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Intro + Trespass to person - Coggle Diagram
Intro + Trespass to person
Introduction to tort
Definition
Civil wrongdoings <-- remedies reflect the wrong
wrongful act/omission w remedy awarded to C
vs. contract
tort = duty fixed & toward everyone
agreement matter for DoC (assumed responsibility)
contract = agreement
vs. crime
tort = individual seeking remedy
battery
purpose - tort for compensation
Functions
Compensation
put C in position if tort didnt happen
protect rights/corrective justice
Ashley v Chief Constable of Sussex police
if purpose=publicly vindicate right can it proceed?
majority: no bar
Deterrance
compensation disincentivise risk taking
Punishment NOT leading aim
Criticisms
expensive, time consuming
even if win still have legal cost
delay, cost --> pressure to settle
unpredictability
not accessible to everyone
must be fault
whether C is insured makes a difference
inequality issue
Compensation culture
replace w compensation scheme (e.g. NZ)
Shape
civil claims where compensation is available
actionable per se (dont need proof of damage)
Assault/battery/false imprisonment/trespass
negligence
tort left u worse than before
Strict liability
liable even careful
most are fault-based
prove that D= at fault
some require proof of intention
trespass/assault/battery/falseimprisonemnt
try to limit scope
e.g. psychiatric harm
types of remedies
contemptious damages (tiny sum)
punitive (exceptional)
criminal vs. civil?
2 situations
oppressive stuff by gov
D's conduct design so that profit > compensation
injunction (nuisance)
nominal (rights interfered, no loss)
compensatory
Trespass to the person
Battery
e.g. will smith slap
Elements
An act of D directly brings abt contact w C's body
"directness" requirement
Dodwell v Burford
: hitting house, women fall - sufficiently direct
Breslin v McKevitt
: bond left to detonate = direct
Wong v Parkside NHS Trust
: dig hole, ppl fall = indirect
e.g. hitting w bat/shooting counts
exceeds what is lawful
beyond acceptable touching in ordinary life
Collins v Wilcock
: police grab women
CA: grabbing arm > beyond ordinary conduct
depending on facts & parties relationship
Hostility?
Wilson v Pringle
13 yr boy*2 playing, 1 hurt
non-negligent, intentional act
touching needs to be hostile
e.g.
Collins v Wilcock
: unlawful --> hostile?
CA limit battery via "hostility" (sus)
act not hostile but still unlawful? - "hostility" limited
unconclusive
Re F (Mental Patient: Sterilisation)
operation, women say no consent
in her best interest tho
justified by necessity
other wise = battery
was done w the requisite intent
differentiate trespass/negligence
Fowler v Lanning
if unintentional --> negligence
Letang v Cooper
C sunbathing, car run over leg
plead battery cuz limitation period passed for negli
injury unintentional --> negligence NOT trespass
if trespass --> no need damage proof
here injury unintentional --> negligence
=> unintentional trespass hardly possible
Direct + intentional --> negligent OR trespass
negligent conduct --> negligent only
intention to bring abt physical contact
Wilson v Pringle
intended the act of touching
harm dont need to be intentional
Subjective recklessness
Bici v Ministry of Defence
2 man killed 2 injured
no intention to shoot the injured
subjective recklessness is sufficient for intention
doctrine of transferred malice
D hits A but hits B => D intend to apply force to B
Defences
Necessity
Re F (Mental Patient: Sterilisation)
: operation not unlawful
1) necessity to act
2) the action must be such that a reasonable person would do, acting in best interest of the assisted person
emergency situation
action ≤ what is reasonably required until C regains consciousness
"minimum necessary" approach
permanent situation?
is it in best interest of the person?
Consent
express/implied
Blake v Galloway
: boys, throwing twit, 1 boy eye injured
theres contact + intention
CA: implied consent to "rules" of game
vitiated?
Chatterton v Gerson
: pain treatment, C numb, say consent vitiated cuz didnt warn her
Battery
informed in broad terms --> real consent
Negligence
valid, failure to explain risks
other ways: undue influence, illness, C's condition...
Re T (Adult: Refusal of Treatment)
: T signed form refuse transfusion
CA: transfusion lawful
undue pressure, consent vitiated
the withholding of info - staff reassuring
T had not refuse operation if "life threatening"
Appleton v Garett
: dentist make more $
info withhold in bad faith
Self defence
left open in
Ashley v Chief Constable of Sussex police
whats required for self defence?
Lord Scott: reasonably held, mistaken belief not sufficient
no conclusion
Lord Caswell: if reasonable + honest belief --> self defence valid
Bici
: self defence failed, no reasonable belief
seems to require reasonable + honest belief
contributory negligence
generally no
Pritchard v Co-operative group
CA: insufficient authority to find contributory negligence
contributory negligence unavailable to trespass
employee fight manager
provocation - new defence altogether?
Assault
parasitic to battery but also standsalone
no need proof of damage
act --> expectation of immediate infliction of force
requirement: overt act
Mbasogo v Logo
: coup, President of Equatorial Guinea
judge: no immediacy of assault
no evidence of act leading C to feel fear
preparing some future harm not enuf
words nullifying the threat
Turberville v Savage
"If XXX, I would do harm"
confirming harm wont happen rn
but if just threatening gesture w/o words can be
silent?
R v Ireland
: silent phone calls
silence convey message --> fear
apprehension of immediate threat = reasonable
R v St George
: brother fight, pull out gun
if C knew he is impossible to injured= no assault
if nothing said and pull out gun = assault
Capacity to carry out threat
Stephens v Myers
: meeting, walk to C w fist clinched, stop by others
*
if "almost immediately have hit C if he hadnt been stopped"
= assault IF w intent
if advancing no intent, not assualt
Mbasogo v Logo
: the coup
capacity is requirement?
been criticized
contradict
R v St George
: brothers pull gun
D's intention is crucial
Tuberville v Savage
need intention + act
put C in fear of infliction of force
Bici
intention is necessary
intention to create apprehension or expectation of imminent battery
False imprisonment
unlawful imposition of constraint upon another's freedom
Bird v Jones
: C insist on pass along bridge
no FI:
restraint must be complete
viable exist route
imprisonment different from loss of freedom
Walker v Metropolitan Police Commissioner
: police confine doorway, few scs
trivial but unlawful, judge give 5 pounds
R (Jalloh) v Home Secretary
: curfew
curfew = FI since C is not free agent
dont need 24/7 confinement
D: should be align w art 5
ECHR: distinguishes restriction vs. deprivation of liberty
Hale: NO, can be FI but not deprived liberty under art 5
art 5 threshold higher
R v Bournewood
: mental health, admit to hospital
NO FI: unlocked ward
but nevertheless justified cuz in C's best interest
minority: theres imprisonment
Robinson v Balmain New Ferry
: C wanna leave, need to pay penny
No FI if reasonable condition for exit
Does C has to know abt FI?
Meering v Grahame-White Aviation
: employee trick perpetrator to stay in room
C can be unconscious to be FI
no need for knowledge cuz no need for harm
D's conduct + intention
R v Govrnor of Brockhill Prison ex p Evans
: gov calculate prison date wrong
even if D acted reasonable still FI
this is
strict liability tor
t
Iqbal v Prison officers association
: prison strike, need remained in cell
NO FI
confinement not direct b/ officer & prisoner ( cuz of gov order)
officer no intention to deprive C of liberty
dissent: reckless?
Defences
Necessity
Yes:
Austin v Commissioner of Police
: protest, police
Consent
Herd v Weardale Steel
: mine, lift
train analogy: C accepted condition
most claims against public authorities
Damages
R (Lumba) v SS
: unpublished blanket policy, detained foreign nationals
inconsistent w published policy --> unlawful
D: would still be detained w published policy
SC: still FI
actionable per se
if outcome the same still FI
damages: nominal
loss based model: no harm no damage
liability vs remedy
dont need to prove damage
actionable
per se
nominal damage awarded even if no loss
no clear remoteness rule
can recover all damage however foreseeable
unlike negligence
Harassment Act 1997
D knows or ought to know is harassment
no need to show illness
course of conduct (2+ occasion)
what is it
s 7(2): alarming or causing distress
s 7(4): includes speech
Thomas v news Group Newspapers
: "oppressive and unreasonable"
Majrowski v St Guys
: "conduct is sufficiently grave", "offensive and unacceptable"
persistent, deliberate action --> alarm, fear or distress
Levi v Bates
: leak personal info of C
can be extend to person who directly harmed
e.g. C's wife's house address leaked also
D's knowledge & intention
Not required
s 1(1) sufficient if ought to know
s 2(2) ought to know= if reasonable person think it is
Defences
S 1(3)
for detecting crime/rules/situations reasonable
Equality Act 2010 s 26
violating dignity etc
can apply to
one-off event
unlike Harassment Act
negligence
Wilkinson v Downton
harm intentionally but indirectly?
practical joke, C shocked and ill
Willfully done act calculated to --> C physical harm
Wong v Parkside Health NHS Trust
bullying at work
1) need actual damage
2) D intended to violate C
3) W v D cover other indirect caused harm
Wainwright v Home Office
: strip search, son PTSD
now covered by negligence
tort doesnt provide remedy for distress
Rhodes v OPO
confirmed W v D
mother dont want dad to publish book
3 element
Conduct
directed at C
Mental
D intend to cause physical / emotional distress
not enuf if imputed intention, recklessness
Consequences
need to result in actual illness