TORTS INVOLVING THE P ERSON
BATTERY (TRESSPASS TO THE PERSON)
- A direct act by the defendant causing bodily contact with the plaintiff without their consent
For the Plaintiff to prove on the BoP:
• The outcome (contact with the person) was a direct result of the defendant’s conduct
o Scott v Shepard -> directness will include an unbroken series of continuing consequences
o Can be through an object
• Action is actionable per se (no need for the plaintiff to prove damages)
• Physical interference is sufficiently wrongful in itself (as such, it is not required for the plaintiff to prove that the action was
either intended/reckless/negligent)
Hostility as an element:
- Wilson v Pringle -> the intentional touching/contact must be proved to be hostile touching. However, hostility cannot be
equated will ill-will or malevolence and it cannot be governed by an expressed intention, although it may be strong evidence. It
must be a question of fact for the tribunal of fact and where the immediate act of touching does not itself demonstrate
hostility, the plaintiff should plead the facts which are said to do so.
- Boughey v R (Australian Authority) -> it has never been the common law that actual hostility or hostile intent towards the
person against whom force is intentionally applied is a necessary ingredient in common law battery.
Defendant can avoid liability if:
• The act was involuntary
o Refers to the origin of the contact and requires that the act was not conscious or willed
• Able to negate fault (contact was neither intentional/reckless nor negligent)
o Intention -> subjective test and requires that the defendant acted with the subjective purpose to bring about the
outcome Carter v Walker
o Reckless -> subjective test and requires that the defendant would consider the outcome either as a possibility or
probability of the act Carter v Walker
o Negligence -> objective test and requires that a reasonable person would foresee the outcome of the act Carter v
Walker
• Contact was not offensive:
o Either consented to (either be expressed or inferred by the surrounding circumstances)
▪ Giumelli v Johnston -> (Contact within the scope of the consent) Contact sport permit bodily contact within
the rules of the game. Those who participate in a game are taken to consent to the infliction on them of such
physical force that is permitted by the rules of the games. A player’s consent to the application of force
extends not only to the application of force within the rules of the game but also to certain common
infringement of the rules. However, the same consent cannot be extended to include physical violence
applied by a player who intends to cause harm.
▪ Not consent if obtained through fraud -> fraud must not impact the understanding of the nature of the act
▪ Plaintiff has to have capacity
o Or falls within the ordinary life exception
▪ Collins v Wilcock -> jostling that occurs in a crowded bus or train does not constitute a battery, because
consent to such touching can be implied from the circumstances. Although such cases are regarded as
examples of implied consent, it is more common nowadays to treat them as falling within a general exception
embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.
o Medical necessity – could not communicate with the plaintiff
ASSAULT (TRESSPASS TO THE PERSON)
- A direct threat by the defendant that causes the plaintiff to reasonably apprehend a battery (unwanted contact with their person)
For the Plaintiff to prove on the BoP:
• A threat of imminent harmful or offensive contact
o Threat must be able to culminate a battery R v Gabrielle - Stephens v Myers, Brady v Shatzel
o Police v Greeves, Blake v Bernard -> words alone may suffice in circumstances of a conditional threat
• A reasonable apprehension (in the Plaintiff) of a battery from the defendant
o Reasonable is an objective test that requires that a reasonable person in the Plaintiff’s position would share the
apprehension
o If there is no apprehension of the force (knowledge of the threat) there can be no assault R v Phillips
, o The plaintiff must perceive on reasonable grounds that the defendant has the ability to bring about the threat Zanker
v Vartzokis
• Intention
o Defendant had a subjective intention to create the apprehension of the battery in the plaintiff’s mind Rosza v Samuels
Defendant can avoid liability if: See Battery
- Note: the defendant need only to create the apprehension of force (and is not required to intend to carry out the battery -> (Hall v
Foncea)
FALSE IMPRISONMENT (TREASPASS TO THE PERSON)
- A direct act of the defendant that totally deprives the Plaintiff of their liberty without lawful justification
For the Plaintiff to prove on the BoP:
• Direct act by the defendant
o Coles Myer v Webster
• Total restraint of liberty (not just a partial obstruction of will)
o Bird v Jones -> Imprisonment is a total restraint of liberty of the person, for however short a time, and not a partial
obstruction of his will, whatever inconvenience it may bring on him
o No reasonable means of escape
▪ Burton v Davies -> where there is no means of a reasonable escape it will amount to a total restraint
▪ McFadzean v Construction Mining and Energy Union -> life and limb
o Restraint can be psychological
▪ Myers Ltd v Soo
▪ Symes v Mahon -> complete submission to the power
• Intentional (or negligent act)
o Stanley v Powell
- Kept in prison longer than sentence (Cowell v Corrective Services of NSW)
Defendant can avoid if: see battery
Remedies:
- Self-help -> can take reasonable steps to protect themselves Fontin v Katapodis
- Damages ->
• nominal damages rewards to recognise that the rights of the plaintiff were interfered with Law v Wright
• Compensatory damages put the plt in the position they were in before
• Aggravated damages
• Injunction (interlockery – before the court)
INTENTIONAL INFLICTION OF HARM
- Willed words
o Act must be done with the intention of causing harm
- Calculated to cause harm
o Courts have three definitions on what constitutes ‘calculated to cause harm’
▪ Intended to cause harm
▪ Imputed intention to cause harm -> no other logical reason than intention when looking at the context of the
actions
▪ Objectively calculated to cause harm Bird v Holbrock
- Cause harm
o Mere fright is insufficient -> it must be manifested in objective physical or psychopathological consequences Giller v
Procopets -> must suffer a recognised illness
o Bunyan v Jordan restricted to where the conduct is actually directed to the person injured with the intention of
causing harm
DEFAMATION
- Inference with a person’s reputation as a result of publication of statements made by another that lowers the esteem of a person in
the eyes of the community
Plaintiff must establish the following elements on the BoP:
• Is a matter
o Matter is defined in schedule 5 of the Act, as the definition is so broad this is never usually a contentious element
BATTERY (TRESSPASS TO THE PERSON)
- A direct act by the defendant causing bodily contact with the plaintiff without their consent
For the Plaintiff to prove on the BoP:
• The outcome (contact with the person) was a direct result of the defendant’s conduct
o Scott v Shepard -> directness will include an unbroken series of continuing consequences
o Can be through an object
• Action is actionable per se (no need for the plaintiff to prove damages)
• Physical interference is sufficiently wrongful in itself (as such, it is not required for the plaintiff to prove that the action was
either intended/reckless/negligent)
Hostility as an element:
- Wilson v Pringle -> the intentional touching/contact must be proved to be hostile touching. However, hostility cannot be
equated will ill-will or malevolence and it cannot be governed by an expressed intention, although it may be strong evidence. It
must be a question of fact for the tribunal of fact and where the immediate act of touching does not itself demonstrate
hostility, the plaintiff should plead the facts which are said to do so.
- Boughey v R (Australian Authority) -> it has never been the common law that actual hostility or hostile intent towards the
person against whom force is intentionally applied is a necessary ingredient in common law battery.
Defendant can avoid liability if:
• The act was involuntary
o Refers to the origin of the contact and requires that the act was not conscious or willed
• Able to negate fault (contact was neither intentional/reckless nor negligent)
o Intention -> subjective test and requires that the defendant acted with the subjective purpose to bring about the
outcome Carter v Walker
o Reckless -> subjective test and requires that the defendant would consider the outcome either as a possibility or
probability of the act Carter v Walker
o Negligence -> objective test and requires that a reasonable person would foresee the outcome of the act Carter v
Walker
• Contact was not offensive:
o Either consented to (either be expressed or inferred by the surrounding circumstances)
▪ Giumelli v Johnston -> (Contact within the scope of the consent) Contact sport permit bodily contact within
the rules of the game. Those who participate in a game are taken to consent to the infliction on them of such
physical force that is permitted by the rules of the games. A player’s consent to the application of force
extends not only to the application of force within the rules of the game but also to certain common
infringement of the rules. However, the same consent cannot be extended to include physical violence
applied by a player who intends to cause harm.
▪ Not consent if obtained through fraud -> fraud must not impact the understanding of the nature of the act
▪ Plaintiff has to have capacity
o Or falls within the ordinary life exception
▪ Collins v Wilcock -> jostling that occurs in a crowded bus or train does not constitute a battery, because
consent to such touching can be implied from the circumstances. Although such cases are regarded as
examples of implied consent, it is more common nowadays to treat them as falling within a general exception
embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.
o Medical necessity – could not communicate with the plaintiff
ASSAULT (TRESSPASS TO THE PERSON)
- A direct threat by the defendant that causes the plaintiff to reasonably apprehend a battery (unwanted contact with their person)
For the Plaintiff to prove on the BoP:
• A threat of imminent harmful or offensive contact
o Threat must be able to culminate a battery R v Gabrielle - Stephens v Myers, Brady v Shatzel
o Police v Greeves, Blake v Bernard -> words alone may suffice in circumstances of a conditional threat
• A reasonable apprehension (in the Plaintiff) of a battery from the defendant
o Reasonable is an objective test that requires that a reasonable person in the Plaintiff’s position would share the
apprehension
o If there is no apprehension of the force (knowledge of the threat) there can be no assault R v Phillips
, o The plaintiff must perceive on reasonable grounds that the defendant has the ability to bring about the threat Zanker
v Vartzokis
• Intention
o Defendant had a subjective intention to create the apprehension of the battery in the plaintiff’s mind Rosza v Samuels
Defendant can avoid liability if: See Battery
- Note: the defendant need only to create the apprehension of force (and is not required to intend to carry out the battery -> (Hall v
Foncea)
FALSE IMPRISONMENT (TREASPASS TO THE PERSON)
- A direct act of the defendant that totally deprives the Plaintiff of their liberty without lawful justification
For the Plaintiff to prove on the BoP:
• Direct act by the defendant
o Coles Myer v Webster
• Total restraint of liberty (not just a partial obstruction of will)
o Bird v Jones -> Imprisonment is a total restraint of liberty of the person, for however short a time, and not a partial
obstruction of his will, whatever inconvenience it may bring on him
o No reasonable means of escape
▪ Burton v Davies -> where there is no means of a reasonable escape it will amount to a total restraint
▪ McFadzean v Construction Mining and Energy Union -> life and limb
o Restraint can be psychological
▪ Myers Ltd v Soo
▪ Symes v Mahon -> complete submission to the power
• Intentional (or negligent act)
o Stanley v Powell
- Kept in prison longer than sentence (Cowell v Corrective Services of NSW)
Defendant can avoid if: see battery
Remedies:
- Self-help -> can take reasonable steps to protect themselves Fontin v Katapodis
- Damages ->
• nominal damages rewards to recognise that the rights of the plaintiff were interfered with Law v Wright
• Compensatory damages put the plt in the position they were in before
• Aggravated damages
• Injunction (interlockery – before the court)
INTENTIONAL INFLICTION OF HARM
- Willed words
o Act must be done with the intention of causing harm
- Calculated to cause harm
o Courts have three definitions on what constitutes ‘calculated to cause harm’
▪ Intended to cause harm
▪ Imputed intention to cause harm -> no other logical reason than intention when looking at the context of the
actions
▪ Objectively calculated to cause harm Bird v Holbrock
- Cause harm
o Mere fright is insufficient -> it must be manifested in objective physical or psychopathological consequences Giller v
Procopets -> must suffer a recognised illness
o Bunyan v Jordan restricted to where the conduct is actually directed to the person injured with the intention of
causing harm
DEFAMATION
- Inference with a person’s reputation as a result of publication of statements made by another that lowers the esteem of a person in
the eyes of the community
Plaintiff must establish the following elements on the BoP:
• Is a matter
o Matter is defined in schedule 5 of the Act, as the definition is so broad this is never usually a contentious element
