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Trespass To The Person Notes

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This is an extract of our Trespass To The Person document, which we sell as part of our Torts A Notes collection written by the top tier of Monash University students.

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Trespass to the person Battery Definition Battery is a voluntary and positive act of the defendant, which directly and intentionally or negligently brings about contact with the person of the plaintiff.

It is actionable per se - no damage need be shown to ground a claim in battery. Positive act P must show that D's act was a positive act and not mere passivity or omission ( Innes v Wylie). D's act here was/was not positive [reasons].

Innes v Wylie: standing blocking door not a positive act.

Voluntary act D's act must have been voluntary, meaning D's act was conscious and willed. Here D's act was [clearly/not] voluntary [note reasons if necessary]. D is not required to have intended to bring about the results of the conduct to satisfy this element. DirectnessP must show that the contact he/she suffered was direct, meaning that it followed 'so immediately upon the act of the defendant that it may be termed part of that act' (Hutchins v Maughan).

[Note any issues with directness]
Was the contact merely consequential?
Injury that is merely consequential upon D's act will not ground a claim in tort.

Contact will be consequential if there is an intervening act between D's act and the contact with P, such that the contact cannot be termed part of D's act (Hutchins v Maughan).

It may be relevant if time has elapsed between D's act and the injury to P (this can be inferred from Myer Stores v Soo).

Intervening acts [note if any of the below apply]

Human acts Human acts, including acts of P, may constitute an intervening act.P's own act of coming to the hazard can be an intervening act: Hutchins v Maughan Voluntary action by P can be an intervening act: Myer Stores v Soo

HOWEVER an act that is reflexive or in selfdefence will be considered an inevitable consequence of D's unlawful act and will not be seen as intervening to undermine directness (Scott v Shepherd). Natural forces Natural forces can constitute an intervening act (Southport Corporation v Esso).Tide (Southport) Gravity is not considered an intervening act (dropping something on someone still trespass)

Southport: the intervening act of the tide in bringing oil to shore made damage to P's shore only consequential on D's act.

But P may argue that that Southport should not be followed as "inevitable consequences" of D's act (such as gravity or as was held in Scott v Shepherd) should not be considered intervening acts.

Will there be directness where D's agent and not D commits the tort?
D may argue that [agent], and not D, committed the battery on P and therefore there is no directness. However, P can argue that [agent] was acting as D's agent. The court would then treat the principal (in this case D) as being in the position of his/her agent [agent] and therefore there will be no problem of directness (Dickinson v Waters).

Can police be agents?
D may argue that a police officer cannot be found to be an agent for him/her. It will usually be found that police acted independently by making their own assessments, rather than taking directions from members of the public (Davidson v Chief Constable of North Wales).

However, P can argue that it is not unheard of for police to be agents of citizens (see, eg, Dickinson v Waters) and that the circumstances of the case, namely the fact that [note the

reason eg police took direction], means that the officer/s were acting as D's agent. Fault Nonhighway cases As this is not a highway case, D must prove on the balance of probabilities that he/she was not at fault (McHale v Watson), by showing that he/she
- Did not intend to make contact with P; and
- Was not reckless or negligent (careless) in carrying out his/her actions Highway cases As mentioned above, this is a highway case; accordingly, P must prove on the balance of probabilities that D was at fault (Venning v Chin) by showing that he/sheIntended to make contact with P; or Was reckless or negligent (careless) in carrying out his/her actions.

While P may argue that Venning v Chen is a South Australian Supreme Court decision and not binding in Victoria, it is a widely accepted principle in Victoria. Intention?
Here, it appears that D [intended/did not intend] the outcome of his/her act because...

Deemed intention?
While may appear there is no actual intention, it is probable that the doctrine of substantial certainty, as applied in the US, applies in Australia (though there is no direct precedent here). By that doctrine, D will be deemed to have intended the result of his/her actions if a reasonable person in D's position would recognise that their acts were substantially certain to result in that outcome.

In this case, a reasonable person would/would not realise that doing ... is substantially certain to result in ...

Recklessness?
A defendant will be held to be reckless as to the outcome of his/her actions if he/she knows that the outcome might ensue from a particular action, but does that action anyway. However, this standard is not overly necessary to prove fault as negligence will suffice in Australia.

In this case...
Negligence?
In Australia, negligent trespass is recognised (Williams v Milotin; Stingel v Clark). D's actions will be negligent if it would have been reasonably foreseeable to a reasonable person in the position of D that his/her conduct might cause some harm. Contact

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