This is an extract of our Torts A Summary 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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TRESPASS TO PERSON Battery
1. Actionable per se a. Harm is not required
2. Voluntary and positive act by the defendant a. Positive: "More than an omission/passive conduct" Innes v Wylie b. Voluntary: Directed by the defendant's conscious mind i. 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 a. "The transmission of any force to the body of a person will constitute battery" Trinidade & Cane i. 'The least touching of another in anger is battery' Holt CJ Cole v Turner ii. There is no requirement of anger of hostility (As per Lord Goff in Re F and affirmed in Australia in Rixon) b. The defendant must have control over the incident c. The contact must be with the person of the plaintiff i. 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 ii. Knocking or snatching, or touching anything connected with his person when done in an insolent manner, is sufficient Morgan v Loyacomo d. EXCEPTION: a general exception is made to "physical contact which is generally acceptable in the ordinary conduct of daily life" Collins v Wilcock i. 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
a. 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 a. Children may be subjected to reasonable punishment b. People may be subjected to lawful exercise of the power of arrest/selfdefence etc
4. Intentional act by D 'In the absence of intention, a violation...is not actionable as a trespass' Williams v Milotin a. Intention i. Can either take the form of;
Possibly deemed intention a. The doctrine of substantial certainty: a reasonable person in the defendant's position would believe that a particular result was substantially certain to follow b. 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. i. D in a fight struck a third party. This was battery James v Campbell ii. 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 iii. '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
i. 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
c. 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 d. Burden of proof i. In ENGLAND: The burden of proof with regard to fault is always on the plaintiff Fowler v Lanning ii. 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 iii. Standard of proof: balance of probabilities
5. Direct act by D a. 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. i. 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 ii. 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
iii. Throwing a log on the highway and later a person tripping is not direct Leame v Bray iv. 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 selfpreservation' 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 a. Positive: "More than an omission/passive conduct" (Innes v Wylie) i. The act can take the form of:
1. Words (R v Ireland, Barton v Armstrong) a. Words can be assault Barton v Armstrong but it is unlikely mere words without bodily movement constitute an assault b. 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) a. Did the defendant's words negate the threat?
(Tuberville v Savage) b. As per Rozsa v Samuels, to determine whether or not the conditional threat was lawful ask; i. It is assault if the defendant has no right to impose that condition i.e. if the condition is that P not do something that is lawful for P to do police v greaves ('come close and you'll be stabbed') OR if the condition that the plaintiff comply with is an unlawful demand ('your money or your life') ii. If the threatened conduct is justified because the plaintiff did an unlawful thing it is not assault Rosca v Samuels b. Voluntary: Was the act conscious/of the willed mind?
2. Actionable Per Se a. Plaintiff does not have to be frightened or alarmed
3. Defendant's act must directly cause apprehension
a. Test: "Was D's act, on its own, sufficient to bring about the injury to the Plaintiff?" i. Directness will be made out where the interference "follows so immediately upon the act of the defendant that it may be termed part of that act Hutchins v Maughan b. Were there any intervening acts?
i. Human actions (including that of the plaintiff)
1. Myers v Soo, Scott v Shepherd, Platt n Nutt ii. Natural forces a. Southport Corporation v Esso
4. Plaintiff must apprehend imminent contact a. Plaintiff has to know of the threat at the time it is made and they must apprehend immediate conduct. b. A threat can operate immediately on the victim's mind but in a continuing way so long as the unlawful imprisonment situation continued Zanker v Vartozokas i. It is "ever present in the victim's mind" as the result of a "position of dominance" allowing D to remain "in a position to carry out the threatened violence at some time not too remote", imminence will be made out c. It is not assault when there are protective measure that prevent the threats of violence being carried out d. Words can render harmless a threat that would otherwise be an assault Tuberville v Savage
5. Must be 'reasonable apprehension' a. Objectively speaking, was it reasonable for P to apprehend immediate physical contact? They don't have to fear it, just apprehend it b. Reasonable: i. Did D have the capacity to carry out the threat?
ii. NOTE: this question is asked from P's perspective and thus actual or apparent present ability suffices
c. If they know the person was timid, the unreasonableness of P's apprehension may not protect them. If they didn't know, it may not be assault. Mcpherson v Beath d. An unloaded gun can still constitute assault
6. D must intend to cause apprehension a. Intention i. Can either take the form of;
1. Actual intention
2. Possibly deemed intention a. The doctrine of substantial certainty: a reasonable person in the defendant's position would believe that a particular result was substantially certain to follow b. 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. c. If D should have realised as a reasonable person that the plaintiff would apprehend it, this can be assault. However there is not authority for this
b. Negligence i. Has the person, in undertaking the relevant actions, acted with less care than the care with which a reasonabl person would have acted in the circumstances?
1. 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
2. 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
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