Foundations of Private Law Assignment PDF

Preview

Summary

High Distinction Private Law Assignment ...

Description

CASE ANALYSIS: PART I A. Material Facts Mr Michael William Hutchison (the plaintiff), and Mr David Fitzpatrick (the defendant) were spectators at a rugby match at Griffith Oval on Saturday 5 June 20041. The men greeted each other briefly before the match2. During the match, the plaintiff, who suffers from a weak right leg as a result of right-sided hemiplegia3, was suddenly and without warning tackled from behind by the defendant, where he lost balance and fell, resulting in a fracture to his right femur 4. As a consequence of the incident, the plaintiff suffered enduring personal injuries, including a surgery inserting three screws, a hip replacement and physiotherapy.5

B. Legal Issues 1. Does the action of the defendant tackling the plaintiff amount to battery? 1.a) Does the action of the defendant have the requisite degree of hostility to amount to a battery? 2. Does the action of the defendant amount to negligence?

C. Conclusion and Orders Master Harper, on behalf of the Court, was satisfied that the actions of the defendant against the plaintiff amounted to both the tort of battery, and to the tort of negligence6. Master Harper ordered that the plaintiff be awarded damages to the total amount of $170,276.747. This included general damages for pain and suffering and loss of enjoyment of life8, past and likely future medical expenses9, and other such damages that were of consequence to the injury.10

1 Hutchison v Fitzpatrick [2009] ACTSC 43 (17 April 2009) [1]. 2 Ibid [9]. 3 Ibid [4]. 4 Ibid [2]. 5 Ibid [11]-[14]. 6 Ibid [54],[57]. 7 Ibid [68]. 8 Ibid [61]. 9 Ibid [59],[62]. 10 Ibid [62]-[64].

1

D. Reasoning Master Harper’s conclusions were made with the consideration of two issues, firstly, whether the acts of the defendant had the required level of hostility to amount to a battery.11 Secondly, whether the defendant owed a duty to the plaintiff that was breached, which resulted in negligence.12 When considering whether the actions of the defendant amounted to battery, Master Harper acknowledged the case of Wilson v Pringle13, in which it was stated by their Lordships that for a battery to be made out, there must be intentional physical contact by the defendant to the plaintiff.14 They assert that the contact must be shown to be of a hostile nature, however, hostility in this instance must not be likened to malice or ill-will, and should be considered carefully with regard to the circumstances.15 In The Queen v Phillips, the court held that contact would not make out a battery at common law, unless it could be shown to be in an ‘angry, revengeful, rude, insolent or hostile manner’.16 It presents that even if the act is shown to be intentional and an act of fore, it cannot be universally classed as a battery.17 Master Harper notes that this case is pertinent to his reasoning18, and he cites this case to reaffirm the notions presented in Wilson v Pringle In addition to the hostility of the action, other elements required to make out battery include intention19 and directness. However, these elements were not in contention as it is clear from the facts that the act of the tackle was both intentional and direct on behalf of the defendant20, regardless of whether it was not intended to cause injury to the plaintiff.

11 Ibid [53]-[54]. 12 Ibid [55]-[57]. 13 Wilson v Pringle [1987] 1 QB 237 [252]. 14 Hutchison v Fitzpatrick [2009] ACTSC 43 (Master Harper), citing Wilson v Pringle [1987] 1 QB 237 [252]. 15 Ibid. 16 Hutchison v Fitzpatrick [2009] ACTSC 43 (Master Harper), citing The Queen v Phillips (1971) 45 ALJR 467. 17 Ibid 18 Hutchison v Fitzpatrick [2009] ACTSC 43 [52] 19 Ibid. 20 Ibid [29].

2

To make out a battery, the action must be shown to be that it would not occur in ordinary daily life21 and in his reasoning, Master Harper made regard to the nature of the relationship between the plaintiff and the defendant to demonstrate whether it would occur in daily life. It is shown to be that they are not 22friends to the extent that physical contact of this nature is customary and nor would it be that this conduct was in the nature of horseplay that the parties would customarily engage in23, such that it would not occur in the ordinary course of daily life.24 Master Harper was satisfied that the plaintiff was not aware of the impending action of the defendant, and as such did not invite or agree to it25. By reason of the action’s suddenness and force, the element of hostility was present, to the degree that it made out the requisite amount battery26 and the question of whether the defendant was liable for battery was answered as affirmative.

In determining whether the defendant was liable in negligence, Master Harper referred to Chapter 4 (sections 40 and 42) of the Civil Law (Wrongs) Act 200227. From his interpretation of the law under the circumstances, he asserted that the defendant owed a duty to those present at the game to not engage in any intentional conduct that carried risk of injury to them.28 Master Harper was satisfied that the defendant was liable in negligence as he breached his duty to the plaintiff.29

21 Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 (Sheller JA), citing Collins v Wilcock [1984] 1 WLR 1172. 22 Ibid [50]. 23 Ibid [54]. 24 Ibid [26],[54]. 25 Ibid [54]. 26 Ibid. 27 Civil Law (Wrongs) Act 2002 (ACT). 28 Ibid. 29 Ibid.

3

CASE ANALYSIS: PART II

1. Battery in The Law In Hutchison v Fitzpatrick, in relation to hostility as an element of battery, Master Harper referred to Wilson v Pringle30 in which it is said that for a battery there must be intentional physical contact of a hostile nature, with the element of hostility being imported from the circumstances.31 Similarly, the observations of Barwick CJ in The Queen v Phillips32 concluded that unless physical contact is made in ‘an angry, revengeful, rude, insolent or hostile manner’ then at common law, it should not make out a battery33 Master Harper concurs with this law, in that he upholds that there is a required level of hostility to constitute a battery.34 In consideration of the circumstances of the action, he determined, that by reason of the suddenness and force, it amounted to the necessary level of hostility to make out a battery35 Sheller JA in the case of Rixon v Star City36, however, comes to a different conclusion on the necessity of hostility as a required element of battery. He stated that ‘the absence of anger or hostile attitude by the person touching another is not a satisfactory basis for concluding that the touching was not a battery’.37 To support this, Sheller JA cites Re F (Mental Patient Sterilisation) where Lord Goff of Chievely stated that there are many acts that may transcend the bounds of lawfulness but are not by definition hostile.38 He goes on to say that without a lawful excuse, any touching of another’s body is capable of amounting to a battery,39

30 Wilson v Pringle [1987] 1 QB 237 [252]. 31 Hutchison v Fitzpatrick [2009] ACTSC 43 (Master Harper), citing Wilson v Pringle [1987] 1 QB 237 [252]. 32 The Queen v Phillips (1971) 45 ALJR 467. 33 Hutchison v Fitzpatrick [2009] ACTSC 43 (Master Harper), citing The Queen v Phillips (1971) 45 ALJR 467. 34 Hutchison v Fitzpatrick [2009] ACTSC 43 [54] 35 Ibid. 36 Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 37 Ibid [52]. 38 Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 (Sheller JA), citing Re F (Mental Patient Sterilisation) [1990] 2 AC 1 [73] . 39 Ibid.

4

Sheller JA also makes mention of Collins v Wilcock40 in which Lord Goff refers to the fundamental principle that each person’s being is sacrosanct and that however slight, any touching of another person may amount to a battery.41 He then made reference to W Blackstone in the Commentaries and Laws of England, where he proposes that because the law cannot draw lines between the degrees of violence, it therefore prohibits the lowest stages of it.42 However, Blackstone stated that every person’s being is sacred to them, and for that reason, no person has the right to impose any contact to another’s body, even in the slightest way43 With reference to the statements of the law presented by Rixon v Star City, Master Harper came to an inconsistent conclusion on the requisite of hostility in a case of battery. Rixon v Star City presented law which suggests that hostility is not requisite to constitute a battery, and that any touching that has not been invited and does not have a lawful excuse, may amount to the act of battery. In contrast, Master Harper presented law which insists that for a battery to be made out, there must be intentional physical contact from the defendant to the plaintiff that must be shown to be hostile in nature in consideration of the circumstances.

2. Hypothetical Friendship One of the elements of battery requires that the action would not occur in the course of everyday life.44 In the case of Rixon v Star City, Sheller JA refers to Clerk & Lindsey on Torts45, in which the question is raised on whether the action that was imposed by the defendant on the plaintiff was in excess of that which is generally accepted in daily life.46 It also suggests that acceptable conduct must be considered in context of the incident.47 “For an adult to jump on another and snatch her shoulder bag is clearly unacceptable. Between 13-year-old schoolboys it might perhaps be seen as ‘as unremarkable as shaking hands’.”48 40 Collins v Wilcock [1984] 1 WLR 1172 [1177-1178]; [1984] 3 All ER 374 [377]-[379]. 41 Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 (Sheller JA), citing Collins v Wilcock [1984] 1 WLR 1172. 42 Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 (Sheller JA), citing Commentaries and Laws of England, 17th Ed (1830) Vol 3. 43 Ibid. 44 Collins v Wilcock [1984] 1 WLR 1172. 45 Clerk & Lindsey on Torts, M R Brazier, gen ed, 17th ed (1995) London, Sweet and Maxwell, 586 [12-06]. 46 Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 (Sheller JA), citing Clerk & Lindsey on Torts, M R Brazier, gen ed, 17th ed (1995) London, Sweet and Maxwell, 586 [12-06]. 47 Ibid. 48 Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 (Sheller JA), quoting Clerk & Lindsey on Torts, M R Brazier, gen ed, 17th ed (1995) London, Sweet and Maxwell, 586 [12-06].

5

In this case, the defendant is a fit 26-year-old man,49 whereas the plaintiff is a 41-year-old man with numerous disabilities50. They were not personal friends away from the rugby club,51 and due to these circumstances, the action of the defendant tackling the plaintiff was not unremarkable and was ‘not in the nature of horseplay in which the defendant customarily engaged with the plaintiff’.52 However, if hypothetically the plaintiff and the defendant were closer in age, physical capabilities, and were closer friends, then the court would most likely have been satisfied that the action of the defendant was not a battery53. Master Harper maintains that ‘If the recipient of the tackle had been a former teammate of the defendant’s, and his own age, again perhaps a battery would not be made out’54 as the action would have been seen as acceptable and generally acceptable in daily life, in this hypothetical circumstance

3. Civil Law (Wrongs) Act and the Common Law of Negligence On the issue of negligence, Master Harper suggests that negligence under common law is affected by the Civil Law (Wrongs) Act 200255, specifically chapter 4.56 Master Harper expresses that the relationship between the Act and the common law is not yet clear, regarding whether the act alters the common law or merely communicates it in a more convenient and attainable manner.57 He does however express the difference that the definition of negligence under common law is not necessarily the same as that supplied in the act, being that negligence is a failure to exercise reasonable care and skill.58 He asserts that the act would prevail to the extent of any inconsistency in causes of action in the Australian Capital Territory, such as any development of common law regarding negligence through the judgements of the courts that would be otherwise binding on his court.59

49 Hutchison v Fitzpatrick [2009] ACTSC 43 [19]. 50 Ibid [3]-[4]. 51 Ibid [6]. 52 Ibid [54]. 53 Ibid [53]. 54 Ibid. 55 Civil Law (Wrongs) Act 2002 (ACT) 56 Hutchison v Fitzpatrick [2009] ACTSC 43 [55]. 57 Ibid. 58 Ibid. 59 Ibid.

6

Although the Act under section 42 provides the standard of care that is required of a defendant,60 it does not contain any provisions that would be conducive in determining under which circumstances a person owes a duty of care to another person61, a question which Master Harper believes is to be determined by the common law.62

60 Civil Law (Wrongs) Act 2002 (ACT) s42. 61 Ibid [56]. 62 Ibid.

7...