LAW OF TORT

important element: MUST HAVE INTENTION WHEN DEFENDANT DOES HIS ACT.

If he's careless, then its negligence not trespass.

types of TRESSPASS:

  1. ASSAULT
  1. BATTERY
  1. FALSE IMPRISONMENT.

DEFINITION: an intentional and direct act of the defendant which cause the plaintiff reasonable apprehension (anxiety or fear that something bad or unpleasant will happen) of the immediate infliction of a force onto his person.

ELEMENTS OF BATTERY:

tort of assault: concerned with the protection of a person's mental well-being against the unlawful act of another.

ELEMENTS OF ASSAULT:

  1. capability of the defendant to carry out the threat.
  1. bodily movement of the threat.
  1. effect on the plaintiff's mind. (feels apprehension that a force will be inflicted upon him)
  1. intention of the defendant to do harm onto the plaintiff.

Tuberville v Savage (1996): defendant lay his hand upon his sword and told the plaintiff: "if we are not in court, I would sit here and just take those words from you." [court held that these words negative the element of intention to injure and therefore assault was not established.

how to know reasonable apprehension?: would a reasonable man, faced with the same situation that the plaintiff was in, feel apprehensive that a force would be committed upon him?

if yes, then assault.

force: some form of violent contact that would put a reasonable man in reasonable fear of attack.

R v St. George [1840]: held that pointing an unloaded gun at a person constituted as assault.

would the reasonable man believe that the man will realise his threat?
if yes: the element is fulfilled.

measured through the eyes of the reasonable plaintiff.

body movement indicates that the defendant will carry out his threat. (but the movement must corresponds with the probable infliction of unwanted force onto the plaintiff.)

Stephen V Myers [1830] 4C & P349: the defendant threatened to hit the plaintiff and he advanced with clenched fist upon the plaintiff. stopped by a third party upon the first plaintiff. COURT HELD ASSAULT: there was capability to carry out his threat, as if he was not stopped by the third party a mere few seconds before he hit the plaintiff.

Read v Coker [1853] 13 C.B. 850, the plaintiff was in financial difficulties and in arrears (owing) of his rent. the defendant purchased his equipment (the house?) and paid the rent under an agreement which secured to the plaintiff a weekly allowance.
-one day, D told the P to leave but P refused. the D collected some of his workmen (clustered around, tucking off their sleeves and threatened to break his neck if he did not leave. P left and brought an action of trespass for assault.


HELD: The facts clearly showed the defendant was guilty of assault. There was threat of violence showcasing intention of assault and ability to execute threat was present.

PASSIVE INACTION OR MERE WORDS INSUFFICIENT

WORDS: adds colour to an act but can also nullify an assault.

  1. the act was under the defendant's control.
  1. contact or application of force occurs.
  1. the intention of the defendant to apply force.
  1. without plaintiff's consent.

DEFINITION: intentional and direct application of force to another person without the person's consent. is committed by intentionally bringing about a harmful or offensive contact with the person of another.

touching a person without consent has traditionally been regarded as sufficient battery even without actual physical harm.

WHY?: to afford protection to the individual not only against bodily harm but also against any interference with his person which is offensive to a reasonable sense of honour and dignity.

Cole v Turner [1704] 87 E.R. 907 per Holt C.J.; "the least touching of a person in anger is battery."

the D's act must be done voluntarily.

the defendant must have applied the force with intention.

Scott v Shepherd [1773] 2 Wm Bl 892: lighted squib (explosive) was thrown by the defendant into an open market area. A picked it up and threw it upon B, who then picked it up and threw it away. It hits the P and burst into flames.


HELD: the D was liable for the tort of trespass to person although his initial gesture did not directly affect the plaintiff. According to court, A and B reacted for their own safety, and so they did not have the required 'intention' to commit the act.

Gibbons v Pepper [1695]: the D was riding a horse when someone hit the horse from behind, causing the horse to bolt. the horse collided with the P and in the action, court found D not liable as the incident of the horse bolting and colliding with the P was out of his control.

in battery there must be intentional touching or hostile contact. (no battery if there is no contact or application of force on the plaintiff's body or clothing).

has been held that throwing water on the P might not necessarily be battery. this means it will only amount to battery if there is transmission of force to the P body.

Collins v Wilcock (1984) 3 All ER 374; woman x woman police officer. woman scratched PO arms when refused to be questioned. woman arrested with assault to officer.


Held: appeal was allowed on the ground that the PO had gone beyond the scope of her duty in detaining the women in circumstances short of arresting her. the officer had committed battery.

one cannot touch another person without his consent or without lawful justification.

there are touching where presumed implied consent exists; tapping shoulders to get attention, or touching while queuing to go on a bus.

Nash V Sheen [1953] CLY 3726: P went to hair saloon where D used a tone-rinse without having P's consent. P developed skin complications due to rxn to it.


court held: consent given by P did not include the tone-rinse and its consequences. Battery was established.

Tiong Pik Hiong v Wong Siew Gieu [1964] MLJ 181: D was found liable for battery for scratching the P's face and hitting her, due to jealousy of the P's friendship with her husband.

DEFINITION: The restriction of a person's freedom of movement. the person is 'imprisoned' as long as he cannot move to another place in accordance with his wishes.

ELEMENTS:

  1. intention of the defendant
  1. the restrain must be a direct consequences of the defendant's act
  1. the restrain must be complete

-no need for actual imprisonment, as long as the person is deprived of his liberty however short, the D must have committed the restraint intentionally.

D must intend to do an act which directly results in the confinement of the P.

W Elphinstone v Lee Leng San [1938] MLJ 130: it was held that false imprisonment cannot be established through negligence. intention of the doer is a prerequisite.

only the person who directly causes the confinement may be successfully sued for false imprisonment. he may be liable either be he himself confined the P or had instigated another to do so.

Harnett v Bond [1925] AC 669: found D1 liable for FI during the 3 hours restrain and D2 for the 9 years restrain.

there is no false imprisonment if a reasonable escape route is available to the P.

the available means of escape must be reasonable without the risk of injury or serious inconvenience.

a person locked by the defendant in a room from which the only possibility of escape is by dangerous climbing down a drain-pipe, is considered to be falsely imprisoned.

Wright v Wilson [1699] 1 Ld Raym 739: no false imprisonment arose when the P could have escaped from his confinement, although it meant he would have trespassed on another's land in order to gain his liberty.

FALSE IMPRISONMENT:

Knowledge of Restraint

i.) Self- Defence

the P does not need to know that he has been restrained in order to succeed in his action.

Meering v Graham White Aviation Ltd (1919) 122 LT 44: the P was questioned at the D's factory in connection with certain thefts from the D company. He did not know the presence of 2 works police outside the room, who would have prevented his leaving if necessary.
the P succeeded in an action of FI against the D.

it is lawful for a person to use a reasonable degree of force for the protection of himself or any person against any unlawful use of force.

the relationship of the parties to be protected may be relevant to the reasonableness of force used e.g. to protect his wife and children against terrorist.)

Chaplain of Gray's Inn's [1400] YB 2 Hen. IV, fo. 8, pl. 40, held that person on whom an assault is threatened or committed is not bound to adopt an attitude of passive defence. One should not wait to be punched by the attacker.

ii.) consent

consent must be genuine, not obtained by force or threat.

Hegarty v Shine (1878) 14 Cox CC 145: the P cohabited with the D for 2 years and contracted venereal disease from him. "as a general rule, when the person consented to the act, there was no assault; but if the consent was by fraud of the party committing the act, the fraud vitiated the consent and the act becomes an assault.

iii.) sports

those who participated in sport consent to reasonable conduct within the rules of the game.

however, actions for assault and battery have succeeded when the game has involved considerable hostility and deliberate punches.

Pallante v Stadium (No 1) (1976) VR 331, it was held that the boxers agree to violent bodily typical of the sport, but not to deliberate foul play.

iv.) legal authority

for purposes of enforcement of criminal law, police and private citizens have the right to make arrests and thereby interfere with the rights of others.

it is preferable to obtain a warrant of arrest, but at time there is a need for speedier action of prevention.

the powers to arrest and restraint by legal authorities is provided under article 5 of the FC.

power of arrest by private citizen and penghulu are provided in the Criminal Procedure Code.

the police can arrest on grounds of "reasonable suspicion" even though no offence had in fact been committed.

suspicion can take into account matters which could not be given in evidence at all. for example, previous convictions or for mere interrogation.

Mohmood v Gov of Malaysia and Anor [1974] 1 MLJ 103:
held: in effecting an arrest arising from reasonable suspicions the police may first shoot at a suspect if the latter tries to escape from the scene of the crime.