Lecture 2 Assault & False Imprisonment Clary Castrission

In this lecture Assault False Imprisonment Defences to Intentional Torts

ASSAULT

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 Gist of the Action …Assault necessarily involves the apprehension of injury or the instillation of fear or fright. It does not necessarily involve physical contact with the person assaulted: nor is such physical contact, if it occurs, an element of the assault. (Barwick CJ in The Queen v Phillips (1971) 45 ALJR 467 at 472

THE ELEMENTS OF ASSAULT There must be a direct threat: Stephens v Myers (1830) In general, mere words are not actionable Barton v Armstrong (1969) Conditional threats Tuberville v Savage (1669) Police v Greaves (1964) Rozsa v Samuels (1969)

Zanker v Vartzokas and the issue of imminence/immediacy The Facts: Accused gives a lift to victim and offers money for sex; victim refuses. Accused responds by accelerating car, Victim tries to open door, but accused increases acceleration Accused says to victim: I will take you to my mates house. He will really fix you up Victim jumps from car then travelling 60km/h

Zanker v Vartzokas: The Issues Was the victim’s fear of sexual assault in the future reasonable? Was the feared harm immediate enough to constitute assault?

Zanker v Vartzokas: The Reasoning Where the victim is held in place and unable to escape the immediacy element may be fulfilled. The essential factor is imminence not contemporaneity The exact moment of physical harm injury is known to the aggressor It remains an assault where victim is powerless to stop the aggressor from carrying out the threat

So main issues with Assault Threat possible to be carried out? Future threats? Conditional threats: Not assault if its lawful (except will be if it is excessive) Must be possible to carry out

FALSE IMPRISONMENT

FALSE IMPRISONMENT The intentional or negligent act of D which directly causes the total restraint of P and thereby confines him/her to a delimited area without lawful justification The essential distinctive element is the total restraint

THE ELEMENTS OF THE TORT It requires all the basic elements of trespass: Intentional/negligent act Directness absence of lawful justification/consent , and total restraint

“A prison may have its boundary large or narrow, visible and tangible, or, though real, still in the conception only; it may in itself be moveable or fixed; but a boundary it must have; and that boundary the party imprisoned must be prevented from passing… Some confusion seems to me to arise from the confounding imprisonment of the body with mere loss of freedom; it is one part of the definition of freedom to be able to go whithersoever one so pleases; but imprisonment is something more than the mere loss of this power; it includes the notion of restraint within some limits defined by a will or power exterior to our own.” Coleridge J in Bird v Jones (1845) at 744.

RESTRAINT The restraint must be total Bird v Jones ((1845) Total restraint implies the absence of a reasonable means of escape “If I lock a person in a room with a window from which he may jump to the ground at the risk of life or limb, I cannot be heard to say that he was not imprisoned because he was free to leap from the window.” Burton v Davies (1953) Barrier need not be physical Symes v Mahon (1922) Myer Stores v Soo

VOLUNTARY CASES In general, there is no FI where one voluntarily submits to a form of restraint Herd v Weardale (1913) Robinson v The Balmain New Ferry Co. (1904) Where there is no volition for restraint, the confinement may be FI Bahner v Marwest Hotels Co. (1970)

WORDS AND FALSE IMPRISONMENT In general, words can constitute FI see Balkin & Davis pp. 55 to 56: “restraint… even by mere threat of force which intimidates a person into compliance without any laying on of hands” may be false imprisonment - Symes v Mahon

KNOWLEDGE IN FALSE IMPRISONMENT The knowledge of the P at the moment of restraint is not essential. Meering v Graham White Aviation (1919) Murray v Ministry of Defense (1988)

WHO IS LIABLE? THE AGGRIEVED CITIZEN OR THE POLICE OFFICER? In each case, the issue is whether the police in making the arrest acted independently or as the agent of the citizen who promoted and caused the arrest Dickenson v Waters Ltd (1931) Bahner v Marwest Hotels Co (1970)

DAMAGES False imprisonment is actionable per se The failure to prove any actual financial loss does not mean that the plaintiff should recover nothing. An interference with personal liberty even for a short period is not a trivial wrong. The injury to the plaintiff's dignity and to his feelings can be taken into account in assessing damages (Watson v Marshall and Cade )

OTHER FORMS OF TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

Defences to Intentional Torts

MISTAKE An intentional conduct done under a misapprehension Mistake is generally not a defence in tort law Basely v Clarkson (1682) Cowell v Corrective Services Commission (1988)

CONSENT In a strict sense, consent is not a defence as such because in trespass, the absence of consent is an element of the tort See: Blay; ‘Onus of Proof of Consent in an Action for Trespass to the Person’ Vol. 61 ALJ (1987) 25 But McHugh J in See Secretary DHCS v JWB and SMB (Marion’s Case) 1992 175 CLR 218

VALID CONSENT Must be given to act complained of Mullloy v Hop Sang [1935] Must be no vitiating factors to nullify consent Hegarty v Shine (1878) Consent must be genuine Gillick v West Norfolk Health Authority (1986) Re F (1990)

CONSENT IN SPORTS McNamara v Duncan; Hilton v Wallace People who pursue recreational activities regarded as sports often do so in hazardous circumstances; the element of danger may add to the enjoyment of the activity Accepting risk, sometimes to a high degree, is part of many sports. A great deal of public money and private effort, and funding, is devoted to providing facilities for people to engage in individual or team sport. This reflects a view, not merely of the importance of individual autonomy, but also the public benefit of sport. Sporting injuries that result in physical injury are not only permitted: they are encouraged (Gleeson CJ in Agar v Hyde (2000) ) McNamara v Duncan; Hilton v Wallace Giumelli v Johnston McCracken v Melbourne Storm (2005)

STATUTORY PROVISIONS ON CONSENT Minors (Property and Contracts) Act 1970 (NSW) ss 14, 49 Children & Young Persons (Care and Protection Act) 1998 (NSW) ss 174, 175

SELF DEFENCE, DEFENCE OF OTHERS A P who is attacked or threatened with an attack, is allowed to use reasonable force to defend him/herself McLelland v Symons (1951) In each case, the force used must be proportional to the threat; it must not be excessive. D may also use reasonable force to defend a third party where he/she reasonably believes that the party is being attacked or being threatened.

NECESSITY The defence is allowed where an act which is otherwise a tort is done to save life or property: urgent situations of imminent peril Mouse’s Case (1609) Leigh v Gladstone (1909)

INSANITY Insanity is not a defence as such to an intentional tort. What is essential is whether D by reason of insanity was capable of forming the intent to commit the tort. White v Pile (1951) Morris v Marsden (1952)

INFANTS Minority is not a defence as such in torts. What is essential is whether the D understood the nature of his/her conduct Hart v AG of Tasmania (1979) Hogan v Gill (1992)

DISCIPLINE PARENTS R v Terry A parent may use reasonable and moderate force to discipline a child. What is reasonable will depend on the age, mentality, and physique of the child and on the means and instrument used. R v Terry

ILLEGALITY:Ex turpi causa non oritur actio Persons who join in committing an illegal act have no legal rights inter se in relation to torts arising directly from that act. Smith v Jenkins (1970)

TRESPASS & CLA 2002 s.3B(1)(a) Civil Liability Act (“CLA”) i.e. CLA does not apply to “intentional torts”, except Part 7 of the Act. s.52 (2) CLA subjective/objective test i.e. subjective ("…believes…" & "…perceives…")/ objective ("…reasonable response…") test. s.53(1)(a) & (b) CLA i.e. “and” = two limb test; "exceptional" and "harsh and unjust“ are not defined in the Act so s.34 of the Interpretation Act 1987. s.54(1) & (2) CLA i.e. "Serious offence" and "offence" are criminal terms so reference should be made to the criminal law to confirm whether P's actions are covered by the provisions.