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Summary

BATTERY Protects physical injury and “any form of physical molestation” (Collins v Wilcock). ELEMENTS (PER WISLON V PRINGLE 1986 UKCA) (1) INTENTIONAL APPLICATION OF FORCE TO ANOTHER Must be INTENTIONAL   Act, not injury, must be intentional (Wilson v Pringle, upheld in Beals v Hayward NZ). Onus o...

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BATTERY Protects physical injury and “any form of physical molestation” (Collins v Wilcock).

ELEMENTS

( PE R WI SL O N V PR IN G LE 1 98 6 U KC A)

(1) INTENTIONAL APPLICATION OF FORCE TO ANOTHER Must be INTENTIONAL  

Act, not injury, must be intentional (Wilson v Pringle, upheld in Beals v Hayward NZ). Onus of proof lies on plaintiff (Beals v Hayward (1959) NZSC)

Can be the “LEAST TOUCHING” (Cole v Turner) Does not need to be DIRECT 

Can be through some sort of instrument as an extension of the tortfeaser, i.e. a gun (Beals v Hayward), or potentially a light shone in someone’s eyes (Kaye v Robertson).

LIABLE FOR ALL DAMAGES EVEN IF NOT INTENDED Bettel v Yim (1978) Canada: 

Y shook B, breaking nose, leading to complications requiring multiple surgeries.

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Liable for all damages due to egg-shell-skull principle, due to the state of the plaintiff, they suffered greater injury than intended.

(2) WITHOUT LAWFUL JUSTIFICATION (DEFENCES) Collins v Wilcock: There are special instances that do not give rise to a battery: Reasonable punishment of children; Crimes Act: Section 59, parental control (1) justified in using force reasonable in the circumstances and is for the purpose of (a) preventing or minimising harm to the child or another person; or (b) preventing conduct that amounts to a criminal offence; or (c) preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or (d) performing the normal daily tasks that are incidental to good care and parenting. (2) Not justified for purpose of correction.

During lawful exercise of the power of arrest; In NZ this is all statutory. FORCE USED TO EXERCISE ARREST – SECTION 39 Any person justified in executing any sentence/warrant/process or making arrest can use such force necessary to overcome any force used in resisting such execution or arrest, unless it can be done by reasonable means in a less violent manner. Reasonableness is a question of fact for the jury (Hayward v O’Keeffe).

Self-defence; Crimes Act, Section 48 Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.

Prevention of a crime. Wilcock Held: A police officer does not have greater rights than a citizen. Therefore, if they are not exercising power of arrest, using force to detain a person can amount to a battery. DOCTORS  

Consent to treatment is what transforms it from battery into lawful conduct. Principle of necessity can apply in emergency situations:

Re: F (Mental patient: Sterilisation) (1990) UK: Lord Goff held necessity provided legal justification for doctor to treat an incompetent patient without their consent, if that treatment was in accordance with the doctor’s clinical judgement of the patient’s best interests.

(3) CONTACT IS BEYOND WHAT IS ACCEPTED IN DAY-TO-DAY LIFE REQUIREMENT OF HOSTILITY (Wilson v Pringle) Impossible to charge every physical touching in a crowded word. Whether it is hostile is a question of fact to be decided by the jury. Does not equate to malevolence or ill-will – this would be too high a standard. Collins v Wilcock does not see a requirement of hostility – but a broad exception for everyday life interactions.

ASSAULT ELEMENTS (1) INTENTION TO THREATEN WITH IMMINENT VIOLENCE OR BATTERY… Must be INTENTION to assault (intention to threaten P with force), through either WORDS OR CONDUCT. CONDITIONAL THREATS Police v Greaves (1963) NZCA: Threatened to stab police unless they got off his property. Held conditional threat can amount to an assault if there is present means and intention to carry out battery (Unlike Tuberville). Also seen in Read v Coker: (surrounded plaintiff and threatened to break neck unless he left).

(2) REASONABLE APPREHENSION OF BOTH IMMINENT BATTERY…. This is judged objectively. Whether a reasonable person would. Stephens v Myers (1830): It was reasonable to apprehend an imminent threat of battery (advancing with raised fist). The fact that he was physically stopped does not change this. Must SHOW AN INTENTION to commit a battery (Tuberville v Savage).

(3) AND THE PRESENT ABILITY TO CARRY OUT THE THREAT Stephens v Myers: “It is not every threat, when there is not actual personal violence, that constitutes an assault, there must, in all cases, be the means of carrying the threat into effect.” T v H (1995) CA: Continuing fear constitute a continuation of the assault itself.

SEXUAL BATTERY K.M. v H.M. (1992) SC Canada: Held sexual assault (incest) fulfils the elements of battery. Section 21 Accident Compensation Act gives cover for mental injuries caused due to criminal acts by another, section 317 bars compensatory damages, section 319 allows ED. DOUBLE PUNISHMENT Daniels v Thompson NZCA: Supported idea no exemplary damages could be awarded after criminal investigation (including nominal convictions/discharge). The adequacy of the punishment was not relevant, it was not for the civil law to re-litigate. Thomas J dissent: Suggested that this should not be an absolute bar, but simply was a matter to be considered. – legislated by ACC Act section 319(2). LIMITATIONS ACT 2010 

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Section 11: Defence to money claim has 6 year limitation period after the act or omission on which the case is based. (This is the date of breach, rather than date of occurrence of damage.) Section 11(3): (late knowledge) It is a defence to a money claim if the defendant proves that the date which the claim is filed is at least (a) 3 years after the late knowledge date, or (b) 15 years of the date of the cause of action.  Defined in section 14: The date on which the claimed gained knowledge (or the date they ought reasonably to have gained knowledge) or serious of facts Section 17(6): Broad discretion to disentitle a defendant from limitation claim if they consider in all circumstances it just to do so.  Section 18, relevant factors: hardship, length of delay and reasons for the delay, effects of the delay, evidence, defendants conduct including afterwards etc. LIMITATIONS ACT 1950

Section 4(7): Action for bodily injury expires 6 years after date which cause of action accrued.  

Traditionally battery accrues when D applies force to the victim (P v T). CA in T v H held ongoing psychological problems not fresh causes of action.

DELAYED DISCOVERABILITY RULE 

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First done in K.M v H.M. Principle of law that says cause of action does not accrue until the plaintiff made the connection between ongoing psychological issues and the abuse itself. Until this has happened, the plaintiff has not suffered damages. This applies when the victim is a minor or of unsound mind. NZ authority = S v G (1995) NZCA Negligence requires damage. However, assault and battery are actionable per se.

POSTPONING LIMITATION PERIOD DUE TO ‘DISABILITY’ Section 24: If, right of action accrued while person under a disability, (a) deemed to have accrued on the date when person ceased to be under a disability or died. Section 2(2): Disability while he is an infant or of unsound mind.

T v H (1995) NZCA: Fear does not constitution disability in this sense. FRAUD AND MISTAKE Section 28: Where, - (b) right of action is concealed by the fraud; the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, or could with reasonable diligence have discovered it.

FALSE IMPRISONMENT Today this functions largely as a control method of public agents. FALSE IMPRISONMENT & NZBORA s22 liberty of the person: everyone has the right not to be arbitrarily arrested or detained. Baigent’s Case (1994) NZCA: court has full range of remedies for breach of NZBORA. Dunlea v AG: Thomas J: NZBORA damages is vindicating the right which has constitutional importance. Affirmed in Taunoae v AG. Public law serves different purpose. Public law compensation is discretionary versus common law damages are as of right.

ELEMENTS (1) DENTENTION OF THE PERSON (ONUS ON PLAINTIFF) STRICT LIABILITY: R v Governor of Brockhill Prison (2000) HL Imprisonment has to be intentional, but not intentionally wrongful. No defence of reasonableness, good faith, or lack of negligence. Must be a TOTAL RESTRAINT OR BOUNDARY: Bird v Jones (1845) QB More than just the loss of freedom to go wherever one wants, but obstruction must be total. No requirement of PHYSICAL FORCE (actionable per se) Does not have to be physical act, can be an omission – R v Governor of Brockhill Prison Can be w/o physical force, i.e. moral pressure: Persico v Woolworths (1981) NZDC. Or psychological imprisonment Chaytor (1961). Emphasis on impression on victim’s mind. REASONABLE MEANS OF ESCAPE isn’t FI: Robinson v Balmain New Ferry (1910) However, this depends on the reasonableness of the means of escape. Danger/difficulty could make you feel compelled to stay where you are, even if physically you could leave. NO REQUIREMENT OF KNOWLEDGE BY THE PLAINTIFF Murray v Ministry of Defence (1988) HL: The law attaches supreme importance to the liberty of the individual, thus knowledge is not an essential element of the tort. However, no knowledge = nominal damages. Need harm/knowledge for substantive. Defence of CONSENT (Fogg v McKnight (1968) NZSC):. Line between free/voluntary consent, and force causing plaintiff to submit to the will of another.

Attorney-General v Niania (1994) NZHC: plaintiff did not consent as she felt fully obliged to submit. (Found w/ drug-related stuff, asked to police station for question, kept in room for 2-3 hrs).

(2) THE UNLAWFULNESS OF THE DETENTION (ONUS ON DEFENDANT) LAWFUL POWER OF ARREST are found in statute, and must be strictly adhered to. GENERAL RULES OF PROCESS – CRIMES ACT S316 (1) Duty to inform the person he is arresting at the time of arrest of the act/omission for which the person is being arrest, unless it is impracticable or reason for the arrest is obvious in the circumstances. Need not be stated in technical/precise language, just words sufficient to give person notice of the true reason for his arrest.

Improper arrest = no arrest. But A-G v Niania held whether there was no grounds for arrest/improper arrest impacted level of damages. (Other judges have disagreed with it). (5) Every person arrested shall be brought before a Court as soon as possible.

Duffy v A-G (1985) NZHC. Balance civil liberties and realistic police duties. In this case conduct was insensitive, but within the bounds of reasonableness in the circumstances (held her in van for aprox. 2 and half hours. However, busy area with numerous incidents). Hayward v O’Keeffe (1992) NZHC: Detention unlawful as it demonstrated an insensitivity to the rights of the person that was offensive to a reasonable sense of honour and dignity. Cannot do whatever you want with the arrested person (taking him to the trolley’s), and keeping him in the cell was disproportionate to the minor crime. Lawful detention can become unlawful if there is a change in circumstances Whithair v A-G (1996) NZHC: Failure to take the plaintiff to court Wellington court (instead waiting until Monday to take him to the DC) constituted false imprisonment from this point. POLICE POWERS WITHOUT WARRANT – SECTION 32 Constable justified in arresting w/o warrant any person who he believes (subjective) , on reasonable & probable grounds (objective) , to have committed an offence, whether or not the offence has in fact been committed, and whether or not the person committed it. Duffy v A-G: reasonable observer would not have thought the plaintiff was drunk as she was coherent, cooperative, and reasonable. CITIZEN’S POWER OF ARREST – SECTION 35 Everyone is justified in arresting without warrant (a) any person whom he finds committing any offence with maximum punishment no less than 3 years’ imprisonment. (b) any person whom he or she finds by night committing any offence against this Act. FORCE USED TO EXERCISE ARREST – SECTION 39

Any person justified in executing any sentence/warrant/process or making arrest can use such force necessary to overcome any force used in resisting such execution or arrest, unless it can be done by reasonable means in a less violent manner. Reasonableness is a question of fact for the jury (Hayward v O’Keeffe).

ACCIDENT COMPENSATION ACT 2001 POLICY REASONS TO LIMIT ACC – overarching question on how much this will cost.

COMPENSATION ENTITLEMENTS   

Weekly compensation = 80% of pre-accident earnings, first from employer, then scheme. Lump sum compensation for permanent physical impairment – decided via percentage of physical impairment (needs to be at least 10%). Rehabilitation and medial expenses (social & vocational).

IMPORTANT SECTIONS SECTION 3 – PURPOSE The purpose of this Act is to enhance the public good and reinforce the social contract represented by the first accident compensation scheme by providing for a fair and sustainable scheme for managing person injury that has, as its overriding goals, minimising both the overall incidence of injury in the community, and the impact of injury on the community.

SECTION 317 – BAR CIVIL ACTION (1) No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of – (a) personal injury covered by this Act; or (b) personal injury covered by the former Acts.

SECTION 319 – EXEMPLARY DAMAGES (1) Nothing in this Act, and no rule of law, prevents any person from brining proceedings in any court in New Zealand for exemplary damages for conduct by the defendant that has resulted in – (a) personal injury covered by this Act; or (b) personal injury covered by the former Acts.

RELEVANT CASE LAW QUEENSTOWN LAKES DISTRICT COUNCIL V PALMER (1999) NZCA Plaintiff suffered PTSD and depression after witnessing wife’s death. Held he could sue as mental injuries came from the accident itself.is immaterial his wife would have been covered. The purpose of the bar is to stop people receiving compensation twice. ALLENBY V H (2011) NZSC  

Facts: Negligent sterilisation operation failed and she fell pregnant. Held: is unplanned pregnancy & birth via C-section caused by medical misadventure was personal injury covered by ACC.

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GAP IN LEGISLATION: wouldn’t be covered failed male sterilisation as treatment and injury must occur to the same person.

Note: this is Supreme Court Authority that ACC gives extended meaning to injury. ACC embraces at times disease and illness not normally considered injury.

INTENTIONAL INFLECTION OF EMOTIONAL DISTRESS Harassment Act 1997: This covers criminal harassment. However, under this no damages,

ELEMENTS Established in WILKINSON V DOWNTON (1897) QB. “The defendant has … willingly done an act calculated to cause physical harm to the plaintiff … to infringe her legal right to safety, and has in fact, thereby caused harm to her.” Adopted in NZ through STEVENSON V BASHAM & ANOTHER (1922):

(1) THE DEFENDANT INTENTIONALLY DOES AN ACT Bradley v Wingnut: Negligent creation of harm is not sufficient.

(2) THE ACT IS CALCULATED TO CAUSE HARM TO A FORESEEABLE PLAINTIFF Liable even if the THREAT IS DIRECTED AT A THIRD party (Stevenson v Basham). Intention to cause shock can be imputed (Wilkinson v Downton)

(3) THAT CAUSES THE PLAINTIFF TO SUFFER A FRIGHT OR SHOCK, AND THE NATURAL AND DIRECT CONSEQUENCE IS LOSS (FORESEEABLE HARM) Natural consequence requirement stated in Stevenson NO DEFENCE THAT THE HARM WAS MORE THAN ANTICIPATED Stevenson: did not know the wife in the other room was pregnant. Held does not matter if that loss was greater than anticipated, you must take your victim as you find them. TYPE OF LOSS Bradley v Wingnut Films Ltd: Loss must translate into something physical which also has a duration which is more than merely transient.

INVASION PRIVACY PRIVACY ACT only protects data privacy. INTERNATIONAL LAW ICCPR article 17 protects right of individuals to dignity, privacy, and freedom from harassment in a private family life.

PUBLIC DISCLOSURE OF PRIVATE FACTS TEST (HOSKING V RUNTING (2005) NZCA) (1) The existence of facts in respect of which there was a REASONABLE EXPECTATION OF PRIVACY; and Policy means no privacy claim for photos taken in public place (Hosking v Runting). Andrew v TVNZ Ltd (2006) NZHC held there is a general rule something that occurs in a public place is unlikely to give rise to reasonable expectation of privacy. But circumstances of that case (in car after crash, intimate conversation) plaintiffs entitled to reasonably expect their conversation wouldn’t be heard beyond those within ear shot. No reasonable expectation to privacy when it comes to justice i.e. TVNZ v Rogers (2007). Don’t need to identify the plaintiff - L v G (2) Publicity given to those private facts that would be considered HIGHLY OFFENSIVE TO AN OBJECTIVE REASONABLE PERSON. Andrew v TVNZ: The annoyance that the conversation being filmed was not enough – there was nothing embarrassing in the content of what was made public. Rogers v TVNZ: TEST: what a reasonable person of ordinary sensibilities would feel if they were placed in the shoes of the plaintiff. (3) There is then a DEFENCE OF LEGITIMATE PUBLIC CONCERN . burden on defendant. Must balance privacy interest with policy Mafart v Television New Zealand Ltd (2006) NZCA: TVNZ wanted to make documentary about Rainbow Warrior including footage from court where bombers pled guilty. Privacy diminished as they’d published their accounts. Policy reasons to inforce open courts. Held public interest more important the privacy interest. INJUNCTION

Marris v TV3 not willing to give injunction as there was no life-threatening situation, the plaintiff was only angry and upset. Damages would suffice. Compared to P v D where health at risk. TENSION WITH FREEDOM OF SPEECH NZBORA doesn’t protect privacy – but it does protect freedom of speech (s14). TV3 Network Services Ltd v Fahey (1999) NZCA: Doctor accused of sexual misconduct confronted by woman with hidden camera. Courts reluctant to give injunction as freedom of speech so important that damages would be adequate remedy. Brooker v Police: Thomas J (dissent): In the circumstances (at home/residential neighbourhood) privacy value should outweigh Mr Brooker’s right to freedom of expression.

INTRUSION INTO SOLITUDE OR SECLUSION ELEMENTS (PER C V HOLLAND 2012 NZHC ) 1. 2. 3. 4.

An intentional and unauthorised intrusion; Into seclusion (namely intimate personal activity, space, or affairs); infringing on a reasonable expectation of privacy; and That is highly offensive to a reasonable person.

Defence: held there may be a defence of legitimate public concern in the information. STILL UNSETTLED: Faesenkloet v Jenkin (2014) NZHC: Not convinced by the existence of this tort, suggests the two privacy torts could come under one through common elements. (However, held no reasonable expectation at the end of the driveway– the sphere isn’t important, but expectation.

BREACH OF CONFIDENCE ELEMENTS COCO V A N CLARK (ENGINEERS) LTD (1969) Hosking v Runting (2005) NZCA holds this tort exists separately in NZ

(1) THE INFORMATION MUST HAVE THE NECESSARY QUALITY OF CONFIDENCE ABOUT IT  

Campbell v MGN Ltd (2004) HL: Attending narcotics anon meeting, journalist wants to publish times/place of meeting. House of Lords said information akin to private medical records. The newspaper went beyond what was necessary to disclose – issue with level of detail. (2) THE INFORMATION MUST HAVE BEEN IMPARTED IN CIRCUMSTANCES IMPORTING AN OBLIGATION OF CONFIDENCE

A-G v Guardian Newspapers Ltd (No.2) (1990) HL: Two situations create duty of confidence:...