#7163 - Trespass To The Person - Torts A

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.

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.

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.

P 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]

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, 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 self-defence 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 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.

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.

Consider:

• Self-defence/defence of another, necessity, consent (eg sports), lawful authority

Assault is committed when a voluntary and positive act of the defendant directly and intentionally or negligently causes the plaintiff reasonably to apprehend imminent contact.

It is actionable per se – no damage need be shown to claim in assault.

P must show that D’s act was a positive act and not mere passivity or omission (Innes v Wylie).

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

D’s act must have been voluntary, meaning D’s act was conscious and willed.

• D is not required to have intended to bring about the results of the conduct to satisfy this element.

In assault, it is not clear exactly what must be satisfied in deciding if the apprehension was direct upon D’s act. Directness regarding assault may mean either

1. The communication of the threat must be direct, meaning the threat directly brings about the apprehension in P (eg A tells B he will hit B is direct; leaving a note for B is not); or

2. The threatened contact will be direct contact that may constitute a battery (meaning A can convey the threat through a note left for B)

Some academics (such as Trindade et al) suggest that the second approach, or both together, should be followed, as the first leads to the illogical result of a threat amounting to assault where, if carried out, it would not result in a battery. However, the first approach is favoured in case law such as Zanker v Vartzokas.

Accordingly P must show that the apprehension of contact he/she suffered was direct, meaning that it followed so immediately from D’s threat that it may be termed part of that act (Hutchins v Maughan).

[Note any issues with directness and if the communication is direct]

Injury that is merely consequential upon D’s act will not ground a claim in tort.

P’s apprehension will be consequential if there is an intervening act between D’s act and P’s apprehension, such that the apprehension cannot be said to have flowed directly from P’s threat (Hutchins v Maughan).

It may be relevant if time has elapsed between D’s act and apprehension of P (this can be inferred from Myer Stores v Soo).

Intervening acts [note if any of the below apply]

Human acts, including acts of P, may constitute an intervening act.

1. P’s own act of coming to the hazard can be an intervening act: Hutchins v Maughan

2. Voluntary action by P can be an intervening act: Myer Stores v Soo

HOWEVER an act that is reflexive or in self-defence will be considered an inevitable consequence of D’s unlawful act and will not be seen to undermine directness (Scott v Shepherd).

Natural forces can constitute an intervening act (Southport Corporation v Esso).

1. Tide (Southport)

2. Gravity is not considered an intervening act (dropping something on someone...