Monday, 1 July 2013

[Torts] Answer guide to intentional torts to person

Template for Intentional torts to persons

1.     To establish an action in battery, it must be proven that there was a positive (Innes v Wyle) application of direct (Scott v Shepherd) and intentional (Gray v Barr) force to another that is above the level of socially acceptable contact (Collins v Wilcock) without consent (Marion’s case).  
a.     Positive
b.     Direct
c.     Intentional
d.     Above the socially acceptable contact
e.     Without consent or lawful justification
2.     The plaintiff has no need to prove actual damage, as it is actionable per se.
3.     The interference complained of is the immediate result of the defendant’s action (Scott v Shepherd).
4.     However, if the contact is considered as an everyday incidental contact, there is no battery (Collins v Wilcock).
5.     Knowledge of the battery by the plaintiff is not required (Law v Visser; Mallette v Shulman).
6.     Defences and remedies*
1.     Assault occurs when one person positively, directly (Stephens v Myers) and intentionally (Hall v Fonceca) creates in another an apprehension of imminent harmful or offensive contact (Zanker v Vartzokas).
a.     Positive and direct
b.     Intentional (at fault)
c.     Apprehension of imminent harmful or offensive contact
2.     The means of carrying the threat into effect (Stephens v Myers) is necessary and a reasonable person in the position of a plaintiff must apprehend the imminent harmful contact (Zanker v Varzokas) and it does not matter if the defendant did not apprehend the fear (Brady v Schatzel).
3.     If the threat is conditional, there may not be an assault (Tuberville v Savage) but if the alternative requires obedience to unreasonable action, the action will be likely (Police v Greaves).
a.     When a threat is made over the phone, there could be an assault (Barton v Armstrong; see also R v Ireland). 
4.     Defences and remedies*

False Imprisonment
1.     False imprisonment is a complete deprivation (Myer Stores v Soo) of liberty caused by the defendant’s direct (Herd v Weardale Steel) act without lawful cause or excuse and there are no means of reasonable escape (Burton v Davies).
a.     Intentional and direct (Herd v Weardale)
b.     Total restraint (Myer Stores v Soo; Symes v Mahon)
c.     Without lawful justification
2.     The action complained of must restrain movement in all directions (Myer Stores v Soo) and if there is only a partial obstruction, the action will not succeed (Bird v Jones). There must also be no reasonable escape and an escape ‘at the risk of life or a limb’ is not reasonable (Burton v Davies).
3.     It does not matter if the plaintiff did not know of the false imprisonment when it took place (Murray v Ministry of defence) and if plaintiff voluntarily submits to an action, there is no action in false imprisonment (Symes v Mahon).
4.     Defences and remedies*

1 comment:

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