LAW OF TORTS

Lecture 1Lecturer: Prof Sam Blay

Intentional Torts

- Battery- Assault

TEXT BOOKS

• *Baker, Blay et al Torts Law in Principle LBC 4th Ed. 2005

• *Blay, Torts in a Nutshell LBC 1999• Balkin & Davis Law of Torts (2004) 3rd Ed.

Butterworths• Luntz and Hambly Torts Cases and Commentary

(2006) Revised 5th Ed. Butterworths• Trindade and Cane The Law of Torts• Fleming, The Law of Torts (1996)

LEC Torts Website

• www.usyd.edu.au/lec/subjects/torts//materials.htm

• Past exams & comments:

www.library.usyd.edu.au/libraries/law/lpab.html#exams

WHAT IS A TORT?

• A tort is a civil wrong• That (wrong) is based a breach of

a duty imposed by law • Which (breach) gives rise to a

(personal) civil right of action for for a remedy not exclusive to another area of law

THE DIFFERENCE BETWEEN A TORT AND A CRIME

• A crime is public /community wrong that gives rise to sanctions usually designated in a specified code. A tort is a civil ‘private’ wrong.

• Action in criminal law is usually brought by the state or the Crown. Tort actions are usually brought by the victims of the tort.

• The principal objective in criminal law is punishment. In torts, it is compensation

THE DIFFERENCE BETWEEN A TORT AND A CRIME

• Differences in Procedure:

– Standard of Proof• Criminal law: beyond reasonable doubt

•Torts: on the balance of probabilities

THE AIMS OF TORT LAW

• Loss distribution/adjustment: shifting losses from victims to perpetrators

• Compensation: Through the award of (pecuniary) damages– The object of compensation is to place the

victim in the position he/she was before the tort was committed.

• Punishment: through exemplary or punitive damages. This is a secondary aim.

INTERESTS PROTECTED IN TORT LAW

• Personal security– Trespass– Negligence

• Reputation– Defamation

• Property– Trespass– Conversion

• Economic and financial interests

INTENTIONAL TORTS

•

INTENATIONAL TORTS

Trespass Conversion Detinue

WHAT IS TRESPASS?

• Intentional or negligent act of D which directly causes an injury to the P or his /her property without lawful justification

• The Elements of Trespass:–fault: intentional or negligent act- injury must be direct–injury* may be to the P or to his/her property- No lawful justification

*INJURY IN TRESPASS

• Injury = a breach of right, not necessarily actual damage

• Trespass requires only proof of injury not actual damage

THE GENERAL ELEMENTS OF TRESPASS

Intentional/negligent act

“x” element

Direct interference with person or property

Absence of lawfuljustification+ +

+=

A specificform of trespass

SPECIFIC FORMS OF TRESPASS

TRESPASSTRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT

BATTERY

• The intentional or negligent act of D which directly causes a physical interference with the body of P without lawful justification

• The distinguishing element: physical interference with P’s body

THE INTENTIONAL ACT IN BATTERY

• No liability without intention

• The intentional act = basic willful act + the consequences.

CAPACITY TO FORM THE INTENT

• D is deemed capable of forming intent if he/she understands the nature of (‘intended’) his/her act

• -Infants–Lunatics–Morris v Marsden–Hart v A. G. of Tasmania ( infant

cutting another infant with razor blade)

THE ACT MUST CAUSE PHYSICAL INTERFERENCE

• The essence of the tort is the protection of the person of P. D’s act short of physical contact is therefore not a battery

• The least touching of another could be battery– Cole v Turner (dicta per Holt CJ)

• ‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate’ ( per Goff LJ, Collins v Wilcock)

The Nature of the Physical Interference

• Rixon v Star City Casino (D places hand

on P’s shoulder to attract his attention; no battery)

• Collins v Wilcock (Police officer holds D’s arm with a view to restraining her when D declines to answer questions and begins to walk away; battery)

• Platt v Nutt

THE INJURY MUST BE CAUSED DIRECTLY

• Injury should be the immediate:–Scott v Shepherd ( Lit squib/fireworks

in market place)

–Hutchins v Maughan (poisoned bait left for dog)

–Southport v Esso Petroleum(Spilt oil on P’s beach)

THE ACT MUST BE WITHOUT LAWFUL JUSTIFICATION

• Consent is Lawful justification

• Consent must be freely given by the P if P is able to understand the nature of the act

• Lawful justification includes the lawful act of law enforcement officers–Wilson v. Marshall (D accused of assaulting

police officer, held officer’s conduct not lawful)

TRESPASS:ASSAULT

• The intentional/negligent act or threat of D which directly places P in reasonable apprehension of an imminent physical interference with his or her person or of someone under his or her control

THE ELEMENTS OF ASSAULT

• There must be a direct threat:–Hall v Fonceca (Threat by P who shook hand in front of

D’s face in an argument)

• In general, mere words are not actionable–Barton v Armstrong

• In general, conditional threats are not actionable–Tuberville v Savage–Police v Greaves –Rozsa v Samuels

• The apprehension must be reasonable; the test is objective

• The interference must be imminent

– Rozsa v Samuels– Police v Greaves

– Hall v Fonceca– Zanker v Vartzokas (P jumps out of a moving van to

escape from D’s unwanted lift)

THE ELEMENTS OF ASSAULTTHE ELEMENTS OF ASSAULT

THE GENERAL ELEMENTS OF TRESPASS

Intentional/negligent act

“x” element

Direct interference Absence of lawfuljustification+ +

+=

A specificform of trespass

SPECIFIC FORMS OF TRESPASS

TRESPASSTRESPASS

PERSON PROPERTY

BATTERY

ASSAULT

FALSE IMPRISONMENT