Intentional torts 

The intentional torts are the oldest part of this subject and the part students most often skip. They protect interests that negligence does not reach: bodily integrity, liberty, and possession of land and goods, each protected without proof of damage.

Two features separate them from negligence.

• Actionable per se. The trespass torts are complete on the interference. A plaintiff who suffers no loss still has a cause of action, and will be awarded nominal damages. Negligence, by contrast, has no cause of action without damage.
• Directness. Trespass requires a direct interference. Where the interference is consequential, the plaintiff must sue in an action on the case and must prove damage.

Trespass to the person

Battery is a direct, intentional or negligent act that causes contact with another person without consent or lawful justification. The contact need not be hostile or harmful; it must exceed what is generally acceptable in ordinary life, the boundary drawn in Collins v Wilcock [1984] 3 All ER 374.¹ The intent required is intent to make the contact, not intent to cause the resulting harm.

Assault is an act that directly and intentionally causes another to apprehend imminent contact. The apprehension, not fear, is the gist of it — a plaintiff who is unafraid but expects the blow is still assaulted. There must be an apparent present ability to carry out the threat. Australian authority accepts that words alone may amount to assault, and that words may also negate what conduct would otherwise convey.

False imprisonment is a direct, intentional and total restraint of liberty without lawful justification. Three points repay attention:

1. The restraint must be total. A partial obstruction leaving a reasonable means of exit is not imprisonment, though a means of escape involving danger or indignity does not count as reasonable.
2. The plaintiff need not know of the restraint at the time.
3. Lawful authority — arrest powers in particular — is the defence that decides most real cases, and its limits are statutory and jurisdiction-specific.

Trespass to land

A direct interference with land in the plaintiff's possession, without consent or lawful authority. Possession, not ownership, founds the action. Entry that begins lawfully may become trespass when permission is revoked and a reasonable time to leave has passed, and the interference may be at, above or below the surface within the limits of the occupier's practical use and enjoyment.

Trespass to goods, conversion and detinue

• Trespass to goods — a direct interference with goods in the plaintiff's possession.
• Conversion — dealing with goods in a way that seriously denies the plaintiff's right to them. It is the substantial tort in practice, and the remedy is the value of the goods.
• Detinue — a wrongful refusal to deliver goods up after a proper demand, which alone allows an order for the return of the goods themselves.

Students should notice that these three overlap heavily, and that the choice between them is driven by the remedy sought.

The action on the case

Where the harm is indirect, the residual action on the case requires proof of damage. It includes an action for intentionally inflicted physical or recognised psychiatric harm caused by conduct calculated to produce it. The scope and continued utility of that action in Australia is unsettled, particularly given the statutory mental harm provisions and the reach of modern negligence; treat it as available but contested rather than as a settled route.

Who must prove fault

This is a genuine point of Australian divergence, and it is examinable. Where the interference is direct, Australian authority places the onus on the defendant to disprove intention and negligence, rather than requiring the plaintiff to prove fault. The position for injuries arising on a highway has been treated differently, and is not uniformly settled. English law diverged from this position, so English texts on the point should be read with care.

Applying this in a problem question

1. Identify the interest interfered with — body, liberty, land or goods.
2. Ask whether the interference was direct. If it was not, the action lies in case and damage must be proved.
3. Set out the elements of the specific trespass, keeping intent as to the act separate from intent as to the harm.
4. Deal with consent, lawful authority, self-defence and necessity as defences, on which the defendant bears the onus.
5. Note that damages are available without proof of loss, and consider aggravated damages where the manner of the conduct warrants it.

Where the authority sits

Common law, with Australian authority departing from England on the onus of proof and on several elements. Statutory arrest and detention powers govern the lawful authority question, and civil liability legislation in several jurisdictions expressly excludes intentional torts from its damages caps — so the statutory reading in this area is about what the statutes do not touch.