Torts: Battery and Assault

Office Hours and MPI Tutorials

  • Office hours start at 11:45 after class.
  • MPI tutorials start in week three, information on NUCU.

Trespass to the Person: Battery

  • Continuing the discussion on trespass to the person, focusing on battery. Assault will be discussed later.
  • Hypothetical scenario: Mike flicks Seb on the ear in a crowded bus to get his attention.

Hypothetical: Flicking on the Ear

  • Question: Is flicking someone on the ear a battery, even without malice?
  • Absence of malice doesn't negate intention to make contact.
  • Thompson v Police analogy: Flicking someone's ear can be beyond what's acceptable in everyday life, similar to knocking off a hat.
  • Cultural context: Some body parts are more taboo; flicking someone's ear is not typically accepted.
  • Tikanga principles are gradually integrating into norms in New Zealand.

N v A: Hostility Not required

  • Mike's defense of lacking malice is legally insufficient.
  • Lord Goff in N v A specifically addresses whether malice, anger, or ill will is relevant.
  • Touching doesn't have to be hostile to be a battery.
  • Historically, anger was thought necessary for battery, citing Colin Turner.
  • Wilson and Pringle suggested hostility is required, but Lord Goff disagrees.
  • N v A clarifies malice isn't required for battery. To determine you must ask, "Does flicking someone on the ear on the bus exceed accepted behavior in everyday life?"

Supplementary Question

  • If asked, "Does lack of malice mean no battery?"
  • Answer: No, providing reasons based on Lord Goff's statements in N v A.
  • Lord Goff: malice or hostility is not required.
  • Addressing Wilson and Pringle: If the class were shortly after this was decided, the answer would be more complicated.
  • The English Court of Appeal is possibly wrong; the case should not be followed due to the interference with the body; it shouldn't require malice.
  • Medical treatment without consent is a battery, despite surgeons not being malicious.
  • Informed consent for medical treatment would become meaningless if malice was required.
  • Lord Goff comes in and says that English Court of Appeal case because it's just inconsistent with basic principle.

Questions on the Material

  • Can emphatically answer no based on Lord Goff's view.

Wilson and Pringle Case

  • Facts involved kids at school where one yanked the others backpack off. The child fell over and was injured. No accident compensation.
  • Court of Appeal was carving out an area that doesn't attract liability, maybe call horseplay.
  • They should be reaching for what is normal activities and acceptable in everyday life.

Defining Acceptable Conduct

  • Instinct and cultural context play roles in defining normal conduct.
  • What if Mike and Seb were flatmates and flicking ears was normal?
  • Principles for determining when something is not a battery:
    • Express consent: Explicit permission to touch.
    • Implied consent: Indicated through actions.
Examples of Consent
  • Romanian Deadlift: Personal trainer asking to touch to correct form shows example of express consent.
  • Shaking hands: Sachin, offering his hand indicates that he's consenting to my making that physical contact with him.
  • Kissing in certain cultures or intimate relationships; context matters.
  • Consent in Criminal Law: More serious legal consequences in consent than tort because the stakes are so high.
Sally Rooney's Novel
  • Novel on consent: Sally Rooney's "Conversations with Friends" explores express consent.
  • Express consent: A way to shift cultural norms for those who are vulnerable. Shifts focus away from reliance on implied consent, which puts vulnerable population at risk. With my partner, I don't ask, can I cuddle you at night, it's Implied by the relationship.
  • Lord Goff's carve out: All physical contact which is generally acceptable in the ordinary conduct of everyday life.
  • Contextual consent: Mosh pit example illustrates implied or contextual consent.
Multicultural Considerations
  • Working out what general cultural norms are in multicultural society is more difficult.
  • Graduation: In certain cultures men, don't touch women in society.
  • Judges and court cases generally arbitrate acceptable behavior in litigation.
Touching on the Shoulder
  • Questionable behavior: Reaching out and holding arms is questionable.
  • Cultural norms: Can be a question of what is considered hugging or what is appropriate within a student environment.
Necessity and Self-Defense
  • Touching somebody in order to save their life is considered within the broad principles of necessity.
  • Consent is part of the cause of action, so the absence could be brought up in court.
  • Self-defense: Where Plaintiff would bring it up, is where the damages would be aggravated.
  • False imprisonment: Where you have the power to arrest, that's your defence of holding someone when you wouldn't ordinarily be allowed to do that.
  • S and G: Law in NZ is that absence of consent is part of the positive case for the plaintiff.
  • Nature of consent and the amount of detail in criminal law; what kind of consent and is it explicit?
  • Mosh pit analogy: Implied consent to being jostled.
  • Sports: Bodily contact, that results in harm from tackles that are too high or a boot to the head, can be construed as nonconsensual.
  • Ice hockey: Volume of what happens that goes beyond what's allowed by the rules.
  • Dean Knight: What goes beyond what is expected on the rugby field?
  • Netball: Non-contact spot, but there will be a point where it goes beyond that.
  • Because of ACC, some of the issues discussed don't necessarily apply.
  • Sexual Activity and STIs: Question of whether a failure to disclose STIs can change the nature of the act.
  • Spectrum: Whether one consented to the action may not change the nature of what was consented to.
  • Availabilty of PreP that can determine the risk calculus to change cultural norms.
  • Environments: Non-disclosure can change a nature of the act where someone is not consenting to the sexual activity; interesting questions.
  • Personal training: Struggles with Romanian Deadlifts.

What is a Tort?

  • Torts are different from crimes because the activity can also give rise to criminal liability.
  • Crimes: State or Crown prosecutes you.
  • Torts: Horizontal relationships between people not the relationship with the state but with each other.
  • Burden of proof: Criminal law is beyond reasonable doubt; we're dealing with balance of probabilities.
Edward's Definition
  • Civil wrongs that are not breach of contract and not breach of trust.
  • Obligations to each other.
  • Case law: The obligations that we owe each other that arise out of the decisions of courts over hundreds of years.
  • Statutory torts: Arise under complicated statutes.
  • Uber driver's Obligations to you arises out of the agreement and the contract that is formed when you click Uber Act.
    • Horizontal relationships between each other and relationships between citizens, duties arise out of our cases reflecting a sense of court duties to each other that need to be there for society to function. Society would be a very different place
  • Andrew Baily: in situations where there would be other societal norms involved. Yeah, not you don't go around kissing people
  • Negligence case: If you are running a factory out of foodstuff the tort law says you have to be careful and how you run that factory; exercise reasonable care.

Assault

  • A type of trespass to the person.
  • Overt act intentionally creating in the mind of another person an apprehension of the eminent infliction of a battery.
Scenario: Flying past Byron
  • The act of doing this can be assault. To experience the feeling in Byron, the battery was coming cause if I was in front him he would be experiencing what was coming his way.
Assault defined
  • Assault: Creating the apprehension that a battery will happen, and the language is different than in criminal law.
  • Criminal law: Sometimes use the word assault and describe what we call tort of battery.
  • When they both occur together: When you see the punch coming in the punch lands; individual must experiment the apprehension must be a belief that a reasonable person in the position of the plaintiff will do.
Hypothetical: a Whiteboard Can
  • A person who is afraid of whiteboard cans lifting a whiteboard would likely feel an immediate and real threat.
  • A reasonable person wouldn't fear basher, so this does meet standards for assault.
Tuberville v Savage Case
  • T v S: Action for Battery; the defense is a claim for assault; judges went on circuit in town; the act said that they would bash him if they weren't there, an assault.
Legal principles
  • Significant societal costs to legal bonds. Lawyers are the cost of not violators.
  • Stop people from responding with violence
  • Romeo and Juliet: Constant in Romeo and Juliet.
  • In relation to rationality the court saying courts scholars saying, why do we have this area of war in order to stop people's responding with violence and so those norms are sitting under the law. 40:00
Example of what would qualify as assault
  • I received a text from a former student saying that he was at the Kelvin and was coming down to Pekita to mess me up.
  • Text may not qualify as assault, he is up at Kelvin and I am down here, where am suppose to to; if I was to leave him.
  • The question is based on the ability to retaliation based on the amount of the time afforded.
  • Tudor and savage: Could the plaintiff argue that this was an assault if the judges were going to be in town only for another week, and therefore an apprehension that the defendant would come after you.

Study groups

  • I want to see people in study groups or will in study groups you know, don't catch up.
  • I recommend you to do with the study groups is go over the material each week that we've done in class, and just make sure that you're up to speed on all of the materials.
  • Be able to think things through through the materials; what would you say to the super vising partner that said there's no malice, is that what the law is in this country?
  • Next class, the March 6, will be online, it's just some basic introduction to ACC, and I would just be talking at you for an hour of seventy five minutes. So you can do that all online that I've put up materials on nuclear. If you are just getting some basic principles out.

Class Reps

  • Seeking 4 four class reps to organize, as instructed by the rules, your names, email, and your stream for administrative purposes.

    Intention

  • Brought up in relation next class when criminal law is discussed, which is a class. In relation to this, is what qualified; have you done criminal law yet?