Assault and battery - Lecture notes 1 PDF

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Law of Torts - Assault / Battery Lecture Notes...

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Ba t t e r ya ndAs s a ul t– Tr e s pa s st ot hePe r s on TORT V CRI ME Tort and crime are different things – assault and battery are crimes as well as torts. There is a clear difference between the aims of the two branches of law. The criminal law has moved in recent years in the direction of emphasising individual responsibility. The function of the civil law is distinct as it provides a framework of compensation for wrongs which holds the balance fairly between the conflicting rights. (Ashley v Chief Constable of Sussex) Criminal law is public in nature and is brought by the state. They are guilty and will go through the criminal tort system. Tort is a private law area with actions brought against one person to another. There is a tortfeasor who will be liable rather than guilty. It is possible to commit more than one tort when you analyse a set of facts. English law has no objection to concurrent liability between one and another – concurrent liability. The claimant can only recover once for their damage.

TRESPASSTO THE PERSON -

Battery Assault False imprisonment.

Collins v Wilcock An assault is an act which causes another person to apprehend the infliction of immediate unlawful force on his person; a battery is the actual infliction of unlawful force on another person… false imprisonment is the unlawful imposition of constraint on another’s freedom of movement from a particular place. For an assault there does not need to be harm of injury – for the battery it ACTUALLY has to happen. Intentional Torts: You have to have intention to commit them. This requires a deliberate conduct. You do not have to intend to commit a tort you just do what you did deliberately. Wilson v Pringle It is the act and not the injury which must be intentional – an intention to injure is not essential to an action for trespass to the person. It is the mere trespass itself which is the offence.

Recklessness- going ahead with the action even though you knew of a risk Carelessness – measure against the reasonable person … not to measure up to the reasonable person you have behaved in a careless way

ASSAULT AND BATTERY What is the point of these torts? Both assault and battery protect aspects of our personal integrity: - Battery protects our bodily integrity. - Assault protects the right not the be put in fear of unlawful invasion of our integrity. These are fundamental aims and rights that we hold Collins v Wilcock There was a police officer who approach two ladies who were engaging in acts of prostitution. She walked away and he followed her and she swears at him. He persists in talking to her and she held on to her arm and tried to restrain her but had NOT arrested the woman. She said the police officer had committed battery and the question for the court was whether the holding of the woman’s arm could amount to the battery. The law applies equally to the police. ‘The fundamental principle, plain and incontestable is that every person’s body is inviolate… every man’s person being sacred and no other having a right to meddle with it, in any the slightest manner’ Ashley v Chief Constable of Sussex Police The police had planned to raid Ashley in connection to drug trafficking. They were warned he had shot another person in the past and had armed robbery. Upon entering the bedroom of the flat the police shot at Ashley and injured him after Ashley made advances. They brought against the police a rang of different torts. They refused to accept the claim in battery. By the time the claim came before the HoL there were a number of questions. The claim could happen if no compensation was available? They wanted the claim that the police had acted with intention and vindicate the rights of their family member. - Ashley had been put into the position he had been in? - Vindication of the rights… A claimant has no cause of action in negligence unless he has suffered injury or damage. By contrast, battery or trespass to the person is actionable without proof that the victim has suffered anything other than the infringement of the right to bodily integrity.

BATTERY REQUI REMENTS 1) Application of direct and immediate force. 2) Intention on the part of the defendant.

3) The application must be unlawful. ***do not need injury

Application of Direct and Immediate Force Scott v Shepherd Firework in a market place, it lands near one person who picks up and throws it on and then it goes off and injures someone. Was this direct and immediate force as by the time those who was injured had it as those who threw it wasn’t the first thrower.  ‘Whatever mischief therefore follows, he is the author of it’. Where that is the natural consequence is what you set in motion – direct and immediate. Breslin v McKenna (NI Court … persuasive effect). Omagh Bombing … whether leaving a bomb to go off could amount to direct and immediate force? Morgan J ‘impact caused by the detonation of a bomb is my view direct injury and a delay in detonation makes no difference as long as the mental element required for tort is established’. ***only where there are intervening actions where these need to be considered … guided principle = natural consequence of what you did. Intention Without intention you are only left with the option of negligence Letang v Cooper There is a young woman who was sitting out sunbathing in a carpark who runs over the claimant’s legs who has causing personal injury. The law enforced at the time the claimant could not bring an action in negligence as it was time barred which did not arise in relation to the trespass claim. As such the court needed to assess whether this could be brought in trespass so the court needed to figure out the difference between the two. Lord Denning – divided according to whether they did it intentionally or unintentionally. If he does not inflict intentionally, but negligently, I would say that the only cause of action is negligence and not trespass. If it were trespass it would be actionable without proof of damage and that is not the law today. She could not bring a claim in negligence as she crossed the three year period. If there is an intention you can bring a claim but here there was no intention to make any contact at all. Transferred intention: Livingstone v MoD A background of terrorist activities in NI. A group of soldiers were attacked by rioters and one hit the claimant. Did it make a difference that thee soldier was not aiming at the claimant?

When a soldier deliberately fires at one rioter intending to strike him and he misses him and hits another rioter nearby the soldier has intentionally applied force to the rioter who has been struck.  Intention transferred to the party who is actually struck. Bici v MoD The action of British soldiers undertaking peacekeeping operations in Kosvo. Some local people drove around in their cars and fired guns on their national day. The British soldiers opened fire in direction of the car and the claimant was struck by in the jaw. They were only aiming at those firing guns and di not intend to fire at the claimant. In my judgement the principle enunciated in the Livingstone case and these earlier authorise is sound law. The intention in relation to the first party transferred. Bever ‘Transferred Malice’ - He criticises the court of doing away with the connection between the interference of the bodily integrity and the intention to do that to that person. The aim of the tort is that you do not need to have damage to bring this tort and to balance this out you must have a higher mental state of intention. With transferred intention you lose the link. Did not have the mental element. Recklessness – aware of the risk but took the risk anyway: Bici v MoD Can recklessness suffice for the mental element … you do not need proof of damage but there is a higher mental state. Recklessness WILL suffice. Argument put forward in the Bici case was that the pattern of bullet holes = they were not aiming but they randomly shot at the car. Therefore, could the soldiers be liable if they had not deliberately shot the claimant but they had gone ahead anyway. Elias J -‘I accept that recklessness will in principle suffice but it must be a subjective recklessness that they appreciated the potential harm to the claimants and were indifferent to it. The short answer to this point is that I have found that soldiers were not reckless in that sense’. Hostility: Whether it needs to be hostile or angry for a tort to be committed. Collins v Wilcock The police officer who wants to take to the potential prostitutes and grabs her by the arm but has not arrested her so there is no lawful justification for the contact. We asaw that it could amount to a battery but is is there a requirement of hostility: ‘Generally speaking, consent is a defence to battery; and 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. 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..’ (Robert Goff LJ). Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life. We observe that, although in the past it has sometimes been stated that a battery is only committed where the action is 'angry, or revengeful, or rude, or insolent' (see 1 Hawk PC c 62, s 2), we think that nowadays it is more realistic, and indeed more accurate, to state the broad underlying principle, subject to the broad exception.”  Most of the contacts we have on a daily basis will not amount to battery even though we have not expressed consent as it would be impractical to have it as a rule to claim every time somebody touched you.  Implied consent – general acceptable physical contact in the ordinary conduct of daily life.  Any contact even without hostility can amount to a battery but is subject to the exception that most people will implying consent. Wilson v Pringle Two 13 year old boys and they are taking part in horseplay. The first boy is injured as there si a pulling of his bag – is there a need for hostility or was the nature of what they were doing means there should not be a tort. Any contact needed to be hostile and there must be hostile intention. “Another ingredient in the tort of trespass to the person is that of hostility ... If there is hostile intent, that will by itself be cogent evidence of hostility. But the hostility may be demonstrated in other ways.” F v West Berkshire AHA A woman had the mental age of a child and there was fear she may become pregnant and would be unable to cope with the process and would not eb able to raise the child even though she was in a sexual relationship. They wanted to perform a sterilisation process and if this does not have consent it could give rise to the tort of battery. Would the touching need to be hostile – a surgical procedure is not hostile? “It has recently been said that the touching must be 'hostile' .... I respectfully doubt whether that is correct. A prank that gets out of hand, an over-friendly slap on the back, surgical treatment by a surgeon who mistakenly thinks that the patient has consented to it, all these things may transcend the bounds of lawfulness, without being characterised as hostile. Indeed, the suggested qualification is difficult to reconcile with the principle that any touching of another's body is, in the absence of lawful excuse, capable of amounting to a battery and a trespass.” (Lord Goff)

Hostility is NOT required of this tort – this fits in with it being a fundamental principle which is the right to bodily integrity. The application will be unlawful WITHOUT a defence.

ASSAULT REQUI REMENTS 1) Claimant’s reasonable apprehension of the application of direct and immediate unlawful force. 2) Intention that claimant apprehends the application of unlawful force by the defendant. Immediate unlawful force against them (threats): Stephens v Myers The threat of the battery needs to be immediate. There was a parish meeting in the church hall and between the parties and argument broke out. The defendant was asked to leave and threatened to hit the chairman. At the time he used the threat he is away from the chairman and there is a number of people between them. He approaches the chairman as if he is going to carry out the threat and is stopped by the warden. Is a threat on its own actionable or is there a need to carry out the threat issues? “It is not every threat, where there is no actual personal violence, that constitutes an assault, there must in all cases, be the means of carrying the threat into effect.” (Tindal CJ). Thomas v NUM There were some miners who continued to work through the strikes and the buses would drive through the picket line holding back to striking miners who would threaten and hurl abuse at the miners who were not striking. They could not get to the miners so they could not really carry out the threats being issued. “Assault is defined ... as "an overt act indicating an immediate intention to commit a battery, coupled with the capacity to carry that intention into effect." The tort of assault is not, in my view, committed, unless the capacity in question is present at the time the overt act is committed. Since the working miners are in vehicles and the pickets are held back from the vehicles, I do not understand how even the most violent of threats or gestures could be said to constitute an assault.” (Scott J)  A threat on its own is not enough if you cannot immediately act out that threat.  No means of carrying out the threat. SITE BOTH – help strengthen the arguments of both claimants. Conditional threats: Made where I would do this to you if this condition was met – then the condition is not met. Tuberville v Savage

The defendant drew his sword and said if it were not assize time, I would not take such language from you. The criminal and civil law were being put into effect. As they were in town he would not carry out his threat as the condition was not met. It was assize time, so no assault. Words alone? R v Ireland “The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence, e.g. a man accosting a woman in a dark alley saying, 'Come with me or I will stab you.' I would, therefore, reject the proposition that an assault can never be committed by words...”(Lord Steyn)  You do not always have to have gestures which accompany those words in order of the tort to be committed. In terms of silence it is fact dependent: silence can amount to an assault so long as it gives rise to reasonable apprehension to immediate and direct force which depends of the effect of the silence in the circumstances on the victim. “whether a silent caller may be guilty of an assault. The answer to this question seems to me to be 'Yes, depending on the facts.' ... Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller's arrival at her door may be imminent. She may fear the possibility of immediate personal violence. As a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstance and in particular on the impact of the caller's potentially menacing call or calls on the victim.” ((Lord Steyn) “He was using his silence as a means of conveying a message to his victims. This was that he knew who and where they were, and that his purpose in making contact with them was as malicious as it was deliberate. In my opinion silent telephone calls of this nature are just as capable as words or gestures, said or made in the presence of the victim, of causing an apprehension of immediate and unlawful violence.” (Lord Hope) Fearing immediate personal violence where they are not sure where that caller is. It must be a reasonable thing to think tat is going to happen dependent on the circumstances. Intention - Deliberately cause the claimant to apprehend unlawful force - Intention here subject to same issues as for battery The application of force must be UNLAWFUL....