Torts- Exam notes PDF

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Comprehensive Exam Notes- Trespass to the person...

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Table of Contents Introduction.............................................................................................................................................2 TRESPASS TO THE PERSON........................................................................................................................6 1.

Battery..........................................................................................................................................6 Elements:..........................................................................................................................................6

Wilson V Pringle [1986]......................................................................................................................8 Cole v. Turner.......................................................................................................................................9 Marion.................................................................................................................................................9 2. Assault:...........................................................................................................................................11 Elements of assault:.......................................................................................................................11 3. False imprisonment:.......................................................................................................................12 Elements:........................................................................................................................................12 Symes v Mahon [1922] SASR 447.......................................................................................................15 Zanker v Vartzokas (1988)..................................................................................................................15

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Introduction The law of torts deals with claims for redress for civil wrongs. Students examine the nature of tortious liability in the light of a selection of specific torts, namely, trespass to the person, goods and land; Detinue and conversion, the action on the case for wilful injuries; negligence; nuisance and statutory workers compensation and motor vehicle accident schemes. Negligence is the most significant tort and it is the primary focus of this subject. Students engage with and develop an understanding of the common law development of doctrine and rules through reading cases. In 2002 and 2003 there were significant legislative reforms to tort law and the impact of this legislation, in particular the Civil Liability Act 2002 (NSW), and its relationship to the common law is examined. The Law of Torts consists of principles, doctrines, concepts and rules which will entitle a plaintiff to sue for damages for compensation, or for some other remedy, where he/she suffers as a consequence of the 'tortfeasor's' conduct. The modern tort of Negligence is a comprehensive form of tort liability which is likely to be relevant wherever one person carelessly causes injury or damage to another.

What is a tort? Prof. Fleming “A civil wrong or injury (other than Breach of Contract) which the law will redress with damages” Tort law “defies explanation by reference to any systematic index”

Torts are common law causes of action. The word tort means wrongful or legal.

Difference Between Tort & Other Areas of Law Law of Contract  Assures PRIVATE promises/arrangements  Assures BENEFIT of a Bargain  Enforces obligations arising out of VOLUNTARY arrangements

Whereas Tort  Deals with activities in SOCIETY AT LARGE not private arrangements  Aims to redress injury or loss  Law IMPOSES duties: not voluntary

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Tort & Contract Similarities  Both are Civil suits.  Same Standard of Proof applies – on the balance of probabilities.  In some cases a Breach of Contract may also give rise to liability in Tort: there may be ‘concurrent duties’: e.g. failure of an employer to provide a safe system of work or negligent safety failure by a paid service provider.

Criminal Law  Offences against STATE  Action is (usually) brought by the STATE or the CROWN  Concerned with PUNISHMENT not REDRESS Whereas Tort  Protects PRIVATE interests-civil wrongdoing  Action is brought by the VICTIM  Is concerned primarily with COMPENSATION Tort & Crime  Some Crimes are also Torts: eg Battery; Assault  Different STANDARD of PROOF:  - in Tort – “on the balance of probabilities”  - in Crime – “beyond a reasonable doubt”  Criminal Law does not award damages, though there are Criminal Injuries Compensation statutes in many jurisdictions.

Aims of Tort Law     

Compensation: compensatory damages Loss shifting – Corrective Justice: shifting loss from victim to wrongdoer. Loss distribution: effect of Insurance Deterrence Punishment: in some cases, exemplary or punitive damages.

What Interests are Protected by Tort Law?     

personal safety & security (Trespass to Person, Negligence) Safety of property (Trespass to Goods, Conversion, Detinue) Reputation (Defamation) Psychiatric/Emotional Damage (Wilkinson v Downton; Negligence) Economic losses

Some Interests are Unprotected 3

 death  restrictive trade/business practices Sources of Tort Law  Common Law ◦ Development of Tort Law by the Courts by use of precedent – Donoghue v Stevenson ◦ Statutes dealing with specific aspects of law: ◦ the Motor Accidents Compensation Act 1999 (NSW) ◦ Compensation to Relatives Act 1897 (NSW) ◦ Law Reform (Miscellaneous Provisions) Act 1965 (NSW) ◦ General Statutes: Civil Liability Act 2002 (NSW)  Tort Reform Legislation 2002/3 ◦ In all Australian States & Territories, though some states’ legislation is more reforming than others! ◦ Focus is on liability in Negligence  Reasons for reform included perceptions of  ‘Insurance crisis’  Unaffordability of ‘generous’ awards of damages  Bias of common law of tort toward plaintiffs  Need for more ‘personal responsibility’ ◦ Review of the Law of Negligence 2002 – the Ipp Report Civil Liability Act 2002 (NSW)  Major reforms to common law concerning:  what constitutes negligent conduct  Causation Assumption of risk by plaintiffs

        

Liability in respect of Obvious & inherent risks Liability for injury during Recreational activities Professional negligence Contributory negligence Negligently caused mental harm claims Liability of public authorities Intoxication Self defence, recovery by criminals Restrictions on Damages recoverable.

Civil Liability Act 2002 (NSW) and Intentional Conduct Section 3B (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual 4

misconduct committed by the person-the whole Act except: (i) section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), and (ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and (iii) Part 2A (Special provisions for offenders in custody) THE NATURE OF INTENTIONAL TORTS:

Intentional torts exist to protect an individual’s person or property rights from unwanted interference by others. They include trespass torts. Intentional conduct encompasses deliberate, reckless or negligent actions. It is sufficient that the defendant intends to perform the act, which caused the offensive contact. It is the act not the injury which must be intentional. Damages: substantial or compensatory, exemplary, aggravated, punitive Onus of proof: on the plaintiff to prove the elements of the trespass. Once this is established, the onus then switches to the defendant who must then establish that the trespass was not intentional.

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TRESPASS TO THE PERSON An assault is committed when a person intentionally or recklessly harms someone indirectly. A battery is committed when a person intentionally and recklessly harms someone directly Lord Goff defined assault as “an act which causes [the claimant] to apprehend the infliction of immediate and unlawful force on his person.” and battery as the “[A]ctual infliction of unlwful force on another person” Three intentional torts (trespass torts) protect distinct aspects of an individual’s person: -‐ the tort of battery – protects the body -‐ the tort of assault – protects the mental well being -‐ the tort of false imprisonment – protects liberty

1. Battery The violation of being touched without consent is sufficient to bring this action. Elements:

 An intentional positive voluntary act (not injury) by the person (Rixson v Star City – hostile attitude is necessary for battery)  Which directly causes – not consequential (Scott v Shepherd)  Physical bodily contact/interference with the plaintiff (Cole v Turner)  Must take place without the consent of the plaintiff. (Marion’s case) Contact can be contact using an object or another means, not restricted to touching by body part. An omission to act can become a positive act so as to constitute a battery. Ex. Not getting off the police mans foot. McHale v Watson (1964): Facts- Defendant (a 12 yr. old boy) threw a sharpened piece of steel at a wooden post that bounced off and struck P in the eye. Held- D found not negligent as a boy of his age could not be expected to foresee that the dart would not stick into the post but would go off at a tangent and hit someone.

Williams v Milotin (1957):

Facts- A child riding a bicycle was hit in the street by a truck driven negligently by the defendant. There was no suggestion that the defendant intended to strike him. 6

Held: This case established that trespass includes negligent conduct. Negligent battery.

Scott v Shepherd (1773): Which directly causes – not consequential Facts: The defendant threw a squib, which is a small, lit firework, into a busy marketplace with lots of people and stalls. In order to protect themselves and avoid damage, the squib was thrown on by two other people. When it landed near to the complainant, it exploded and caused injury to his face. He later lost the use of one of his eyes. The original thrower, the defendant, was charged with assault and trespass. Issues- The defendant was found liable for trespass and he appealed this decision. The defendant argued that the injury to the complainant was not caused by his actions; it was not a direct act, as others threw the squib on. The issue in the appeal was whether the defendant throwing the squib caused the injury or whether other people broke this chain of causation and the injury was caused by novus actus interveniens. Held This case has become known as the Famous Squib case. The court dismissed the appeal; the injury to the complainant was the direct and unlawful act of the defendant who originally threw and intended to throw the squib. The other people were not ‘free agents’ in this situation and threw on the squib for their own safety and this was justifiable. They were acting under compulsive necessity for own safety/preservation -‐-‐> their action was inevitable consequence of D's unlawful act The throwing on was classed as a continuation of the defendant’s action, which was intended. Whatever followed this was part of the defendant’s original act D held to be liable in trespass (battery) to P because injury was held to occur because of a 'direct' act of the D

Hutchins v Maughan Facts- The defendant laid poisonous baits on unfenced land where the defendant grazed his horses. The plaintiff’s dogs ate the baits and died as a result. Held- There was no trespass as the act of laying the baits by itself did not interfere with the plaintiff’s property. Herring CJ-‐ ‘Before (the plaintiff) could suffer an injury, he had himself to intervene by coming to the land and bringing his dogs thereon’.

Rixon v Star City Casino hostile attitude is necessary for battery Facts- The Plaintiff [Rixon], who was subject to an exclusion order (ie, wasn't 7

allowed in the casino), was playing roulette at the Defendant's premises [Star City Casino]. He was approached by an employee of the Defendant [Mr Sheldon]. Mr Sheldon placed his hand on the Plaintiff’s shoulder, and took him to a room. He was detained in the room for approximately 1.5 hours whilst waiting for the police to arrive. Argument Plaintiff argued that: Sheldon's act of putting his hand on his shoulder gave rise to assault (as it aroused fear of imminent harm) and battery (since it was direct interference with the Plaintiff's person). In detaining the Plaintiff, the Defendant's employees acted outside of the powers given to them by the Casino Control Act 1992. The Plaintiff's detention was therefore unlawful and amounted to false imprisonment. Legal issues- Intentional Torts - Assault Intentional Torts - Battery Intentional Torts - False Imprisonment Judgment Battery The trial judge held that anger or a hostile attitude is a necessary ingredient of battery. This was wrong, it is not necessary. 'The absence of anger or hostile attitude by the person touching another is not a satisfactory basis for concluding that the touching was not battery...any touching of another person, however slight, may amount to battery'. Generally any form of contact can be battery, with the exception of conduct which is ‘generally acceptable in the ordinary conduct of everyday life’. This means that some conduct is presumed to be made with the consent of the plaintiff, and is therefore not battery. In this case, the conduct of Sheldon was to engage the Plaintiff's attention and was generally acceptable in everyday life. There was no battery. Assault Assault requires an intent to induce apprehension of physical violence in the mind of the plaintiff. 'Proof of assault requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact...proof of the assault does not require proof of an intention to follow it up or carry it through'. In this case, the alleged act of assault (placing the hand) lacked this intent. It was merely meant to get the Plaintiff's attention. False Imprisonment s 84 of the Act very clearly states that the person designated could detain the suspected person on reasonable grounds. The Plaintiff was not detained for any longer than was necessary; detention was on reasonable grounds, and the police were notified immediately. Thus, the detainment was not unlawful and there is no false imprisonment.

Wilson V Pringle [1986] Facts- The plaintiff and the defendant were two schoolboys involved in an incident in a school corridor as the result of which the plaintiff fell and suffered injuries. The 8

plaintiff issued a writ claiming damages and alleging that the defendant had committed a trespass to the person of the plaintiff. In his defence the defendant admitted that he had indulged in horseplay with the plaintiff and on the basis of that admission the plaintiff applied for summary judgment under RSC Ord 14. The registrar refused to enter judgment but on appeal by the plaintiff the judge held that the defendant had admitted that his act had caused the plaintiff to fall and in the absence of any allegation of express or implied consent the defence amounted to an admission of battery and consequently an unjustified trespass to the person. He accordingly gave the plaintiff leave to enter Judgment. The defendant appealed to the Court of Appeal, contending that the essential ingredients of trespass to the person were a deliberate touching, hostility and an intention to inflict injury, and therefore horseplay in which there was no intention to inflict injury could not amount to a trespass to the person. The plaintiff contended that there merely had to be an intentional application of force, such as horseplay involved, regardless of whether it was intended to cause injury. Held - An intention to injure was not an essential ingredient of an action for trespass to the person, since it was the mere trespass by itself which was the offence and therefore it was the act rather than the injury which had to be intentional. However, the intentional act, in the form of an intentional touching or contact in some form, had to be proved to be a hostile touching, and hostility could not be equated with ill-will or malevolence, or governed by the obvious intention shown in acts like punching, stabbing or shooting or solely by an expressed intention, although that could be strong evidence. Whether there was hostility was a question of fact in every case. Since the defence did not admit a hostile act on the part of the defendant there were liable to judicial trial issues which prevented the entry of summary judgment. The appeal would therefore be allowed, and the defendants given unconditional leave to defend. Per Curiam. Where the immediate act of touching does not of itself demonstrate hostility the plaintiff should plead the facts alleged to do so.

Cole v. Turner Physical bodily contact/interference with the plaintiff Facts:Turner committed assault and battery against Cole. Issue:Whether the least amount of touching, when done in anger, satisfies the necessary element of battery? Holding: Yes, if in anger the least amt. of touching is battery. Ct. Rationale: Harmful or offensive contact, even at the barest minimum is trespass of battery. Rule: Person is liable for battery if he/she causes harmful or offensive contact. Intent was not required at this time (1704). Protects dignity interest with compensation, and grants money for injury.

Marion Facts- Marion was a mentally disabled child, and her parents wanted to have medical treatments in the form of operations to ensure that she would not be able to have a child. Issues- Intentional Torts - Capacity to Consent Does the medical treatment of the operations amount to assault? Can the hysterectomy 9

and ovariectomy be considered ‘medical treatment’? Judgment- In the case, the High Court ruled that while parents may consent to medical treatment for their children, the authority does not extend to treatment not in the child's best interests. Also, the Court held that if medical treatment has sterilisation as its principal objective, parents do not have the authority to consent on behalf of their child. In the case, the High Court ruled that while parents may consent to medical treatment for their children, the authority does not extend to treatment not in the child's best interests. Also, the Court held that if medical treatment has sterilisation as its principal objective, parents do not have the authority to consent on behalf of their child. Prima facie, any

physical contact or threat of it is unlawful, it is the right of the individual to choose what occurs with respect to his or her own person Parental consent (when itself is effective) is an exception to the need for personal consent for a minor who, due to incapacity, cannot consent. This scope of parental power to consent diminishes as the child grows and is capable of giving an informed decision In order to ensure the best protection of the interests of the child, such a decision should not come within the scope of parental power to consent to medical treatment. In decisions where “the consequences of a wrong decision and particularly grave”, determined by complexity of the question and the conflicting interests of parents or guardians, court authorisation is required

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2. Assault: Elements of assault:

-‐ -‐ -‐ -‐

An intentional voluntary act or threat by the defendant directly creates in another person (the plaintiff) A reasonable apprehension of imminent contact with that person’s body

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