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Tort Law > Intentional Torts To The Person > Flashcards

Intentional Torts To The Person Flashcards

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0
Q

What are the elements of trespass?

A
  • Interference must be intended (proven by circumstantial evidences)
  • Interference must be direct (link must not be interrupted)
  • Trespasses are actionable per se and without needing the proof of damage
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1
Q

What is battery?

A

An act that directly and intentionally causes unwanted contact with the body of the person without lawful justification

  • Force isn’t required
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2
Q

What types of trespass are there?

A

Battery, assault and false imprisonment

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3
Q

What cases are there to support the required element of directness?

A
  • Scott v Shepard (1773)
  • Reynods v Clarke (1975)
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4
Q

What is assault?

A

An act that directly and intentionally causes the plaintiff to reasonably apprehend a battery without lawful justification

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5
Q

What is false imprisonment?

A

An act that directly and intentionally causes the wrongful and total restraint of the plaintiff’s freedom of movement without lawful justification

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6
Q

What are the elements of assault?

A
  • Direct - close in time and space (imminent/immediate apprehension)
  • Intentional - there must have been an arguable intention to cause the apprehension
  • Reasonable apprehension - the threat of battery must be imminent and the plaintiff must be aware of the threat. Not strictly an objective test since apprehend = “to expect”, not to fear
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7
Q

What cases are there to support the required element of intention?

A
  • Cole v Turner (1704)
    • “The least touching of another in anger is a battery”
  • Letang v Cooper (1964)
    • Distinguished negligence from trespass
  • Wilson v Pringle (1986)
    • No hostile intent = no battery
  • In re F (Mental Patient: Sterilisation) (1990)
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8
Q

What cases are there to support the fact that force isn’t required?

A
  • Cole v Turner (1704)
  • Kaye v Robertson (1991)
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9
Q

What cases are there to support the element of reasonable apprehension?

A
  • Tuberville v Savage (1669)
    • Threat nullified by own words - no reasonable apprehension of harm
  • Read v Coker (1853)
    • Words can qualify an innocent act to make it intimidatory and cause reasonable apprehension of harm
  • Innes v Wylie (1844)
    • Illustrates difference between active and passive obstruction, the latter of which wouldn’t amount to battery
  • Stephens v Myers (1830)
    • Immaterial to consider distance as long as act causes reasonable apprehension
  • Thomas v National Union of Mineworkers (1986)
    • Compare with S v M - if neither could reach the other, there is no reasonable apprehension
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10
Q

What is false imprisonment?

A

An act that directly and intentionally causes the wrongful and total restraint of the plaintiff’s freedom of movement without lawful justification

  • intention doesn’t include negligent imprisonment
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11
Q

What is meant by “total restraint required”

A

No other means of escape possible - if it’s just inconvenient but not a total restraint, it’s not false imprisonment. however, it is possible if the alternative means are unreasonable

  • Bird v Jones (1845) - not a total obstruction and detention, merely partial
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12
Q

Is awareness of restraint required for false imprisonment?

A

No - actionable per se and, as long as there is an intentional infringement of rights, can sue

  • Murray v Ministry of Defence (1988)
    • Reaffirmed Atkin LJ’s judgment in Meering v Grahame White Aviation Co Ltd (1919)
  • Meering v Grahame White Aviation Co Ltd (1919)
    • Yes - unknowing restraint still constitutes false imprisonment
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13
Q

When can lawful detention turn tortious?

A

With the withdrawal of consent

  • Robinson v Balmain New Ferry (1910)
  • Herd v Weardale Steel (1915)
  • R v Deputy Governor of Parkhurt Prison and ors, ex p Hague (1992)
  • R v Governor of Brockhill Prison, ex p Evans (No 2)(2000)
  • Austin and anor v Commissioner of Police of the Metropolis (2009)
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14
Q

What is the rule in Wilkinson v Downton?

A

An act that intentionally but usually indirectly causes real damage to the plaintiff

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15
Q

What are the elements required in the Wilkinson v Downton rule?

A
  • Intention - conduct must be that harm was so likely to occur such that the intention to cause it can be imputed onto the defendant
  • Damage must be physical/psychological
    • Wilkinson v Downton (1897)
      • Either actual or imputed action
    • Wainwright v Home Ofice (2002)
16
Q

What is the role of the Rule in Wilkinson v Downton now that we have the tort of negligence?

A
  • Both require proof of damage, but intention isn’t required in negligence
  • Still has a role to play in case where proving duty of care is difficult
  • nervous shock cases in negligence need to satisfy the stringent proximities in Ngiam adopted from McLoughlin as qualified and restricted by Alcock
17
Q

What types of non-trespass are there?

A

The rule in Wilkinson v Downton and harassment

18
Q

What is harassment?

A

An act that persistently annoys (i.e. persistent repetitive behaviour) or causes the plaintiff to feel fear or be greatly distressed

19
Q

What is meant by harassment being “actionable per se”?

A

Doesn’t need proof of damage

  • Khorasandjian v Bush (1993)
    • Qua timet injunction
  • Hunter v Canary Wharf Ltd (1997)
    • Overturned Khorasandjian
20
Q

What defences are there?

A
  1. Consent
  2. Lawful authority
  3. Necessity
  4. Best interests of a patient
  5. Self defence/defense of others
  6. Illegality
  7. Contributroy negligence
  8. Provocation
21
Q

What is required of consent?

A
  • May be implied or expressed
    • Cole v Turner (1704)
  • Must be real - the act of fraud and physical duress vitiates consent
    • Latter v Braddell (1881)
    • Chatterton v Gerson (1981)
  • May be withdrawn
    • Robinson v Balmain New Ferry (1910)
    • Herd v Weardale Steel (1915)
  • May be negatd by public policy
    • R v Brown (1993)
22
Q

What cases are there to support the lawful authority as a defence against intentional torts to the person?

A
  • Murray v Ministry of Defence (1988)
  • Leigh v Gladstone (1909)
  • Secretary of State for Home Department v Hobb (1995)
23
Q

What is meant by necessity?

A

Not merely conveneint but necessary to avoid immediate/imminent life-threatening harm

  • Re S (Adult: Refusal of Treatment)(1998)
  • St George’s Healthcare Trust v S (1998)
24
Q

What is meant by the best interests of the patient?

A
  • Similar to necessity but relates only to medical treatment where the plaintiff lacks the capacity to consent
  • Doesn’t have to involve life-threatening situations
    • Re T (adult: Refusal of Treatment)(1992)
    • Re C (1994)
    • Re LP (Adult: Medical Treatment)(2006)
    • Airedale NHS Trust v Bland (1993)
      • Requires unanimous medical opinion and the assent of the next-of-kin
    • Re A (2000)
25
Q

What is the requirement for self-defence/defence of others?

A

Response has to be reasonable and proportionate

  • Ashley v Chief Constable of Sussex Police (2008)
26
Q

What is meant by illegality?

A

Can be summed up by the latin maxim ex turpi causa (non oritur actio, i.e. no action may be founded on illegal or immoral conduct

  • Hegarty v Shine (1878)
27
Q

What is meant by contributory negligence?

A

At common law, contributory negligence acted as a complete defence. However, under the Law Reform (Contributory Negligence) Act 1945, contributory negligence operates as a partial defence whereby the courts can apportion loss between the parties. This makes it a more attractive option to the courts than other defences which can operate harshly and absolve a defendant of liability no matter how much at fault they may be. Consequently the defences of volenti non fit injuria and ex turpi causa are perhaps of less significance. Contributory negligence will often succeed where other defences fail.

28
Q

What is meant by provocation?

A
  • A claim by the defendant that the plaintiff provoked the response
  • Provocations can only reduce exemplary damages and have no bearing on actual damages
    • Lane v Holloway

Tort Law (1 decks)

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