Lecture 2
Assault & False Imprisonment
Clary Castrission
In this lecture
• Assault
• False Imprisonment
• Defences to Intentional Torts
ASSAULT
ASSAULT
•
The intentional/negligent act or
threat of D which directly places P
in reasonable apprehension of an
imminent physical interference
with his or her person or of
someone under his or her control
The Gist of the Action
• …Assault necessarily involves the
apprehension of injury or the instillation of fear
or fright. It does not necessarily involve
physical contact with the person assaulted: nor
is such physical contact, if it occurs, an element
of the assault. (Barwick CJ in The Queen v
Phillips (1971) 45 ALJR 467 at 472
THE ELEMENTS OF ASSAULT
• There must be a direct threat:
–Stephens v Myers (1830)
• In general, mere words are not actionable
–Barton v Armstrong (1969)
• Conditional threats
– Tuberville v Savage (1669)
– Police v Greaves (1964)
– Rozsa v Samuels (1969)
Zanker v Vartzokas and the issue
of imminence/immediacy
• The Facts:
– Accused gives a lift to victim and offers money for
sex; victim refuses.
– Accused responds by accelerating car, Victim tries
to open door, but accused increases acceleration
– Accused says to victim: I will take you to my mates
house. He will really fix you up
– Victim jumps from car then travelling 60km/h
Zanker v Vartzokas: The Issues
• Was the victim’s fear of sexual assault
in the future reasonable?
• Was the feared harm immediate
enough to constitute assault?
Zanker v Vartzokas: The
Reasoning
• Where the victim is held in place and unable to
escape the immediacy element may be fulfilled.
• The essential factor is imminence not
contemporaneity
• The exact moment of physical harm injury is known
to the aggressor
• It remains an assault where victim is powerless to
stop the aggressor from carrying out the threat
So main issues with Assault
• Threat possible to be carried out?
• Future threats?
• Conditional threats:
– Not assault if its lawful (except will be if it is
excessive)
– Must be possible to carry out
FALSE IMPRISONMENT
FALSE
IMPRISONMENT
• The intentional or negligent act of
D which directly causes the total
restraint of P and thereby confines
him/her to a delimited area without
lawful justification
• The essential distinctive element is
the total restraint
THE ELEMENTS OF
THE TORT
• It requires all the basic elements of
trespass:
– Intentional/negligent act
– Directness
– absence of lawful
justification/consent , and
• total restraint
“A prison may have its boundary large or narrow,
visible and tangible, or, though real, still in the
conception only; it may in itself be moveable or
fixed; but a boundary it must have; and that
boundary the party imprisoned must be prevented
from passing… Some confusion seems to me to arise
from the confounding imprisonment of the body with
mere loss of freedom; it is one part of the definition
of freedom to be able to go whithersoever one so
pleases; but imprisonment is something more than
the mere loss of this power; it includes the notion of
restraint within some limits defined by a will or
power exterior to our own.”
– Coleridge J in Bird v Jones (1845) at 744.
RESTRAINT
• The restraint must be total
– Bird v Jones ((1845)
• Total restraint implies the absence of a
reasonable means of escape
• “If I lock a person in a room with a window from which he
may jump to the ground at the risk of life or limb, I cannot be
heard to say that he was not imprisoned because he was free to
leap from the window.”
• Burton v Davies (1953)
• Barrier need not be physical
– Symes v Mahon (1922)
– Myer Stores v Soo
VOLUNTARY CASES
• In general, there is no FI where one
voluntarily submits to a form of restraint
– Herd v Weardale (1913)
– Robinson v The Balmain New Ferry Co.
(1904)
• Where there is no volition for restraint, the
confinement may be FI
– Bahner v Marwest Hotels Co. (1970)
WORDS AND FALSE
IMPRISONMENT
• In general, words can constitute FI
see Balkin & Davis pp. 55 to 56:
“restraint… even by mere threat of force
which intimidates a person into compliance
without any laying on of hands” may be
false imprisonment
- Symes v Mahon
KNOWLEDGE IN FALSE
IMPRISONMENT
• The knowledge of the P at the
moment of restraint is not
essential.
– Meering v Graham White Aviation
(1919)
– Murray v Ministry of Defense (1988)
WHO IS LIABLE? THE
AGGRIEVED CITIZEN OR THE
POLICE OFFICER?
• In each case, the issue is whether the
police in making the arrest acted
independently or as the agent of the
citizen who promoted and caused the
arrest
–Dickenson v Waters Ltd (1931)
–Bahner v Marwest Hotels Co
(1970)
DAMAGES
False imprisonment is actionable per se
The failure to prove any actual financial loss
does not mean that the plaintiff should recover
nothing. An interference with personal liberty
even for a short period is not a trivial wrong.
The injury to the plaintiff's dignity and to his
feelings can be taken into account in assessing
damages (Watson v Marshall and Cade )
OTHER FORMS OF
TRESPASS
TRESPASS
PERSON
BATTERY
ASSAULT
FALSE IMPRISONMENT
PROPERTY
Defences to Intentional
Torts
MISTAKE
• An intentional conduct done under a
misapprehension
• Mistake is generally not a defence in
tort law
– Basely v Clarkson (1682)
– Cowell v Corrective Services Commission
(1988)
CONSENT
• In a strict sense, consent is not a
defence as such because in trespass,
the absence of consent is an element
of the tort
– See: Blay; ‘Onus of Proof of Consent in an Action
for Trespass to the Person’ Vol. 61 ALJ (1987)
25
– But McHugh J in See Secretary DHCS v JWB
and SMB (Marion’s Case) 1992 175 CLR 218
VALID CONSENT
• Must be given to act complained of
– Mullloy v Hop Sang [1935]
• Must be no vitiating factors to
nullify consent
– Hegarty v Shine (1878)
• Consent must be genuine
– Gillick v West Norfolk Health Authority
(1986)
– Re F (1990)
CONSENT IN SPORTS
People who pursue recreational activities regarded as sports
often do so in hazardous circumstances; the element of
danger may add to the enjoyment of the activity
Accepting risk, sometimes to a high degree, is part of many
sports. A great deal of public money and private
effort, and funding, is devoted to providing facilities for
people to engage in individual or team sport. This reflects a
view, not merely of the importance of individual autonomy,
but also the public benefit of sport. Sporting injuries that
result in physical injury are not only permitted: they are
encouraged (Gleeson CJ in Agar v Hyde (2000) )
– McNamara v Duncan; Hilton v Wallace
– Giumelli v Johnston
– McCracken v Melbourne Storm (2005)
STATUTORY PROVISIONS
ON CONSENT
• Minors (Property and
Contracts) Act 1970 (NSW) ss
14, 49
• Children & Young Persons
(Care and Protection Act) 1998
(NSW) ss 174, 175
SELF DEFENCE,
DEFENCE OF OTHERS
• A P who is attacked or threatened with an attack, is
allowed to use reasonable force to defend him/herself
– McLelland v Symons (1951)
• In each case, the force used must be proportional to
the threat; it must not be excessive.
• D may also use reasonable force to defend a third
party where he/she reasonably believes that the party
is being attacked or being threatened.
NECESSITY
• The defence is allowed where
an act which is otherwise a tort
is done to save life or property:
urgent situations of imminent
peril
–Mouse’s Case (1609)
–Leigh v Gladstone (1909)
INSANITY
• Insanity is not a defence as such to
an intentional tort.
• What is essential is whether D by
reason of insanity was capable of
forming the intent to commit the
tort.
– White v Pile (1951)
– Morris v Marsden (1952)
INFANTS
• Minority is not a defence as such
in torts.
• What is essential is whether the D
understood the nature of his/her
conduct
– Hart v AG of Tasmania (1979)
– Hogan v Gill (1992)
DISCIPLINE
• PARENTS
–
A parent may use reasonable and
moderate force to discipline a
child. What is reasonable will
depend on the age, mentality, and
physique of the child and on the
means and instrument used.
• R v Terry
ILLEGALITY:Ex turpi causa
non oritur actio
• Persons who join in committing an
illegal act have no legal rights inter se
in relation to torts arising directly from
that act.
– Smith v Jenkins (1970)
TRESPASS & CLA 2002
• s.3B(1)(a) Civil Liability Act (“CLA”) i.e. CLA does not
apply to “intentional torts”, except Part 7 of the Act.
• s.52 (2) CLA subjective/objective test i.e. subjective
("…believes…" & "…perceives…")/ objective ("…reasonable response…")
test.
• s.53(1)(a) & (b) CLA i.e. “and” = two limb test; "exceptional"
and "harsh and unjust“ are not defined in the Act so s.34 of the
Interpretation Act 1987.
• s.54(1) & (2) CLA i.e. "Serious offence" and "offence" are
criminal terms so reference should be made to the criminal law to
confirm whether P's actions are covered by the provisions.