempt to stop Davis entering his land again, he must seek to revoke the implied invitation,[36] perhaps via letter, signage and/or injunction, the granting of which is subject to the courts discretion, taking into account he context in which the injunction is sought (Lincoln Hunt Australia v Willesee).[37]

  2. Whilst courts protect violations to privacy, they tend not to involve themselves in issues that could be construed as somewhat trifling and vexatious in their nature.  Furthermore, they are prompt to suggest the requirement for a commonsense attitude, taking into account the motive and limited purpose of consent to entry on to private premises without explicit permission.[38]

  3. It is relevant to note that Davis has made no further attempts to enter the client’s land since the incident of 1 January  2012.  On balance, it is improbable that he will do so in the near future.

  4. Accordingly, I consider a court unlikely to grant an injunction in the circumstances.[39]






  1. Davis may rely upon nuisance in arguing the client unreasonably interfered with the use and quiet enjoyment of his land by cutting down his plum tree with a chainsaw (Victoria Park Racing and Recreation Grounds Co Ltd v Taylor),[40] thus causing personal discomfort via interference with sensibilities (Munro v Southern Dairies Ltd).[41]

  2. Conversely, the client may argue the tree created a nuisance by protruding into his property and dropping plums damaging his pathway, thus giving him the right to lop the branches (Lemmon v Webb).[42]

  3. In considering whether there is an action in nuisance, the court will consider a number of factors including locality, extent of interference, time, duration, sensitivity of plaintiff and malice.[43]

  4. The client’s actions are conceivably a reaction to the previous nights events; a reciprocated action that could be construed as one of malice (Hollywood Silver Fox v Emmett).[44]  However, as is the nature of the ‘exigencies of life’, the courts may well construe the situation as a matter of ‘give and take’, in that reciprocal nuisances are comparatively trifling in their nature (Bamford v Turnley).[45]

  5. The only remedy available would be an injunction to restrain the interference.  Again given the circumstances, the court is likely to dismiss such an application.




  1. In applying the above to the facts at hand, the right of the client to lop down branches that intrude upon his airspace, does not provide him with the right to interfere with the ‘goods’ (here the fruit) to the extent that it deprives Davis of the full benefit of his possessory right.  This occurred firstly when the client removed the plums from Davis’ tree and secondly, when he effectively destroyed the plums by fundamentally altering them to make jam (Penfolds Wines Pty Ltd v Elliott).[46]

  2. Hence, the client’s actions potentially give rise to a trespass to goods claim; defined as a voluntary and positive act that directly, be it intentionally or negligently, interferes with the plaintiff’s possession of goods.[47]

  3. As Davis is not in possession of the plums, he is unable to bring about an action in trespass.  However, he may have the option to sue in conversion or detinue in that he has the right to immediate possession (Ashby v Tolhurst).[48]

  4. Given Davis has already made a demand for the plums to be returned by way of their altered state (jam), detinue may be the more appropriate remedy in that it includes the option of returning the goods or the recovery of its value at the date of judgment and damages for its detention (General and Finance Facilities Ltd v Cooks Cars).[49]

  5. Defences for the client are limited here unless the client can prove that the plums were destroyed without negligence on his part (John F Goulding Pty Ltd v Vic Railway Commissioner).[50]  Mistaking the plums as their own, is not a permissible defence for trespass for goods.

  6. For my mind, the client should be advised to provide Davis with all jams made from his plums.






  1. Again there exists potential for an action in nuisance with respect to the branches, and the negative impact on Davis’ use and enjoyment of the land.

  2. However, I am of the opinion that this may best be covered under the limb of negligence.[51]




  1. Although it is tenuous, Davis’ wife may have a claim against the client for false imprisonment, in that it is alleged he locked her in the house for 26 hours as a result of where he placed the branches.

  2. False imprisonment is defined as a voluntary act that directly and totally deprives the plaintiff of his or her liberty without lawful justification.[52]  Davis’ wife would need to prove that the branches were responsible for total imprisonment (Bird v Jones),[53] within whih there existed no reasonable means of egress (The Balmain New Ferry Co Ltd v Robertson).[54]

  3. The court would consider a number of factors in relation to reasonable means of egress, including but not limited to the plaintiff’s physical health and fitness and the threat of danger to oneself and property (McFadzean v CFMEU).[55]  The fact that Davis’ wife is wheelchair bound may come into consideration here.

  4. It is relevant that, on our instructions, the placing of the branches by the client, whilst a voluntary act, was by no means intentional.  However, it could well be considered negligent, in that the client did not turn his mind to the physical limitations of Davis’ wife, even though he ought to have known.  Furthermore, it is likely that the injury sustained by Davis on the veranda, afforded him no further capacity to move the branches.

  5. Subject to obtaining further instructions on other means of access to the Davis property and matters that arise in evidence, it is questionable that the placing of the branches by our client totally deprived Davis’ wife of her liberty despite her immobility.

  6. However, if there in fact was no other means of access to the property, the client risks a finding that he falsely imprisoned Davis’ wife.

  7. Please let me know if I can be of any further assistance in this matter, such as by conducting a view of the premises.


[1] Summer Clerk No 2 will be providing you with a separate memorandum focusing on possible actions in negligence, breach of council regulations etc.

[2] Harold Luntz, David Hambly, Kylie Burns, Joachim Dietrich and Neil Foster, Torts Cases & Commentary (LexisNexis Butterworths, 6th Ed, 2009) 578

[3] http;//www.lonang.com/exlibris/blakstone/

[4] Refer to notes. The client may need to consider paying for an engineers or glaziers report in order to prove this.

[5] [1986] QB 240.  Here it was found that the interference may be either intentional or careless

[6] See for example Hutchins v Maughan [1947] VLR 131

[7] [1942] 2 All ER 72

[8] (Semaynes Case) (1604) 5 Co Rep 91a which held “...the house of everyone is to him as his castle and fortress as well for his defence against injury and violence as for his repose”

[9] Halliday v nevill (1984) 155 CLR 1, 7-8

[10] (1984) 155 CLR 1. Here it is assumed until more information can be obtained, that the entrance to the clients house was not locked, nor was the driveway/pathway obstructed in such a manner to indicate that entry, without invitation, is forbidden

[11] The quote could be tendered into evidence if needed

[12] [1994] 2 AC 264

[13] Acknowledging that Summer Clerk No 2 will cover subjects such as the requisite 5% impairment threshold to sue for negligence under the Wrongs Act.

[14] Luntz, Hambly, Burns, Dietrich and Foster, above n 2, 589.

[15] [1952] 1 All ER 925

[16] (1844) 174 ER 800

[17] See again [1947] VLR 131, where Herring CJ found directness occurs “...when it follows so immediately upon the act of the defendant that it may be termed part of the act.”

[18] [1983] WAR 309 17

[19] [1951] VLR 157

[20] (1987) 162 CLR 645

[21] [1969] SASR 205

[22] (1988) 34 A Crim R 11

[23] (1669) EWHC KB J25

[24] Refer to paragraphs 17 for the detailed elements of self defence

[25] [1960] Tas SR 133

[26] [2001] 1 AC 1 (HL)

[27] [1968] NZLR 330, where damages were awarded to the Plaintiff for “the injury to his feelings”.  See also the High Court decision in Lamb v Cotogno (1987) 164 CLR 1

[28] (1962) 108 CLR 177

[29] As a result of the ‘carry on’ on the veranda

[30] [1968] NZLR 330, suggesting the indignity and mental suffering caused

[31] Note here that the intentional infliction of a direct injury need not be limited to physical injury

[32] (1828) 4 Bing 628

[33] [1897] 2 QB 57

[34] (1937) 57 CLR 1

[35] [1922] NZLR 225. Here the plaintiff suffered nervous shock and hysteria as a result of the defendants intentional act

[36] Refer to the discussion held in paragraphs 6 and 7 above

[37] (1986) 4 NSELR 457

[38] (1984) 155 CLR 1, 7-8

[39] The preference for the courts in such a circumstance would be that each neighbour make genuine and serious efforts to work out their differences in a constructive and peaceful manner.  In the words of Baron Bramwell in the court of Bamford v Turnley (1862) 3 B & S 66 (Ex Ch), “...live and let live”.

[40] (1937) 58 CLR 479, where the essence of which was defined as “the destruction from the occupiers enjoyment of the natural rights belonging to the occupation of the land.”

[41] [1955] VLR 332

[42] (1984) 3 Ch 1.  Although a tree is considered land, and the airspace above the property also land, Griffiths J, in Bernstein v Skyviews & General Ltd [1978] QB 479, referred to the right of an owner to lop down branches as a tort founded in nuisance rather than trespass.

[43] Luntz, Hambly, Burns, Dietrich and Foster above n 2 ch 14

[44] [1936] 2 KB 468

[45] (1862) 3 B & S 66 (Ex Ch)

[46] (1946) 74 CLR 204

[47] Luntz, Hambly, Burns, Dietrich and Foster above n 2, 580

[48] [1937] 2 KB 242

[49] (1963) 1 WLR 644

[50] (1932) 48 CLR 157

[51] It is recommended that Summer Clerk 2 cover this in their memorandum

[52] Luntz, Hambly, Burns, Dietrich and Foster above n 2 602

[53] (1845) 7 QB 742

[54] [1906] HCA 83.  Here the term reasonable was taken to the extreme

[55] [2004] VSC 289