Torts Assignment - Grade: 82 PDF

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I MATTHEW v EVAN A Battery The trespass of battery is defined by the following elements as a (1) voluntary act which (2) directly and (3) intentionally causes (4) contact with the body of the plaintiff, 1 where that contact is not (5) ‘generally acceptable in the ordinary conduct of daily life.’ 2 N...

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I MATTHEW v EVAN A Battery The trespass of battery is defined by the following elements as a (1) voluntary act which (2) directly and (3) intentionally causes (4) contact with the body of the plaintiff, 1 where that contact is not (5) ‘generally acceptable in the ordinary conduct of daily life.’2 None of these elements are at issue except for the matter of conduct in the context of everyday life. Voluntariness is not indicated by the material facts to have been influenced by the loud music and dancing, and the directness of the contact is unquestionable. The relevant intention to make contact with the body of the plaintiff is also satisfied in the facts. Daily Life Exception

At issue is whether this battery might be held to be within the scope of everyday life in its context. In Rixon v Star City Pty Ltd, it is held that 'any touching of another person amounts to battery,' 3 but that 'a general exception [exists] embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.'4 Moreover, it is held that ‘acceptable conduct must be considered in the context of the incident in dispute’;5 quoting from Clerks & Lindsell on Torts that ‘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.’6 The battery of the present case clearly surpasses ordinary daily conduct, such as a handshake or shoulder tap, both in the scope of its damage and the excessive degree of contact. However, Evan may seek to argue that between two young, familiar members of the same rugby team, in the context of a party, this battery is acceptable conduct, being a staple of rugby play. Matthew would rebut this, arguing that the excess and damage of this battery place it beyond the scope of the everyday life exception, as established in Rixon, in any context. Conclusion

From Rixon alone, the extent to which context may excuse a battery outside the course of general everyday life is uncertain. However, it is reasonably clear that Evan’s action was far more dangerous and excessive to purpose than those actions vilified in Rixon. It seems likely, a court would find that this battery is not excusable by the daily life exception; ruling that Evan’s defence stretches the principle of context too far, essentially attempting to extend 1

Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714, 743 [D]. Collins v Wilcock [1984] 1 WLR 1172, 1177; quoted in Rixon v Star City Pty Ltd (2001) 53 NSWLR 98, 113 [53]. 2

3

Rixon v Star City Pty Ltd (2001) 53 NSWLR 98, 112 [52]. Collins v Wilcock [1984] 1 WLR 1172, 1177; quoted in Rixon v Star City Pty Ltd (2001) 53 NSWLR 98, 113 [53]. 4

5

Rixon v Star City Pty Ltd (2001) 53 NSWLR 98, 114 [54].

6

Ibid.

consent in a sporting context7 into everyday life between sportsmen. All other elements of battery being satisfied, this action is likely to succeed.

II MATTHEW v THEODORE A Battery The above elements of battery apply here. None of those elements are at issue based on the facts. The only issue in this action is the defence of medical necessity Medical Necessity

The elements of medical necessity are (1) that it be ‘not practicable to communicate with the assisted person, [and that] (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.’8 The action must also not be officious by being undertaken when a (3) ‘more appropriate person is available and willing to act, [or the procedure] is (4) contrary to the known wishes of the assisted person’9 which may be indicated by an advanced care directive. 10 Finally, (5) that it be, ‘in the circumstances, unreasonable to postpone the [medical procedure].’11 It is clear from the material facts that the unconscious Matthew was unable to practicably communicate consent. It is not clear that a more qualified person was present, which might lead Matthew to assert that Theodore should have sought such a person. Yet, from the facts it was not reasonable to postpone care for Matthew, as he was not breathing. It is not evident that Theodore could be practicably made aware of an Advanced Care Directive (if one were to exist) indicating Matthew’s wishes, given the urgency of Matthew’s care. Theodore would argue that it was not practicable for him to delay his care, that he would have handed care over to a more qualified individual if they presented themselves, and that until that time Theodore was not acting officiously. Consequently, Theodore would argue that he acted in what would be a reasonable person’s belief that he was pursuing Matthew’s best interests. Conclusion

Although, like all medical procedures, this act is prima facie battery, the defence of medical necessity upon which Theodore relies is well established and strong on these facts. It seems likely that this action would fail.

7

McNamara v Duncan (1971) 26 ALR 584.

8

In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 75 [H].

9

Ibid 76 [A].

10

Hunter and New England Area Health Services v A (2009) 74 NSWLR 88, 97 [40].

11

Murray v McMurchy [1949] 2 DLR 442.

III EVAN v MATTHEW A False Imprisonment The trespass of false imprisonment is defined by the following elements as a (1) voluntary act which (2) directly and (3) intentionally results in the (4) ‘total restraint of the liberty of the person.’12 The element that is potentially contentious is the total restraint of liberty. Total Restraint 1. Rescue: In Bird v Jones, it was found that ‘imprisonment is ... a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will.’13 This is corroborated by McFadzean, who held of police rescue that ‘the false imprisonment will have lasted until the release is effected [and so] the ability to call police to intervene in a false imprisonment is not to be equated to reasonable means of egress.’ 14 Consequently, Evan’s random rescue from the uninhabited island, without having his phone to call for assistance, is not a reasonable means of egress. If he had no other means of egress, he would have been imprisoned until the point of rescue. For this reason also, if Evan had possessed his phone, his ability to call for help from police or otherwise, would not have nullified his false imprisonment, until that rescue materialised. 2. Size of the Island: In State of South Australia v Lampard-Trevorrow, the size of an area of imprisonment was held to be a determinant in whether there was actual imprisonment. The justices found that the liberty to move around the entire island-continent of Australia did not constitute false imprisonment.15 However, the case alone gave no indication at what size an area would no longer constitute false imprisonment. Nonetheless, common sense indicates that the continent of Australia is not analogous to this small island. Reason indicates that the size of this island would not be sufficient for there to be liberty within that imprisonment. 3. Swimming: McFadzean v Construction, Forestry, Mining and Energy Union states that a total restraint of liberty requires an absence of ‘reasonable means of egress,’ 16 defined by ‘threat or danger to the self; threat or danger to property (including property of others); distance and time; and legality.’17 McFadzean emphasises the context of the plaintiff in judgments of egress, stating

12

Bird v Jones (1845) 7 QB 742.

13

Ibid.

14

McFadzean v Construction, Forestry, Mining and Energy Union (2007) 10 VR 250, 265 [46].

15

State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331, 395 [302]; quoting Louis v The Commonwealth (1987) 87 FLR 277. 16

McFadzean v Construction, Forestry, Mining and Energy Union (2007) 10 VR 250, 251 [1].

17

Ibid [2].

that they are made not for ‘just some people [but] for this group of plaintiffs.’ 18 A relevant obiter comment from McFadzean holds that a hypothetical victim confined to an island, whose only escape is a swim through dangerous waters, is falsely imprisoned. 19 It is unclear from the facts that Evan can swim. If he cannot, then it is clearly unreasonable. If he can swim, Matthew would argue that Evan’s context, as a fit, young sportsman allows him to swim across the body of water. Evan would argue that the distance to shore and the dangerous conditions of the water as choppy and windy satisfy the analogy of the island in McFadzean. It is not clear from the facts that danger to property or legality are relevant. Conclusion In my opinion, rescue and size do not nullify total restraint in this case. It seems likely a swim of 500 m across a natural body of water in unfavourable conditions is of a sufficient degree of distance and danger to self as to not constitute reasonable egress. Weighed by the analogy in the obiter of McFadzean, I believe the court would find that Evan was totally imprisoned.

B Assault The trespass of assault is defined by the following elements as a (1) voluntary act which (2) directly and (3) intentionally (4) ‘[generates in] another person an apprehension of imminent … contact.’20 The only element in contention here is the reasonableness and imminence of the apprehended contact. Reasonable Apprehension of Imminent Battery In Zanker v Vartzokas,21 it was held that: ‘The [plaintiff] was in immediate and continuing fear so long as she was imprisoned by the defendant. … The threat was, it was true, to be carried out in the future, but there was no indication by the defendant [when this time would come]. … present fear of relatively immediate imminent violence was instilled in her mind ... and that fear was kept alive in her mind, in the continuing present, by continuing progress, with her as prisoner, towards the house where the feared sexual violence was to occur.’22

If Evan was not falsely imprisoned, then the battery would not have been imminent as he could escape. If Evan was falsely imprisoned however, the essence of Zanker seems to apply, as Evan’s imprisonment kept him in continuing and unescapable apprehension of the uncertain point at which Matthew would return. However, the facts of Zanker could be said to possess a greater urgency and dominance than the present case, because of the defendant’s proximity to the plaintiff. The defendant of Zanker being seated in the car with the plaintiff signifies a more immediate position of dominance than Matthew leaving the island. Moreover, the progress of the car towards the destination contributes to a more concrete 18

Ibid 273 [83].

19

Ibid 264 [42].

20

Rixon v Star City Pty Ltd (2001) 53 NSWLR 98, 114 [58].

21

(1988) 34 A Crim R 11.

22

Ibid 14.

apprehension of an imminent battery than Matthew’s departure; after which no indication of progress towards battery would be present. Conclusion The court could find that the essence of Zanker was applicable, although the imminence of the present facts is weaker. Alternatively, they may distinguish the cases on this basis.

IV BERNADETTE v MATTHEW A Trespass to Land Trespass to land is defined by the following elements as a (1) voluntary act which (2) directly and (3) intentionally (4) interferes with land in the possession of the plaintiff. It is evident in the facts that Matthew’s entry was voluntary, direct, and intentional. In New South Wales v Ibbett the relevant intention for trespass to land is held to be interference with ‘the right to exclusive possession of [the plaintiff’s] place of residence, free from uninvited physical intrusion by strangers.’23 By intentionally going upon the land, Matthew was interfering with the land. The only point of contention then in this action is whether Matthew had implied licence to enter. Implied Licence Halliday v Nevill established the principle that a licence to enter another’s property may be implied by law.24 The justices held that an unobstructed path or driveway with an unlocked gate will imply a licence to members of the public entering the land for legitimate business, if ‘there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized.’25 Further, a relevant obiter comment states: ‘a passer-by [will not] be a trespasser if, for example, he or she goes upon the driveway to recover some item of his or her property which has fallen or blown upon it.’ 26 Though the gate was unlocked, the path was unobstructed, and Matthew intended to go on the path for the legitimate purpose of retrieving his property, many features on the land indicated a negation of implied licence. The explicit signage, supported by the imposing fence and presence of a dog, revoked the implied licence of all potential visitors, including Matthew. Consequently, Matthew was likely a trespasser when retrieving his scarf.

Conclusion 23

New South Wales v Ibbett (2006) 229 CLR 638, 646 [29].

24

Halliday v Nevill (1984) 155 CLR 1, 7.

25

Ibid.

26

Ibid.

Though Matthew may raise the question of how he could ensure the return of his property, this is not addressed in Halliday, and so, at least in a lower court, the outcome of this action is likely success....