Intentional torts in Australian law protect individuals from deliberate wrongful acts that interfere with their rights, including assault, battery, false imprisonment, trespass (to land and goods), defamation, nuisance, detinue, and conversion. Unlike negligence, these torts require intentional or reckless conduct and are often actionable per se, meaning harm does not always need to be proven. They uphold personal autonomy, reputation, property rights, and bodily integrity, while also deterring wrongful conduct and ensuring legal accountability.⚖️🔥

Table of Torts

Assault

Assault is ‘an overt act indicating an immediate intention to commit a battery, coupled with the capacity of carrying that intention into effect’.

The Queen v PhillipsBarwick CJ: "an assault necessarily involves the apprehension of injury or the instillation of fear or fright. It does not necessarily involve physical contact with the person assaulted: nor is such physical contact, if it occurs, an element of the assault." (1971) 45 ALJR 467: No physical contact is involved.

A positive act, gesture or threat

Either a threatening act or gesture, an act or gesture accompanied by threatening words, or in some circumstances threatening words alone may be suﬃcient.

Barton v ArmstrongIf the threat produces an immediate fear or apprehension of physical violence, there may be an assault, although the complainant does not know when the physical violence may be effected [1969] 2 NSWR 451: Telephoned threats may be an assault
Brady v SchatzelThe act must make a reasonable person (objective test) in the shoes of P believe that force is about to be applied to them. [1911] StR Qd 206: Threatening with an unloaded pistol was an assault
Rosza v Samuels A conditional threat of violence went beyond what was reasonable for self-defence. [1969] SASR 205: A conditional threat may be an assault
Stephens v MyersIt is not every threat, when there is no actual personal violence, that constitutes an assault, there must, in all cases, be the means of carrying the threat into effect. [1830] EWHC J37: Threatening words and gestures can be an assault.

directly causes

The interference to P must be a direct result of D's action and NOT conseqential (a requirement of all trespass actions).

Reynolds v ClarkeA log thrown onto a highway that hits a person at that time is direct, whil someone tripring over later is consequential. (1725): Fortescue J's 'log on the highway' analogy
Scott v ShepherdAn act that sets in motion an unbroken series of continuing consequences, the last of which causes the injury, can be regarded having directly caused the injury. (1773): Including the continuation (natural and probable consequences) of an act.
Hutchins v MaughanAn injury is said to be direct when it follows so immediately in terms of causation upon the defendant’s act as to be part of that act. [1947] VLR 131: An intervening act disperses directness.

a reasonable apprehension of imminent physical contact

D must reasonably (an objective test) appear to P to have the means and intention to carry out the threat, but there is no requirement that D must actually have the means to carry it out.

Stephens v Myers (1830)
Zanker v ZartokasPresent fear can be immediate and continuing and threats must be unavoidable (P had no option to escape) (1989) SASC 795: Imminence of harm may not be immediate in time.

which is done, intentionally, recklessly or negligently.

The fault element requires D's act to be either intentionalA conscious purpose to achieve a legally proscribed result, recklessD knowingly (subjective test) disregards the risk of harm. D is aware of the risk but proceeds anyway. or negligentAs to a reasonably (objective test) forseeable risk. Does not depend on the D’s actual awareness of the risk..

Battery

Battery occurs when a person intentionally and directly applies physical contact to another person without lawful justification. Unlike assault (which involves causing apprehension of harm), battery requires actual physical contact, even if no harm is caused. Battery is a form of trespass to the person and is actionable per se, meaning that actual harm does not need to be proven—the mere unwanted contact is enough

direct and physical contact

D must have physically touched the plaintiff or an extension of their body (e.g., clothes, objects they are holding).

an intentional or reckless act

D must have intended the contact, or at least been reckless about causing it. Negligence is not enough.

without lawful justification or consent

The physical contact must be unauthorised — it is not battery if the person consented (explicitly or implicitly) or if the contact was legally permitted

False Imprisonment

False imprisonment occurs when a person is intentionally and unlawfully restrained in a way that completely restricts their freedom of movement without legal justification. It is a form of trespass to the person and is actionable per se, meaning the plaintiff does not need to prove actual harm—the unlawful restraint itself is sufficient to establish liability.

an intentional and direct act by D

The act which must be intended is the imprisonment. No malicious intent is required. A mistaken belief that the imprisonment is lawful is no defence.

Cowell v Corrective Services Commission (1988) 13 NSWLR 714 : Failure to release a prisoner on the correct date

total restraint of freedom

The plaintiff must be completely confined, meaning they cannot leave by any reasonable means. Partial obstruction is not enough

Bird v Jones P was prevented from walking on a certain part of a bridge but had other ways to leave, so it was not false imprisonment. (1845) 115 ER 668 : Partial obstruction is not FI
Symes v Mahon A person’s freedom is totally restrained if they have no practical means of escape. (1922) 22 SR (NSW) 447 :

without lawful justification

The defendant must not have lawful authority (e.g., a valid arrest). If detention is legally justified, there is no false imprisonment.

Malicious Prosecution

Malicicious prosecution occurs when P is wrongfully subjected to legal proceedings without reasonable cause and with malice. Not only can a person who initiated a prosecution be sued, but anyone who aided and abetted the prosecution or is a party to bringing or maintaining the prosecution, can be liable.

A v New South Wales The action attempts "to balance the provision of a remedy where criminal processes have been wrongly set in train with the need to deter the proper invocation of those processes. The two requirements of absence of reasonable and probable cause, and malice, represent the particular balance that is struck" (2007) 230 CLR 500 : Outlined the four elements."
Beckett v New South Wales The common law principle which prevented a person from suing for a malicious prosecution unless they had been acquitted or found not-guilty was overruled. (2013) HCA 17

proceedings of the kind to which the tort applies were initiated against P the D

D must have actively initiated or maintained the prosecution against P.

A v New South Wales (2007) 230 CLR 500 : Outlined the four elements.

the proceedings terminated in favour of the P

The case must have ended with an acquittal, dismissal, or withdrawal of charges in favour of the plaintiff.

Commonwealth Life Assurance v Smith HCA : A total acquittal is not required.
Beckett v NSW Gageler J: "The termination of prosecution proceedings by entry of a nolle prosequi should be held to be sufficient to establish the element of the cause of action in malicious prosecution that requires prosecution proceedings to be terminated in the plaintiff ’s favour" (2013) HCA 17 : Nolle prosequi (unwilling to pursue) is sufficient.

D, in initiating or maintaining the proceedings, acted maliciously

D must have acted with an improper motive.

A v New South Wales "It is an element that focuses on the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law." (2007) 230 CLR 500 : Purposes other than a proper purpose of instituting criminal proceedings
State of New South Wales v Zreika DC Ryder kept the prosecution going " in the hope that some incriminating evidence might turn up ". From 31 July 2006, DC Ryder appreciated that there was no reasonable and proper cause for the prosecution (2012) NSWCA 37 : Maintaining a prosecution despite a lack of evidence.

D acted without reasonable and probable cause

D must have lacked reasonable grounds for initiating the case.

Intentional Harm

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Privacy

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Trespass to Land

Trespass to land in Australia occurs when a person intentionally or negligently enters, remains on, or directly interferes with another person's land without lawful justification or permission. It is a strict liability tort, meaning actual damage does not need to be proven—the mere unauthorized entry itself constitutes trespass.

an intentional entering or remaining on

The defendant must have direct contact to the land which must be voluntary, intentional, reckless or careless. Indifference to the risk of direct contact can also amount to a trespass.

land

Land means the earth (ground and buildings/fixtures attached to or sunk into it. It includes natural features and activities directly involved with it).

Bernstein v Skyviews Ltd“this balance is in my judgement best struck in our present society by restricting the rights of an owner in the airspace above his land and the structures upon it.” [1978] 1 QB 479: Restricted the rights to airspace of a landowner.
LJP Investments Pty Ltd v Howard Chia Inv. Pty LtdAn incurrence occurs where it is of the nature and height which interferes with ordinary usages of the land. (1989) 24 NSWLR 490: Rights to airspace limited by the ordinay usage of land.

in the exclusive possesion of another

The plaintiff must be in exclusive possession of the land. It does not require it to be exclusive possession of all aspects of the land, only those upon which trespass has occurred. Possession can be actual or constructive. It doesn’t mean that one has to be physically engaged in the land, they need to merely exercise possession of the right

without consent of legal justification

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Nuisance

The tort of private nuisance occurs when a person’s use or enjoyment of their land is substantially and unreasonably interfered with by another party’s actions. Unlike trespass (which requires direct physical interference), private nuisance focuses on indirect interferences that affect the landowner’s enjoyment of their property.

an interference (from an act or an ommission)

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with interest in land in the possession of the plaintiff

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that directly or indirectly causes

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damage

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which is unreasonable in the circumtances

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Trespass to Goods

Trespass to goods occurs when a person intentionally and directly interferes with another person’s goods without lawful justification. It is a strict liability tort, meaning that the plaintiff does not need to prove damage, only that the defendant intentionally interfered with the goods

a direct and intentional interference

D must deliberately interfere with the goods and the inteference must immediately impact the goods

Penfolds Wines Pty Ltd v ElliottLatham CJ: A mere taking or asportation (moving goods without permission) of a chattel may be a trespass without the infliction of material damage. The handling of a chattel without authority is a trespass. (1946) 74 CLR 204: Wrongful intentional interference with the plaintiff’s actual possession of the goods.
Slaveski v State of Victoria & Ors Trespass to goods occurs where the intentional or negligent act of a person directly interferes with another person’s possession of a chattel. [2010] VSC 441: Mere asportation of a chattel can constitute trespass to goods

with goods which belong to P

P must have possession or a right to possession of the goods at the time of the interference. Temporary possessors (e.g., bailees or lessees) can sue for trespass.

Penfolds Wines Pty Ltd v ElliottDixon J clarified that trespass to goods requires an interference with actual possession, not merely a right to immediate possession. If a party only has a right to possession but lacks actual possession at the time of the alleged trespass, they cannot sue in trespass (1946) 74 CLR 204: Actual possession of the good is required.

Assault

Battery

False Imprisonment

Malicious Prosecution

Intentional Harm

Privacy

Trespass to Land

Nuisance

Trespass to Goods

Detinue

Conversion

Inducing Breach of Contract

Interference with Contractual Relations

Causing Loss by Unlawful Means (CLUM)

Two Party Intimidation

Conspiracy

Defamation

Misfeasance of Public Office

Vicarious Liability

Non-delagable Duty

Breach of Statutory Duty

Rylands v Fletcher

Public Nuisance

Animals

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