MLL213 Study Guide - Final Guide: Posttraumatic Stress Disorder, Implied Consent, Spring-Gun
24 May 2018
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Topic 2
TRESSPASS TO THE PERSON
Trespass action is that of directness. Trespass does cover negligent as as intentional acts
(with the exception of assault).
BATTERY
1. A positive voluntary act
D must have a conscious mind regarding the act.
2. The act directly results in contact with the person of P
No matter how slight, contact can be a battery
3. The contact is intentional (or negligent), and
McHale v Watson:
• M was playing tag with W. W threw a sharpened piece of welding in front of him at a piece of
wood, but hit M in the eye – destroying the sight in that eye.
• Should children be assessed based on the adult standard of care?
• M sued W for damages but was unsuccessful as W was not expected to have the perceptions
of risk that an adult would have.
• Upon appeal, it was held that W acted negligently and thus was assessed as a reasonable
man rather than boy.
Stingel v Clark:
• S claimed that due to two rapes committed by C during 1971 caused delayed onset of PTSD in
2000. Thus, bringing her claim outside of the statute of limitations.
• She claimed that under s 5 1(A) of the Limitations of Actions Act, she was to be awarded
damages due to C breaching the duty of care.
• The out held that eause the illess as iitiall fak ad tauatisig, symptoms of
PTSD oulde sho efoe the liitatio peiod eded.
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a. Not necessary to show that D intended to harm P; just that D intended the
contact.
b. D has onus of proof/ motive is irrelevant
i. Eg. Beneficial but non consensual medical treatment, unlawful
arrests
4. The contact is generally not accepted
a. EXAMPLES:
i. Fights
ii. Unlawful arrest or search by police
iii. Sexual Assault
iv. Sporting contacts
Schmidt v Argent (2003):
• S was stripped searched in front of a police station for unpaid traffic fines.
• She was eventually awarded aggravated damages for the embarrassment and infringement of
her rights.
Carter v Walker (2010)
• To POs espoded to all aout doesti dispute. Phsial alteatio esued; othe ad
son were physically injured. Third P suffered shock when arriving on scene to see mother and
brother.
• Did the thid P, ho had suffeed eous shok hae a ause of atio i the atte agaist
the defendants?
• Held that o. He had ot ee dietl haed Ds atios as D had ot ade otat.
Canterbury Bankstown Rugby League Football Club and Bugden v Rogers:
• B assaulted R in a sporting game. Tackling was allowed but B deliberately caused R pain.
• Because C had employed B, they were liable for his actions towards R.
• Damages awarded for the frustration
Rixon v Star City (2001)):
• P was subject to an exclusion order egadig plaig oulette at the Ds Sta Cit. P as
appoahed a eploee ho put his had o Ps shoulde ad detaied hi i a oo
for approximately 1.5 hours.
• P claimed the gesture was a threat to assault and that he was unlawfully imprisoned.
• The out laied that thee as o atte as thee as a asee of age o hostile
attitude. The gestue as used to egage Ps attetio. Futheoe, assault euies itet
to induce apprehension and this was not seen.
• As for unlawful imprisonment, s 84 of the Casino Control Act allows employees of such to
detain suspects and P was not detained for longer than necessary.
Scott v Shepherd:
• Shepherd a minor threw a lighted squib made of gunpowder from the street onto the market-
house. Willis picked it up and to prevent injury to himself threw it across the market-house
onto the stall of Ryal. Ryal in order to save his goods picked it up and threw it where it struck
the plaintiff in the face.
• Scott the plaintiff sued Shepherd for damages in trespass.
• The act of throwing the squib into the market was unlawful the court found and the actions
of the stallholders did not break the chain of directness.
•
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v. Medical treatment not consented to
5. Contact exceeds generally accepted level of contact
a. Implied consent to reasonable levels of contact expected in the relevant
social situation. Rixon v Star City.
DEFENCES
Topic 4 details such, including consent and self-defence.
Contributory negligence does not reduce damages:
REMEDIES
Actionable per se – nominal damages where no substantial loss.
Damages:
Compensatory; once battery is established, D liable for all immediate harm and
oseuetial daage. D is liale fo all daage that is the atual ad poale
consequences of the battery. Carter v Walker.
But remember ss 28 C and 28 L: Where the damages caps/thresholds are imposed:
The fault oeed is, o elates to, a itetioal at that is doe ith itet to
ause death o iju o that is seual assault o othe seual isodut
Note that an intention to harm is not a requirement of a battery action.
These subsections do not depend on proof of criminality.
AGGRAVATED DAMAGES
Malicious or insulting acts
Awarded where harm aggravated by manner in which inflicted:
Compensate the claimant for embarrassment or loss of pride. Canterbury Bankstown
Rugby League Football Club and Bugden v Rogers.
PUNITIVE/EXEMPLARY DAMAGES
Punishment and deterrence objectives. Used in negligent vs intentional torts.
Collins v Wilcock:
• PO restrained a woman by taking hold of her arm
• The woman proceeded to scratch the police officer and was charged with assaulting a PO in
the execution of duty
• Could a battery claim be made? No.
• PO was acting outside of duty therefore scratch was self defence.
• The consent to trespass is given the ordinary conduct of everyday life, which the present
claim did not fit into, according to Lord Goff.
•
Harkin v North Melbourne Football Club Social Club:
• H was acting unreasonably at an event. The club attempted to remove him but he struggled.
• Thus, they practically pushed him down stairs, an event on which he claimed damages.
• The court held that even though H contributed to the act, damages would not be reduced.
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Document Summary
Trespass does cover negligent as as intentional acts (with the exception of assault). Mchale v watson: m was playing tag with w. w threw a sharpened piece of welding in front of him at a piece of wood, but hit m in the eye destroying the sight in that eye. S claimed that due to two rapes committed by c during 1971 caused delayed onset of ptsd in: thus, bringing her claim outside of the statute of limitations. She claimed that under s 5 1(a) of the limitations of actions act, she was to be awarded damages due to c breaching the duty of care. The (cid:272)ou(cid:396)t held that (cid:271)e(cid:272)ause the ill(cid:374)ess (cid:449)as i(cid:374)itiall(cid:455) (cid:858)f(cid:396)a(cid:374)k(cid:859) a(cid:374)d (cid:858)t(cid:396)au(cid:373)atisi(cid:374)g(cid:859), symptoms of. Ptsd (cid:449)ould(cid:859)(cid:448)e sho(cid:449)(cid:374) (cid:271)efo(cid:396)e the li(cid:373)itatio(cid:374) pe(cid:396)iod e(cid:374)ded. D must have a conscious mind regarding the act: the act directly results in contact with the person of p. Beneficial but non consensual medical treatment, unlawful arrests.
