083- Trespass to a Person + Vicarious Liability

Definition

• tresspass is direct invasion of a protected interest

• By sanctioning, the law protects citizens interest

• must be intentional per Letang v Cooper [1964], if not cause of action is instead negligence

• Includes

  • assault

  • battery

  • false imprisonment

Assault definition

• intentional and direct act of the defendant which causes the plaintiff reasonable apprehension of the immediate infliction of force onto his person

• concerned with the protection of ones mental well being against another unlawful act

Elements of Assault

1. mental state of defendant

2. effect on plaintiff

3. capability to carry out the threat

4. bodily movement

Mental State of Defendant

• must have intention

• Tuberville v Savage [1669]

  • Savage insulted Tuberville, who grabbed his sword handle and said”if it weren’t assize-time I would not take such language from you”, Savage responded with force

  • Tuberville brings action for assault, battery and wounding, Savage pleads provocation

  • Held Tuberville did not express intent to harm thus no assault and Tuberville succeeded in his action

Effect on Plaintiff

• must feel reasonable apprehension that force will be inflicted upon him

  • force; some form of violent contact of which a man would be reasonably fearful of

  • determined by Objective Test; would a reasonable man feel apprehensive in those circumstances?

  • R v St George [1840]

    • pointing an unloaded gun at another equates assault

Capability to Carry Out Threat

• measured from perspective of a reasonable plaintiff; would he feel reasonable fear that there is threat of immediate force upon him?

• Stephen v Myers [1830]

  • defendant had threatened to hit plaintiff, raised and advanced fist but was stopped by a third party

  • Held; assault established, capable of threat

• Thomas v National Union of Mineworkers (South Wales Area)

  • mineworkers picketing, were controlled by police, threatened mineworkers not picketing

  • held; no assault as there was no way for them to contact those threatened

Bodily Movement

• positive act in the circumstances indicating defendant would carry out threat

• must correspond with possible infliction of force, movement per se insufficient

• Innes v Wylie [1844]

  • policemen under orders prevent plaintiff from entering a room

  • held; no assault, were passive and simply obstructed

Words As Assault

• General Principle, mere words do not amount to assault

  • R v Meade & Belt [1823]- no words/singing amount to assault

  • R v Wilson [1955]- “get your uns” equivalent to assault

• House of Lords in R v Ireland [1997]

  • principle; words which instil reasonable fear of unlawful and immediate physical violence amounts to assault

Battery Definition

• intentional and direct application of force to another person without their consent

Elements of Battery

• mental state of defendant

• defendants act under his control

• physical contact

• done without plaintiffs consent

Mental State of Defendant

• applied force with intention

  • no violence necessary, physical contact with body or clothing sufficient

• General rule, intention relates to direct act

  • doctrine of transferred intent widens scope and meaning of intention, extends possible liability

  • Scott v Shepherd [1773]

    • lit squib thrown into open market are by defendant, A throws to B who threw it away, hit plaintiff and burst into flames

    • Held'; defendant liable though he did not directly affect plaintiff, A and B acted for safety thus no intention

Act Under Defendants Control

• i.e, done voluntarily

• Gibbons v Pepper [1695]

  • defendant riding horse, unknown perwson hit it from behind causing it to bolt and collide with plaintiff

  • Held; defendant not liable

Physical Contact

• Collins v Wilcock [1984]

  • police officer held woman temporarily to detain her

  • Held; hostile contact, had no authority to do so

Without Plaintiff’s Consent

• Nash v Sheen (1953)

  • plaintiff at salon, defendant used toning rinse without plaintiff’s consent, plaintiff developed skin complications due to rinse

  • Held; defendant liable, consent of plaintiff did not include toning rinse and its consequences

• Tiong Fak Hiong v Wong Siew Gieu (1964)

  • defendant liable for scratching plaintiffs face and hitting her out of jealousy of plaintiffs friendship with defendants husband

• If consent given directly/impliedly no battery

  • Implied consent-tapping someones shoulder in a queue

False Imprisonment Definition

• restriction of a persons freedom of movement in any form, not necessarily by force, for some period without justification

• imprisoned=as long as he cannot move to another place according to his wishes

Elements of False Imprisonment

• mental state of defendant

• restraint must be direct consequence of defendants act

• restraint must be complete

Mental State of Defendant (false imprisonment)

• intention

• Warner v Riddiford [1858]

  • defendant after dismissing plaintiff prevented him from going upstairs to collect his belongings

  • Held- amounts to false imprisonment

Direct Consequence of Defendants Action

• Ansell v Thomas [1974]

  • only person directly causing false imprisonment may be successfully sued, liable because he imprisoned or instigated another to do so

Complete Restraint

• when there is a reasonable way out it must be used (no false imprisonment)

  • unless only way out is dangerous/ inconveniant inconvenient

• Bird v Jones [1845]

  • part of public road closed for boat race spectators, plaintiff wanted to cross road but was prevented by defendant and other police officers because he had not paid the admissions fee

  • offered an alternative route, remained within enclosure and refused to leave instead, sued

  • Held; no liability, plaintiff could have left-was only prevented from going where he wanted was not restricted in movement

Vicarious liability Definition

• latin vicarus-substitute

• to hold someone accountable for the actions of another

• historically linked to master-servant relationships in Rome, expanded to include employer+employee and principal+agent

Rationale for vicarious liablilty

• employer should be responsible for hiring and ensuring proper control of employee

• since employer benefits from employee work, should bear responsibility for employees damage

• employer has greater funds to pay damages

Requirements for vicarious liability

• established in Tan Eng Siew & Anor v Dr Jagjit Singh Sidhu & Anor [2006]

  • There must be wrongful/tortious act

  • special relationship recognised by law between tortfeasor and person vicariously liable

  • tort committed within course of employment

A wrongful/tortious Act

• employer held vicariously liable for employee negligence

  • Lim Ah Toh v Ang Yau Chee & Anor [1969]

  • plaintiff claimed damages for death of son due to van driver negligence, court found van driver-first defendant-liable

  • Held second defendant (employer) vicariously liable as he authorised van driver to drive in his interest

• for wrongful act

  • Bohjaraj a/l Kasinathanv Nagarajam a/l Verappan [2001]

  • first defendant, a bus conducter employed by second defendant, assaulted plaintiff by punching him leading to injury and income loss

  • Held; plaintiff allowed appeal, first defendant acted beyond his authority to maintain order in bus, conduct was closely connected to what he was authorised to do by employer albeit in wrongful manner

Special relationship recognised by law

• employer/employee (most often), master/servant, principle/agent

• Lee Woon Jeng v Excel Champ Automobile Sdn Bhd [2015]

  • court confirmed employer held vicariously liable for employee’s tort committed in course of employment

• Does not apply to truly independant contractors, as employer has no control over them

  • exceptions to this established in Datuk Bandar Dewanraya Kuala Lumpur v Ong Kok Peng [1993]

    • employer hasn’t taken care to select competent contractor

    • duty is non-delegable

Tort Committed within Course of Employment

• “close connection” test

• GMP Kaiser Security (M) Sdn Bhd v Mohamad Amirul Amin Bin Mohamed Amir

  • appellant provides armed bodyguard services, Jaafar (employee) carried firearm in providing service, discharged it randomly injuring others including Respondent

  • Held; Jaafar intentionally committed a wrong, done while performing his duties with a firearm provided by employer, employer selected him to perform duty

  • GMP created risk by hiring Jaafar, though his action was not authorised it was closely connected to his employment

  • Federal court upheld lower court, GMP held vicariously liable

• Vicariously liable employers may seek compensation from negligent employees