Trespass to the person and unauthorized photography in Australian tort law

Torts

Fred and Anna

Ivan and Rosina went out with friends to celebrate their engagement at Bar Roma. Trespass to the person in Australia is dependent on the directness of the act that has interfered with the plaintiff's right of autonomy. Australian law does not require the perpetrator to have intent to trespass (Williams v Milotin).1 Therefore, though Fred was intoxicated and may not have had conscious intent to violate Rosina's right of autonomy, he is still liable to suit in court. Fred's act was direct but unintentional. Fred's act of leering at Rosina and taking her picture without her consent caused her to be uncomfortable and to not to able to enjoy the ambience of the restaurant. This gives Rosina as a plaintiff in Australia the option to pursue a tort action based upon either negligent trespass or negligence. Rosina as the plaintiff has the onus of proof, for trespass 'on the highway' is always on the plaintiff at all times to prove (see Venning v Chin).2

In Brisbane Authority v Taylor, Judge Michael McHugh elucidated the rationale of limitation periods.3 The Limitation of Actions Acts prescribe time limits within in which litigation must be commenced and the extinguishing of the cause of action (the legal basis for the claim) happens after the period lapses. This is because as time goes by, relevant evidence may be lost. Additionally, it is oppressive to a defendant to allow an action to be brought long after the act has passed. Such limitation periods give certainty to people (especially businesses and insurers) in arranging their affairs and provisioning for their liabilities within a definite period. Also, public interest requires that disputes be settled as quickly as possible. However, it is now possible for a person who claims to have a cause of action to apply to a court for leave to extend a limitation period to allow the issuance of court proceedings. This applies to such cases whether the cause of action arose before or after the commencement of the Act. In considering such applications, the courts are required to take into account a number of different factors. These include factors such as the length of and reasons for the plaintiff's delay (intaking action). However, the Act adds further provides that a court to mitigating factors take into account, such as whether the passage of time has prejudiced a fair trial of the claim.4 There might also be an issue with the unauthorized photography that Fred took of Anna. While the taking of the photo itself is not illegal, if he uses it for unauthorized purposes, this could be the case.5

Ivan and Fred

Fred would likely have a claim against Ivan for threats and assault. Since Iran directly threatened him with physical harm. Such torts usually depend on the directness of trespass, which in this case would have been direct as Ivan stuck his hand in Fred's pockets. Australian tort law regarding nuisance is based upon the Scottish case of Rylands v Fletcher. Both Ivan and Fred could be considered to have violated "quiet enjoyment" of the premises that night. Fred would have violated Anna's quiet enjoyment of the evening, while Ivan would have done the same by assaulting Fred and deleting the pictures and threatening him, even though he was drunk and may not have had intent. This also opens the issue of the right of privacy.6 While Australian law has been slow to recognize this, the British House of Lords and the New Zealand Court of Appeal have recognised forms of personal privacy. However, this tort has been in development and is not fully formed.

Tony vs. The Immigration Officials

Tony wanted to leave, the restaurant. Tony would likely have access to a tort against the State Immigration Department for illegal trespass on his person and false imprisonment. As seen in Williams v Milotin there is no need for intent to proceed with a tort of trespass.8 Tony, who wanted to leave, threatened an official that he would knock him over if the official did not get out of the way. The official did not budge. Tony might have caused a nuisance as he threatened the officer even though was persuaded by his wife Carmela to sit down.9

Parking and Ivan and Rosina

Ivan and Rosina stopped to embrace passionately just as they were entering the nearby car park to collect their car. With regard to the car park accident, the possible tort complaints that Ivan and Rosina might take against the parking garage would have to prove negligence on the part of the parking garage company. This would appear difficult since they were standing under a garage door. A reasonable person would most certainly be expected to avoid such an area first due to the door and secondly because it is the entrance to a car park.10