Torts A Summary Intentional Torts To The Person Notes

TRESPASS TO PERSON

Battery

1. Actionable per se

   1. Harm is not required

2. Voluntary and positive act by the defendant

   1. Positive: “More than an omission/passive conduct” Innes v Wylie

   2. Voluntary: Directed by the defendant’s conscious mind

      1. A contraction of muscles which is purely a reaction to some outside force, convulsive movement of an epileptic, movements during sleep, periods of unconsciousness, are not acts of the person Stokes v Carlson

3. Interference

   1. “The transmission of any force to the body of a person will constitute battery” Trinidade & Cane

      1. ‘The least touching of another in anger is battery’ Holt CJ Cole v Turner

      2. There is no requirement of anger of hostility (As per Lord Goff in Re F and affirmed in Australia in Rixon)

   2. The defendant must have control over the incident

   3. The contact must be with the person of the plaintiff

      1. Can include plaintiff’s clothing but must include a transmission of force. Protection from insult is limited to insult by touching their body Purcell v Horn

      2. Knocking or snatching, or touching anything connected with his person when done in an insolent manner, is sufficient Morgan v Loyacomo

   4. EXCEPTION: a general exception is made to “physical contact which is generally acceptable in the ordinary conduct of daily life” Collins v Wilcock

      1. Was the conduct in excess of that generally acceptable in everyday life?

         • If the conduct is ordinary conduct of daily life or exigencies of daily life, it is not a battery Collins v Wilcock

           1. Test is whether they come within a ‘general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life’

         • Other exceptions include Rixon v Star City Pty Ltd

           1. Children may be subjected to reasonable punishment

           2. People may be subjected to lawful exercise of the power of arrest/self-defence etc

4. Intentional act by D

‘In the absence of intention, a violation…is not actionable as a trespass’ Williams v Milotin

1. Intention

   1. Can either take the form of;

      • Actual intention

      • Possibly deemed intention

        1. The doctrine of substantial certainty: a reasonable person in the defendant’s position would believe that a particular result was substantially certain to follow

        2. Recklessness: a person knows that the outcome might ensue from particular actions, and goes ahead to undertake those actions anyway. Not necessary that D actually had been able to hurt them.

           1. D in a fight struck a third party. This was battery James v Campbell

           2. D hit P when trying to strike her dog. Battery. Also, a defendant who intends to commit battery but instead commits trespass to chattels remains liable Ball et Uxor v Axten

           3. ‘It is not essential that the injury be to the one intended’ Cornes v Thompson

      • They don’t have to intend to actually harm them

2. Negligence

   1. Has the person, in undertaking the relevant actions, acted with less care than the care with which a reasonable person would have acted in the circumstances?

      • NOTE: Where the elements of both the tort of negligent trespass and the tort of negligence have nee made out, both will be available to the defendant Williams v Milotin

      • However, in England there is no such cause of action as negligent trespass – where the actions of D were not intentional, the plaintiff must rely on the specific tort of negligence, not trespass (as per Lord Denning in Letang v Cooper

3. Proof of assault requires proof of an intention to create an apprehension of imminent harmful or offensive conduct, not a desire to inflict actual harm Rixon v Star City Council

4. Burden of proof

   1. In ENGLAND: The burden of proof with regard to fault is always on the plaintiff Fowler v Lanning

   2. In Australia; the burden of proof with regard to fault is generally on the defendant (as per Windeyer J, McHale v Watson), except in highway cases where the burden falls on P (P must prove that there was intention/negligence and that it was not an inevitable accident, Venning v Chi

   3. Standard of proof: balance of probabilities

5. Direct act by D

   1. It must follow so immediately upon the act of the defendant that it may be termed part of the act; it is consequential. The D has set in motion a continuous or unbroken series of consequences, the last of which causes the contract.

      1. Consciously entering land knowing there is bait on it not the fault of D. It was an ‘obvious and visible intervening causes which is not regarded as part of D’s act but merely as a consequence of it’ Hutchins v Maughan

      2. An oil tanker which discharged it’s oil which polluted the beach was not direct because it required the tides to carry it. Dissent: if a person deliberately employs the moving water to cause a thing to go on to land it would be direct. South Port Corp v Eso

      3. Throwing a log on the highway and later a person tripping is not direct Leame v Bray

      4. The contact must be a continuation of the defendant’s act. When D threw a lighted squib, the middle parties were acting under ‘compulsive necessity for their own safety and self-preservation’ There must be ‘no new and independent intervening cause’ Scott v Shepard

Assault

Definition: ‘A voluntary and positive act by the defendant that directly, and intentionally or negligently, causes the plaintiff to reasonably apprehend imminent physical contact’

1. Was the act positive

   1. Positive: “More than an omission/passive conduct” (Innes v Wylie)

      1. The act can take the form of:

         1. Words (R v Ireland, Barton v Armstrong)

            1. Words can be assault Barton v Armstrong but it is unlikely mere words without bodily movement constitute an assault

            2. It must be a verbal threat of immediate force, not future force.

         2. A conditional threat: “A threat that contact will be made with a person unless he or she acts, or refrains from acting in a certain way.” (Rozsa v Samuels)

            1. Did the defendant’s words negate the threat? (Tuberville v Savage)

            2. As per Rozsa v Samuels, to determine whether or not the conditional threat was lawful ask;

               1. It is assault if the defendant has no right to impose that...

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