Trespass to Person PDF

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Trespass to Person Monday, 6 August 2018

6:51 PM

Elements of General Trespass and specific elements of particular type of trespass:

Summary Assault (Apprehension of imminent contact) 1. Reasonable apprehension of imminent contact (objective test from Zanker v Vartzokas). 2. Intention to use force or create apprehension re use of force (Hall v Fonceca). Battery (Physical Contact) 1. Positive act 2. Direct and intentional or negligent act 3. Touching/contact ○ Rixon v Star City ○ Cole v Turner False Imprisonment (Total Deprivation of Liberty) 1. The restraint must be total. (The Balmain New Ferry Co v Robertson) 2. Total restraint implies the absence of a reasonable means of escape. (Zanker v Vartkzokas) 3. Restraint may be total where D subjects P to his/her authority with no option to leave - not necessarily physical restraint. (Symes v Mahon)

Assault 1. Reasonable apprehension of imminent contact Authority: Zanker v Vartzokas (1988) 34 A Crim R 11 (S/C SA) (SVW p 45) Facts: Pl accepted lift from a stranger (Df). She refused his offer of money for sex. Df sped up when she asked to get out. She opened the door and threatened to jump. He said "I am going to take you to my mate's house. He will really fix you up." while the van was travelling at 60km/h. The Pl jumped and was injured. Held: Def not charged with assault, conceded to false imprisonment. Magistrate found that no fear of immediate violence on facts - Pl appealed. Appeal: White J (Supreme Court SA): ‘present fear of relatively immediate imminent violence’ - ‘immediate and continuing fear’ while in the car. Previous authorities: • Barton v Armstrong (1969, NSW) held that serious threats by phone can put a reasonable person in fear of later violence = assault, even though Pl does not know when - depending on the context/circumstances of the case. • Obiter from Barton v Armstrong: Taylor J Barton: ‘gist of the offence of assault is putting a person into apprehension of impending physical contact’. ‘The effect on the victim’s mind is the material factor, and not whether the def actually had the intention or the means to follow it up.’ There was a continuing fear in Zanker that Pl was imprisoned in the car. Held: appeal allowed - conviction for assault Harm from jumping was 'occasioned' whether the Def foresaw or not. Obiter: "If threat produces fear or apprehension of physical violence… the law is breached, although the victim does not know when the physical violence may be effected."

2. ‘intention to use force or create apprehension re use of force’ Authority: Hall v Fonceca [1983] WAR 309 (S/C WA) (SVW p 50) Facts: Action for battery - Def claimed acted in self-defence to assault during the argument. Defence upheld at trial. Pl appealed arguing no assault as no finding of intent. Held: Appeal Dismissed Smith & Kennedy JJ: Must be "intention on the part of the assailant either to use force or to create an apprehension of the use of force."

Battery Rixon v Star City (2001) 53 NSWLR 98 (SVW p 41) Facts: Pl patron sued casino for unlawful arrest, false imprisonment and assault. Pl subject to exclusion order under Casino Control Act 1992 (NSW) and was detained by employee in interview room at casino 1.5 hours before police arrived. Caused him stress and anxiety. Held: Trial judge conceded no assault because no intention. No battery because no hostile attitude. Pl failed regarding false imprisonment and unlawful arrest because Def acting within power.

Cole v Turner Court of Appeal (Sheller JA) affirmed decision ‘the least touching of another in anger is a battery’ except for normal everyday conduct. Must be assessed in context: Cole v Turner (1704) 6 Mod 149; 87 ER 907 Previous authorities: • ‘any touching of another’s body is, in the absence of lawful excuse, capable of amounting to a battery and a trespass’: In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 73 per Lord Goff of Chiveley; Collins v Wilcock. • Collins v Wilcock [1984] 1 WLR 1172, per Robert Goff LJ (later Lord Goff) – every person’s body is inviolate – principle of autonomy. Refer Blackstone’s Commentaries (1830) (SVW p 42). • Exception – ‘exigencies of everyday life’ – implied consent to contact : Collins - or general exception

False Imprisonment 1. The restraint must be total Balmain New Ferry Co v Robertson (1906) 4 CLR 379 (HCA) Robinson v Balmain New Ferry [1910] AC 295 (Privy Council); SVW p 55 Facts: The Pl paid entrance to the ferry platform and was required to pay to exit. Since he missed his ferry, he did not want to pay to exit. High Court: "The company being lawfully entitled to impose that condition, and the Pl being free to pass out through the turnstile at any time on complying with it, he had only himself to blame for his detention, and there was no imprisonment." Issue: Assault - did Pl have right to force his way out? No. The Defs were 'entitled to prevent Pl from squeezing through… and justified in meeting Pl's forcible attempt with as much force was reasonably necessary to defeat it" - if assault, then justified.

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Privy Council: Upheld the HCA, finding the Pl entered the wharf of own free will so Defs was entitled to impose fair conditions as he could have waited for the next ferry.

2. Total restraint implies the absence of a reasonable means of escape Zanker v Vartzokas

3. Restraint may be total where D subjects P to his/her authority with no option to leave – not necessarily physical restraint Symes v Mahon [1922] SASR 447 (SVW p 57 notes [3.115]) Facts: Pl told by police with arrest warrant that he had to go with police by train because of warrant. Pl went next day in separate carriage and bought own ticket. However, it was a case of mistaken identity. Held: Murray CJ: False imprisonment from entering the train until formal release because complete submission of Pl to control Def. There was a reasonable believe that Pl had no reasonable way of escape. Previous judgements: Murray v Ministry of Defence [1988] 1 WLR 692 (H/L) (SVW p 58) Facts: Pl detained on suspicion of IRA involvement. Period in own house. Not told under arrest until later on. The C/A held knowledge of imprisonment essential relying on Herring v Boyle. The Pl not imprisoned until told of arrest. Held: Lord Griffiths (H/L) - all unanimous. ▪ Not essential element of false imprisonment that victim be aware of imprisonment. ▪ Instruction not to allow her to leave - knowledge not essential – eg can be imprisoned while asleep or unconscious – but affects damages. ▪ L Griffiths, ‘The law attaches supreme importance to the liberty of the individual and if he suffers wrongful interference with that liberty it should remain actionable without proof of special damage’ (SVW p 59)

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