(Cause of Action)
= D’s Civil wrong, fault, act / omission unauthorised by law, infringes right, gives rise to action for damages at CL; Functions – compensation, deterrence, loss shifting
– p.24
= Wrongful, direct & intentional interference with persons, land & goods. (voluntary), without legal justification;
( Actions on the case – P must prove fault, not consequential)
Trespass = Actionable per se – Prove trespass occurred, not necessarily damage/harm
BOP = P to prove was a trespass; shifts à D to show wasn’t intentional / negligent
FI Aslt
Batry
D will be liable for false imprisonment if [P] can show total restraint of their freedom of movement caused by [D]’s direct acts without legal justification .
Elements
1. Direct
2. Intentional, negligent …
3. Total restraint ;
4. No lawful justification
Element 1: Total restraint
1. Actual restraint
Physical
§ [P] is [apply facts]. [P’s] actual restraint is more than mere obstruction of movement in a particular direction, as [P] is confined within boundaries set by D: Bird v Jones .
§ Knowledge of restraint not necessary -
Burton v Davies –groping girl in taxi – couldn’t get out, 2 fast
§ Meering v Graham-White Avaition – cops outside door, doesn’t know will be attacked if leaves
§ Herring v Boyle – mother collects child, principal “fees not paid, cannot collect”, held: boy didn’t know à not FI – change in law
Psychological
§ In this instance, [P] is [apply facts]. [P] feels there is no alternative but to submit to
[D’s] restraint. – fears no escape without risk of serious injury - Myer v Soo – shoplifter, taken to station & house searched, no autho, $10k
§ Overbearing of will of victim ( Murray v
Ministry of Defence – raid in house, took
30mins to arrest; sued for that time when
FI, unsuccessful )
§ Submission not free & voluntary
§ Fear of embarrassment / public humiliation is sufficient
2. No Reasonable Means of Escape
§ R v Macquarie – jump off boat to escape, not reasonable
Element 2: Defences
Consent , self-defence, provocation, defence of property, necessity, statutory autho
Herd v Weardale Steel – mining, once went down, couldn’t come up till 1:30, employees on strike & wanted to come up à no FI, cos knew couldn’t come up
Balmain New Ferry Co v Robertson – wharf = penny to get on / off”, wanted to get off & get penny– restrained – FI unsuccessful - sign
Legal justification supported by statutory authorisation that says [apply facts], & as such
[D] is not liable for false imprisonment.
(Persons who are authorized to detain individuals include hospital staff, parents, schoolteachers etc)
Powers of Arrest Arrest without warrant or with warrant issued without stat authority can be liable ( Spautz v Butterworth ) Warrant must be in possession ( Little v C’th ); duty to take arrested to justice/police ASAP ( R v Brown ); if police make erroneous arrest, not liable for FI
( Samuel v Payne ).
Conclusion
P’s] [apply facts] [does/does not] fall within what was agreed, & as such she [has/has not] consented & [D] [is/is not] liable.
Remedies – Damages, injunction
1. Compensatory
For losses suffered – exact figure
“ Nominal damages ” = $1 - auto available – to recognise the right that has been violated.
2. Aggravated
Where embarrassment / humiliation suffered
à “ indignity, mental suffering, disgrace & humiliation ” ( Watts v Leitch )
3. Exemplary
Make an example for community
4. Injunction – if fear of ongoing T
2. BATTERY
[D] will be liable for battery if [P] can show that
[D] intentionally or negligently applied direct force to [P]’s person without consent or lawful justification
- Actionable per se – no need to prove harm
NB: intend to do act , not necessarily to touch
Direct application of Force
D, by facts, has directly applied force to P.
1. Positive act – not liable for passive obstruction ( Innes )
2. Contact = direct result of D’s act ( Scott ) a. Spitting ( Cotesworth’s case ) b. Cutting P’s hair w/o consent ( Forde v
Skinner ) c. Causing mother to drop child ( Haystead v
Chief Constable of Derbyshire ) d. Pull chair from under someone ( Hopper v
Reeve ) e. Unauthod Surgical procedure ( Marion’s
Case )
3. Knowledge not required by P
Scott v Shepherd – threw bomb into market, blew out eye, intentional act to throw bomb, directly responsible for consequences
Marion’s Case – severely intellectually impaired, parents à blood transfusion required but no parents consent – necessity to save life
Innes v Wylie – Policeman stood in doorway obstructing person à held: not battery
Fault: intention / neg; more than everyday touching
From the facts of the case [D]’s act, which led to the contact, came about through
[intention/negligence], & it is irrelevant that [D] did not mean to hurt [P
Collins v Wilcock – give consent to some touch
McNamara v Duncan – footy–must expect
Onus of Proof – D prove consent / everyday
( Marion’s Case )
Defences – P consented to contact
1. Self Defence – must be proportional to the assault - Fontin v Katapodis – P threw glass at D à responded with brick à then wood plank, provoked attack himself & not prop
2. Provocation – NB: doesn’t reduce compensatory damages – only exemplary
3. Contact part of everyday life ( McNamara )
4. Medical necessity – ( Marion’s Case ); however not applicable if given certificate of refusal
The question then becomes was [apply facts] consented to? From the facts of the case this
[was/was not] consented to & as such [D]
[does/does not] have a defence.
Remedies see FI
3. ASSAULT
D] is liable for assault if [his/her] intentional or negligent act or threat directly places in [P] a reasonable apprehension of an imminent physical interference to [his/her] person, or the person of someone under [his/her] control, without lawful justification
Stephens v Myers – D advanced with clenched fists, even if assault is apparent, not real
Element 1: Direct Threat – verbal / conduct
Verbal – D, by facts, issued threat to P. D had apparent means to carry out the threatened action. ( Stephens v Myers )
Conduct - D behaved in threatening manner. & apparent means to carry out.
Element 2: Intention & knowledge
[D] intended to create an apprehension of imminent harm in P à expectation of B = sufficient Brady v Schatzel – pretended = loaded gun
NB: conditional - Rozsa v Samuels – jumped taxi queue, D “I’ll punch you” à P “I’ll cut you if you do” with knife; taxi driver smashed door into him à assault cos didn’t cut him à I’ll cut
IF punch
Barton v Armstrong – phoned, “I’ll hurt you”, reputation of hurting people – app of harm
Hall v Fonceca – threat to punch
Police v Greaves – menacing attitude
Zanker v Vartzokas – taxi driver à $ for sex, she feared imminent bodily harm
D] will be liable for trespass to land if [P] can prove direct & unauthorised interference, either intentional (or negligent), with his possession of land. Trespass to land is actionable per se so
[P] does not need to prove actual damage. The