Torts Exam Notes

Topics: Tort, Tort law, Negligence Pages: 48 (10126 words) Published: June 21, 2013
Torts Exam Notes

Intentional Torts

Trespass to the Person

Battery
- directly and intentionally (or negligently) bringing about a harmful or offensive contact with the person of another
- the ‘body is inviolate, and that any touching of another person, however slight may amount to a battery’ - Rixon
- doesn’t have to cause harm
- Rixon v Starcity Casino
- Collins v Wilcock
- no requirement of hostility or anger
- Wilson v Pringle
- In Re F
- exception is made if contact is ‘generally acceptable in the ordinary conduct of daily life’
- Collins – policewoman grabbed a suspected prostitute who then scratched her - acceptable reaction
- Rixon – woman put her hand on man’s shoulder to ask him to leave
- restraint is generally unacceptable
- no excuse that did not mean to cause harm, just sufficient that contact is intended
- no intention to cause harm necessary – Rixon, Collins
- Fagan – accidentally drove onto policeman’s foot, then refused to back off - became a battery the moment that he realised he was on the foot and refused to move off

Assault
- intentionally or negligently creating in another an apprehension of imminent harmful or offensive contact
- unique in that the damages are for emotional reaction
- the apprehension must be for battery (not negligence, conversion, trespass etc) – Richardson v Rix
- doesn’t need an intention to harm
- just an intention to create apprehension
- apprehension is not fear – a brave person can still expect harm, and hence suffer assault
- if the plaintiff know then there is no capacity to cause harm then there is not assault
- if the defendant knows the gun is unloaded
- unreasonable reaction will normally only be assault if the defendant knows of timidity
- Macpherson v Beath
- conditional assault
- gesture accompanied by words indicating no intent to use force – qualifying threatening gestures with words
- this is generally not assault – Tubervill v Savage (words removed the threat of the drawn sword)
- unless the threat is qualified by a demand (‘your money or your life’)
- Police v Greaves
- if gesture is unlawful then it may still be assault
- cf Rosza v Samuels
- taxi driver that skipped queue was asked to move, and when he declined was threatened. In response he got a knife and said hat if he was attacked he would ‘cut him to pieces’ - can be seen as a defensive threat, but the response was still disproportionate and unlawful - circumstances are important

- will be assault if the threat exceeds what they could lawfully do in response
- threatening words
- normally not an assault unless there is an imminent expectation of harm
- it will be assault if there is a continuing apprehension of harm (‘I’ll kill you tonight’)
- especially in company with unlawful imprisonment
- Zanker – ‘I’m going to take you to my mate’s place and fix you’
- threats over the phone is generally not assault

Defences to Assault/Battery
- consent
- volenti non fit injuria
- doctors, surgery etc
- contact sport – McNamara
- you consent to certain contact, but only contact permitted by rules and rules that are broken all the time
- you do not consent to deliberate foul play

Interfering With Goods

Trespass to Goods
- intentional or negligent direct physical interference with goods
- includes removing possession, damaging or destroying, unauthorised use
- just touching may be actionable
- actionable per se (without harm) though there are exceptions for policy reasons (inevitable trespass)
- contact must be the direct cause of harm
- Hutchins v Maughan – laying out bait is not trespass, throwing a branch onto a road is not trespass
- the right to sue goes with possession, not ownership
- can sue if you have actual possession or...
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