Analysis Of Pushing Poppy Battery At Common Law
Client Advice
Part A will be reviewing the client’s statement to advice on possible trespass to person and/or trespass to land and/or private nuisance action(s) that could be brought by or against our client. The advice will be based on the facts from Jay’s statement. However, where necessary additional legal facts may be required, which will be addressed in Part B.
Jay V Poppy – Entering the bar – Trespass to Land
Title to sue
Jay must have the exclusive possession of the land to have requisite title to sue. Although Jay runs his own bar further information is required to determine that Jay is not a mere licensee which would refute his title to sue. However, the facts also do not state that another person has a better right to possession …show more content…
Poppy v Jay – Pushing Poppy – Battery at Common Law
Application of force to the plaintiff
At common law there must be a direct or indirect application of force towards the plaintiff. Jay pushed Poppy and the immediate effect of the defendant’s act is what caused contact with the plaintiff. This push constitutes as offensive contact as the force caused Poppy to stumble.
Consent
In McNamara v Duncan, the court held that the implied consent by the circumstance i.e. participation in a physical contact sport, did not apply to this case as the blow received by the plaintiff was reckless and caused the plaintiff to sustain a head injury. The facts do not indicate that Poppy expressed or implied consent to be pushed.
Fault
The defendant is not liable in battery unless the interference was voluntary, and the defendant intended the impact or caused it negligently. Jay interfered with the plaintiff’s person in order to avoid Bob being knocked over. It can be deduced that the amount of force used to push Poppy intended to cause an impact as it made her stumble, and in doing so Jay acted …show more content…
However, the facts do not state whether Jay enforced any direct contact towards Poppy. Yet, Poppy’s reaction to run and scream out of the building implies that an intimidating gesture was possibly made by the defendant.
Reasonable belief/apprehension that defendant has ability to carry out threat
The plaintiff must be aware of the threat, but they need not be afraid. S245 of the Queensland Criminal Code Act 1899, states that the verbal threat made by the defendant must cause the plaintiff to have reasonable belief/apprehension that the defendant was able to carry out the threat. This is demonstrated as the plaintiff ran out of the bar screaming, immediately after the threat was made. The nature of the threat was conditional as the defendant offered an ultimatum suggesting that he may not execute the threat if the plaintiff complies with the alternative. If the alternative was an unreasonable demand, an assault may have occurred.
Part A will be reviewing the client’s statement to advice on possible trespass to person and/or trespass to land and/or private nuisance action(s) that could be brought by or against our client. The advice will be based on the facts from Jay’s statement. However, where necessary additional legal facts may be required, which will be addressed in Part B.
Jay V Poppy – Entering the bar – Trespass to Land
Title to sue
Jay must have the exclusive possession of the land to have requisite title to sue. Although Jay runs his own bar further information is required to determine that Jay is not a mere licensee which would refute his title to sue. However, the facts also do not state that another person has a better right to possession …show more content…
Poppy v Jay – Pushing Poppy – Battery at Common Law
Application of force to the plaintiff
At common law there must be a direct or indirect application of force towards the plaintiff. Jay pushed Poppy and the immediate effect of the defendant’s act is what caused contact with the plaintiff. This push constitutes as offensive contact as the force caused Poppy to stumble.
Consent
In McNamara v Duncan, the court held that the implied consent by the circumstance i.e. participation in a physical contact sport, did not apply to this case as the blow received by the plaintiff was reckless and caused the plaintiff to sustain a head injury. The facts do not indicate that Poppy expressed or implied consent to be pushed.
Fault
The defendant is not liable in battery unless the interference was voluntary, and the defendant intended the impact or caused it negligently. Jay interfered with the plaintiff’s person in order to avoid Bob being knocked over. It can be deduced that the amount of force used to push Poppy intended to cause an impact as it made her stumble, and in doing so Jay acted …show more content…
However, the facts do not state whether Jay enforced any direct contact towards Poppy. Yet, Poppy’s reaction to run and scream out of the building implies that an intimidating gesture was possibly made by the defendant.
Reasonable belief/apprehension that defendant has ability to carry out threat
The plaintiff must be aware of the threat, but they need not be afraid. S245 of the Queensland Criminal Code Act 1899, states that the verbal threat made by the defendant must cause the plaintiff to have reasonable belief/apprehension that the defendant was able to carry out the threat. This is demonstrated as the plaintiff ran out of the bar screaming, immediately after the threat was made. The nature of the threat was conditional as the defendant offered an ultimatum suggesting that he may not execute the threat if the plaintiff complies with the alternative. If the alternative was an unreasonable demand, an assault may have occurred.