Tort - Trespass to the Person Flashcards
What are the two types of Trespass to the Person and what are their definitions?
1) Battery - the intentional direct application of unlawful force to another person
2) Assault - an intentional act by the defendant causing the claimant to reasonably apprehend the immediate infliction of a battery upon him
What are the three elements of Battery?
1) Intentional
2) Direct Application
3) Unlawful Force
Case Law that helps to define the three elements of Battery
Intentional
- Wilson v Pringle: the defendant must only intend their actions, not the consequences
- F v West Berkshire Health Authority: no need for hostility
Direct Application of Force
- The force must flow almost immediately with no intervention
Unlawful Force
- F v West Berkshire Health Authority: physical contact which is generally accepted in the conduct of ordinary life will not be unlawful (like bumping into someone on the train)
What are the three elements of Assault?
Intentional Act
- Letang v Cooper: Intentional conduct is an essential element to assault. If it’s not there, the relevant Tort will be negligence
- Bici v Ministry of Defence: The Defendant must intend that the Claimant apprehends the infliction of a battery
- R v Ireland: Words and actions can constitution as an assault ‘a thing said is a thing done.’ Silence can also amount to an assault — i.e. threatening silent phone calls (replaced traditional view that words alone cannot constitution an assault held in Read v Coker)
Causes the Claimant to apprehend
- Turberville v Savage: The court accepted that words can ‘negative’ (cancel out) an assault. ‘If we weren’t being watched by the cops I’d hit you’ — in this case the individual would not have reasonably apprehended the immediate threat of battery
Immediate
- R v Ireland: Within a minute or so
Who has to prove the defendant has committed a trespass to the person?
The claimant
Who, in theory, has to justify the action by making out an available defence?
The defendant
What does the case Co-Operative Group Ltd v Pritchard set out regarding contributory negligence as a defence in claims for assault and battery?
That the defendant cannot allege contributory negligence as a defence to claims for assault and battery.
They can no longer say that the claimant was partially responsible for the assault
What are the four available defences for Trespass Against the Person?
- Consent
- Defence of the Person
- Defence of Property
- Necessity
Consent can be both ____ and ____
Express or Implied
If a claimant has expressly or impliedly consented to the defendants act, will the defendant be liable?
If the claimant has expressly or impliedly consented to the defendant’s act then the defendant will not be liable in trespass to the person
Chatterton v Gerson sets out what in relation to consent in Medical cases?
Chatterton v Gerson sets out that a patient is deemed to have consented to medical treatment once:
- informed in broad terms of the nature of the procedure intended
and
- consent would not be ‘real’ if it was induced by misrepresentation to the nature of the treatment
Chester v Afshar sets out what in relation to consent in Medical cases?
Chester v Afshar sets out that a doctor’s failure to disclose risks will not invalidate the patient’s consent (they may have a claim in negligence instead)
What case provides us with information about consent in Sports cases?
Condon v Basi
What does Condon v Basi establish in relation to consent in sport?
Condon v Basi sets out that a sports competitor consents not only to all conduct within the rules of the sport, but also to conduct outside the sport but within the spirit of the game
Is consent a general defence?
Consent is a general defence and may also be raised as a defence to negligence
If the defendant wants to use the defence of ‘Defence of the Person’ what must they establish?
per Cockroft v Smith the defendant must establish that their force was
- Used in self defence (not an act of retaliation)
- Reasonable and
- Proportionate to the force used/threatened by the claimant
Who decides what constitutions ‘reasonable force’ in the Defence of the Person defence?
The court will decided what constitutes as reasonable force by taking into consideration all the circumstances of the case
Who else does Defence of the Person extend to?
Family and in an employment context i.e. protecting employer or employee
Does Defence of the Person stand up against defending a third party outside of the family/employment context?
There is no specific case guidance on this. It is likely that a future court would extend the defence to protecting any other person. Provided that the steps taken were
- reasonable in all the circumstances (this would include the defendant’s relationship with the third party)
Can one take reasonable steps to defend one’s property?
yes one may take reasonable steps to defends one’s property. Including taking reasonable steps to eject a trespasser (asking them to leave Green v Goddard)
In order to use the defence of Necessity, what must the defendant show?
The defendant must show that
1) The situation of necessity existed and that 2) his actions were reasonable
Which case identified two situations where the defence of Necessity could justify treating an adult medically without consent? And what were they?
F v West Berkshire Health Authority
1) An emergency situation where the patient is unconscious
2) A state of affairs (e.g. a stroke) where the patient is rendered incapable of giving consent
Only if the operation is in the best interest of the patient — if the actions are life saving, or to ensure improvement or prevent deterioration in the patient’s physical or mental health
What if you can’t show trespass to the person?
You can use Tort under the rule in Wilkinson v Downtown
What did Wilkinson v Downtown establish?
Wilkinson v Downton established a separate tort, in cases where the defendant intended to cause shock to the claimant, and the claimant suffers some tangible damage as a result
