LAWS1113 Lecture 2

Assault, Battery and False Imprisonment

General Notes

  • Original tort of trespass derived from ‘Writ vi et armis’ – the Writ of Force and Arms

Battery

  • Direct and Intentional imposition of unwanted physical contact on the person
  • Has to “Be beyond the ordinary conduct of everyday life”
  • Consent on an inherent element of everyday contact – ‘implied consent’ not the correct way to explain the concept
  • Has to be direct, intentional, and positive
  • Absence of consent not required, but consent is a defense
  • No harm need be proven – actionable per se

Positive Action

  • Cannot be passive inaction, but can be a failure to act where a duty of care is present
  • Can be as simple as taking a fingerprint, blood, spitting, or even purse snatching

Direct Action

  • Has to be immediate, not consequential. Eg. A thrown log that hits someone is battery, a thrown log that they then trip over isn’t
  • Derived from historical differentiation between trespass and the case
  • Can include involuntary actions caused by your action, or indirect actions made out of necessity as a result of your action

Intentional Action

  • Must be voluntary and ‘substantially certain to occur’

Relevant Cases

  • Innes v Wylie and Others – must be a positive act – a policeman standing passively in a door would not be committing battery.
  • Reynolds v Clarke – must be direct, cannot be consequential (eg. A thrown log hitting someone is direct, a thrown log later tripped over is a merely a consequence)
  • Scott v Shepherd – must be direct – any intervening acts made out of necessity/self-preservation still constitute directness (eg. Throwing away a firework)
  • Gray v Barr – must be an act the defendant intended to do – no need to have intended the consequences, especially if they were reasonably certain to follow (eg. Threatening/fighting someone while armed with a shotgun was intended, then accidentally shooting them during the fracas can be considered intentional)

Assault

  • Intentional, Positive act that causes another to REASONABLY apprehend an imminent battery
  • Protects “sense of mental security in your person”
  • Requires the threat be able to be carried out – no clear law on assault with an unloaded gun
  • Must be of IMMEDIATE contact – a time frame prevents assault
  • Sense of immediacy is more relevant than actual immediacy – if no time frame is given, then its assault if you can reasonably assume it will be soon
  • No actual “fear” required, only an expectation of imminent battery
  • Conditional threats aren’t assault unless the condition cannot be feasibly met
  • No need to actually *intend* to carry out the threat – merely that you intended to scare them

Relevant Cases

  • Stephens v Myers - Must be a positive act *directly* threatening battery – defendant advanced to attack the plaintiff, but was stopped before he could reach him – no battery could have occurred
  • Barton v Armstrong – if the threat produces a *fear* of immediate battery, it doesn’t matter if no *immediate* battery was actually intended/threatened. (threatened murder if he didn’t sign a contract)
  • Zanker v Vartzokas - if the threat produces a *fear* of immediate battery, it doesn’t matter if no *immediate* battery was actually intended/threatened. (Threatened to “take to mate’s house. He’ll fix you up” – had no way of knowing how far away the mates house was)
  • Brady v Schatzel – Fear is not a component – that a reasonable person would expect a battery is the only issue. Not being afraid of a gun pointed at you doesn’t mean it’s not an assault.
  • Tuberville v Savage – A condition placed on a threat can prevent it being an assault – eg. Placing hand on sword and saying “If it were not assize-time, I would not take such language from you” is not assault.
  • Gray v Barr – must be an act the defendant intended to do – no need to have intended the consequences, especially if they were reasonably certain to follow (eg. Threatening/fighting someone while armed with a shotgun was intended, then accidentally shooting them during the fracas can be considered intentional)
  • Hall v Fonceca – Plaintiff must prove the defendant intended to create the apprehension of battery/use of force

False Imprisonment

  • Direct act with intentionally and totally deprives the plaintiff of his or her liberty
  • Negligence is also considered intentional if ‘substantially certain to occur’
  • Demand for release from consensual imprisonment becomes false imprisonment if not granted within a reasonable time frame
  • Can be temporary, but must be complete – any reasonable means of escape prevents it from having occurred
  • Can be due to the exercise of authority and fear, actual physical constraints are not required
  • Does not actually require you to have been aware of the imprisonment

Relevant Cases

  • Herd v Weardale Steel – must be a positive act, or inaction were an obligation to act is present (eg. Refusing to bring a miner back to the surface mid shift is not false imprisonment – to do so at the end of the shift would be)
  • Bird v Jones – must be a total restraint – blocking off one route does not constitute false imprisonment where others are available
  • Symes v Mahon – words can be sufficient to entail complete deprivation of freedom if backed by authority – Police officer arresting/escorting innocent man to another town for no reason without actually restraining him
  • Myer Stores v Soo – being cowed by numbers/authority is sufficient to achieve total restraint – 2 policeman + myer employee escorted Mr. Soo to the interview room, held to be false imprisonment.
  • Murray v Ministry of Defense – awareness of imprisonment is not necessary – the only relevant factor is total restraint.
  • Marion’s case – consent required to be proven by defendant. Parents do not have the authority to consent to unnecessary operations (eg. Sterilisation of a retarded 14 year old girl)