LLB240 Study Guide - Midterm Guide: New Ferry, Objective Test, Byron White
What is a trespass to persons?
ONUS – on P to establish the acts constituting the trespass, then on D to prove the
trespass was not intentional
DIRECT torts
1. What is a BATTERY?
Elements:
a) Intentional and voluntary act
Deliberate, reckless or negligent
b) Which directly
‘…be said to have followed so immediately in point of causation upon the
act of the defendant as to be termed a part of the act’ – Hutchins v
Maughan [1947] VLR 131
c) Causing contact with the body of another person
Conduct must be outside the accepted contact that comes with everyday life
Hostility is not a necessary element, however it assists in a claim of battery
‘…the absence of anger or hostile attitude by a person touching
another is not a satisfactory basis for concluding that the touching
was not a battery…’ – Rixon v Star City Pty Ltd [2001] NSWCA 265
Must be a positive act
An omission may become a positive act – Fagan v Metropolitan
Commissioner of Police [1969]
oDeliberately ignoring pleas to take action may constitute an act
oMay be committed through mediums e.g weapon or instrument
Contributory negligence does not preclude a claim – Horkin v North
Melbourne Football Club [1983] VR 153
Criminal acts don’t preclude a plaintiffs ability to claim – Henwood v
Muncipal Tramways Trust (1938) 60 CLR
2. What is ASSAULT?
Elements:
a) Intentional voluntary act or threat
Deliberate, reckless or negligent
‘… proof of the assault does not require proof of an intention to follow it up
or carry it through.’ – Rixon v Star City Pty Ltd [2001] NSWCA 265
b) Which directly creates in another person
‘…be said to have followed so immediately in point of causation upon the
act of the defendant as to be termed a part of the act’ – Hutchins v
Maughan [1947] VLR 131
c) A reasonable apprehension of imminent contact –
Need not actually be afraid but must know of the threat
i. Words or acts?
oNo clear authority as to whether words alone may be an assault
oWords assist when acts aren’t sufficient– Fogden v Wade [1945]
NZLR 724
o‘… it is a matter of the circumstances… a matter that a jury could say
was well calculated to not only instil fear into his mind but to
constitute threatening acts, as distinct from mere words.’ – Barton v
Armstrong [1969] 2 NSWLR 451
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Document Summary
Onus on p to establish the acts constituting the trespass, then on d to prove the trespass was not intentional. Deliberate, reckless or negligent: which directly. Maughan [1947] vlr 131: causing contact with the body of another person. Conduct must be outside the accepted contact that comes with everyday life. Hostility is not a necessary element, however it assists in a claim of battery. The absence of anger or hostile attitude by a person touching another is not a satisfactory basis for concluding that the touching was not a battery " rixon v star city pty ltd [2001] nswca 265. An omission may become a positive act fagan v metropolitan. Commissioner of police [1969: deliberately ignoring pleas to take action may constitute an act, may be committed through mediums e. g weapon or instrument. Contributory negligence does not preclude a claim horkin v north. Criminal acts don"t preclude a plaintiffs ability to claim henwood v.
