Law on Torts in Australia - Essay Example

? Torts Law Australia Introduction In the given case scenario, Tom can be identified as the plaintiff, while Officers Derk and Falcon are identified as the two defendants. Violations and Injuries Sustained to the Plaintiff In the given case scenario, Tom suffered a variety of injuries, it can be argued that his property rights were violated since when he had earlier on asked them to vacate his premises, the two officers refused to do so and went on to insist on searching the property. Instead they should have willingly vacated the land and if the need arouse return back later with a warrant allowing them to search the property forcefully in the event that Tom refused them to do so1. The Plaintiff, Tom could claim to have suffered personal injury on his person when the defendant, officer Falcon laid his hand on Tom’s shoulder (McNamara v Duncan (1971) 26 ALR 584, 5872 (Fox J). The law is clear on the fact that the defendant had no right to touch the person of the plaintiff as the defendant did not have any arrest warrant authorizing him to take Tom into custody.3 Upon refusal by the plaintiff to accompany the defendant to the police station, the defendant should have left the premises and proceeded to go and obtain a court order or a warrant of arrest that would have allowed him to take the plaintiff into custody for questioning4. The plaintiff could argue that the actions of the two defendants caused economic injury to his business as a result of their insisting on questioning him within the premises of Tom’s business property at the reception area in full view of his waiting customers. Hargrave v Goldman (1936) 110 CLR 40, 495 (Windeyer J). Tom can argue that the actions of the two officers had adversely affected his business by portraying him negatively in full view of the customers. Tom can also claim that his business suffered extensive loss as a result of the Defendant officer Derk detaining him for longer than was actually necessary at the police station even after he had questioned him for a reasonable duration of time without a warrant or court order authorizing him to do so.6 Causes of Court Action Available to the Plaintiff The Plaintiff can take several legal recourses against the defendants. In the case of Tom, the plaintiff versus Officers Derk and Falcon, the defendants, he can be able to sue the two for trespassing onto his property as was seen in the case of Adams v. State of New South Wales & ors (2001) New South Wales District Court.7 The law defines trespass as “Trespass is a tortious cause of action dealing with direct and intentional interferences to either the person, land or to goods.” Reynolds v Clarke (1725) 1 Str 634. They can be sued as a result of their refusal to leave the plaintiff’s property even after he had asked them to do so. The two defendants also went on to search the plaintiffs workshop without a warrant and are liable to be sued for conducting an illegal search as was in the case of Curran & ors v. Walsh & ors (1998) unreported, New South Wales District Court.8 In the case of The Plaintiff Tom Versus the defendant Officer Falcon, the plaintiff can sue the defendant for trespass on his person. By placing his hand on the plaintiff’s shoulder, the defendant had directly and deliberately caused there to be physical contact between his person and the plaintiff’s person without the consent or the legal justification to do so and hence was liable to be sued.9 In the case of the plaintiff, Tom versus the defendant, officer Derk, the plaintiff could sue for economic damages sustained as a result of the officer retaining him for questioning at the police station for too long. In the case of “Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” [1976] HCA 6510” Caltex were able to recover damages for the economic losses they suffered without having suffered any actual physical damage.11 Tom was unnecessarily detained for questioning irrespective of the fact that the plaintiff had come to the station on his own volition without any warrant being issued against him and had stayed for questioning for a reasonable duration of time. The plaintiff had also alerted the defendant to the fact that he needed to leave to go and meet with some customers and by his being retained for longer than was necessary a duty of care can thus be established he could argue that he definitely made a loss.12 Identification and explanation of the elements of the law It can be argued that Tom can sue Police Officers Falcon and Derk for trespass. This is true because according to tort law, an act of trespass contains the element of voluntary and intentional.13 Although the two policemen were carrying out their duties, it was voluntary and intention that they decided to enter in Tom’s business for questioning. In this regard, Tom can sue the officers on the ground that they did trespass his property. For this reason Tom, may demand that the officers compensate him for trespassing his property14. At one point, Tom ordered the police to immediately vacate the confines of his premises, but they insisted to continue searching the place. The fact that Tom had ordered the police to leave can be argued to qualify to be a and indication that, beginning the moment he ordered them to leave until when they did search and left, they were, actually trespassing. On the same account, in the event of the officers trespassing Tom’s property, they caused nuisance. Even after Tom answered some of the questions they needed him to answer, and that he requested them to leave because they were causing a scene within his business premises, they insisted on continuing to question him. They even demanded that he accompany them to the police station for further questioning. This, according to tort law qualifies to be an act of nuisance.15 From another dimension, the police officers were liable for negligence. Tom had categorically requested the officers to question him in his office away from customers. As a result of their refusal to do this, Tom and his business can argue that his business lost valuable customers due to the scene that was caused by the officers. Tom can sue them for compensation of damage caused by the officers due to their negligence.16However, the element of negligence needs to be substantiated comprehensively because it is not clear whether the acts of the officers lead to loss of business to Tom.17 In fact, if Tom were to bring this element out in the court, his arguments would require concrete evidence, which among other things would incorporate relevant business documents to support his claims and witnesses of the incidence. The police officers also have some defense arguments in relation to their line of their duty. However, it would be difficult for the police to defend themselves because they did not have any lawful justification for their cause of action. 18 Conclusion The case of Tom Vs the police officers is controversial since although the police officers did not have any lawful justification for their cause of action, they were performing their duty. Nevertheless, the discharge of their mandate can be argued to have gone against the law. In this regard, it is likely that the court would find the police officers guilty for having trespassed Tom’s business premises. Conversely, the police officers could be ordered to compensate Tom for the loss of business incurred during the incidence. However, in case Tom is unable to prove that the police officers actually did trespass, were negligent and that they contributed to loss of business, there is a possibility that they could be acquitted of the charges brought against them. In addition, if the police officers are acquitted by the court for lack of substantial evidence, the police may have an option of suing Tom to compensate them for damages caused in relation to loss of time during court proceedings. Nonetheless, if the police officers are found guilty and ordered to compensate Tom, they also have an option of filing an appeal on the judgment. Bibliography: (McNamara v Duncan (1971) 26 ALR 584, 587 (Fox J). Adams v. State of New South Wales & ors (2001) New South Wales District Court. Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” [1976] HCA 65. Carolyn, Doyle, and Mirko Bagaric. Privacy law in Australia. Sydney: Federation Press, 2005. CCH Australia Limited. Australian business law. North Ryde, N.S.W.: CCH Australia, 1981. Curran & ors v. Walsh & ors (1998) unreported, New South Wales District Court. David, Barker. Essential Australian Law. Sydney: Cavendish Publishing Limited. 2000. Hargrave v Goldman (1936) 110 CLR 40, 49. Jeremy, Gans, and Andrew, Palmer. Australian Principles of Evidence 2/e. Sydney: Cavendish Publishing (Australia) Pty Limited. 2004. Latimer, Paul. Australian business law. North Ryde: CCH Australia. 1992. Stewart, Pamela and Stuhmcke, Anita. Australian principles of tort law. Sdyney: Cavendish. 2005. Fleming, John. The law of torts. Sydney: LBC Information Services. 1998. Harvey, Callie. Cornerstones of Australian law. Victoria: Tilde University Press. 2009. Read More