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Torts A Extended Intentional Torts To The Person Notes

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

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Intentional Torts to the Person Writ of Trespass

Writ of Trespass on the case

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Directly caused damage or interference

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Indirectly caused damage of interference

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Don't need to prove damage

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Must be damage

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Defendant must establish defence

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Plaintiff must prove damage and the defendant was at fault

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Basis of battery, assault, false imprisonment, trespass to land and goods

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Basis of negligence, nuisance, conversion and Wilkinson action

Tort of trespass All involve wrongful direct and intentional interference

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Trespass to person o

Battery

o

Assault

o

False imprisonment

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Trespass to goods

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Trespass to land

Common elements

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Actionable per se (don't need to prove damage, just need to prove it happened). Actions are considered so important that it is irrelevant whether damage was caused, only that the tort was committed

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Defendant's act

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o

Voluntary (not 'involuntary') Must have meant to do something

o

Positive (rather than passive conduct or omission)

Consequence to plaintiff must be direct result of the defendant's act

Type of interference required in trespass to the person

1 Battery: contact Assault: certain apprehension False imprisonment: restraint

2 BATTERY

Elements of battery

1. Actionable per se (doesn't matter if it hurts someone, don't even have to KNOW it happened)

2. Voluntary and positive act by defendant

3. Interference - is physical contract necessary

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CONTACT with the plaintiff

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Not necessary that the defendant physically touches the plaintiff

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If one body doesn't touch another, doesn't matter, a TRANSMISSION OF FORCE can satisfy the requirement

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Although must be: i. An interference and ii. Interference must be direct result of defendant's act

4. Hostility isn't needed

5. Must be intentional act by defendant

6. Directness - defendant's act must directly cause the interference. Must touch.

1. Actionable per se

2. Voluntary and positive act by defendant

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Voluntary in the sense that the act is directed by the defendant's conscious mind.

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Where the defendant is forcibly carried onto the plaintiff's land by a third party, the trespass will be that of the third party, not of the defendant.

Authorities: Stokes v Carlson: 'A contraction of muscles which is purely a reaction to some outside force, convulsive movements of an epileptic, movements of the body during sleep when the will is in abeyance, and movements during period of unconsciousness, are not 'acts' of the person, and the person will not be responsible for injuries inflicted thereby, since such movements are without volition'

3 *

Acts done in a state of automatism will not be regarded as intentional but, in general, mental illness is not to be regarded as negativing volition. Acts performed under threat or pressure from circumstances beyond the control of the actor likewise will not negative volition, but may be pleaded by way of defence, for example self-defence, necessity or duress.

4 3. Interference

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There is no battery unless there is an act by the defendant.

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Merely to obstruct entrance to a room by standing still, is not an act in the sense required

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Battery is not committed if the incident is one over which the defendant has no control; for example, where their horse bolts and injuries the plaintiff, since the incident is not attributable to the defendant.

The contact must be with the person of the plaintiff

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Been extended judicially to encompass situations where no actual touching of the plaintiff occurs but where, for example, the defendant upsets the chair in which the plaintiff is sitting or if the defendant collided with the plaintiff's curricle causing the horses to bolt and the plaintiff, in order to preserve his life, to jump out of the curricle and fracture his collarbone, it was held that there was sufficient contract with the body of the plaintiff to maintain an action in battery

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Battery may be committed if the contract is with an item of the plaintiff's clothing rather than directly to the body o

Whether contract with clothing where no force has been applied but there is an element of insult, is undecided.

o

However, battery protects against insult and not merely against bodily harm, so contact with anything so closely attached to a person should be treated as battery.

Authorities: Purcell v Horn Throwing water on the clothes being worn by the plaintiff was not battery. Contact with things attached to the person may be battery only where this involves a transmission of force to the body of the plaintiff, and any protection from insult is limited to insult inflicted by touching another person. 'the act must imply personal violence' Morgan v Loyacomo 'to constitute an assault and battery, it is not necessary to touch the plaintiff's body or even his clothing; knocking or snatching anything from the plaintiff's hand or touching anything connected with his person, when done in a rude or insolent manner, is sufficient'. This decision would suggest, provided some element of force or insult accompanies the act, this would lead to a finding of trespass even in cases where the plaintiff's body has not actually been touched but only the plaintiff's clothing.

5 4. Hostility isn't needed

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Both motive and malice (unlike intention) are irrelevant in determining liability for battery, although the presence of either may affect the amount of damages awarded to the successful plaintiff

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It may be more sensible to approach the matter from the point of view of the plaintiff rather than that of the defendant, and to ask whether, from that point of view, the physical contract was in excess of that generally acceptable in everyday life

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It was outside the usual behaviour that would be appropriate

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The fact that something is done with hostility means that it can change it from something that is everyday and normal becomes something that is battery

What constitutes contact with the plaintiff

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Every persons body is inviolate thus the 'least touching of another in anger is battery' (Holt CJ)

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'The law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in the slightest manner.' (Blackstone)

Implied consent

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'If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it is not battery'

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People living in a modern society expose themselves inevitably to the risk of bodily contract and impliedly consent to contract of the nature of jostling in the supermarket, a cinema queue, or a busy street.

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Similarly, the partygoer whose hand is seized in friendship cannot complain of battery

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An alternative explanation: such contracts fall within a general exception covering the unavoidable, harmless incidents of everyday lift, referred to as 'permitted' contract

Collins v Wilcock test was whether the contact went beyond the 'generally acceptable standards of conduct' of everyday life.

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Under the Collins v Wilcock test, acts of physical contact will fall into two categories:

1. Ordinary conduct of daily life

2. Exigencies of everyday life

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Other contacts which fall outside this range will prima facie be cases of battery to which a defence must be raised.

6 *

Battery thus protects a person against all unpermitted and unwelcome contacts, irrespective of whether these result in actual physical harm or insult. Eg. Taking fingerprints, spitting in one's face, cutting one's hair against one's will

Authorities: Collins v Wilcock

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Police officer got out, grabbed her arm

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Court decided it was a battery

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'any touching, however slight, can be a battery'

Lord Goff

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'The fundamental principle, plain and incontestable, is that every person's body is inviolate...any touching of another person, however slight, may amount to a battery...'

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'the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner.'

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'most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact.'

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'So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is, within reason, slapped....'

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'Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as coming within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.'

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'Among such forms of conduct, long held to be acceptable, is touching a person for the purpose of engaging his attention, though of course using no greater degree of physical contact than in reasonable necessary in the circumstances for that purpose.'

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Sometimes you DO intentionally commit battery (eg. If you are falling off a path)

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Thus it is reliant on what is socially acceptance in the situation

Rixon v Star City Pty Ltd Facts:

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