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Law Of Torts > Tresspass To Person > Flashcards

Tresspass To Person Flashcards

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1
Q

3 actionable torts seeking to protect the individual from interference with their personal liberty

A

Assault: a protection against being emotionally unsettled by those bearing ill-will

Battery: a protection against having your bodily integrity infringed upon

False Imprisonment: a protection against being unlawfully detained

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2
Q

Torts of trespass are actionable in and of themselves without proof of action when?

A

The defendant intends both the conduct itself and the consequence
- it is both direct and intentional

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3
Q

How do torts of trespass differ from negligence

A

Negligence attempts to compensate the claimant for acts of the defendant which are unintentional and indirect

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4
Q

Assault and battery distinguished, as established in COLINS v WILCOCK

A

Assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person

Battery is the actual infliction of unlawful force on another person

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5
Q

When is assault actionable or established?

A

When there is a direct threat which puts the plaintiff in reasonable apprehension of immediate physical contact or unlawful force
- such that a reasonable man might fear that violence was about to be applied to him

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6
Q

STEPHENS v MYERS

A

At a parish council meeting an altercation took place between the plaintiff and the defendant. D approached P menacingly with a clenched fist but his blow was intercepted by a 3rd party and so D was liable for assault
- though he was not near enough at the time he was stopped to have struck P the question is whether, if he had not been stopped, would his blow have reached the chairman

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7
Q

HULL v ELLIS

A

D was held liable for assault when holding a revolver in her hand, she accosted the plaintiff as he was riding his donkey along a public road and asked him where he had got the piece of wood he was carrying

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8
Q

The test to establish assault is objective, explain?

A

If a person of ordinary courage would not have been afraid, the fact that the particular plaintiff was afraid will not make the defendant liable, and vice versaf P was exceptionally brave and was not afraid
- it is actually irrelevant whether or not P himself was afraid or scared

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9
Q

What 2 circumstances preclude an action for assault?

A

Where there is not an IMMEDIATE apprehension of an unlawful force
- this tort does not exist if the unlawful force is likely to occur only at sometime in the future
— the relevant factor is the apprehension of immediate contact
If there is no means of carrying the threatening behavior into effect
- shaking a fist in a passing vehicle; pointing an unloaded gun

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10
Q

THOMAS v NATIONAL UNION OF MINE WORKERS
//
R v ST GEORGE

A

Unless done secretly, it is an assault (even though unloaded) to point a weapon at a person so near, that if loaded it might do injury
- an assault involves reasonable apprehension of impact of something on ones body and that is exactly was happens when a firearm, which has the appearance of being loaded is pointed by the aggressor

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11
Q

Can words alone cause a person to reasonably apprehend the infliction of a battery

A

Only if those words are sufficient given the circumstances

  • proximity and awareness of the plaintiff to the speaker
  • the nature of the words used
  • the identity of the speaker
  • accompanying gestures
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12
Q

BURSTOW & IRELAND

A

Both appellants, individually, conducted campaigns to harass a number of women by way of silent & repeated phone calls and menacing notes

An assault may be committed by word or gestures alone depending on the circumstances … where they cause fear of immediate & unlawful violence

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13
Q

Words may also negative the apprehension of immediate violence (assault)
TUBERVILLE v SAVAGE

A

T put his hand on his sword and said, “if it was not assize-time, i would not take such language from you.” It was in fact assize time
This was not assault since there was no intention on the part of T to do so
- the words had negatived the apprehension that would have been cased by placing his hand on his sword

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14
Q

The ingredients of Battery?

A
  1. The intentional application of unlawful force
    - a clear intention
  2. Which is direct and immediate
    - to deliberately touch
  3. For which there is no lawful justification or excuse
    - done with hostility
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15
Q

What is Battery?

A

The intentional application of unlawful force to another person

  • any act that causes contact with another’s body without his consent
  • force applied in any form or through any medium is actionable per se
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16
Q

COLLINS v WILCOCK

A

A police officer wished to question a woman in relation to her alleged activity as a prostitute. The woman decided to walk away and so the police officer grabbed her arm. A struggle ensued and the woman scratched the officer and was so charged with assault
- Every person’s body in inviolate… and so any touching of another person, however slight, [without his consent] MAY amount to battery

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17
Q

Why are most physical contacts of ordinary life not actionable as battery?

A

Consent is a defence to battery, and so those circumstances are impliedly consented to by all who move in society and so expose themselves willingly to the risk of bodily contact

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18
Q

How does the added requirement of hostility in battery impact on ones actions?

A

Distinguishes an unintended accident from a deliberate one

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19
Q

COLE v TURNER

A
  • The least touching of another in anger is a battery

- touching without violence or design of harm is no battery

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20
Q

WILSON v PRINGLE

where one acts unlawfully, they are acting with hostility

A

D as an act of horseplay with his school-mate, pulled P’s bag off his shoulder. This caused P to fall and injure his hip. The trial judge was of the view that this was a clear case of batter
- in a battery, there must be an intentional touching or contact in one form or another. That touching must also be proved to be a hostile touching, but hostility is not to be equated with ill will or malevolence

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21
Q

F v WEST BERKSHIRE HEALTH AUTHORITY

A

The suggested qualification of hostility is difficult to reconcile with the principle that any touching of another’s body is, in the absence of a lawful excuse, capable fo amounting to battery
- conduct will be hostile if it can reasonably be taken to be unwelcome by P, without lawful excuse, or not generally acceptable in the conduct of daily life

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22
Q

Explain the element of hostility in battery

A

Hostility here is not to be equated with ill-will, anger or malice. It can make reference to anger sufficient enough to turn a touch into battery (cole v turner), just as it may reference a lack of intention to assault which prevents a gesture from being an assault (tuberville v savage)
Hostility does not strictly describe D’s attitude but rather relates to the physical inviolability of the plaintiff

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23
Q

What is the rule in Wilkinson v Downtown, and what is its purpose?

A

Trespass to person torts offers no protection where the harm caused is not as a result of physical interference, or the threat thereof. This rule steps in to provide a remedy for those who suffer psychiatric injury or emotional harm as a result of another’s intentional contact

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24
Q

WILKINSON v DOWNTOWN

A

D went to P’s house and as a practical joke, falsely told her that her husband had both his legs broken in an accident. P went to fetch her husband and later became ill from nervous shock
- D was liable as he willfully did an act calculated to cause physical harm to the plaintiff - that is to say to infringe her legal right to personal safety and has in fact thereby caused physical harm to her

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25
Q

What are the 6 defenses to Assault and Battery?

A 
Consent 
Self-Defence 
NO DEFENCE OF Provocation 
Contributory negligence 
Necessity 
Parental, Statutory and other lawful authority
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26
Q

Where one consents to what would be an assault or battery, the defendant would have a complete defence. It must be

A
  1. Implied or expressed
  2. Given freely otherwise it is ineffective
  3. Honestly believed
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27
Q

Consent must be implied or Expressed

COLBY v SCHMIDT

A

The parties were player sin an amateur game of rugby. D struck P on the jaw with his elbow, fracturing it in 3 places and causing extensive dental damage. P sued for damages and D pleaded consent, i.e. that P had impliedly consented to the injuries inherent in the game
- D was liable as his conduct and actions (the late hit)was beyond the scope of consent

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28
Q

Consent must be freely given otherwise it is ineffective
CHATTERTON v GERSON

(Fraud; undue influence; etc. invalidates it)

A

During a hernia operation, the trapping of a nerve caused P great pain. D injected the plaintiff thereby blocking the pain but also rendering her right leg numb. She sued claiming that she did not consent to the injection since she had not been informed of potential consequences (fraud)
- D was not liable in trespass as once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real

29
Q

Consent must be honestly believed

ASHLEY v CCSP

A

an honest belief of consent that cannot be rebutted is sufficient
- if the consent relied on had not been given, but was honestly believed by D to have been given, he is entitled to an acquittal

30
Q

The role of Consent in medicine

Re T [1992]

A

Treating someone without his consent or despite refusal of consent will constitute a civil wrong of trespass to a person and may be a crime. If however the patient is in no position to give consent the practitioner can lawfully treat him in accordance with his clinical judgment
- he has no legal obligation to consult the next of kin

31
Q

An assault or battery is justified if committed in reasonable defence of?

A
  1. Oneself or another

2. Of one’s own property or property which one os defending as an agent of the owner or occupier

32
Q

Self defence has a requirement that one’s act must be reasonable, meaning?

A
  1. Proportionate

2. Preventative and not retaliatory

33
Q

REVILL v NEWBERRY

A

Violence used may be returned with necessary violence. But the force used must not exceed the limits of what is reasonable in the circumstances. The assailant may be met with reasonable force but no more; the sue of excessive force against him is an actionable wrong

34
Q

CACHAY v NEMETH

A

At a party C was acting in an irritating manner by attempting to kiss N’s wife against her will. N struck C with a karate blow to the side of his head, breaking his jaw.
- Held, N was entitled to act in defence of his wife, but that he had used excessive violence and was so liable for battery

35
Q

A mistaken belief of imminent danger must be reasonable held and the force used must also be reasonable
ASHLEY v CHIEF CONSTABLE OF SUSSEX POLICE

A

Ashley was shot dead while in bed during an armed police raid on his house. He was unarmed but D submitted a defence of SD
- for SD to succeed in civil law the defendant must establish that he honestly believed in the existence of facts which might accord him that defence and that that belief was based on reasonable ground
— the burden of proof rest with the defendant; he must raise the defence and justify it

36
Q

Contributory Negligence

A

A defence which proposes that the plaintiff was partly to blame for the damage caused to him and his compensation should b reduced to the extent of his responsibility

37
Q

LANE v HALLOWAY

A

L called H a ‘monkey-faced tart’ and H remonstrated at this. L threw a light punch but H returned on to L’s eye opening up a wound which took 19 stitches

  • the fact that the plaintiff may have behaved badly (provocation) is irrelevant
  • H’s actions were so out of all proportion that it was impossible to hold that what L did was however rude or silly, amounted to contributory negligence
38
Q

The defence of necessity according to Lord Goff in F v West Berks Health Authority

A

The principle concerns actions taken to preserve the life, health or wellbeing of another who is unable to consent to it and may sometime be justified by an emergency

39
Q

F v WEST BERKS HEALTH AUTHORITY

A

It was proposed to sterilize F, an adult with a mental capacity so restricted that it was impossible for her to consent to the operation (that was argued to be in her best interest)
- the operation was in F’s best interest and could therefore be unlawfully performed on her despite her inability to consent to it

40
Q

Who has the authority to infringe on another’s physical integrity under the common law?

A

Parents: may punish a child in a reasonable manner including the infliction of corporal punishment
The state (statutory): may physically punish where not unconstitutional to do so
A headmaster: may flog a child

41
Q

MAYERS v A.G OF BARBADOS

A 
P sued for damages when her headmaster flogged her for participating in a prank to put cow-itch in her class room 
There was no battery by the headmaster as the common law allowed those in lawful control or charge of a child to discipline by way of corporal punishment
- in order to be lawful the instrument used must be a proper one and the force showily be reasonable and moderate
42
Q

What is meant by the tort of False imprisonment according to Lord Goff in Collins v Wilcox and Coke CJ?

A

The unlawful imposition of constraint on another’s freedom of movement from a particular place

Every restraint of the liberty of a free man is an imprisonment…

43
Q

In order for there to be an actionable claim for false imprisonment there must be ?

A

An intention by D to completely restrict the claimants freedom of movement with no justification or excuse

  • unlike assault, F.I is actionable even where the person is unaware they are being detained
  • may be committed without physical force
44
Q

Partial restraint is insufficient

BIRD v JONES

A

B wished to cross a section of a public road that had been closed off due to a boat race. 2 policemen prevented him from passing but allowed him to go in the other direction
- there was no liability as nothing short of a complete loss of freedom will suffice for an action of false imprisonment

45
Q

Any reasonable means of escape (an alternative route) will negate this action
ROBINSON v BALMAIN FERRY CO. LTD

A

D who operated a ferry, charged one penny on entry to the ferry and another on exit. R paid to enter but upon finding out the ferry was not leaving for 20 mins decided to leave. D refused to let him leave until he paid the exit fee
- d was not liable for FI because the condition that one penny be paid on exit was a reasonable one

46
Q

SUNBOLF v ALFORD

A

S became indebted to A, an innkeeper and refused to pay his bill. A locked the plaintiff in the premises and was so liable for false imprisonment

47
Q

A person’s lawful detention can become FI and therefore unlawful
WELDON v HOME OFFICE

A

A prisoner lawfully sentence to imprisonment brought an action against D for FI after he was without Cayuse dragged from his cell and kept without clothes in a ‘strip-cell’
- a person lawfully confined to a prison cell is still entitled to the protection of the law for his personal liberty that had not been taken away

48
Q

Although in the case of Herring v Boyle, the court held that where one is not cognizant of the restraint there could not be an imprisonment against his will, it has been affirmed that one needs not be aware that he is being detained
MEERING v GRAHAM-WHITE AVIATION CO. LTD

A

M was suspected of stealing from D’s factory. He was taken to D’s office for questioning. While there, unbeknownst to him, 2 security officers were stationed outside to stop him from leaving
- an action for F.I was available as a person could be imprisoned without his knowing it; while he is asleep; in a state of drunkenness or even while unconscious

49
Q

MURRAY v MINISTRY OF DEFENCE

A

P, suspected of aiding the IRA, claimed that she had been wrongfully imprisoned by a soldier who had not given a proper reason for her detention prior to her formal arrest
- F.I is actionable without proof of special damage and thus is is not necessary for a person unlawfully detained to prove that he knew he was being detained

50
Q

F.I may be committed without the use of physical force. The use of authority is enough (bolstering v Kirpalani’s ltd)

A

The taking over or possession of the plaintiff or control of his will need not be by force or actual physical compulsion. Pressure of any sort which reasonably leads the plaintiff to believe that he is not free to leave… even if he is himself unaware of such restraint is enough.

51
Q

False Imprisonment by authority?

A

Where a person is accosted by a a police or security services and complies whether in submission to that show of authority or in order to avoid public embarrassment they would have sufficient grounds for F.I

52
Q

A submission to circumstances of authority against which one cannot resist is F.I
CLARKE v DAVIS

A

C drew pay and was accosted by uniformed police and accused of having drawn pay without working. He was then ‘invited’ to show them where he had done the work and then later to go with them to the barracks
- in the circumstances C could have done nothing but go with the police… C was under restraint and bound to submit to the wishes of the police officers. They were therefore liable for F.I

53
Q

Physical restraint not a requirement of F.I

CHONG v MILLER

A

A police constable received a report that C was in possession of an illegal gambling ticket. M called out to C and told him to empty out his pockets which he did without protest
- it was held that there was a detention since even thought C had not been physically restrained he believed that if he had tried to escape he would be arrested. M also said this was the case

54
Q

Circumstances of authority may preclude a free choice

McCOLLIN v DA COSTA & MUSSIN LTD

A

M bought an item from a store but could not be given a receipt. The tag was also no removed and so the alarm blared when she tried to leave. A security guard stepped to her and asked if she had bought anything. An employee asked her to return to the counter to have the tag removed
- P had been detained against her will. Without a receipt it was reasonable for her to believe that the security officer would assume she stole the item and would not allow her to leave

55
Q

BOSTEIN v KIRPALANI LTD

A

P purchased a bedspread from D but returned 2 days later to exchange it for a different color. She had no receipt so the manager assumed she stole it. He invited her to his office to have a discussion with a police officer present. She called her brother to come and ‘see the matter out’
- D was not liable as (1) at no time did the manager exercise or intend to exercise a restraint on her liberty (2) she stayed not because she was restrained or under any such belief but rather to ‘see the matter out’

56
Q

Defence to False Imprisonment

A

Lawful Arrest

Arrest through an Angent

57
Q

Common law powers of arrest

A
  1. A police officer may arrest with a warrant. He, as well as a private citizen may arrest without one where a breach of the peace is being or about to be committed
  2. A p.o or a p.c may arrest one who is in the act of committing an arrest able offense or one who he suspects on reasonable grounds to have committed an arrest able offense
  3. A p.o, not a p.c can arrest without a warrant any person whom he suspects on reasonable grounds to be about to commit a felony
58
Q

R v SELF

A

The appellant was suspected of stealing from a a store so was followed. Aided by a p.c they made a citizen arrest to which he resisted and fought back and was so charged with assault with intent to resist arrest. He was however acquitted of the theft
- since he was acquitted he had therefore not committed an arrest able offense at the time he was arrested and was so entitled to resist his apprehension

59
Q

Roland v Wiggins

A

D kept some foreign currency in a box under his shop counter. D, upon returning from the back claimed he saw P running from behind the bar with the box under her arm and so had her arrested
- D could not be held liable for F.I since it was based on this observation that he suspected & had P arrested by the p.o. D was justified on reasonable grounds in thinking that P had stolen his money

60
Q

If A has probable cause to suspect B to be a felon and accordingly arrests him; this arrest is lawful and justiciable
WALTER v SMITH & SON LTD

A

A p.c must prove that a felony has actually been committed and would be liable for F.I if not such felony has been committed. It will be no defence tat he had reasonable grounds for believing
- in Roland v Wiggins although Roland was innocent the arrest was effected by Wiggins through a p.o

61
Q

Where powers of arrest are conferred by specific statutes, the arrest must fall plainly within the terms of the statute
CUMMINGS v DEMAS

A

Summary Courts Ordinance of Trinidad and Tobago s.104 provided for the arrest without warrant of anyone ‘found committing’ any summary offense
- D could not lawfully arrest D for obstructing his arrest of R since no offense was in fact being committed - the arrested person having been doing innocent

62
Q

Security guards are treated as private citizens
- and p.c must be prepared to establish that a crime has in fact been committed
BANYASZ v K-MART CANADA LTD

A

P, suspected of shoplifting, was taken into custody by D;s security guards. She was detained even after it was established that the cashier had made a mistake. The trial judge dismissed the claim saying the the trial judge had reasonable grounds for the arrest
- Security personnel have no higher rights of arrest that citizens generally… mere suspicion that an offense has been committed is not sufficient when the arrest is effected by a citizen

63
Q

What procedural circumstances can make a lawful arrest unlawful

A
  1. P must be told in plain terms the true ground for the arrest as soon as reasonably practicable except where
    - caught red handed and so must know the reason
    - it is impossible to do so because he is resisting or has ran away
  2. P must be brought before a magistrate or senior police officer as soon as is reasonably possible
64
Q

A person arrested cannot complain that he has not been supplied with the requisite information if he himself produces a situation which makes it impossible to do so
R v SMART

A

A constable saw S take money from 2 sailors. He went up to S and told him he would be reporting him with the view of prosecuting him under the Road Safety Law and S started shouting and gesticulating. S told him to desist or he would be arrested but he continued. A squabble ensued and S was arrested without any further talk
- the arrest was lawful. S must be taken to have known the reason for his arrest. He had also made it impossible with his counter attack for the officer to give reason

65
Q

DALLISON v CAFFREY

A

A police office, BUT NOT A PRIVATE CITIZEN, can undertake reasonable investigations such as checking an alibi or taking the arrested person to premises to check for stolen property before taking him into a police station

66
Q

A person who did not personally arrest or detain P may still be liable for F.I if?

A

He directed or authorized a p.o to carry out the arrest or detention
- Roland v Wiggins

67
Q

A person who did not personally arrest or detain P will not be liable for F.I if?

A

He merely gives incriminating information to a police officer who in the exercise of his own independent discretion decides to arrest the plaintiff

68
Q

HUGHES v MCLEAN

A

D, having lost some cartwheels told a constable of his loss and left the matter up to him, the constable later arrested P on suspicion of theft
- D did not authorize the the constable to arrest P nor did he make any charge against P which case a duty on the constable to carry out the arrest. D was therefore not liable

Law Of Torts (1 decks)

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