Torts: Trespass to Person

Class Logistics and Opportunities

  • Arrive to class early for questions.
  • Opportunity to ask questions and review work before class, but availability isn't guaranteed due to unforeseen circumstances.
  • Additional time for discussion between classes.

Recording Awareness

  • Class is being recorded for privacy reasons.
  • The second stream class will be posted unless there are technical issues, in which case the first stream's recording will be used.

Torts Overview: Trespass to the Person

  • Focus on trespass to the person torts: battery, assault, and false imprisonment.
  • Trespass to land is covered in separate courses.
  • Other trespass torts exist, such as trespass to goods, but will not be covered due to time constraints.
  • Intentional infliction of emotional harm will not be covered; the focus is on fundamental principles.

Hypothetical Scenario: Mike on the Bus

  • Scenario: Mike flicks Seb on the ear on a crowded bus to get his attention; Seb claims battery.
  • Mike's defense: He had no malice, only wanted to get Seb's attention.
  • Legal Question: Is Mike's defense valid?

Analysis of the Hypothetical

  • Malice: Lack of malice does not negate battery.
  • Everyday Conduct: The action exceeded accepted everyday conduct.
  • Precedent: Reference to Thompson v Police to support the argument about exceeding everyday conduct.
  • Lord Goff's statement in Re F: Anger is not a necessary component of battery.
  • Wilson v Pringle: An English case suggesting malice was required, but Re F indicates this is not definitive.
  • Battery requires intention to bring about bodily contact, not necessarily malice.

Examination Preparation

  • Practice writing out answers to hypothetical questions, drawing from precedents like Thompson v Police and statements from Re F.
  • Historically, the requirement for malice was less clear before Re F, making the answer more nuanced.

Lord Goff's Principle of Necessity

  • If there is a genuine fear for personal safety and lives, actions taken to avoid crushing against people may fall under the principle of necessity.
  • However, avoid overcomplicating hypotheticals with unlikely scenarios.

Relevance of Motivation and Consent

  • Motivation can be a contributing factor in determining battery (referencing Thompson v Police).
  • Consent, whether express or implied, negates battery.
  • Debate on whether consent is a defense or an element of the tort; current stance is the absence of consent is an element.
  • Consent can be express or implied, and is heavily influenced by cultural context.
  • Examples include consent in personal training and implied consent in crowded environments like concerts.

Consent in Various Contexts

  • Express Consent: Verbal or written agreement to physical contact.
  • Implied Consent: Consent inferred from actions, customs, or the situation.
  • Cultural Variations: Examples from different cultures (e.g., gyms in Argentina) highlight differing norms around physical contact.

S and G Case

  • Addresses lack of true consent in a case regarding time limits for bringing civil actions.
  • The Court of Appeal stated that the absence of consent is an element of the tort.
  • The clock starts running only when the victim understands both that the battery occurred and that she wasn't consenting.

Consent in Specific Scenarios

  • Sports: Consent to contact within the rules of the game, but high tackles may exceed implied consent.
  • Netball: Despite being a non-contact sport, some contact is generally consented to.
  • Sexual Activity: Consent can be complex and is often a central issue in criminal law, especially regarding sexual offenses.
  • Sally Rooney's novels: Explores nuances of consent to sexual activity among young people.

Failure to Disclose Information

  • Failure to disclose HIV status raises questions about genuine consent; context-specific.
  • New Zealand Supreme Court case, KSR, addresses this in detail, raising complex issues about risk and consent.
  • The influence of PrEP and post-exposure medication on the risk calculus is also considered.

Torts vs. Crimes

  • Torts differ from crimes, although similar conduct may constitute both.
  • Torts fall under civil law, addressing relationships between individuals (horizontal relationships).
  • Focus is on whether someone can be sued for certain behavior, not on state prosecution.

Defining a Tort

  • A tort involves a wrong committed by one person against another, leading to a claim for unliquidated damages.
  • Unliquidated damages: The amount is not predetermined; determined by court.
  • Contracts predetermine damages through agreed terms.

Duties and Obligations in Tort Law

  • Tort law defines duties we owe each other in society, established through judge-made law.
  • These duties are described in case law and relate to respecting others' bodily integrity.
  • Duties arise from decided cases, not from agreements like in contract law, but are imposed by the court's sense of societal obligations.

Influence of Behavior on Tort Law

  • Social behaviors influence what is considered a tort; context is crucial.
  • Examples include societal norms around greetings that involve kissing.

Burden of Proof

  • In tort law, the standard of proof is the balance of probabilities.

Determining Important Cases

  • Factors include:
    • Precedent
    • Level of the court
    • Whether the Appellate Court recognized the importance of the principle
    • Binding vs. persuasive authority
    • Ratio of the case
    • Depth of reasoning

Class Representative and Study Groups

  • Class representatives (up to four) are needed; Ben to organize.
  • Instructions for class reps on the Nuku page.
  • Organize study groups in the student common room.
  • Class on March 6 will be online only due to travel; no Thursday office hours that week. The topic will be an introduction to ACC.

Assault: Definition

  • An intentional act creating in the mind of another person an apprehension of the imminent infliction of a battery.
  • Assault is a threatened battery.
  • The individual must experience the apprehension, and it must be a belief that a reasonable person would form.

Tuberville v Savage

  • Addresses intention in assault; a hand on a sword with words negating the intent to harm is not an assault.

Hypothetical: Text from Former Student

  • Points to the societal cost of assault; considers what course of action is appropriate for the recipient.

Rationale for Torts of Assault and Battery

  • Recourse: Gives individuals recourse against deliberate harms.
  • Deterrence: Deters people from committing such acts.
  • Protection of Peace: Prevents retaliation and protects society against violent responses.

The Loaded Gun Scenario

  • It doesn't matter if the gun was loaded because the person pointing the gun at me, even though it might not cause imminent danger, should be held liable to deter such behaviour, thereby preventing retaliation.

Conditional Demand (e.g., "Hand over your money or I will stab you")

  • To be discussed next class, and look for a different perspective on the matter.
    *You need to make it absolutely clear that they're not going to carry the threat into effect to the threat to be considered not assualt.