Lecture 1 Lecturer: Prof Sam Blay Intentional Torts LAW OF TORTS Lecture 1 Lecturer: Prof Sam Blay Intentional Torts - Battery - Assault

TEXT BOOKS *Baker, Blay et al Torts Law in Principle LBC 4th Ed. 2005 *Blay, Torts in a Nutshell LBC 1999 Balkin & Davis Law of Torts (2004) 3rd Ed. Butterworths Luntz and Hambly Torts Cases and Commentary (2006) Revised 5th Ed. Butterworths Trindade and Cane The Law of Torts Fleming, The Law of Torts (1996)

LEC Torts Website www.usyd.edu.au/lec/subjects/torts//materials.htm Past exams & comments: www.library.usyd.edu.au/libraries/law/lpab.html#exams

WHAT IS A TORT? A tort is a civil wrong That (wrong) is based a breach of a duty imposed by law Which (breach) gives rise to a (personal) civil right of action for for a remedy not exclusive to another area of law

THE DIFFERENCE BETWEEN A TORT AND A CRIME A crime is public /community wrong that gives rise to sanctions usually designated in a specified code. A tort is a civil ‘private’ wrong. Action in criminal law is usually brought by the state or the Crown. Tort actions are usually brought by the victims of the tort. The principal objective in criminal law is punishment. In torts, it is compensation

THE DIFFERENCE BETWEEN A TORT AND A CRIME Differences in Procedure: Standard of Proof Criminal law: beyond reasonable doubt Torts: on the balance of probabilities

THE AIMS OF TORT LAW Loss distribution/adjustment: shifting losses from victims to perpetrators Compensation: Through the award of (pecuniary) damages The object of compensation is to place the victim in the position he/she was before the tort was committed. Punishment: through exemplary or punitive damages. This is a secondary aim.

INTERESTS PROTECTED IN TORT LAW Personal security Trespass Negligence Reputation Defamation Property Conversion Economic and financial interests

INTENTIONAL TORTS INTENATIONAL TORTS Trespass Conversion Detinue

WHAT IS TRESPASS? Intentional or negligent act of D which directly causes an injury to the P or his /her property without lawful justification The Elements of Trespass: fault: intentional or negligent act - injury must be direct injury* may be to the P or to his/her property - No lawful justification

*INJURY IN TRESPASS Injury = a breach of right, not necessarily actual damage Trespass requires only proof of injury not actual damage

THE GENERAL ELEMENTS OF TRESPASS Intentional/ negligent act Direct interference with person or property Absence of lawful justification + + + A specific form of trespass “x” element =

SPECIFIC FORMS OF TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

BATTERY The intentional or negligent act of D which directly causes a physical interference with the body of P without lawful justification The distinguishing element: physical interference with P’s body

THE INTENTIONAL ACT IN BATTERY No liability without intention The intentional act = basic willful act + the consequences.

CAPACITY TO FORM THE INTENT D is deemed capable of forming intent if he/she understands the nature of (‘intended’) his/her act -Infants Lunatics Morris v Marsden Hart v A. G. of Tasmania ( infant cutting another infant with razor blade)

THE ACT MUST CAUSE PHYSICAL INTERFERENCE The essence of the tort is the protection of the person of P. D’s act short of physical contact is therefore not a battery The least touching of another could be battery Cole v Turner (dicta per Holt CJ) ‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate’ ( per Goff LJ, Collins v Wilcock)

The Nature of the Physical Interference Rixon v Star City Casino (D places hand on P’s shoulder to attract his attention; no battery) Collins v Wilcock (Police officer holds D’s arm with a view to restraining her when D declines to answer questions and begins to walk away; battery) Platt v Nutt

THE INJURY MUST BE CAUSED DIRECTLY Injury should be the immediate: Scott v Shepherd ( Lit squib/fireworks in market place) Hutchins v Maughan (poisoned bait left for dog) Southport v Esso Petroleum(Spilt oil on P’s beach)

THE ACT MUST BE WITHOUT LAWFUL JUSTIFICATION Consent is Lawful justification Consent must be freely given by the P if P is able to understand the nature of the act Lawful justification includes the lawful act of law enforcement officers Wilson v. Marshall (D accused of assaulting police officer, held officer’s conduct not lawful)

TRESPASS:ASSAULT The intentional/negligent act or threat of D which directly places P in reasonable apprehension of an imminent physical interference with his or her person or of someone under his or her control

THE ELEMENTS OF ASSAULT There must be a direct threat: Hall v Fonceca (Threat by P who shook hand in front of D’s face in an argument) In general, mere words are not actionable Barton v Armstrong In general, conditional threats are not actionable Tuberville v Savage Police v Greaves Rozsa v Samuels

THE ELEMENTS OF ASSAULT The apprehension must be reasonable; the test is objective The interference must be imminent Rozsa v Samuels Police v Greaves Hall v Fonceca Zanker v Vartzokas (P jumps out of a moving van to escape from D’s unwanted lift)

THE GENERAL ELEMENTS OF TRESPASS Intentional/ negligent act Direct interference Absence of lawful justification + + + A specific form of trespass “x” element =

SPECIFIC FORMS OF TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT