Trespass to the Person Notes
Battery | |
The Act of Intentionally Applying Force to the Body of Another without that Person’s Consent or Lawful Justification | |
Step 1: Explain Battery | |
Battery is the act of carrying out a threat. To establish a claim in battery, there must be an act of intentionally applying force to the body of another without consent or lawful justification. | |
Step 2: Whether there is an Application of Force | |
The first issue is whether there is an application of force. Injury does not have to be present (Blackstone’s Commentary) | |
You can have a cause of action without any injury to the victim. Just affects nominal damages outcome | |
Examples | Spitting at another Taking fingerprints without authority Searching without consent Manhandling a person Putting on handcuffs wrongfully – Hayward v O’Keefe Pouring water Shooting them – Beals v Hayward Overturning ladder/chair they are on Set a dog onto someone Strike a horse they are riding |
Kaye v Robertson | Shining a light is battery but damages are nominal Note: judge said opposite but applied law wrong |
Apply the law to the facts. Was there an application of force? There is an application of force because… There is not an application of force because… | |
Step 3: Whether the application of force was done intentionally? | |
The second issue of this tort is intentionality. The onus of proof is on the plaintiff to prove intentionality (Beals v Hayward). The element of contact is needed (Letang v Cooper). There is no need for the intention to injure, only the intention to touch (Wilson v Pringle). The law has developed since the requirement for anger and hostility held in Cole v Turner. This is a contentious issue. | |
Apply law to the facts. Is there intentionality? There is intention because…. There is no intention because… | |
Step 4: Whether it was to the body of another? | |
The third issue is whether this intentional application of force was done to the body of another. This is a contentious issue… This is a non-contentious issue… | |
Apply the law to the facts of the case… This act was done to the body of another because… This act was not done to the body of another because… | |
Step 5: Whether it was done without Consent of Lawful Justification | |
The final issue is whether this intentional application of force to the body of another was done without consent or lawful justification. Damage is not a requirement, but can affect the awarded nominal damages. Due to the Egg Shell Skull Rule, the defendant will be liable for all damages caused by the battery, foreseeable or not, if found that there is no lawful justification or consent (Bettel v Yim). | |
Defence of Consent | |
There is no liability for battery if the plaintiff had consented to the application of force either impliedly or expressly. For example: Playing contact sports is an implied consent towards the application of force. Apply law to the facts… In this case, the defence of consent is (not) available because… Note: Medical treatment without consent must be a question of necessity (In re F) | |
Defence of Touching in the Course of Everyday Life | |
The defence of touching in the course of everyday life occurs when the conduct is beyond generally acceptable standards of conduct (Collins v Wilcock). This also includes the concepts of necessity (In re F). Apply law to the facts… Whether the touching transcends the bounds of acceptable behaviour? Whether that degree of physical contact was reasonable in the circumstances? Whether the physical contact so persisted has in the circumstances gone beyond generally acceptable standards of conduct? Note: Police officers have a right to touch, but it must be touching to get attention (Collins v Wilcock). | |
Defence of Lawful Justification | |
The defence of lawful justification encompasses many reasons to justify an intentional application of force to another body. | |
Parental Control | Section 59(1), Crimes Act 1961 Justified if force is reasonable in the circumstances and for the purpose of—
Note: Nothing in s59(1) or CL justifies the use of force for the purposes of correction |
Self-defence / Defence of Another | Section 48, Crimes Act 1961
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Apply the law to the facts… The defence of… is available because… | |
Defence of Limitation Act | |
The defence of the Limitation Act is that there is a six year time period after the date of the act or omission occurred which the claim must have been filed within (Section 11(1) of the Limitation Act 2010). Apply the law to the facts… This claim was(not) filed within the six years following the act (omission) and therefore this defence is (not) available. | |
Assault | |
An overt act intentionally creating in another person with an apprehension of the imminent infliction of battery or proximity | |
Step 1: Explain Assault | |
To establish assault, there must be an overt act which is intentionally created in another person where there is a reasonable apprehension by the plaintiff that the defendant has the present ability to imminently inflict battery or proximity. This tort is an actionable per se tort which means that it must be complete at the time of the threat. There is no requirement for damage. Once the threat has been made and there is an intention to make the threat, there is a successful cause of action. | |
Step 2: Whether there is an overt act | |
The first issue is whether there was an overt act. Compare the following cases: Stephen v Myers — Myers walks aggressively towards the chairman at a council meeting but is intercepted. Read v Cocker — A conditional threat of violence can constitute an overt act. Especially since it was accompanied by threatening gestures. Police v Greaves – Threatened to stab them through the police’s guts with a knife. A conditional threat of violence can constitute an overt act. There is/not an overt act in this case. It is similar to ______ | |
Step 3: Whether the act was done intentionally created in another person | |
The second issue is whether the act was intentionally created in another person. Assault can be committed purely by actions or words, though words used can dispel threat and indicate lack of intention to assault. There is no defence to the intention of carrying out the threat. There is no defence for the mistake of fact. It does not matter if you were mistaken in the factual situation. Compare the following cases: Stephen v Myers — It was clear that intention was there because Myers had threatened to remove the chairman and then advanced towards him with clenched fists. An intent to threaten is enough. Read v Cocker — The intention to assault was there because he clearly wanted to get the plaintiff out of the workshop. An intent to threaten is enough. Police v Greaves – An intent to threaten is enough | |
Step 5: Whether there is a reasonable fear of apprehension | |
The fourth issue is whether there is a reasonable fear of apprehension. Compare the following cases: Stephen v Myers — The fact that he was intercepted and unable to actually carry out the threat was not enough. Myers was close enough to Stephen that Stephen had a reasonable fear of apprehension and an attack. Read v Cocker — There was a reasonable fear of apprehension because the defendant used threatening gestures when threatening to break the plaintiff’s neck. | |
Step 6: Whether the Act was of an imminent infliction of battery or proximity | |
The final issue was whether there was an imminent infliction of battery or proximity. The test is whether a reasonable person in the plaintiff’s shoes has the necessary fear of immediate harm (Police v Greaves). Fear is not an element, only the awareness of the threat and the apprehension of imminent infliction. Compare the following cases: Stephen v Myers — The fact that he was intercepted and unable to actually carry out the threat was not enough. The proximity to Stephen was near enough. Read v Cocker — There was a present ability to execute the threat therefore there is an imminent infliction of battery. Police v Greaves — There was a necessary fear that Greaves would carry out his threat of immediate harm. | |
Step 7: Policy Concerns | |
Talk about this as if it were obiter in your own judgment
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Sexual Battery | |
Not separate from battery and assault but gives rise to distinct limitation issues | |
Limitation Issues | |
KM v HM | Plaintiff brought action 11 years after the abuse stopped. Under the 1950 Limitation Act (old) the action was no longer able to be passed as the cause of action must be filed within 2 years from the date the cause of action accrues (section 4(7)) Factors to consider: Age, and Child Sexual Abuse |
Section 24 Limitation Act 1950 | Postponement of the limitation period because of disability Being a minor is a disability until you turn 18 years of age. |
Policy Concerns | Battery claims accrue when offensive contact occurs, as it is a tort that is actionable per se and therefore, damage is not an ingredient. |
Similarly, assault torts are complete at the time the threat is made and therefore the Plaintiff must prove imminent danger. | |
Courts have been trying to get around this limitation issue with creative interpretation of the legislation. They claim that it is because the Legislature did not consider this sort of tort when drafting the Act. | |
S v G | Plaintiff lived in a commune situation where it was culturally acceptable to be sexually abused. Plaintiff did not realise that her mental distress was linked to the sexual assault until she was an adult. Plaintiff was barred from the bringing a cause of action because the cause of action accrues when all of the elements are subsisting. While cause of action can accrue when she links the psychological harm to the past abuse, it was reasonable that she had linked this about 3-5 years before bringing the action, which is outside the 2 year limit. |
T v H | Plaintiff argued that she was not time-barred since she was under long-term disability. Her fear of harm was only lifted after the defendant had passed away. The continuing fear of harm is not continued assault, but rather continued damage. Since this is not imminent harm, or intentionally inflicted she was barred from bringing a cause of action. |
Limitation Act 2010 | |
Section 17(6) | If it is justified, the court/tribunal may order monetary relief be granted in respect to a claim where there is no defence. |
Section 11 Defence to money claims |
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Section 14 | Late knowledge date must be reasonable, where P ought to have reasonably known, or actually gains knowledge |
Section 17(2) | Court can extend limitation period for the abuse of a minor if they think it is just |
Section 18 | Justified reasons to extend limitation period (a) any hardship that would be caused,—
(b) the length of, and reasons for, the delay on A's part; and (c) any effects or likely effects of the delay on—
(d) the defendant’s conduct on and after the date of the act or omission on which the claim is based, including the extent to which the defendant responded to requests for information or inspection that were reasonably made by or on behalf of A in order to discover facts that were, or might be, relevant to the claim; and (e) the extent to which prompt and reasonable steps were taken by or on behalf of A to make the claim after A became aware that A was entitled to do so; and (f) any steps taken by or on behalf of A to obtain relevant medical, legal, or other expert advice, and the nature of any relevant expert advice received by or on behalf of A; and (g) any other matters it considers relevant. |
Exemplary Damages | |
Section 319(2)(a) of the ACA 2001 | Personal injury including sexual abuse can seek exemplary damages |
Daniels v Thompson | NOT FOR PERSONAL INJURY. ONLY FOR PERSONAL INJURY DAMAGE IF THERE IS AN ACQUITTAL OR CONVICTION Cannot get exemplary damages from a defendant who has already been convicted. If the defendant was acquitted, exemplary damages are also unavailable |
False Imprisonment | |
Step 1: Explain False Imprisonment | |
A successful claim of false imprisonment requires the Plaintiff to have been intentionally detained or imprisoned by the Defendant without Lawful Justification. The plaintiff has the onus of proof to show that there has been false imprisonment. The right to be not arbitrarily arrested or detained is codified in section 22 of the New Zealand Bill of Rights Act 1990. | |
Step 2: Whether the Plaintiff was Detained or Imprisoned | |
The first issue is whether the Plaintiff has been detained or imprisoned. To prove that there has been an imprisonment or detention, the plaintiff must prove there was a total restraint or boundary. Physical contact, violence or force is not an element required as this is an actionable per se tort. This detention or imprisonment must be total and have no reasonable means of escape (Bird v Jones). | |
Apply the law to the facts… Bird v Jones — Plaintiff had climbed over the fence of an enclosure and was told to go in the other direction by police officers. Claimed false imprisonment because the Plaintiff was not able to go in the direction he wanted to go in. However, this was not false imprisonment because there was a reasonable means of escape, and imprisonment is the loss of power and a notion of restraint. Bird v Jones — There can be restraint of freedom without touching of the person. Perisco v Woolworths NZ — Plaintiff was told to accompany the staff to the manager’s office even though she was trying to clear her name. It was false imprisonment because even though the Plaintiff was not physically detained, she felt compelled to remain. It was enough that the Plaintiff was submitted to external pressure by the Defendant and therefore had a deprivation without consent. Chaytor v London, NY, Paris Association — Plaintiff was spying in their competitor’s store to look at their pricing. Plaintiff was accompanied by Police in order to avoid embarrassment. There was false imprisonment because there was an assertion of authority which induced the plaintiff to submit to the will of another. The surroundings of suspected criminals made them psychologically compelled to stay there. There must be free and voluntary consent. Murray v MOD — There can be a justifiable passage of time when there is a reasonable delay. There is no need to prove injury because the tort is actionable per se. In this case, there was/not detention or false imprisonment because… | |
Step 3: Whether there was knowledge | |
The next issue is whether there was knowledge. The plaintiff does not need to know if they were being imprisoned or detained. However, being unaware and having no injury gives rise for nominal damages. (Murray v MOD). In this case… | |
Apply the law to the facts… | |
Step 4: Whether there was intention | |
The fourth issue is whether there was intention by the defendant to detain the plaintiff. This is a tort of strict liability. Therefore, there is no defence for “reasonable care” or “honest belief” of the Defendant. It is the act that matters, rather than mens rea. | |
Apply the law to the facts… R v Governor of Brockhill Prison — Plaintiff was in prison for an additional 59 days. Even though the defendant mistakenly believed the plaintiff was meant to be in prison for that extra time, it is not a sufficient justification. | |
Step 5: Without Lawful Justification | |
The final issue is whether the Defendant has detained or imprisoned the plaintiff without lawful justification. The defendant has the onus of proof to successfully prove that there was lawful justification for their actions. | |
Defence of Lawful Arrest | |
Apply the law to the facts… | |
Police Officer’s Arrest Duffy v AG — It is not reasonable to be processed at a police station immediately upon arrest but there were not reasonable grounds for thinking she was drunk. The objective reasonable police officer would not have placed Duffy under arrest, but the objective reasonable person would not have expected to be processed immediately. Whithair v AG — Imprisonment may be lawful, then unlawful, then lawful again. Plaintiff denied bail and detained for the weekend instead of being taken to the District Court of Wellington Hayward v O’Keefe — Handcuffs was imprisonment and leaving the plaintiff in the cell for an hour was unjustified. It was a gross abuse of police power when he could have been processed quickly. Would the objective person think they had the power to arrest. AG v Niania — The police officer did falsely imprison the plaintiff by not placing her under arrest, even though they had the grounds to do so. Had the Police explained the reason for her arrest, as per section 316 of the Crimes Act, it would not have been false imprisonment. | |
Important Statutes Section 316(1) of the Crimes Act — Police officers arresting another must inform, place them under arrest AND the reasons for their arrest. Section 316(5) of the Crimes Act — The offender must be brought to court as soon as possible. This is a fact and degree of reasonability matter Section 32 of the Crimes Act — Any constable is justified in arresting without warrant if there is belief on reasonable grounds that the person has committed that offence. This is an objective test. Section 35 of the Crimes Act — (a) allows for citizen’s arrest for crimes that have more than 3 years’ imprisonment. (b) unless it is at nighttime Section 219 of the Crimes Act — Theft or Stealing is (a) dishonestly and without claim of right , taking any property with intent to deprive any owner permanently of that property or of any interest in that property (b) max 7 years imprisonment for property valued over $1,000 → citizen’s arrest available (c) max 1 year imprisonment for property valued $500-$1,000 (d) max 3 months imprisonment for property valued up to $500 Section 39 of the Crimes Act — Force used in executing process or in arrest: Any person is justified and protected from criminal responsibility, in executing any warrant/process in the making of an arrest. This justification extends to the use of force as may be necessary to overcome any force used in resisting such execution or arrest so long as the arrest was made by reasonable means in a less violent manner. If in breach of Section 39 → tortious battery, assault and potentially False Imprisonment may be actioned | |
Step 6: Remedies | |
The issue of remedies may arise following false imprisonment. This is because it can breach three NZBORA rights under sections 21, 22, and 23. Physical or mental injury is not a requirement. Thus, compensation must reflect the violation of the plaintiff’s freedom of movement and the sanctity of their person. | |
Apply the law to the facts: Remedies for the deprivation of liberty can be lowered if the plaintiff demonstrates they have a low value of personal liberty in the first place. This can be seen if they were someone who spent a long time in prison. BUT NOT WHEN FI (Chief Executive Department of Corrections v Gardiner) | |
Remedies For False Imprisonment Cases | |
Perisco v Woolworths NZ – awarded $1500 in damages R v Governor of Brockhill Prison — awarded £59,000 for 59 days imprisoned Duffy v AG — awarded $60,300 to balance civil liberties and maintaining law and order AG v Niania — awarded $5,000 instead of $10,000 because she would have been arrested had they followed the correct procedure. There were grounds for her arrest so damages were reduced by half. Chief Executive Department of Corrections v Gardiner — $10,000 for 30 days imprisoned. Not less than $8,000 and not more than $12,000. Would only be big if there employment or financial loss was big. Non pecuniary loss such as injury to liberty and emotional harm is important. | |
Remedies For NZBORA Breaches | |
Baigent’s Case — establishes damages for NZBORA breaches even if there is no statutory provision for this. Dunlea v AG — remedies for NZBORA and Tort breaches are determined separately and are not based on each other. The purpose of compensation is different. Tort law is for the compensation of loss. Public Law compensation is for the vindication of rights which has constitutional significance. |