Essential facts : • The appellant ran a business involving the travel of

harbour stream ferries between Sydney and Balmain.

• Fares were collected at the Sydney wharf side through the operation of

two turnstiles, one for entry and the other for exit.

• Each turnstile required the payment of 1 penny and were located on the

street side of the Sydney wharf, with a small gap of approximately 8.5-

inches located between the turnstiles and the wall.

• Two officers were employed to collect the fare

• A notice was hung in clear view on entry to the wharf that read "Notice. A

fare of one penny must be paid on entering or leaving the wharf. No

exception will be made to this rule, whether the passenger has travelled by

the ferry or not".

• The evening of the 5th of June 1906 the respondent entered the

appellant’s business intending to catch a ferry to Balmain

• They paid the due fare at the Sydney side entry turnstile.

• They wished to depart and use a different service and were told by an

officer that the only way out involved the payment of another penny through

the exit turnstile

• The respondent tried to force their way through the 8.5-inch gap without

payment and was stopped by the officer. And threatened with a fist.

• Despite opposing force, the respondent gained access to the street

through the gap.

He later on came back undeterred and they let him know that he had not

paid the previous penny.

At the time of the case, there was

longstanding authority that a person

could not imprison another to enforce a

breach of contract in the absence of

some independent lawful authority (that

is, a statute or judicial process).

High court

As a result of his experiences, Robertson brought an action against the company for assault and false imprisonment.

trial judge, Darley CJ,

The companies primary defense was that the employees acted out of their course of employment hence they are not vicariously liable.

Trial judge was of the view that companies cannot behave In this way ‘These companies should know that they had no right to detain any person. It was not a case of cheating. No doubt the plaintiff suffered a good deal of annoyance by being placed in a position which caused people to think that he was trying to evade the payment of his fare’

The judge found that there actions could not be justified and that this was a question solely on damages, the judge rejected that mr robertson was bound by the notice the jury rested and on their verdict they awarded 100 euros in favour of mrrobertson

Supreme Court

Immediately after the high courts ruling the ferry company sought a rule nisi which was granted on three grounds. The first related to the decision on vicarious liability whilst the latter two concerned the failure of Darley CJ to direct the jury that Robertson was bound by the notice.

The court rejected and said that reasonable notice was not a matter of discussion here because he had oftenly used the transport service hence that term had been incorporated in the contract in the course of dealings.

He couldn't simply abandon the implied contract and expect to walk away a free man without paying!

- The material facts of the case do not constitute a total deprivation of liberty

- To the degree that liberty was deprived, it was done with lawful justification

- Total deprivation of liberty is not a sustainable claim if reasonable means of escape, through the completion of one’s contract or otherwise, are readily available He had an option of swimming or paying up.

It is legal to enter into a contract involving the temporary surrender of a portion of one’s liberties

- A person involved in said contract is not necessarily entitled to the immediate cessation of this contract, and subsequently is not necessarily entitled to his liberties at once

By a majority, the Full Court held that there should be no new trial on the question of damages, effectively saying that the condition was of no importance at all in determining liability and quantum

Consent, express or implicit is a complete defense for the Tort of False Imprisonment

Nexus between contracts

and false imprisonment?

First, it might have operated as a

justification — lawful authority — to

detain a person who was in breach of

the ferry company’s conditions.

Second, and importantly, in the context

of false imprisonment, it might operate

by implying that the plaintiff consented

to any imprisonment.