Download WEEK 2 INTENTIONAL TORTS TO THE PERSON

WEEK 2
INTENTIONAL TORTS TO THE
PERSON
BATTERY
ASSAULT
FALSE IMPRSONMENT
INTRODUCTION
Frivolous Law Suits and Law Reform??
Read:
Liebeck v. McDonald's Restaurants,
No. D-202 CV-93-02419, 1995 WL 360309 (Bernalillo County, N.M.
Dist. Ct.August 18, 1994)
1. What was the impact of the case on tort law reform in the United
States. What comparisons, if any, do you see with regard to tort
law reform in Australia that led to the adoption of the CLA?
2. Would punitive damages have been awarded in NSW under the
CLA?
Trespass
Conversion
Defamation
Intentional Torts
Misrepresentation
Deceit
WHAT IS TRESPASS?
• Intentional act of D which directly
causes an injury to the P or his /her
property without lawful justification
• The Elements of Trespass:
–
–
–
–
fault: intentional act
injury* caused directly
injury* to the P or to his/her property
No lawful justification
*INJURY IN TRESPASS
• Injury = a breach of right, not necessarily actual
damage
• Trespass requires only proof of injury not actual
damage
The Elements of Trespass
TRESPASS
Interference with person or
their property
Absence of lawful
justification
Direct
Intentional Act
SPECIFIC FORMS OF TRESPASS
TREAPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT
PROPERTY
Battery :
The Nature of the tort
BATTERY
• The intentional act of D which directly
causes a physical interference with the body
of P without lawful justification
• The distinguishing element: physical
interference with P’s body
THE INTENTIONAL ACT
IN BATTERY
• No liability without intention
• The intentional act = basic willful act +
the consequences.
THE ACT MUST CAUSE
PHYSICAL INTERFERENCE
• The essence of the tort is the protection of the
person of P. D’s act short of physical contact is
therefore not a battery
• The least touching of another could be
battery
– Cole v Turner (dicta per Holt CJ)
• ‘The fundamental principle, plain and
incontestable, is that every person’s body is
inviolate’ ( per Goff LJ, Collins v Wilcock)
Rixon v Star City Casino
• D places hand on P’s shoulder to attract
his attention; no battery
Collins v Wilcock
• Police officer holds D’s arm with a view to
restraining her when D declines to answer
questions and begins to walk away;
battery
Platt v Nutt
In Re F
• Per Lord Goff: It is well established that, as a
general rule, the performance of a medical
operation upon a person without his or her
consent is unlawful, as constituting both the
crime of battery and the tort of trespass to the
person.
SHOULD THE PHYSICAL
INTERFERENCE BE HOSTILE?
• Hostility may establish a presumption
of battery; but
• Hostility is not material to proving
battery
• The issue may revolve on how one
defines ‘hostility’
THE INJURY MUST BE CAUSED
DIRECTLY
• Injury should be the immediate
Law:
The Case
– Scott v Shepherd ( Lit squib/fireworks in market
place)
– Hutchins v Maughan( poisoned bait left for dog)
– Southport v Esso Petroleum(Spilt oil on P’s beach)
THE ACT MUST BE WITHOUT
LAWFUL JUSTIFICATION
• Consent is Lawful justification
• Consent must be freely given by the P if P is able
to understand the nature of the act
– Allen v New Mount Sinai Hospital
• Lawful justification includes the lawful act of
law enforcement officers
ASSAULT
WHAT IS ASSAULT
•
The intentional act or threat of
D which directly places P in
reasonable apprehension of an
imminent physical interference
with his or her person or of
someone under his or her
control
ASSAULT
TRESPASS:ASSAULT
• The intentional act or threat of D which directly
places P in reasonable apprehension of an imminent
physical interference with his or her person or of
someone under his or her control
• It is any act — and not a mere omission to act
— by which a person intentionally — or recklessly
— causes another to apprehend immediate and
unlawful violence:
The Gist of the Action
• …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.
(Barwick CJ in The Queen v Phillips (1971)
45 ALJR 467 at 472
THE ELEMENTS OF ASSAULT
• There must be a direct threat:
– Hall v Fonceca (Threat by P who shook hand in front of D’s face
in an argument)
– Barton v Davis
• In general, mere words are may not actionable
– Barton v Armstrong
But mere silence as in silent telephone calls,
may constitute an assault: R v Burstow; R v Ireland
[1998] AC 147.
• In general, conditional threats are not actionable
•
– Tuberville v Savage
– Police v Greaves
D’ act must
induce
apprehension in P
It must be a
‘reasonable’
apprehension of
imminent unlawful
physical interference
What is
imminent
depends on the
circumstance
Police v Greaves
Barton v Armstrong
Zanka v Vartzokas
Zanker v Vartzokas and the issue of
imminence/immediacy
• The Facts:
– Accused gives a lift to victim and offers money
for sex; victim refuses.
– Accused responds by accelerating car, Victim
tries to open door, but accused increases
acceleration
– Accused says to victim: I will take you to my
mates house. He will really fix you up
– Victim jumps from car then travelling 60km/h
Zanker v Vartzokas: The Issues
• Was the victim’s fear of sexual
assault in the future reasonable?
• Was the feared harm immediate
enough to constitute assault?
Zanker v Vartzokas: The Reasoning
• Where the victim is held in place and unable to
escape the immediacy element may be fulfilled.
• The essential factor is imminence not
contemporaneity
• The exact moment of physical harm injury is
known to the aggressor
• It remains an assault where victim is
powerless to stop the aggressor from carrying
out the threat
FALSE IMPRISONMENT
SPECIFIC FORMS OF TRESPASS
TREAPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT
PROPERTY
FALSE IMPRISONMENT
• The intentional act of D which
directly causes the total restraint of P
and thereby confines him/her to a
delimited area without lawful
justification
• The essential distinctive element is
the total restraint
THE ELEMENTS OF THE TORT
Intentional act
It requires all the
basic elements
of trespass:
Directness
Absence of lawful
justification
Total restraint
RESTRAINT IN FALSE
IMPRISONMENT
• The restraint must be total
– Bird v Jones (passage over bridge)
– Rudduck v Vadarlis
– The Balmain New Ferry Co v Robertson
• Total restraint implies the absence of a
reasonable means of escape
– Burton v Davies (D refuses to allow P out of car)
• Restraint may be total where D subjects P to
his/her authority with no option to leave
– Symes v Mahon (police officer arrests P by mistake)
VOLUNTARY CASES
• In general, there is no FI where one
voluntarily submits to a form of restraint
– Herd v Werdale (D refuses to allow P out of mine
shaft)
– Robison v The Balmain New Ferry Co. (D refuses to
allow P to leave unless P pays fare)
– Lippl v Haines
• Where there is no volition for restraint, the
confinement may be FI (Bahner v Marwest
Hotels Co.)
KNOWLEDGE IN FALSE
IMPRISONMENT
• The knowledge of the P at the
moment of restraint is not essential.
–Merring v Graham White Aviation
–Murray v Ministry of Defense
Cases in False Imprisonment
• Watson v Marshall and Cade
(1971) 124 CLR 621,
– a police officer asked the
plaintiff to accompany him to a
psychiatric hospital. The
plaintiff believed he would
have been compelled to go
along if he had refused. The
High Court held that the
plaintiff had a justified
apprehension that, if he did not
submit to do what was asked of
him, he would be compelled by
force to go with the defendant.
This restraint thereby imposed
on the plaintiff amounted to
imprisonment
McFadzean v Construction, Forestry, Mining and
Energy Union (2007) 20 VR 250,
•
•
Appellants were a group of protesters who
had engaged in a protest against logging in a
Victorian forest area. The respondents
imposed a picket near the site which made it
impossible for the appellants to leave by the
most direct route without permission.
However, there was an alternative route
available through the bush for exit purposes.
There was also evidence that the protesters
were anxious to remain at the site during the
duration of the picket
The Victorian Court of Appeal held that the
appellants had remained in the forest, not
primarily because of the respondents’ actions
but rather for their own reasons — to
continue their protest in an endeavour to
stop the logging. Moreover, the court agreed
with the trial judge that an alternative means
of exit was both available and reasonable.
Darcy v State of New South Wales [2011]
NSWCA 413
• The plaintiff had severe developmental
disabilities and lived in the community
but where she had trouble with the
police on occasions. The Local Court
ordered that she be taken a residential
centre which accommodates and treats
persons with intellectual and other
disabilities. The Department of
Community Services intended that P
should be returned to the community but
difficulties of a bureaucratic and funding
nature prevented this happening. The
primary issue was whether the failure to
return her and her continued stay at the
residential center was FI.
State of South Australia v LampardTrevorrow (2010) 106 SASR 331
•
•
•
When P was about a year old, he was
taken from hospital by an officer of the
Aborigines Protection Board and later
placed in long-term foster care without his
parents knowing of the removal or the
fostering. Issue whether there was FI.
The Full Court unanimously held that,
while neither the plaintiff nor his parents
had consented to his foster placement, he
was not falsely imprisoned during the
period of his foster care. The fact that the
plaintiff was an infant and needed care
and nurture spoke against any finding of
restraint. Any element of restraint, whilst
he grew as a young child, was solely
attributable to the obligation of his foster
parents to care for him and also
attributable to his immaturity.
However that the plaintiff’s claim of
negligence against the State was upheld
by the appeal court.
INTENTIONAL TORTS TO
PROPERTY
TRESPASS TO PROPERTY: LAND
TRESPASS TO LAND
• The intentional of D which
directly interferes with the
plaintiff’s exclusive possession of
land
THE NATURE OF THE TORT
• Land includes the actual
soil/dirt, the structures/plants
on it and the airspace above it
• Cujus est solum ejus est usque
ad coelum et inferos
–Bernstein of Leigh v Skyways & General
Ltd
–Kelson v Imperial Tobacco
The Nature of D’s Act: A General
Note
• ...[E]very invasion of private property, be it
ever so minute, is a trespass. No man can set
his foot upon my ground without my license,
but he is liable to an action, though the
damage be nothing.... If he admits the fact,
he is bound to show by way of justification,
that some positive law has empowered or
excused him ( Entick v Carrington (1765) 16 St
Tr 1029, 1066)
THE NATURE OF D’S ACT
• The act must constitute some
physical interference which
disturbs P’s exclusive possession
of the land
– Victoria Racing Co. v Taylor
– Barthust City Council v Saban
– Lincoln Hunt v Willesse
THE NATURE OF THE
PLAINTIFF’S INTEREST IN THE
LAND
• P must have exclusive possession
of the land at the time of the
interference exclusion of all others
THE NATURE OF EXCLUSIVE
POSSESSION
• Exclusive possession is distinct from
ownership.
• Ownership refers to title in the land.
Exclusive possession refers to physical
holding of the land
• The nature of possession depends on the
material possessed
EXCLUSIVE POSSESSION: CO-
OWNERS
• In general, a co-owner cannot be
liable in trespass in respect of the
land he/she owns; but this is
debatable where the ’trespassing’
co-owner is not in possession.
(Greig v Greig)
• A co-possessor can maintain an
action against a trespasser (Coles
Smith v Smith and Ors)¯
THE POSITION OF TRESPASSERS
AND SQUATTERS
•
A trespasser/squatter in
exclusive possession can maintain
an action against any other
trespasser
– Newington v Windeyer (1985) 3 NSWLR
THE POSITION OF LICENSEES
• A licensee is one who has the
permission of P to enter or use land
(belonging to P)
• A licensee is a party not in
possession, and can therefore not
sue in trespass
• A licensee for value however may
be entitled to sue(E.R. Investments v
Hugh)
THE TRESPASSORY ACT
• Preventing P’s access Waters v
Maynard)
• The continuation of the initial
trespassory act is a trespass continuing
trespass
– Where D enters land for purposes
different from that for which P gave
a license, D’s conduct may constitute
trespass ab initio/pro tanto
Case Law
– Singh v Smithenbecker: D entered land to take sheep lawfully
purchased. But became trespasser once he removed P’s gate
and took certain sheep without permission.
– Bond v Kelly: D became trespasser when he cut more timber
from P’s land than permitted amount.
– However see: Healing (Sales) v Inglic Electrix: D went to P’s
house to take some of their property, but also took P’s. Held:
Barwick CJ and Menzies J -D was not liable as part of purpose
was lawful. Kitto J said taking P’s stuff made them liable. Thus,
there is some doubt as to the trespass pro tanto doctrine.
THE POSITION OF POLICE
OFFICERS
• Unless authorized by law, police
officers have no special right of
entry into any premises without
consent of P. (Halliday v Neville)
• A police officer charged with the
duty of serving a summons must
obtain the consent of the party in
possession (Plenty v. Dillion )
Police Officers; The Common Law
Position
• The poorest man may in his cottage bid
defiance to all forces of the Crown. It
may be frail- its roof may shake- the
wind may blow through it- the rain may
enter- but the King of England cannot
enter- all his force dares not cross the
threshold of the ruined tenement. So be
it- unless he has justification by law’. (
Southam v Smout [1964] 1QB 308, 320.
TRESPASS TO PROPERTY
TRESPASS TO PROPERTY
LAND
GOODS/CHATTELS
TRESPASS TO PROPERTY
• GOODS/CHATTELS
TRESPASS
TO PROPERTY
• Personal property
LAND
TRESPASS TO
GOODS/CHATTEL
• The intentional/negligent act of D
which directly interferes with the
plaintiff’s possession of a chattel without
lawful justification
• The P must have actual or constructive
possession at the time of interference.
•
DAMAGES
• It may not be actionable per se (Everitt v
Martin)
CONVERSION
• The act of D in relation to
another’s chattel which
constitutes an unjustifiable denial
of his/her title
CONVERSION: Who Can Sue?
• Owners
•
Those in possession or entitled to immediate
possession
– Bailees*
– Bailors*
– Mortgagors* and Mortgagees*(Citicorp
Australia v B.S. Stillwell)
– Finders (Parker v British Airways; Armory v
Delmirie)