The Tort of Conversion - Essay Example

Biggs & Buck, Solicitors MEMORANDUM TO: Partner FROM: solicitor SUBJECT: Felicity Muir PART A BACKGROUND/INTRODUCTION Felicity Muir was engaged to be married to James Wood. Who owns a seafood restaurant, before the wedding Felicity lent James an extremely old original watercolour painting of three mermaids, called ‘Siren Song’, to hang in his restaurant. Felicity had a change of heart and called the wedding off. She called James to arrange to collect her painting; James told her that he did not have it. The police told her that James’ sister, Avril Green, appears to have removed my painting from the restaurant. She has not received her painting back. Avril was pretty angry at Felicity for calling the wedding off. The evening before the intended wedding day; felicity heard a strange noise outside her house. She stood near the front wall of the house when Avril started throwing paint bombs. None of them hit her or her personal property, but they were a horrible purple colour. Felicity yelled at Avril, telling her in no uncertain terms what I would do if she did not leave. Felicity is seeking advice as to all actions that may be brought by her against Avril in relation to what has happened, but she is also concerned as to whether she will be liable. She refuses to sue James. The tort of conversion The tort of conversion is where someone actually converts your property to their own use. It's similar to a trespass to a chattel, except that in the tort of conversion, the property is completely dominated and maintained and it's never going to be returned and therefore it has been converted. And because of that, you are allowed to sue for the full value of that property. Oftentimes if the property is not transferred to a bona fide purchaser for value, you can still go ahead and get a court order to get the property back. Felicity has a case against Avril because she has her painting. She has intentional dealt with Felicity’s painting which is seriously inconsistent with the possession or right to immediate possession of another person. This tort protects the claimant's interest in the dominion and control of his goods; s2(2) of the 1977 Act the statutory conversion created by s2(2) of the 1977 Act there can only be a conversion if there is intentional conduct resulting in an interference with the goods of the claimant (per Lord Porter, Caxton Publishing v Sutherland Publishing [1938] 4 All ER 389, 404). If the defendant intends that dealing with the goods which, in fact, interferes with the control of the claimant, that act will be conversion: "though the doer may not know of or intend to challenge the property or possession of the true owner." Mistake and good faith are irrelevant: "the liability … is founded upon what has been regarded as a salutary rule for the protection of property, namely that persons deal with the property in chattels or exercise acts of ownership over them at their peril" (per Cleasby B, Fowler v Hollins (1872) LR 7 QB 616, 639; aff'd (1875) LR 7 HL 757; followed in Union Transport Finance v British Car Auctions [1978] 2 All ER 385). REMEDIES: DAMAGES At common law a claimant with a limited interest in the goods could normally recover their full value from a third party. Under s8 of the 1977 Act and rules of court the claimant now has to identify any other person whom he knows to have an interest in the goods and any such interested party may be joined, whereupon the damages may be apportioned amongst the interested parties in proportion to their respective interests. The claimant in conversion is entitled to be compensated to the extent of the value to him of the goods of which he has been deprived. This will often appropriately be the market value of the goods. Where goods are of a kind which can be readily bought in the market the actual market value will be the appropriate measure; otherwise the replacement value in a comparable state (JE Hall v Barclay [1937] 3 All ER 620) or the original cost minus depreciation will be the standard. Where the actual value of the claimant's interest in the goods is less than the market value he may be awarded the value of that interest and not the higher market value. 'The general rule is that a plaintiff whose property is irreversibly converted has vested in him a right to damages for conversion measured by the value of the property at the date of conversion' (BBMB Finance v Eda Holdings [1991] 2 All ER 129). 2) PRIVATE NUISANCE ( Walter v Selfe (1851) According to this test, Avril conduct of throwing paint bombs although non hit Felicity or her personal property amounts to nuisance because her conduct does not meet the plain and sober notions use of land Nuisance and Fault Wagon Mound (No2) {1967} An occupier may incur liability for emission of noxious fumes or noise although he has used the utmost care in building and using his premises. Avril action was deliberate. Felicity cannot sue Avril over the paint throw because neither hit her or her personal property. In Bone v Searle (1975) the plaintiff could not show that the foul smell from the defendant’s pig farm had caused a reduction in the capital value of their properties, even it did not constitute a nuisance. The horrible purple colour does not amount to nuisance or trespass to her person or personal property. However under the noise made deliberately to annoy the plaintiff may render the person making such noise liable.( Christie v Davey 1893) it was held that noise made by the defendant was not of a legitimate kind , and he was ordered to pay damages. MALICE As a general rule malice will not convert a lawful into an unlawful one ( Bradford Corporation v Pickles) but purpose or motive may be a determining factor whether or not a person is justified in disturbing his neighbor by making noise( 1836) shooting bullets across land – trespass to land. It was held that the defendant liable. Avril may be found liable under the above rule thought the paint bombs did not hit felicity or her personal property; it is evident from the previous relationship between the two that the motive behind the paint bombs was targeted to Felicity with an intention to annoy her. ”with a motive to encourage miscarriage of the plaintiff’s vixen (female fox) in the above case of Hollywood, the defendant instructed his son to fire a gun near the plaintiff’s farm which actual occurred. Defences available to Avril The law does not regard trifling and small inconveniences to be actionable neither is there remedy to too sensitive plaintiff for an act which may not have an adverse affect on normal persons Robinson V Kilvert (1889) it was held since the hit would npot have affected ordinary paper the defendant was not liable. Available Remedies to Felicity An Injunction may be pronounce on Avril to prevent her from interfering with Felicity in any way. Damages may be awarded to Felicity by the court to compensate the any injuries caused. Felicity is also concerned as to whether she will be liable Felicity could be liable to Avril under the law of assault. Felicity yelled at Avril, telling her in no uncertain terms what I would do if she did not leave. This may amount to an assault If Avril had a real apprehension of imminent physical contact from Felicity because of the way she addressed her then she may sue Felicity under Assault. Stephen v Myer (1830) it was held, ‘it is not every threat constitutes an assault, there must in all case be the means of carrying the treat into effect. The question to be answered will be whether the defendant was advancing at the time in a threatening attitude to strike the chairman, if he had not been stopped. If he would have reached the plaintiff , it seems to me is an assault’ Private nuisance protects an occupier’s such as Felicity right to use and enjoy her land free from unreasonable interference such as the one portrayed by Avril CONCLUSION Felicity has a very strong case under the tort of trespass to goods, Avril has wrongfully interfered with her painting by actual taking it up from James. The painting was wrongly taken because possession right were with James not Avril and it seem like it has been wrongfully restrained by her from Felicity the owner. (Consolidated Co v Curtis (1892) in this case an auctioneer without knowing the true position of the ownership to goods sold and delivered the goods. The auctioneer was held liable in conversion. Felicity can sue for conversion on the grounds that she is entitled to the right of immediate possession as against Avril. The second case of nuisance may fail but it will all depend with the judge `1500 words` PART B 3 questions that may be asked of Ms Muir to assist in establishing any of the possible trespass actions, defences or remedies identified in Part A are; Whether at the time of trespass to her painting she had a constructive possession of the goods. Only those persons with possession right at the time of trespass of goods can sue for them. Thus felicity will have to answer the question on what was her possession right of the painting when it was converted by Avril. Did she intend at any time that Avril will have a possession to the painting? If she did she canot sue because her possession right was not wrongfully interfered with, or disturbed she can sue. If when she yelled at Avril telling her to stop she acted in a way that could amount to an assault. It is important to know this so that we can decide whether she is liable for assault. Why did she not sue James? Reference 1 - Australia Torts Law 2nd Edition by Frances McGlone & Amanda Stickely; and 2 - Tort Case and Commentary 6th Edition by Harold Luntz, David Hambly & others. Indicate what type of question it is and explain briefly why you would ask it, relating the explanation to the theory of legal interviewing and relevant tort law and authorities. Read More