Australian Torts Law Notes I (QLD)

Posted by aznxfrost in Law

Trespass

Identify the parties: A (P) v B

Jurisdiction: Queensland

Title to sue:

1) Trespass to person

(a) Battery : Any act which directly and either intentionally or carelessly causes some physical contact with the P without consent or lawful excuse. (Scott v Shepherd – fireworks

(i) Direct Application of Force

- The application of force maybe indirect (s 245 of the Criminal Code)

(to pull a chair from a person so that they are thrown on the floor: Hopper v Reeve)

(if the D(police) stood ‘entirely passive like a door or a wall put to prevent the plaintiff from entering the room’ this could not amount to a battery: Innes v Wylie)

(ii) Offensive Contact

- to amount to a battery the alleged interference must be offensive contact with the plaintiff’s person.

- Anger or hostility

(Contact does not have to be hostile: since the decision of “Re F”)

- Contact as Part of Every Day Life

(falling within a general exception, embracing all physical contact that is generally acceptable in the ordinary conduct of daily life: Collins v Wilcock)

- Consent

(If the consent is lawful and consented to there is no battery: McAdams v Widham, Pallante v Stadiums)

(Medical: every surgical procedure is an assault unless it is authorized, justified or excused by law: Secretary Department of Health and Community Services v J M B & S M B)

(Sports: if the body contact is within the rules of sport, provided it is not illegal: McNamara v Duncan)

- Knowledge of the Contact by Either Plaintiff or Defendant

(Knowledge is not an essential element of battery on the part of either party)

(Medical: an interference by a doctor with a patient stupefied by drugs, where interference is not reasonably necessary as a medical procedure: Murray v McMurchy)

(A defendant who does noy know of the contact with the P may still be liable: Law v Visser)

(iii) Fault

(off the highway: D bears the onus of proving the lack of fault)

(on the highway: P has to prove both direct interference ad that the D was as fault)

(b) Assault: An act giving rise to a reasonable expectation that imminent direct physical force will be inflicted on P (Brady v Schatzel)

(i) Actual or Apparent Ability to Apply Force

- The defendant must have the actual means or the apparent ability of carrying the threat into effect (Stephens v Myers)

- It is an assault to present any pistol whether loaded or not, if the person pointed at believes the weapon was loaded (R v St George)

- P believes threat will be carried out in immediate future (Zanker v Vartzokas)

(ii) Reasonable Apprehension of Force

- Knowledge of threat

(the P must be aware of the threat: Police v Greaves)

- Apprehension not fear

(If the treat would have arouse an expectation of physical interference in the mind of a reasonable person not afflicted with exaggerated fear, unless the victim’s peculiar sensitivity was known to the tortfeasor: Bunyan v Jordan)

- Conditional treat

(If the words of the threat make it clear that the P is in no danger of imminent contact, there can be no assault as there can be no reasonable apprehension of force: Tuberville v Savage)

(may be an assault if the offered alternative is obedience to an unacceptable command: Police v Greaves)

(iii) The sufficiency of Mere Words

- Words along can be sufficient, a matter of circumstances (Taylor J) (Barton v Armstrong)

- A conditional threat is till an assault if the alternative offered is obedience to an unacceptable command (Police v Greaves)

(iv) Fault

(off the highway: D bears the onus of proving the lack of fault)

(on the highway: P has to prove both direct interference ad that the D was as fault)

(c) False Imprisonment: a direct and complete deprivation of a person’s liberty without lawful excuse (Myer Stores v Soo)

(i) Direct Interference

(ii) Restraint in all directions

- The deprivation must consist of a comprehension limitation of freedom in all directions

- Since escape was open to him in all directions except the particular route blocked off by the seating enclosure (Bird v Jones)

- No Reasonable Means of Escape

(For there to be total restraint in all directions, there must be no reasonable means of escape: R v Macquaire)

(If the means if escape is not apparent and is not known to the P, there is no reasonable means of escape: Burton v Davies)

(iii) Physical Restraint not Necessary

- Mere Words

(Restraint may arise from mere words if those words amount to an assault, that is, a threat of imminent harm.)

- Assertion of authority

(Restraint may be procured by assertion of legal authority: Symes v Mahon, Harnett v Bind)

- Knowledge of Imprisonment

(Knowledge of the restraint is not an essential element of false imprisonment: confirmed by: Murray v ministry)

(iv) Fault

(off the highway: D bears the onus of proving the lack of fault)

(on the highway: P has to prove both direct interference ad that the D was as fault)

(v) Lawful Authority

- Right to release governed by contract

(if the person enters a place voluntarily but the right to release is governed by some licence or contract, in such circumstances there is consent to the restriction: Herd v Weardale Steel Coke and Coal Co Ltd)

- Power of arrest

(Under the common law, an officer may make an arrest without a warrant if there are reasonable grounds to believe that the P has committed a felony.)

(If the police officer who has made a lawful arrest then delays in charging the P beyond a reasonable time: Jones v Harvey)

(Civil arrest: it is lawful under the common law for a person o make a civil arrest to prevent breaches of the peace: Coupey v Henley Whale v Webster)

- Prison authorities (p.49)

- Statutory authority (p.49)

Remedies

(1) Self-help: A person whose bodily integrity is interfered with is entitled to take reasonable steps o protect themselves (Fontin v Katapodis)

(2) Damages: