Intentional Torts

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This article is a topic within the subject Introducing Law & Justice.

Contents

Required reading

Supplementary Cases and Materials - Intentional Torts.

Introduction

Under tort law, an injured party can bring a civil law suit to seek compensation for a wrong done to the party or the party’s property. Tort damages are monetary damages that are sought from the offending party. They are intended to compensate the injured party for the injury suffered.

Torts are divided into two main categories:

  • Intentional torts - requires that the defendant intended to do the act that caused the plaintiff’s injuries either against persons or property.
  • Unintentional torts - a person can still be liable for for harm that is the foreseeable consequence of his actions, even if not intentional. These are dealt with in LAWS1061 - Torts.

Intentional Torts

Intentional torts are a category of torts that requires that the defendant possessed the intent to do the act that caused the plaintiff’s injuries. One area of intentional torts is intentional torts against persons (as opposed to against property), which entails trespass to the person. These torts include (among others):

  • Assault:
    • The threat of immediate harm or offensive contact; OR
    • Any action that arouses reasonable apprehension of imminent harm.
      • Actual physical contact is not necessary.
  • Battery:
    • Unauthorised and harmful or offensive physical contact with another person.
    • Actual physical contact is necessary.
  • False imprisonment:
    • Intentional confinement or restraint of another person without authority or justification and without the person’s consent.

These will now be discussed in more detail.

Assault

Assault is a direct threat by the defendant that causes the plaintiff to (reasonably) apprehend some imminent unwanted contact with his person.[1] From that definition, the elements of an assault can be broken down as follows (all must be proven):

  • Direct threat by the defendant:
    • Words:
      • In general, mere words cannot constitute assault. However, certain situations are excepted.[2]
      • Words can render actions which would otherwise have constituted assault harmless (ie, nullify a threat).[3]
    • Conditional threats:
      • Conditional threats (eg, 'cross this line and I will punch you') can constitute assault.[4]
      • Assault is therefore usually a physical gesture, which may be accompanied by words.
    • Intention:
      • Intention to actually carry out the threat is not necessary, only the intention to 'make' the threat.[5]
  • That causes the plaintiff reasonably to apprehend:
    • Reasonableness:
      • The test is whether a reasonable person would apprehend imminent contact. This is an objective test (because it is a 'reasonable person', and not the specific plaintiff in the present case).[6]
    • Means of carrying out threat:
      • Not every threat in which there is no actual personal violence constitutes an assault, there must be the means of carrying the threat into effect.
      • Generally if a person does not have the means to carry out the threat it would not be reasonable to form an apprehension (eg, a locked up person).
  • Some imminent contact:
    • Threat of future contact generally does not constitute assault.

The rules above are synthesised from a few prolific cases. These cases should be read in order to gain an understanding of how the these rules are applied in practice.

Battery

Battery occurs when the defendant directly and intentionally interferes with the person of another without lawful justification. It is distinct from assault in that assault is the threat of unwanted contact while battery is the fact of unwanted contact. The elements of battery are broken down as follows:

  • Directly and intentionally:
    • Must be direct, not merely consequential.[7]
    • Hostility or anger is not a necessary requirement of battery.[8]
    • Generally any form of contact can be battery, with the exception of conduct which is ‘generally acceptable in the ordinary conduct of everyday life’.[9]
  • Interferes
    • Physical contact – but not necessary for the defendant to physically touch the plaintiff (eg, throwing something at them is still interference).[10]
  • With the person of another:
    • Does not include property – must be the person.
  • Without lawful justification:
    • A lawful justification may be the consent of the plaintiff. Generally the onus of proof is on the defendant, although the plaintiff may raise this (the absence of justification) to strengthen their case.

The rules above are synthesised from a few prolific cases. These cases should be read in order to gain an understanding of how the these rules are applied in practice.

False Imprisonment

False imprisonment is a direct act by the defendant that totally deprives the plaintiff of their liberty without lawful justification. The elements are broken down as follows:

  • Direct act by the defendant:
    • Physical restraint or force is not always necessary – false imprisonment may occur when the plaintiff surrenders completely to the control of the defendant.
  • That totally deprives the plaintiff:
    • Total deprivation:
      • Deprivation must be total. Just preventing someone from moving to a particular direction is not total deprivation.[11]
      • Accordingly, false imprisonment does not take place where a plaintiff has a reasonable means of escape (means would be unreasonable when it involves a risk of injury).

False imprisonment was discussed in Balmain Ferry v Robertson.

Defences to Intentional Torts

There are three main defences which are dealt with in this course:

  1. Consent
  2. Necessity
  3. Self-Defence

Consent

The main defence to intentional torts is the defence of consent. In general, if an individual gives their consent to an interference, he or she cannot then complain when that interference occurs – permission has been given.

The onus is on the defendant to prove consent if being used as a defence. However sometimes the plaintiff may have the onus of then disproving this consent - that is, they must show the absence of effective consent.

Types of Consent

There are two types of consent:

  • Express
    • Express consent is clearly given; this can be through a verbal agreement or signing of a document etc.
  • Implied
    • Implied consent applies generally to circumstances where it would otherwise be unreasonable to avoid contact.
      • Everyday contact - some contact, such as tapping someone on the shoulder to get their attention, is considered 'everyday contact' for which there is an implied consent.
      • An example is in a sporting match, where contact within reason is part of the game. Other examples include touching in busy shopping centres or daily activities.
      • Rixon v Star City - where there is physical contact from moving about in public, there is implied consent to appropriate touching (without hostile intent).

Effective Consent

For consent to be effective, it must be both real and freely given.

  • Real
    • This means that an individual must have knowledge sufficient to enable them to understand the interference to which they are consenting.
    • Chatterton v Gerson[12] - consent will be real if the individual is informed in at least broad terms of the nature of the resultant contact.
      • It was also found that 'if information is withheld in bad faith, consent will be vitiated by fraud'.
  • Freely given
    • If consent is given under duress, then consent is invalid
      • Aldrige v Booth[13] - It was held that the plaintiff's consent to have sexual intercourse with her employer was not effective since it was made under duress (she did it to retain her job).
Capacity to Consent

In general, consent will only be effective if the individual has the capacity to consent. This often not the case for those who are mentally disabled, or are children.

The common law has proceeded upon the basis that no person may consent to any touching resulting grievous bodily harm without good reason since if a person is able to consent to something that is criminal, it results in lawlessness.

This was discussed in Marion's Case.

  • In decisions where “the consequences of a wrong decision and particularly grave”, determined by complexity of the question and the conflicting interests of parents or guardians, court authorisation is required.

Exceeding Consent

When an individual gives implied or even expressed consent, it has certain limits. For example, a person cannot expressly consent to grievous bodily harm or any other serious consequences. This is known as consent being exceeded.

An example of how consent may be exceeded is given in McNamara v Duncan.

The view in McNamara has been consolidated in further cases such as Sibley v Milutinovic:[14]

  • Facts: the defendant punched the plaintiff during a soccer match.
  • Held: The defendant's action was outside what was to be expected in a friendly training match, or the rules of the game. Thus, it exceeded implied consent as per the rules and some foul play associated with the game.

Blake v Galloway deals with the scenario where there is mutual consent between people to do an activity, which subsequently goes wrong on the fault of one person.

Necessity

A defendant may be unable to gain the consent of the plaintiff, but might nevertheless act upon the basis that it is necessary for them to do so.

Elements of the defence

To gain the protection of this defence, it is not sufficient to have felt at the time that it was necessary to act. It can only be argued:

  1. Where the action taken was necessary to prevent imminent harm to person or property AND
  2. Where the defendant’s trespassory act is considered as reasonable in the circumstances that existed and his or her actions were proportionate to the risk posed (i.e. no overkill).

In the case of protection of a person, it must also be established that:

  1. There is a necessity to act where it is not practicable to communicate with the protected person.
  2. Actions taken are what a reasonable person would in the best interests of the protected person.

Cases involving Necessity

  • Proudman v Allen:[15]
    • Facts: The defendant turned the steering wheel of a car that had lost control to avoid it crashing into other cars. In doing so, the car ran into the sea.
    • Held:
      • “In principle, the present respondent should not be absolutely liable for damage caused by his interference with the property of another when he acted in the reasonable belief that his interference was justified by the necessity of the situation and was intended to benefit the owner”.
      • Acts done of necessity to avoid greater harm in any way are justified.
  • London Borough of Southwark v Williams:[16]
    • Facts: Defendants were a homeless family squatting in the plaintiff’s property. The plaintiff wished for immediate possession and one of the arguments used by the defendant’s was of necessity. This case asked the question as to whether necessity holds for the encroachment of private property.
    • Held:
      • In great and imminent danger, in order to preserve life, the law will permit of an encroachment on private property.
      • If necessity were used as a defence to things like stealing food or squatting, then it would be exploited, and so a firm standing must be had on the defence.
  • NSW v Riley:[17]
    • The police knew the plaintiff had a disturbed behavioural background and there was evidence of suicidal thoughts. Someone had reported gunshots and so they apprehended the plaintiff with the defence of necessity due to fear that Riley was armed and dangerous.
    • This was held by the Court of Appeal to be legitimate.

Self-Defence

For this to be used, the defendant must prove that:

  1. There is a reasonable apprehension of physical aggression AND
  2. The force the defendant used did not exceed what was reasonable necessary to beat off the attack.

This defence may also apply to the protection of property.

Self-defence was discussed in the following case:

  • Fontin v Katapodis [18]
    • Facts: An argument arose between Fontin and Katapodis and Katapodis picked up a blunt tool and hit Fontin with it. Fontin threw a piece of glass at Katapodis’ face, which missed and deeply cut his thumb.
    • Held:
      • To throw a piece of glass as a means of self-defence was out of all reasonable proportion to the emergency confronting Fontin – even though perhaps if he had not acted he may have sustained further injury. To throw glass is life threatening.

Note also that the Civil Liability Act 2002 (NSW) discusses self-defence as a defence:

  • s52 - This says that self-defence is a complete defence if defendant believed the conduct necessary to defend himself or others (and other reasons as seen in the section) AND the defendant's conduct is reasonable. It does not protect the defendant from intentional or reckless infliction of death.

References

Textbook refers to Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).

  1. 'Proof of assault requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact...proof of the assault does not require proof of an intention to follow it up or carry it through': Rixon v Star City Casino (2001) 53 NSWLR 98.
  2. Barton v Armstrong [1969] 2 NSWR 451.
  3. Tauberville v Savage (1796) 1 Mod 3.
  4. Barton v Armstrong [1969] 2 NSWR 451.
  5. Rixon v Star City Casino (2001) 53 NSWLR 98.
  6. Barton v Armstrong [1969] 2 NSWR 451.
  7. Scott v Shepherd 3 Wils KB 403; 2 Black W 892.
  8. Rixon v Star City Casino (2001) 53 NSWLR 98.
  9. Rixon v Star City Casino (2001) 53 NSWLR 98.
  10. Scott v Shepherd 3 Wils KB 403; 2 Black W 892.
  11. Bird v Jones (1845) 7 QB 742.
  12. [1981] 1 All ER 257.
  13. (1988) 80 ALR 1.
  14. [1990] ACTC 6
  15. [1954] SASR 336.
  16. [1971] Ch 734.
  17. [2003] NSWCA 208
  18. (1962) 108 CLR 177
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