2 - Intentional & Negligent Torts PDF
2 - Intentional & Negligent Torts PDF
Torts
- Week 3
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Outline
1. Introduction
2. Intentional and negligent torts
3. Examples of intentional torts: Trespass
to the person (assault, battery, false
imprisonment)
4. Categories of negligence
5. Trespass to the person: generally
(assault and Battery)
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1.Introduction
Intention in tort is different from that in criminal
law.
In criminal law, the defendant’s (D) intention
includes motive. In tort, the wrongdoer’s motive
may not be taken into account.
In tort ‘intention’ refers to D’s knowledge, actual
or presumed, whether or not there was any
motive to bring about the consequences that
follow or not does not matter.
In some circumstances, ‘recklessness’ may also
amount to intention, eg when there is
inadvertence to the risk involved.
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Requirements for bringing an action in
intentional and negligent torts
If D intentionally and directly applies force
to another, the victim has a cause of
action in trespass to the person. If D
inflicts the injury unintentionally the
victim’s only cause of action is in
negligence (Letang v Cooper,1965).
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Letang v Cooper,1965
Court:
English Court of Appeal
Facts:
Mr Cooper (the defendant) negligently ran over Mrs Letang
(the plaintiff) in his Jaguar motor car while she was
sunbathing on a piece of grass where cars were parked.
The plaintiff filed a claim in trespass to the person, because
the claim in Negligence was time-barred.
Held:
No intent. Therefore claim cannot be made under trespass.
See Lord Denning’s judgment.
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3.The provinces of intentional and
negligent torts
Intentional torts embrace a range of wrongful
conducts, e.g. the torts of trespass to the person,
assault, battery and false imprisonment.
Some of the intentional torts are actionable per
se without proof of any injury or damage to P or
his property.
The tort of trespass to the person is one of
such trespasses which is actionable per se, e.g.
if someone threatens to beat you , there is no
injury to you yet you may claim damages in
assault.
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3.The provinces of intentional and
negligent torts
In some of the intentional torts, damages may be
awarded for injury to feelings as well, e.g. where
a trespass to the person is committed or D’s
conduct causes P’s defamation or in cases of
sexual harassment.
Negligence on the other hand is the breach of a
legal duty to take care which results in damage.
Since the decision in Donoghue v Stevenson
1932, several torts of negligence have emerged.
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4.Categories of negligence
Product liability
Pure economic loss
Psychiatric Illness (Nervous Shock)
Rescuers
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5.Trespass to the person
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5.Trespass to the person
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5.Trespass to the person
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5.Trespass to the person
P must prove a deliberate or intentional harm on the part
of D: until 1965 the position was not clear and even a
negligent harm could ground an action in trespass to the
person provided the injury to P was directly caused by
D’s act.
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5.Trespass to the person
D cannot argue that he did not know that he was
committing a wrong.
But an involuntary act cannot be regarded as intentional,
e.g. if D is thrown on to P’s land by another, P cannot
argue that D committed trespass on P’s land. Again a
sleepwalker who goes on to P’s land cannot be sued in
trespass to land
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Negligent Trespass to Person?
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Assault
Assault means any direct and intentional act or conduct
of D which puts a reasonable person in apprehension of
an imminent physical contact with his person.
Elements:
A voluntary intentional act
Directly causing
The plaintiff to reasonably apprehend
Imminent physical bodily contact
D’s conduct must constitute imminent physical danger:
e.g. where:
D picks up a stick to hit P
D is likely to immediately attack P
D uses threatening words in P’s presence or on the telephone or
intercom system: Barton v Armstrong (1969)
In the above cases there was no actual physical contact
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but such contact was very likely to happen
Apprehension of striking
The essence of assault is putting a person in
fear of being struck. It is that person’s
apprehension of being struck which is
important, rather than the aggressor’s actual
interference with the body or intention to do
harm.
Since the gist of assault lies in the apprehension of
impending contact the effect on the victim’s mind created
by the threat is the crux, not whether the defendant actually
had the intention or the means to follow it up. The intent
required for the tort of assault is the desire to arouse
apprehension of physical conduct, not necessarily to inflict
actual harm.
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Assault
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Assault
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Battery
‘Battery’ means any direct and intentional application of
force by D to the person of P, without the consent of P.
The contact need not be direct i.e., touching someone’s
flesh;
Any physical contact with P in excess of that generally
accepted in daily life would constitute battery;
Acts constituting battery: e.g. striking P or striking P with
an object; unlawful handcuffing; unlawfully forcing
another’s head into a pool of water; pushing P against a
wall; seizing another’s coat lapels; kissing a colleague
without consent.
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Barton v Armstrong [1969] 2 NSWR 451
Facts:
Plaintiff was coerced into executing (signing) a deed (contract) by both threats of
violence and to take his life.
Many of the threats were made over the phone and in the early hours of the
morning.
Plaintiff was also allegedly being kept under surveillance by men hired by the
defendant.
Held:
Can threats over the telephone constitute assault?
'To telephone a person in early hours of the morning, not once but on many
occasions, and to threaten him, not in a conversational tone but in an
atmosphere of drama and suspense, is a matter that a jury could say was well
calculated to not only instill fear into his mind but to constitute threatening acts,
as distinct from mere words‘
Because of the advancement of technology, 'physical violence and death can be
produced by acts done at a distance by people who are out of sight and be
agents hired for that purpose'.
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Assault
In Allen v Hannaford (US case, 1926) it was held that it
constitutes an assault to point a pistol at another
threatening to shoot, even though such person may not
know whether it is loaded or not.
P was awarded damages. A verdict for $ 750 for assault
by pointing a pistol at plaintiff and threatening to shoot,
held not excessive in view of its immediate effect and the
nervous condition thereafter resulting.
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In Beach v. Hancock, 27 N. H. 223, it was said:
"One of the most important objects to be attained by the
enactment of laws and the institutions of civilized society is,
each of us shall feel secure against unlawful assaults.”
Without such security, society loses most of its
value. Peace and order and domestic
happiness, inexpressibly more precious than
mere forms of government, cannot be enjoyed
without the sense of perfect security. We have a
right to live in society without being put in fear of
personal harm.
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But it must be a reasonable fear of which
we complain. And it surely is not
unreasonable for a person to entertain a
fear of personal injury, when a pistol is
pointed at him in a threatening manner,
when, for aught he knows, it may be
loaded, and may occasion his immediate
death. The business of the world could not
be carried on with comfort, if such things
could be done with impunity. 25
Imminent Harm -- Necessity A threat to
harm another does not constitute
common-law assault if the threatened
harm is not imminent. A threatened harm
is imminent if the circumstances of the
threat indicate that the party making the
threat has an immediate ability to reach
the victim and inflict the harm almost at
once. A threat to cause harm in the near
future does not constitute imminent harm. 26
Other examples:
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Battery: Nature of acts constituting battery
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Battery: Elements of battery
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Battery: Nature of acts constituting battery
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Voluntary and Intentional Act
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Direct Contact?
See:
Scott v Shepherd
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Battery and consent
Consent in Sports
Assumption that consent to physical contact,
consistent with the rules of the game, during
sports.
E.g. Australian Football, Boxing, Fencing
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Battery: mistake of fact
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Wilkinson v Downton (1897)
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Types of Damages:
Nominal
Compensatory (special and general)
Aggravated
Exemplary (Punitive)
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DEFENCES TO ASSAULT AND
BATTERY
consent;
superior lawful authority;
mistake (under some circumstances);
self-defence;
necessity;
involuntariness and duress; and
the use of force or threats to recover
property.
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Consent
Consent must be real
it must be an informed consent;
the person must give it voluntarily;
consent must be genuine; and
the defendant must have acted in a way which
remained within the scope of the consent which
the plaintiff actually gave.
Can be implied consent (sports / surgery)
A mistaken belief in consent will not prevent
liability from arising.
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Superior lawful authority
Police officers
Citizens
Parents?
Teachers?
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Self-defence
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Necessity
See:
Smith v Leurs [1944] SASR 213
McHale v Watson (1964) 111 CLR 384 at
386
Ellis v D’Angelo (1953) 352 P. 2d 675
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Incapacity
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Mistake
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