Tort Law - Lecture 2

Flashcards on Torts Lecture

Trespass to the Person

An umbrella term for battery, assault, and false imprisonment

Battery

Protects bodily integrity

Assault

Protects peace of mind.

False Imprisonment

Protects freedom of movement

Battery

When you make physical contact with another person and it infringes on their bodily integrity.

Assault

When someone threatens to commit a battery against another person essentially.

False imprisonment

Protecting your freedom of movement.

Defenses

Situations where even if the plaintiff can establish all the elements of the tort, the defendant can still avoid liability because they have a legal excuse for doing that.

Croucher and Cassia

A defendant who directly causes physical contact with a plaintiff will commit a battery unless the defendant proves that the defendant was utterly without fault.

Rickson

Any touching of another person, however slight, may amount to a battery. If you're touching someone in a way that's consistent with generally accepted day to day conduct, then that won't amount to contact for the purposes of battery.

Three Elements of Battery

There has to be a direct act by the defendant, element: they have to cause physical contact with the plaintiff, okay, with the plaintiff's body, and thirdly, the defendant has to be at fault

Reynolds and Clark

If someone were to throw a piece of wood, like a log, and then the trajectory of that log being thrown hits somebody, so, you know, while it's flying it hits someone directly or maybe hits the ground and then rolls onto someone else or something like that, then the contact with the other person would be caused directly by the log being thrown

Fault

Concept of legal blameworthiness. Legal, not moral.

Intention

When someone intentionally does something, so the defendant deliberately causes contact with the plaintiff.

Recklessness

A defendant is reckless if they know their actions may lead to contact with the plaintiff, but they act anyway.

Negligence and Carelessness

A reasonable person in the same circumstances would have taken precautions or greater precautions to avoid the contact.

Intention

Deliberately causes contact with the plaintiff

Recklessness

Know their actions may lead to contact with the plaintiff, but they act anyway.

Negligence or Carelessness

A reasonable person in the same circumstances would have taken precautions or greater precautions to avoid the contact

Subjective

Concerned with what was actually going through a person's mind.

Objective

Concerned with what ought to have been going through the person's mind. By reference to a hypothetical person.

Burden of Proof

The plaintiff must prove the elements of a tort, but if the court says otherwise, then the burden is reversed.

Stingle and Clark

In an action for trespass to the person by blow or missile, which is essentially battery, it is for the defendant to prove the absence of intent and negligence on the defendant's part

Rickson

Hostility is not required

Loss of Bodily Control

Public Transport Commissions in Perry

Sloveski in Victoria

The defendant intentionally, secondly, without lawful justification thirdly, subjects the plaintiff to a total restraint of movement.

Elements of Assault

A plaintiff must prove the following elements. A threat by the defendant by words of conduct to inflict harmful or offensive contact upon the plaintiff forthwith. Subjective intention on the part of the defendant that the threat will create in the mind of the plaintiff and apprehension that the threat will be carried out forthwith. The threat must in fact create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith. The apprehension that the plaintiff does have must be objectively reasonable.

Justice Latham

The threat that must demonstrate the imminence of the physical harm. It is not sufficient that the recipient of the threat immediately apprehends some harm on hearing the threat.

Chet Kudi

Apprehension is not the same as being scared.

Conditional Threats

Even if it is expressed conditionally think about the situation as a whole. Don't focus too much on the fact that it's expressed conditionally. Focus more on the fact that given everything that's going on, does it sound like a threat of imminent contact? Would a reasonable person apprehend that the threat will be carried out imminently?

Brady and Schatzel

Doesn't matter at all whether the defendant intended to act on the threat or not, it only matters that they intend to make the other person worried about it.

Elements of False Imprisonment

The defendant needs to intentionally and directly subject the plaintiff to total restraint of movement without lawful justification

Burden of Proof

The plaintiff must prove the defendant was a direct cause of the injury, a direct cause of the false imprisonment, okay, as well as prove the existence of the requisite intent

Prima Facie

If certain things can be shown or established, that the court can presume that all the other elements are satisfied unless the other side can prove otherwise.

Total Restraint of Movement

Stopping the plaintiff's ability to move in all directions

Reasonable Means of Escape

There is no total restraint of movement if there is a reasonable means of escape

Mephazian and Construction, Forestry, Mining and Energy Union

Environmental protesters who were trying to stop the logging operations of a company that was logging, like cutting down trees in a forest, and they set up a camp to try to block it.

Restraint

Restraint by coercion, in other words, where the plaintiff's will is overborne.

Intention

In the context of false imprisonment is about the intention to restrict their movement

Direct Act

Rudder and Taylor. Bad faith is irrelevant to the existence of the wrong.

Actionable Per Se

To succeed in a claim of trespass, you do not actually need to establish that you've suffered any injury or harm or damage or loss as a result. You just need to establish that those elements have occurred.