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Trespass to Person Trespass; Direct, Often violent acts, direct…

- - - - Eg. Tuberville v Savage (1669) 84 ER 34 (no assault)
        
        hand on his sword threatening that if it were not such a time he would strike the P. Did not amount to assault as the D indicated it was conditional and it was not that time.
      - Eg. Rozsa v Samuels [1969] SASR 205 (assault)
    - - Reasonable Person standard
        
        Fear not required, but belief or expectation (awareness) that force will be applied.
        
        Unconscious person cannot be assaulted: R v Phillips (1971) 45 ALJR 467
    - - Threatened violence must be imminent, not contact as some uncertain point in future.
        
        Zanker v Vartzokas:
        ‘a present fear of relatively imminent violence was instilled in her mind from the moment the words were uttered and that fear was kept alive in her mind, in the continuing present, by continuing progress, with her as prisoner, towards the house where the feared violence was to occur’ (at 14).
        
        Are threatening words enough?
        mere words without threatening gesture not generally enough: Tuberville v Savage
        But may be assault if the words convey a real threat of imminent harm.
        
        Barton v Armstrong [1969] 2 NSWR 451
        Def threatened Pl with violence to force him to sign a deed in the Def’s favour. Some threats made over the phone. The Pl signed the deeds as a result. Ct held telephone threats could constitute an assault:
        ‘it is a matter of the circumstances. To telephone a person in the early hours of the morning, not once but on many occasion, and to threaten him, not in a conversational tone but in an atmosphere of drama and suspense, is a matter that a jury could say was well calculated to not only instill fear into his mind but to constitute threatening acts, as distinct from mere words’ (at 455).
        
        R v Gabriel [2004] ACTSC 30
        Ct gave example that ‘a recipient of a threat to punch … delivered by telephone call could not reasonably believe that a punch was imminent’.
    - - Pl must have knowledge of threat. Eg. to point a gun at someone from behind without their knowledge not normally an assault
        
        threat can be by word or conduct
  - - - Eg. Thomas v National Union of Mineworkers [1985] 2 All ER 1 – working miners bussed into collieries under police guard. No assault by striking miners as Pl’s knew they could not be carried out.
    - - Eg. Pointing a gun at a person may be assault
        In Qld it is an assault to point a firearm at another whether loaded (ie. has an actual ability to effect threat) or unloaded but pretends it is (ie. has an apparent ability to effect threat): Brady v Schatzel [1911] St R Qd 206.
        Cf earlier authorities
  - - - Pl must prove that the Def intended to create an apprehension of imminent harm in the Pl (Hall v Foneca [1985] WAR 309)
      - There is authority that recklessly causing an apprehension of immediate contact may be sufficient:
        Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439
        R v Bailiff [2002] ACTSC 79
- - - - A general exception covering the unavoidable, harmless incidents of everyday life.
        
        Exception for all physical contact which is generally
        acceptable in the ordinary conduct of daily life: Rixon v Star
        City; Collins v Wilcock
        
        Rixon v Star City Pty Ltd
        
        Touching of the P by the D was considered to be within the means of ordinary contact as its primary purpose was to gain the P attention.
      - ‘If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it is not battery’ (Holt CJ in Cole v Turner)
    - - Onus is on Def to prove consent
        
        Consent may be argued if the contact is within the rules of the sport, provided it is not illegal: McNamara v Duncan (1971) 26 ALR 584.
        
        Although a player’s consent … extends not only to the application of force within the rules of the game but also to certain commonly encountered infringements of the rules… such consent cannot be taken to include physical violence applied in contravention of the rules of the game by an opposing player who intends to cause bodily harm or knows, or ought to know, that such harm is the likely result of actions’
        [Giumelli v Johnston (1991) Aust Torts Reports 81-085]
      - Implied consent:
        Eg. McDonald v Ludwig,
        Def performed sterilisation procedure on Pl. Although Pl had not expressly consented to the separation of adhesions, it was implicit in the advice given to her by the surgeon and her subsequent consent to the surgery.
  - - - Defendant to
        prove lack of fault:
        McHale v Watson
        
        except Highway Cases -
        plaintiff to prove fault: Venning v
        Chin
  - - - In Qld, an indirect interference may also be the subject of a battery action due to the operation of s. 245 of the Criminal Code. (see later slide)
      - Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890: woman dropped Pl child from arms after being punched by the Def. Liability imposed because punch was entire and immediate cause of the woman losing hold of the child.
    - - Must be voluntary act
    - - "[I]f a man throws a log into the
        highway, and in that act it hits me, I
        may maintain trespass, because it is an
        immediate wrong; but if as it lies there I
        tumble over it, and receive an injury I must
        bring an action on the case" (ie the
        latter is an indirect interference)
  - - - Criminal Code defences may apply to civil actions of assault and battery.
      - The Code definition includes application of indirect force.
        Cf common law which requires direct interference.
    - - s 275, defence of moveable property
      - ss 277 & 278, defence of possession of land or premises
      - ss 271 & 272, self-defence
      - s 269, provocation
        Not recognised at common law
        In Qld, s 269 = complete defence in civil action for assault and/or battery.
- - - - No binding authority in Aust on whether Pl requires knowledge of their confinement.
        Better view is that approach in Murray is sound because a person’s humiliation is not lessened by only hearing about it afterwards.
        In Murray v Ministry of Defence [1988] 1 WLR 692, the House of Lords held that knowledge of restraint is not an essential element of the tort.
  - - - Lawful Authority (Defence):
        Def bears onus of proving lawful authority or excuse to avoid liability
        Lawful authority may become unlawful: eg. Cowell v Corrective Services Commission NSW.
        Mistake is not a defence.