200008 -Torts Law: Torts Assignment PDF

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Advise Emma whether she is likely to be successful in any action for an intentional tort against William. Emma v William- Battery Conduct Battery is the intentional contact with the body of another person without that person’s consent. William’s direct act of throwing his car door open resulted in an injury for Emma. The direct act of throwing his door open was hostile in nature which can be accounted for battery (Brian Rixon v Star City; Cole v Turner).1 The facts state that Emma had fallen after William had thrown the door open which caused her to fall. This was foreseeable for a reasonable person that the negligent action of opening the door could lead to an Emma’s injury (Williams v Milotin). 2 Fault William’s conduct of opening the door act was negligent. Defence William’s act of throwing the door open is likely to be constituted as battery (Brian Rixon v Star City; Cole v Turner). His act satisfies the fault element as it was foreseeable for a reasonable person that his actions could result in any sort of injury. (Williams v Milotin). However, the onus of proof would be shifted on Emma, as Emma’s fall resulted in putting her hand out to try and keep the door closed. Therefore, Emma would have to prove that it was William’s use of force that resulted in her fall rather than her wilful act of putting her hand out to keep the door closed. (Platt v Nutt). Emma has a strong case against William as she has suffered injury as a result of William’s hostile direct act. Emma v William -Assault Conduct Assault occurs when the defendant by some intentional act creates in the plaintiff a reasonable apprehension of imminent harmful or offensive direct contact with their person (Barton v Armstrong; Bradey v Schatzel; Zankar v Vartzokas; Hall v Fonceca).3 William screaming to Emma to watch what she was doing or he would give her what he had coming is a direct act of conditional threatening resulting in fear within Emma. Conditional threatening can institute to assault if the plaintiff reasonably apprehends that imminent harm can be carried out by the defendant (Barton v Armstrong). The facts express that after the threatening words Emma jumped with freight which clearly establishes that William had successfully through his direct act of threatened had instilled fear in Plaintiff Emma’s mind (Zankar v Vartzokas). Fault

1 See, Brian Dixon v Star City Pty Ltd (formerly Sydney Harbour Casino Pty Ltd) (2001) 53 NSWLR 396; Cole Turner (1704) 6 Mod 149; 87 ER 907. 2 Williams v Milotin (1957) 97 CLR 465. 3 See, Barton v Armstrong (1969) 2 NSWLR 451; Bradey v Schatzel (1911) St R Qd 206; Zanker v Vartzokas (1998) 34A Crim R 11; Hall v Fonceca (1983) WAR 309.

William’s verbal threat was intentionally made (Hall v Fonceca) satisfying the fault element. Defence William’s threatening words did result in ‘reasonable apprehension of imminent contact by defendant’ in Emma (Barton v Armstrong). Due to this, William is likely to be found liable for assault. Advise William whether he is likely to be successful in any action for an intentional tort against Emma. William v Emma- Assault Conduct Assault is the direct act of the defendant that results in reasonable apprehension of imminent contact within the plaintiff (Barton v Armstrong; Bradey v Schatzel; Zankar v Vartzokas; Hall v Fonceca). The direct act of Emma raising her hand in a fist and shaking it at William accompanied with calling him a bully can constitute as assault (Hall v Fonceca; Stephens v Myers).4 Fault Emma’s direct act does not show her intention to cause any harm or apprehension of harm (Hall v Fonceca) Therefore, the fault element is not satisfied. Defence Under the dicta of Barton v Armstrong, Emma’s actions could be seen as assault. In accordance to Smith and Kennedy JJ in Hall v Fonceca, ‘..it would be sufficient to constitute a threat if there had been intention on the part of the appellant to cause apprehension to the respondent’. Therefore, in the case, judges hadn’t found any necessary intent in the plaintiff to consider these actions as assault. Thus, Emma’s action in accordance of Hall v Fonceca might not be seen as assault. Considering the facts, William is most likely to fail. William v Emma- False Imprisonment Conduct False imprisonment is the direct act by the defendant that intentionally deprive the plaintiff of his or her liberty without lawful justification (Zanker v Vartzokas; Balmain New Ferry v Robertson).5 Emma expressing that she wanted William to be taken to the police station can be considered as approval for William to be imprisoned (Murray v Ministry of Defence; Dickenson v Waters).6 Therefore, Emma had actively promoted William’s false imprisonment and the of duty police officer was incapable of exercising his discretion. Fault

4 Stephens v Myers (1830) 172 ER 725. 5 Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379. 6 Dickenson v Waters Ltd (1931) 31 SR (NSW) 593; Murray v Ministry of Defence (1988) 1 WLR 692.

Emma had intentionally consented to having William falsely imprisoned (Dickenson v Waters). Defence Emma is likely to be liable for false imprisonment as the off duty police officer would not have taken William to the police station had she not affirmed to his statement. Otherwise, he could have exercised his discretion and make a decision. (Dickenson v Waters; Murray v Ministry of Defence). William is likely to succeed because Emma had actively consented and promoted his false imprisonment. Advise William whether he is likely to be successful in an action for unlawful detention against Robert. Also advise William what the chances are of Robert being able to raise a successful defence to an action against him in battery (you are to assume that William would otherwise be successful in a claim for battery). William v Robert- Unlawful Detention Conduct Robert through pinning him down and getting Taj to take the keys of William’s car actively promoted his unlawful detention (Zankar v Vartzokas; Dickenson v Waters; Murray v Ministry of Defence). Fault Robert’s acts were intentionally made. (Dickenson v Waters; Zankar v Vartzokas) Defence Robert will be liable for unlawful detention as he pinned William down and asked Taj to take his keys away leading to total restrain in William’s freedom (Burton v Davies).7 William has a strong case in against Robert due to the actions Robert took which left William with no reasonable means to escape (Burton v Davies). William v Robert- Battery Robert’s available defences Robert under s 52 of the Civil Liability Act (2002) NSW, will be able to claim selfdefence as he could justify his actions to prevent any harm against Emma and defend her as he had perceived Emma had been in a threatening situation which could have resulted in criminal trespass. Advise William whether he can sue the police officer that took him into custody for trespass to land and then, assuming that he can, whether the police officer has a defence available to the action. William v off duty police officer- trespass to land Conduct The off duty police officer’s direct act can be considered at trespass to William’s land as he did not have William’s consent to jump the gate and enter his land 7 Burton v Davies (1953) QSR 26.

(Kuru v State of New South Wales; Plenty v Dillon; New South Wales v Ibbett).8 The off duty police officer’s actions had no lawful justification as he was off duty and he had no lawful warrant to enter Wiliiam’s house and arrest or threaten to arrest him (Kuru v State of New South Wales; Plenty v Dillon; New South Wales v Ibbett) Defence Though police officers are bound to ‘keep the peace’, in this case the off duty police officer does not have any sort of requirement to maintain peace as he is not currently doing his job. Therefore, he did not have any lawful justification to trespass to land. Thus, the police officer does not have a defence available to the action.

8 Kuru v State of New South Wales (2008) 232 CLR 410; (2008) HCA 6; Plenty v Dillon (1991) 171 CLR 635; State of New South Wales v Ibbett...