LAWS1012 Lecture Notes - Lecture 3: Intentional Tort, False Imprisonment, Intellectual Disability
16 May 2018
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| Trespass to the Person
• English law developed to 3 nominate torts (with names) that protect bodily interest
• Tort of battery, the tort of assault and the tort of false imprisonment
• Each of these reflect slightly different interests
• Tort of battery: concerned with protection from unwanted physical injury and molestation of their
person. It is actionable per se - no proof of injury required
• Tort of assault: interest of being free from fear from imminent fear of harm
• Tort of false imprisonment: concerned with liberty and the right to move about freely
I: The Tort of Battery
• The tort of battery is the defendants direct application of force to the plaintiffs body without consent
or other lawful justification. Battery is an intentional form of trespass to the person
• Two main elements: Needs to be direct, and unlawful
o Cole v Turner (1704) 90 ER 958
▪ The law of battery goes back before this case, but it has some useful statement of
principles
▪ Chief Justice Holt makes comments implying the requirement of hostility and
violence for the tort of battery:
…the least touching of another in anger is battery.
if two or more meet in a narrow passage, and without any violence or
design of harm, the one touches the other gently, it will be no battery…
o In Re F [1990] 2 AC 1
The principle of necessity may justify medical or surgical treatment, which otherwise would
constitute trespass to the person, when the patient is incapable of giving his or her consent by
reason or lack of consciousness in an emergency situation or mental disability. However,
application of this principle is accompanied by stringent safeguards requiring that the
proposed treatment be in the best interests of the patient in order to preserve his or her life,
health or well-being.
▪ The facts: A woman, F, suffered from a serious mental disability and due to practical
and medical objections to her use of conventional methods of contraception, and
her psychiatric inability to look after any children she may bear, a sterilisation
process was required. However, she could not give consent to this, due to her
mental state
▪ The question: Normally, a doctor that performed an operation or treatment on a
patient that did not consent to it, would be committing the tort of battery. What
happens, then, when the patient cannot give nor refuse their consent, either as a
result of an accident where she is unconscious or a mental disability
▪ Lord Goff of Chieveley:
Makes clear here that the performance of a medical treatment on a person
without their consent is prima facie, a battery. He aises a lot of issues about
people who are not able to understand the medical procedure being
performed including those with mental issues, are a child, or are
unconscious from being in an accident
When are the circumstances in which medical treatment can be justified
without consent? Lord Goff states that in circusmtances where the patient
is temporarily (unconscious, etc) or permanently disabled from consenting
to it, the principle of necessity can provide justification
Example: when a man seizes another and forcibly drags him from the path
of an oncoming vehicle, hence saving him from injury → Lord Goff says this
person has committed no wrong
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Reiterates that for a person with a sound mind, unconsented to medical
treatment must be performed only in times of emergency. Emergency is
what may give rise to the principle of necessity to act in the intersts of the
assisted person without their consent
Not only needs necessity to act but also must take into account best
interests of the assisted person
Cannot take action when it is against the known wishes of the assisted
person, to the extent that he is capable of rationally forming such a wish
Actions will hence not be unlawful if the above criterion are fulfilled
▪ Lord Goff also makes clear that the requirement of hostility in Cole v Turner is
not part of the tort of battery. He provides several examples to suggest this. E.g. a
prank that gets out of hand, an overly strong slap on the back, surgical treatment
by a surgeon who mistakenly thought the patient had consented to it
o Rixon v Star City (2001) 53 NSWLR 98
Physical contact, which is generally acceptable in the ordinary conduct of daily life, does not
constitute battery. Assault requires an intention to create in another person an apprehension
of immediate harmful or offensive contact.
▪ The facts: Involved a man, the plaintiff Rixon, who was the subject of an exclusion
order issued by the defendant, Star City. The plaintiff ignored the order, and was
found in the casino in breach of the order. He was approached by one of the
defendants employees, who placed his hand on the plaintiffs shoulder without
using any degree of force and asked if the plaintiff was Rixon.
▪ The claim: The plaintiff claimed assault and battery
▪ The question: Whether the defendants employee had possessed the intention in
relation to assault and the hostility in relation to battery.
▪ In the Court of Appeal (battery):
Refers to Collins v Wilcock where Lord Goff said that exceptions to
battery included those actions of ordinary everyday life. Physical
contacts of ordinary life are not actionable because they are impliedly
consented…
Among such forms of conduct, long held to be acceptable, is touching a
person for the purpose of engaging his attention though of course using
no greater degree of physical contact than is reasonably necessary in the
circumstances for that purpose
▪ In the Court of Appeal (assault):
Proof of assault requires a proof of intention to create in another person
an apprehension of imminent harmful or offensive conduct
Concluded that defendants employee, when placing hand on the
plaintiffs shoulder and asking if he were Rixon, had no intention of
creating such feels of apprehension
II: The Tort of Assault
• Working definition: It is the intentional creation of an apprehension in the mind of the plaintiff by
the defendant of the imminent application of unlawful force to the person of the plaintiff
• Protects right of plaintiff to live free from fear of molestation or injury. It is protection of the state
of mind of the plaintiff
• Complementary tort of battery:
o Battery and assault will often occur in the same circumstances
o Battery and assault can occur independently
▪ An example of a battery without assault: if I hit someone from the back because
they dont see it coming
▪ An example of an assault without a battery: )f you dont connect with the person
e.g. come up and attempt to hit someone without actually hitting them
a) Apprehension of immediate unlawful violence
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o Stephens v Myer (1830) 172 ER 735
▪ The facts: The defendant was subject to the ejection of the Parish, but he did not
take it well. He took his fists and made a violent gesture at the plaintiff and uttered
threatening words. He was prevented from reaching the defendant by multiple
people who were in between them.
▪ The claim: The defendant brought proceedings for assault. The jury found in favour
of the plaintiff. The case was appealed.
▪ In the appellate court:
In all cases, there needed to be a real belief of the threat being carried into
effect
Found that it was actionable for assault
Found that there was reasonable apprehension that arose in the mind of
the plaintiff. This was enough to give rise to assault
Damages: 1 shilling. The law draws a distinction between elements of
liability and the remedy. It is a question of how serious the wrong is.
▪ Mere words alone cannot constitute assault.
When are there mere words
The plaintiff had spoken a threat of violence, as well as clenching his fists
and moving towards the person and giving an indication he was going to
hit the person
The facts here indicate something beyond mere words
o Hall v Fonceca [1983] WAR 309:
▪ The facts: There was a dispute between two people involved in the board of the
Hockey club about club's finances. The defendant punches the plaintiff in the face.
The plaintiff falls onto the floor and hits his head and suffers a haemorrhage.
▪ The claim: The plaintiff brings criminal prosecution against defendant alleging
battery and assault. The defendant raises point of self defence, but this depends
upon whether plaintiff committed an assault in the first place (to cause
apprehension in the defendant).
▪ The question: Was the plaintiff, at the time the plaintiff was hit, himself committing
an assault? The question turns upon whether there was a reasonable apprehension
about the imminent application of force on the part of the defendant
▪ Full Court of Supreme Court of WA - in order for plaintiff to be liable of assault:
Assault in an intentional tort. Hence, the person needed to create
apprehension in the mind of the defendant
Do not actually have to intend to use force against the person himself, but
the creation of the threat of the harm is the wrong
▪ Hall v Fonceca makes it clear that there is a requirement of intention on the part of
defendant either on application of force or intention of the force
o ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti (2008) 21 VR
559
Where the mental element in assault is an intention on the part of the defendant to cause the
plaintiff to apprehend the imminent application of unlawful force, the requisite intention is
subjective, not objective. Further, the plaintiffs apprehension of the imminent application of
unlawful force must be a reasonable one.
▪ The facts: A man was conducting himself in an offensive manner on the train.
Security guards on the train stopped him. He spat on the security guards. The
guards pursuited him, though while the man was running away, he fell over and
injured himself. )t was the plaintiffs contention that he had run away from the
defendants officers because he expected and feared they would bash him as
retaliation for the act of spitting.
▪ The claim: The man brought proceeds against Connex Trains for the tort of assault
▪ The question: Was there a subjective intention of part of the railway officers to
apply imminent force to the person. Australian law does not recognise negligent
assault
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Document Summary
I: the tort of battery: the tort of battery is the defendant(cid:495)s direct application of force to the plaintiff(cid:495)s body without consent or other lawful justification. What happens, then, when the patient cannot give nor refuse their consent, either as a result of an accident where she is unconscious or a mental disability: lord goff of chieveley: Makes clear here that the performance of a medical treatment on a person without their consent is prima facie, a battery. He aises a lot of issues about people who are not able to understand the medical procedure being performed including those with mental issues, are a child, or are unconscious from being in an accident. Lord goff states that in circusmtances where the patient is temporarily (unconscious, etc) or permanently disabled from consenting to it, the principle of necessity can provide justification.
