Chapter 46- Assault, battery and false imprisonment Flashcards
Define Assault
This is the act of intentionally causing another person to fear imminent harm or offensive contact
ASSAULT
State the 3 elements of this tort
- The defendant MUST act/ conduct
- The effect of the action must be a reasonable expectation of immediate physical violence
- Intention
ASSAULT
DEFENDANTS ACTIONS:
- This can include physical violence or threatining words
- The court should establish an assault and consider how the threat is conveyed and whether it is enough to place the claimant in reasonable fear of an immediate battery.
- The claimant does not have to admit that they were afraid, just that it was reasonable for them to expect that it was about to happen
- The threat of violdence must be capable of being carried out at the time that it was made.
ASSAULT
INTENTION:
Intention can mean either:
- The defendant has committed a voluntary action
- The defendant intended a consequence, for example, where there is no intention to hit anyone but behaving in a way knowing that someone may be hit.
Define Battery
This refers to the actual infliction of unlawful force on another person.
State the 3 elements of battery
- Force
- Direct application
- Hostility
BATTERY
FORCE:
Any physical contact with a persons body or clothes can amount to force.
- There is no requirement for physical harm.
- For the force to become unlawful, the touching has to exceed what is regarded as ‘physical contact which is generally acceptable in the ordinary conduct of dailylife’
BATTERY
DIRECT APPLICATION:
Battery only applies to force that is direct.
RELEVANCE OF HOSTILITY:
“That touching must be proved to be a hostile touching”
- The courts have been criticised because the word ‘hostility’ has not been defined.
- However its also been argued that hostility should not be an element of battery but instead, ‘conduct that was not generally acceptable in the ordinary conduct of daily life.’
- But many belive that hostility is unlawful and that there has to have been a lack of consent from the claimant
Define false imprisonment
An act that directly and intentionally places a total restraint on another persons freedom of movement without lawful jurisdiction.
State the 2 elements of False imprisonment
- Intention
- Restraint
INTENTION
False imprisonment
- The courts will investigate whether this element is necessary in proving false imprisonment.
RESTRAINT :
Restraint can either be:
- Total
- Knowledge of it
- Lawful
TOTAL:
- The claimant must be totally restrained or imprisoned. It will not be considered false imprisonment if there is a reasonable means of escape
- For there to be this tort, the person must be confined within a physical boundary or even verbal threat
KNOWLEDGE:
- This element is debatable. Some say it is possible to be falsely imprisoned if they are unaware at the time of the detention. Some say there can’t be false imprisonment when they are unaware
- The court held that knowldge is not an essential element of this tort
LAWFUL:
- If the procedures set out by the law are followed, then the restraint is lawful.
- The PACE gives both the police and ordinary citizens the rights to arrest a person
List the available defences
- Consent: The claimant must have either given an implied consent or expressed one
- Self-defence: This is where the claimant can use reasonable force to defend themselves
- Necessity: This is where the defendants actions were justified to prevent greater damage
Evaluate Trespass to person
- Trespass to the person protects bodily integrity and personal security, reinforcing basic human rights.
- However, some argue that criminal law provides stronger deterrence than civil remedies.
- However, tort law allows claimants to seek personal remedies, such as compensation, where criminal law focuses on punishment.
- Unlike negligence, trespass to the person is an actionable per se, meaning no proof of harm is required.This ensures immediate legal protection
- However, this strict liability approach may be unfair to defendants, especially in cases of accidental or minor contact
