3- TRESPASS TO THE PERSON

BATTERY
Elements
1. Physical contact
2. No requirement of hostility
3. Positive act
4. Direct and immediate consequence
5. Fault
6. Consent/lawful authority
Cole v Turner (1704) no need to be aggressive
-

The least touching of another person in anger is battery [overturned]

In Re F [1990] principle of necessity, implied consent

Woman of serious metal disability was a patient at a mental hospital

where se developed relations with a another patient. Mental capacity was
incapable to give consent to a sterilisation operation.
A doctor can lawfully operate on or give other treatment to adult patients
who are incapable of consenting provided the operation or procedure
concerned is in the best interests of the patient
To save lives, ensure improvement or prevent deterioration in their
physical or mental health OTHERWISE it is battery if consent can be given
Consent on behalf ; where there is a pre-existing relationship between the
parties, the intervenor is usually saif to act as an agent of necessity on
behalf of the principla in whose interests he
Rixon v Star City Pty Ltd [2001]

Physical contact in ordinary conduct of daily life is acceptable and does

not constitute battery.
Rixon is subject to an exclusion order and was identified playing roulette,
security guard gains rixons attention by placing his hand on shoulder.
Lacked requisite anger or hostile attitude, nobody can complain of the
jostling which is inevitable from his presence.
Appeal dismissed

ASSAULT
ELEMENTS;
1. Positive, voluntary, intentional or negligent act, directly causing
actionable per se
2. Reasonable apprehension by P
3. Of imminent contact with Ps person
4. Words may be enough
5. Conditional threats are lawful
Stephens v Myers (1830)

D was in parish meeting chaired by P. D was to be ejected from the

meeting and stood up and threatened violence to P. Church warden
interfered and stopped D when he was nowhere near P.
Verdict for the plaintiff, no means of D carrying out the threat because the
warden had stopped him, but intent to do so nominal damages.
There must be a reasonable fear of imminient contact a means for which
D could carry out his threat.
Hall v Fonceca [1983]
Hockey club incident, plaintiff assaulted and fell to the ground suffering
serious head injuries. This was the result of the appellant raising hands in
a provocative matter which was read by the defendant and aggressive,
fearing imminent attack thought it best to self defence
Intention to punch the appellant, contention that the punch was to parry
the an expected blow from the appellant
Althought the plaintiff did not intend to punch the defendant with his right
hand, he did move it, the plaintiff was by combination of actions and
attitude threatening the defendant in a manner that reasonably caused
the defendant to apprehend a further assault.
ACN 087 582 774 (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti
(2008)

Plaintiff went to train station, engaged in hihghly offensive and highly

confrontational behaviour, spat in the face of the guard, the guards
chased him, plaintiff trips and injures wrist. Contention that he had run
away from the defendants employees because he expected and feared
they would bash him as retaliation.
Establishing a cause of action for the tort of assault
1. Threat by defendant by words or conduct to inflict harm
2. Subjective intention on the part of the defendant that the threat will
create in the mind o the plaintiff an apprehension that the threat will be
carried out
3. Threat must in fact create in the mind of the plaintiff an apprehension
that the threat will be carried out (not necessary that the plaintiff will
fear Police v Greaves) enough that the plaintiff apprehense that the
threat will be carried out without his or her consent
4. The apprehension in the mind of the plaintiff must be must be
objectively reasonable
5. Plaintiffs reasonable apprehension causd injury, loss or damage to the
plaintiff.
Brady v Schatzel [1911]

Tuberville v Savage (1969) conditional threats not actionable

Police v Greaves [1964]

-

No need to feel fear to be able to claim damages

Police officer was assaulted by threat with a man with a knife threatening
to stab them if they came any closer

Barton v Armstrong [1969]

-

Threats made over the phone constitutes assault, because the wods may
cause the listener to apprehend the immediate application of unlawful
force.

Not knowing when or whther the threats would be carried out was
suffiecient to make it reasonable to apprehend imminent contact.

R v Ireland [1998]
-

Heavy breathing over a series of events

Constitutes assault

FALSE IMPRISONMENT
Elements;
1.
2.
3.
4.
5.

Intentional
Directly causing
Total restraint (without lawful justification)
Words can suffice
Knowledge not essential

Bird v Jones (1845) restraint must be total

-

O wanted to walk across the foot path p bridge but was unable to because
D had placed temporary fencing on the bridge to enable spectators to
participate in a regatta.

Held to not be false imprisonment, there was nothing stopping P from

turning around and going back the way he came

Therefore een foe a short time for there was false imprisonment there
must be total restraint of librty and that obstruction in one direction is not
sufficient een it is very inconvenient for P

R v Macquarie (1875)

Ship owner and the ship master. Bailiff is sent out to repossess the first Ds
ship, refuses to give possession, then goes back ashore.

The bailiff refuses to leave the ship as he is taking possession over it. The
ships master sets the ship at full speed and the bailiff has no nautical
skill, what are the options?
The question of the court: were the D liable for false imprinsonment of the
Bailiff?
The bailiff is lawfully on the ship, there is no FI on constraint on liberty,
there is FI as there is no reasonable means of escape

Symes v Mahon [1922] does not require the application of physical force
by the defendant to the plaintiff. Must be in complete submission to the control
of the defendant. SUPREME COURT OF SA
-

D police pfficer purposeted to arrest P who turner out to be the wrong

person, falsely tellin him that there was a warrant for his arrest and that
he must accompany him to Afelaide.

P went without handcuffs with his wife on the train with the police in
another carriage, when the police realised it was the wrong person, P sued
for false imprisonment.

D argues that no physical imprisonment

P reasonably thought that he had no way of escape

Appeal dismissed

Burton v Davies [1953]

-

Woman was driven in a car when she asked the driver to stop and let her
out, but the driver kept going

Held false imprisonment because no reasonable means of escape becase

the car was oving at some considerable speed, the law does not demand
that you risk life and limb to escape

Escape must be reasonable for false imprisonment to fail.

Balmain New Ferry Co v Robertson (1906) contract and consent

-

Purchase of the ticket is consent to having liberty restricted admission

and fee was aware of the terms

Entered contract via payment to catch the ferry then before contract was
fulfilled determined to leave having no further business.

Effect of the contract excuses the commission of a tort

Herd v Weardale steel, coal and coke co (1969)

-

P were miner who while in the mine shaft went on strike and demanded to
be brought up to the surface but employer refused because it was no the
end of the shift as their contract had specified and after 20 mins they were
retrieved.

In favour of D due to the presence of a contract the contractual

arrangement dismisses claims of false imprisonment.

"A misconceived issues

Herring v Boyle (1834) [no longer law because of Meering]
-

Mother goes to boarding school to pick up her son for Christmas, head
master disallows because of outstanding debts

No false imprisonment because the boy did not know of his depravation

Meering v Grahame- White aviation Co (1919)

-

Employee was asked into a room for questioning on suspicion of stealing

products, security guards were outside the room there to keep him inside.

This was false imprisonment lack of knowledge of depravation

IRRELEVANT

EFFECT ; damages nominal

Murry v Ministry of defence [1988]

-

P was suspected by police of being a leader of IRA terrorist group and at

that time regulations allowed police to detain IRA on mmere suspicion
without arresting. P didnt tell her that she was under arrest at first but
before she was taken into the police station she was formally arrested.

Claimed false imprisonment during the time she was merely detained 0
eventhoug she claimed to not have knon they would let her leave.

YES false imprisonment

State of SA v Lampard- Trevorrow (2010)

-

P is child of aboriginal heritage, is admitted into hospital and after

recovery is fostered without parents consent,

Was not subject to any greater level of restraint of others his age, was
looked after

NOT considered false imprisonment

Civil Liabilities Act 2002 ss 3B(1)(a)

3B Civil liability excluded from Act

(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 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),

McCracken v Melbourne Storm Ruby League Football Club [2005]

-

Plaintiff sustains serious injury in a tackle during a game against Melb

Storm, leaving him unable to play football as a result
Seeks damages against the Melbourne Storm as well as the players
actually involved in the offending tackle, Stephen Kearney and Marcus Bai.
Injury found to be intentional, limits on damages imposed by the CLA 2002
did not apply
Section 3(B) states in part:

"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 in respect of an intentional act that is done with

intention to cause injury or death.........".
-

Therefore, as a consequence of the breach of their duty of care to Jarrod

McCracken, Stephen Kearney and Marcus Bai were found liable for their
actions. Further, the Melbourne Storm as their employer was also held to
be liable.

Lamb v Cotogno (1987)

-

In this matter the plaintiff claimed damages against the defendant for
injuries which he received in 1979 in an incident involving a motor car
driven by the defendant. Both damages and exemplary damages were
claimed.
awarded the plaintiff damages for trespass to the person in the total sum
of $203,570, which included an amount of $5,000 by way of exemplary
damages
Motor vehicle (third party insurance) Act 1942
To make compulsory the insurance of the owner of the motor vehicle or
any other person driving it against all liability that may be incurred in
respect of the death or bodily injury of third parties arising out of its use

Gray v Motor Accident Commission (1998)

-

No exemplary damages can be sought given that the defendant has

already incurred substantive punishment within cirimial law

Henry v Thompson [1989]

-

Plaintiff assulted by three police officers, experiences racial, humiliation,

and physical bodily and pyschiatric injury
Aggravated damages may be awarded as compensation for conduct which
causes emotional hurt, insult and humiliation to the plaintiff.
Intentional injury - disregard for the plaintiff's rights, evidence of malice

State of NSW v Ibbett

-

Trespass of land committed by two police officers who in pursuit of the son
of Plaintiff entered the home without lawful authority or justification,
dressed in casual clothing, shouting commands and brandishig a service
pistol pointed at the Plaintiff.

Awarded exemplary and aggravated (for general damages- compensation

for injury) brings action to remedy
Exemplary as the misconduct of those acting under or with the authority
of the executive government.
Motor accidents compensation Act 1999 (NSW) s 114

114 exemplary or punitive damages

A court cannot award exemplary or punitive damages to a person in respect of a
motor accident

Civil liabilities Act 2002 (NSW) ss 3B(1)(a), 21

21 Limitation on exemplary, punitive and aggravated damages
In an action for the award of personal injury damages where the act or omission
that caused the injury or death was negligence, a court cannot award exemplary
or punitive damages or damages in the nature of aggravated damages.

Myers stores v Soo [1991]

-

Plaintiff wrongly accused of a prior robbery of a bowl with video evidence,

Claims damages in prsonal injury in the form of severe adverse emotional
reaction and including aggravated damages.
Judge finds no personal injury had been proven by plaintiff and rewards
nominal damages for false imprisonment. Loss of dignity, disgrace, mental
suffering and humilliation will be compensated
Issue of persistence evidentally magnified the injury/ indignities:
BY PERSEVERING IN A CHARGE WHICH HAS BROUGHT ABOUT A
FALSE IMPRISONMENT, THAT DAMAGES ARE AGGRAVATED
o Aggravation evidence of malice
o No attempt to abandon accusation^
Was not allowed to leave the security room was an serious encroachent on
his liberty.

McDonald v Coles Myers (1995)

-

Plaintiff was accuses the employees of obtaining goods by false pretenses,

escorted to the police station where she isi photographed , fingerprinted
and charged with stealing.
Brings claim for wrongful arrest, and false imprisonment - history of
mental illness is brought up, judge submitts that they find the plaintiff to
be a reliable witness and that the defendants failed to provide lawful
justification

Fontin v Katapodis
Provocation is no defence or ground for the reduction of
compensatory damagesin an action of assult and battery, BUT
ONLY FOR exemplary and punitive damages

Katapodis is accused by plaintiff for failing to exchange money for a

purchase service, the Defendant comes back with a receipt and shows
Fontin, defendant hits plaintiff with ruler apparatus and as he is to do so
again, Plaintiff throws piece of glass at Katapodis for the purpose of selfdefence
Self defence held to be execessive and not proportional and out of
reasonable proportion to the given emergency, thrown at face to inflict
intentional bodily harm
PROVOKED BY THE DEFENDANT AND SO DAMAGES ARE NEGATIVE
OR REDUCED
DAMAGES REWARDED WERE ONLY COMPENSATORY (not exemplary
or punitive) - rewarded solely for personal injury and consequent
economic loss.
Defendant in an acition is entitled to show that the plaintiff's own
conduct was respondible for the commission of the tortious act
and to use this fact to mitigate damages has no application to
damages awarded by way of compensation - it operates only to
prevent the award of exemplary damaages or to reduce the
amount of such damages to which provvocation reduces

DAMAGES