Skip to 0 minutes and 3 seconds NICOLE MOLLARD: We have a very strong sense here that our home is our castle, and it’s the place that we retreat to at the end of a working day. We can do that because we know that, generally speaking, other than my mother, people won’t be walking into our property without asking. And most of the time, we don’t have to enforce that right.
Skip to 0 minutes and 22 seconds JOANNA KYRIAKIS: I think that’s a very important power that you have because in Australia, we don’t have, for example, a tort of privacy. But one of the ways privacy is protected is our ability to make it very clear that we don’t allow for uninvited guests to come onto that property.
Skip to 0 minutes and 38 seconds NICOLE MOLLARD: Though of course, there are lots of situations where we’re happy for people to come and visit us, and one of the clearest ways we can show that we’re happy for people to come and visit is to have a gate that opens, have a path from the gate that leads to our front door, and have a knocker on our front door or a doorbell. And when we set our homes up in that way, we’re making it clear to the outside world that we generally accept. It’s OK.
Skip to 1 minute and 8 seconds JOANNA KYRIAKIS: And this is called in tort law an implied license to enter our property. So while, strictly speaking, whenever someone crosses the boundary onto your property, it’s constituted as a trespass to land unless they have an express invitation and that they’re not contravening any clear indications that they are, in fact, excluded and not allowed on our property.
Skip to 1 minute and 31 seconds NICOLE MOLLARD: So we can, in fact, legitimately exclude people for good reason. Closing and locking that front gate, putting a sign up that says– the standard fairly blunt one is trespassers will be prosecuted.
Skip to 1 minute and 43 seconds JOANNA KYRIAKIS: A case known as Halliday versus Nevill makes it very clear that the law will imply that it is not a trespass to enter someone else’s property, provided that the path or the driveway that leads to the dwelling is relatively unobstructed, meaning there isn’t either a gate precluding entry or a locked gate precluding entry, and furthermore, that there’s no indication that entry is forbidden. And finally– and this is quite, I think, interesting– that you’re entering for a legitimate purpose. So in fact, your reasons for entering the property can change the legal position as to whether you’re allowed to enter or not.
Skip to 2 minutes and 19 seconds What this means is that if you are walking up the pathway to someone’s house with the intention of breaking into the property, that in fact is not covered by the implied license because you’re not there for a legitimate reason. It’s also useful to know that there is a limit to the scope of your implied license, which means that what you’re allowed to do on the property is limited, and it’s limited to, effectively, using the main pathway toward the door of the property to try to communicate with the resident of the property. The owner of that property has done all they should be doing to protect their ceramic frog. It’s on their land, which they have exclusive possession over.
Skip to 3 minutes and 2 seconds As a result, Tony certainly has committed a wrong by picking up the frog and taking it away with him, even if he had an implied license to be on the land.
Skip to 3 minutes and 11 seconds NICOLE MOLLARD: That goes well beyond the license. The license was just to make himself known to the person who was at home. You can interfere with someone’s possession of goods by touching, dealing with, or walking away with someone’s goods. Now, it’s probably worth mentioning that that also probably constitutes a theft, which is a criminal matter that would be dealt with, at least where we’re from, by the police, whereas this right that we have to our possessions is enforced by tort law, which makes it a civil claim that would be brought by the owner of the ceramic frog.
Skip to 3 minutes and 54 seconds And our concern in tort law is not so much with punishment by the state but with getting the ceramic frog back or being compensated for the lack of the ceramic frog. Just as we want quiet enjoyment of our land and we want to be able to leave a ceramic frog in our front garden and know that people aren’t allowed to touch that, we also protect our bodily autonomy and our right not to be touched or interfered with in our person.
Skip to 4 minutes and 27 seconds JOANNA KYRIAKIS: So someone else intentionally or even carelessly directly interfering with our bodily integrity constitutes a tort.
Skip to 4 minutes and 36 seconds NICOLE MOLLARD: Absolutely.
Skip to 4 minutes and 37 seconds JOANNA KYRIAKIS: Hey! [CHUCKLING] Nicky has just committed a battery–
Skip to 4 minutes and 41 seconds NICOLE MOLLARD: Sorry, Jo.
Skip to 4 minutes and 41 seconds JOANNA KYRIAKIS: –against my person. [CHUCKLING] I accept that apology and won’t be taking the matter further, but it is illustrative of the fact that we have this absolute right to personal autonomy and integrity, physical integrity. So there are, in fact, many technical batteries that may occur in day-to-day life where people make contact with your person, and you haven’t consented to it in advance. The law does have to deal with that fact, which it deals with by allowing that there are certain forms of contact that are effectively to be expected in the ordinary intercourse in day-to-day life. For example, standing on a busy bus– that’s not going to be treated as a tort as battery.
Skip to 5 minutes and 32 seconds But the example here of being intentionally hit is certainly beyond what we ordinarily encounter.
Skip to 5 minutes and 42 seconds NICOLE MOLLARD: Just as we can expressly consent to someone coming on our land by saying, Lloyd, come over. Have a cup of tea at my house, and we can impliedly consent to someone walking through the front, up the path, knocking on the door to give us a brochure. We can also expressly consent to being touched. Jo, is it OK if I punch you?
Skip to 6 minutes and 5 seconds JOANNA KYRIAKIS: Yes.
Skip to 6 minutes and 6 seconds NICOLE MOLLARD: Softly?
Skip to 6 minutes and 7 seconds JOANNA KYRIAKIS: Softly.
Skip to 6 minutes and 8 seconds NICOLE MOLLARD: But generally speaking, we’re wanting expressed, clear consent to any kind of touching, and there’s all sorts of complications in a medical setting, in a sporting setting, if you’re pretty careful about that. And again, just as touching our ceramic frog can be a crime as well as a tort, me punching Jo in the arm can be a crime as well as a tort.
Skip to 6 minutes and 39 seconds JOANNA KYRIAKIS: There are, in fact, three different kinds of trespasses that exist. One of these is the tort of battery, the second is the tort of assault, and the third is the tort of false imprisonment. They protect us against slightly different forms of interference with our person. So battery protects us against interference with us physically. Assault protects us against interference with what we might describe as our mental integrity. In other words, it’s to protect us against the creation of an apprehension that we’re going to be physically interfered with.
Skip to 7 minutes and 15 seconds To give an example, if somebody is acting physically threateningly toward me, implying through their body that they are going to hit me, they’re actually committing a tort against my person because they’re creating in me a reasonable apprehension that I’m about to be subject to physical violence, and that is protected. That is not acceptable under tort law. And the third form of trespass to the person is false imprisonment, and this is there to ensure that as individuals, we can move as freely as we’re entitled to. And so that if somebody locks us, effectively, or closes us into a closed area, an area we cannot escape from, reasonably remove ourselves from, then this is also a tort.
Skip to 8 minutes and 1 second This is the tort of false imprisonment. Let’s imagine that I’m Percy, and I have seen what Tony is about to do or has done with my frog. We see that he’s run outside and raised a fist at Tony. Then I think there’s a good argument I’m committing an assault in doing so.
Skip to 8 minutes and 20 seconds NICOLE MOLLARD: Absolutely. You’re performing this voluntary and positive act of punching me.
Skip to 8 minutes and 26 seconds JOANNA KYRIAKIS: So that’s clear because I’m willing the bodily movement, which is to threaten your person, which is intended to threaten your person.
Skip to 8 minutes and 34 seconds NICOLE MOLLARD: And because you have this fist in my face, I apprehend physical contact. So regardless of how brave I am and whether I fear it or not, I apprehend in the sense of expect because you’re standing so close to me you’ll be able to carry through with that threat and punch me.
Skip to 8 minutes and 55 seconds JOANNA KYRIAKIS: And your apprehension is reasonable, I would think, in the eyes of an objective observer because I’m close, and I have the capacity physically to actually carry out the threat that I’m making to your person. Furthermore, it’s clearly intended by me to create that apprehension because I want an outcome from this. I want you to desist from what it is that you are doing. So technically speaking, we certainly would have an assault here. It bears noting that there may be a defense. I’m doubtful, but there may be a defense in that you are entitled to take reasonable and proportionate steps to protect your property.
Skip to 9 minutes and 36 seconds However, they do have to be proportionate to the interest you’re protecting, and threatening physical violence is not the right way to go about that. The correct approach would be to demand or request that the item be put down. Percy then goes further and actually follows through with the physical threat and pushes Tony physically.
Skip to 9 minutes and 59 seconds NICOLE MOLLARD: Well then, now you’ve actually made contact, and so we have another tort, not just an assault, but now also a battery.
Skip to 10 minutes and 8 seconds JOANNA KYRIAKIS: It doesn’t matter whether I’ve caused you any injury or not. The wrong is the making of contact with you.
Skip to 10 minutes and 14 seconds NICOLE MOLLARD: What’s protected is my right not to be threatened.
Skip to 10 minutes and 17 seconds JOANNA KYRIAKIS: Yes. There’s then Tony retaliating by pushing Percy back into a small shed and causing the shed to become locked by the implement that he places at the door. Clearly, we have another tort here.
Skip to 10 minutes and 32 seconds NICOLE MOLLARD: So our assault was protecting our well-being and our battery protecting our right not to be touched, and false imprisonment as a tort protects our right to freedom of movement, to not be confined in certain spaces. And those spaces can be small or big, and the shed is a very, very clear example of being totally confined.
Skip to 10 minutes and 53 seconds JOANNA KYRIAKIS: So we would look at the shed and determine whether there was a means for Percy to exit the shed reasonably.
Skip to 11 minutes and 0 seconds NICOLE MOLLARD: So if the door just required a shove to open, then that would probably not be false imprisonment because there’s a reasonable means of exiting. Being locked in a shed in Australia might sound quite terrifying. That’s where all our spiders live. But false imprisonment can occur even if you’re only in that shed, that confined space, for a very, very short period of time.
Skip to 11 minutes and 23 seconds JOANNA KYRIAKIS: And again, like the other trespasses we’ve been talking about, it doesn’t matter whether the individual who’s confined has suffered any kind of harm, any kind of tangible damage as a result, although again, obviously the seriousness of the wrong has increased if there is some sort of injury that follows. It’s also worth noting that the act that constitutes the false imprisonment is the point at which somebody has locked you– the act that has locked you into this confined space. That’s what the court would treat as the act of false imprisonment.
Skip to 11 minutes and 52 seconds It’s interesting to note that just as it’s not required that you be aware, strictly speaking, that you’re confined in order to be the subject of a tort of false imprisonment, likewise, you don’t have to necessarily be aware that contact has been made with your person for the tort of battery to be committed against you. And again, this is a very important feature of trespass law because, again, the law puts an absolute premium on our bodily integrity. And there are many situations where contact may be made with your person when you’re not aware of it that are clearly wrong.
Skip to 12 minutes and 25 seconds So for example, medical trespasses when an individual is under an anesthetic and is not aware of what is taking place during surgery– if the contact and the interference with– the impact on their person is not what they had agreed to, that can constitute a battery. Likewise, somebody making contact with you whilst you’re unconscious or you’re sleeping is absolutely prohibited in tort law.
Case study 1 analysis: Tony Trespasser
Watch Jo and Nicole explore torts law with their analysis of the “Tony Trespasser” case study.
How has your understanding of torts law changed after watching Jo and Nicole’s analysis of the case study?
How are the torts of trespass, battery and false imprisonment enforced in your jurisdiction?
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