Lecture 2 Assault & False Imprisonment

1. Lecture 2Assault & False Imprisonment Clary Castrission

2. In this lecture • Assault • False Imprisonment • Defences to Intentional Torts

3. ASSAULT

4. ASSAULT • The intentional/negligent act or threat of D which directly places P in reasonable apprehension of an imminent physical interference with his or her person or of someone under his or her control

5. The Gist of the Action • …Assault necessarily involves the apprehension of injury or the instillation of fear or fright. It does not necessarily involve physical contact with the person assaulted: nor is such physical contact, if it occurs, an element of the assault. (Barwick CJ in The Queen v Phillips (1971) 45 ALJR 467 at 472

6. THE ELEMENTS OF ASSAULT • There must be a direct threat: • Stephens v Myers (1830) • In general, mere words are not actionable • Barton v Armstrong (1969) • Conditional threats • Tubervillev Savage (1669) • Police v Greaves (1964) • Rozsa v Samuels (1969)

7. Zanker v Vartzokas and the issue of imminence/immediacy • The Facts: • Accused gives a lift to victim and offers money for sex; victim refuses. • Accused responds by accelerating car, Victim tries to open door, but accused increases acceleration • Accused says to victim: I will take you to my mates house. He will really fix you up • Victim jumps from car then travelling 60km/h

8. Zanker v Vartzokas: The Issues • Was the victim’s fear of sexual assault in the future reasonable? • Was the feared harm immediate enough to constitute assault?

9. Zanker v Vartzokas: The Reasoning • Where the victim is held in place and unable to escape the immediacy element may be fulfilled. • The essential factor is imminence not contemporaneity • The exact moment of physical harm injury is known to the aggressor • It remains an assault where victim is powerless to stop the aggressor from carrying out the threat

10. So main issues with Assault • Threat possible to be carried out? • Future threats? • Conditional threats: • Not assault if its lawful (except will be if it is excessive) • Must be possible to carry out

11. FALSE IMPRISONMENT

12. FALSE IMPRISONMENT • The intentional or negligent act of D which directlycauses the total restraint of P and thereby confines him/her to a delimited area without lawful justification • The essential distinctive element is the total restraint

13. THE ELEMENTS OF THE TORT • It requires all the basic elements of trespass: • Intentional/negligent act • Directness • absence of lawful justification/consent , and • total restraint

14. “A prison may have its boundary large or narrow, visible and tangible, or, though real, still in the conception only; it may in itself be moveable or fixed; but a boundary it must have; and that boundary the party imprisoned must be prevented from passing… Some confusion seems to me to arise from the confounding imprisonment of the body with mere loss of freedom; it is one part of the definition of freedom to be able to go whithersoever one so pleases; but imprisonment is something more than the mere loss of this power; it includes the notion of restraint within some limits defined by a will or power exterior to our own.” • Coleridge J in Bird v Jones (1845) at 744.

15. RESTRAINT • The restraint must be total • Bird v Jones ((1845) • Total restraint implies the absence of a reasonable means of escape • “If I lock a person in a room with a window from which he may jump to the ground at the risk of life or limb, I cannot be heard to say that he was not imprisoned because he was free to leap from the window.” • Burton v Davies (1953) • Barrier need not be physical • Symes v Mahon(1922) • Myer Stores v Soo

16. VOLUNTARY CASES • In general, there is no FI where one voluntarily submits to a form of restraint • Herd vWeardale (1913) • Robinson v The Balmain New Ferry Co. (1904) • Where there is no volition for restraint, the confinement may be FI • Bahnerv Marwest Hotels Co. (1970)

17. WORDS AND FALSE IMPRISONMENT • In general, words can constitute FI see Balkin & Davis pp. 55 to 56: “restraint… even by mere threat of force which intimidates a person into compliance without any laying on of hands” may be false imprisonment - Symes v Mahon

18. KNOWLEDGE IN FALSE IMPRISONMENT • The knowledge of the P at the moment of restraint is not essential. • Meeringv Graham White Aviation (1919) • Murray v Ministry of Defense (1988)

19. WHO IS LIABLE? THE AGGRIEVED CITIZEN OR THE POLICE OFFICER? • In each case, the issue is whether the police in making the arrest acted independently or as the agent of the citizen who promoted and caused the arrest • Dickenson v Waters Ltd (1931) • Bahnerv Marwest Hotels Co (1970)

20. DAMAGES • False imprisonment is actionable per se • The failure to prove any actual financial loss does not mean that the plaintiff should recover nothing. An interference with personal liberty even for a short period is not a trivial wrong. The injury to the plaintiff's dignity and to his feelings can be taken into account in assessing damages (Watson v Marshall and Cade )

21. OTHER FORMS OF TRESPASS TRESPASS PERSON PROPERTY BATTERY ASSAULT FALSE IMPRISONMENT

22. Defences to Intentional Torts

23. MISTAKE • An intentional conduct done under a misapprehension • Mistake is generally not a defence in tort law • Basely v Clarkson (1682) • Cowell v Corrective Services Commission (1988)

24. CONSENT • In a strict sense, consent is not a defence as such because in trespass, the absence of consent is an element of the tort • See: Blay; ‘Onus of Proof of Consent in an Action for Trespass to the Person’ Vol. 61 ALJ (1987) 25 • But McHugh J in See Secretary DHCS v JWB and SMB (Marion’s Case) 1992 175 CLR 218

25. VALID CONSENT • Must be given to act complained of • Mullloy v Hop Sang [1935] • Must be no vitiating factors to nullify consent • Hegarty v Shine (1878) • Consent must be genuine • Gillick v West Norfolk Health Authority (1986) • Re F (1990)

26. CONSENT IN SPORTS People who pursue recreational activities regarded as sports often do so in hazardous circumstances; the element of danger may add to the enjoyment of the activity Accepting risk, sometimes to a high degree, is part of many sports. A great deal of public money and private effort, and funding, is devoted to providing facilities for people to engage in individual or team sport. This reflects a view, not merely of the importance of individual autonomy, but also the public benefit of sport. Sporting injuries that result in physical injury are not only permitted: they are encouraged (Gleeson CJ in Agar v Hyde (2000) ) • McNamara v Duncan; Hilton v Wallace • Giumelli v Johnston • McCracken v Melbourne Storm (2005)

27. STATUTORY PROVISIONS ON CONSENT • Minors (Property and Contracts) Act 1970 (NSW) ss 14, 49 • Children & Young Persons (Care and Protection Act) 1998 (NSW) ss 174, 175

28. SELF DEFENCE, DEFENCE OF OTHERS • A P who is attacked or threatened with an attack, is allowed to use reasonable force to defend him/herself • McLelland v Symons (1951) • In each case, the force used must be proportional to the threat; it must not be excessive. • D may also use reasonable force to defend a third party where he/she reasonably believes that the party is being attacked or being threatened.

29. NECESSITY • The defence is allowed where an act which is otherwise a tort is done to save life or property: urgent situations of imminent peril • Mouse’s Case (1609) • Leigh v Gladstone (1909)

30. INSANITY • Insanity is not a defence as such to an intentional tort. • What is essential is whether D by reason of insanity was capable of forming the intent to commit the tort. • White v Pile (1951) • Morris v Marsden (1952)

31. INFANTS • Minority is not a defence as such in torts. • What is essential is whether the D understood the nature of his/her conduct • Hart v AG of Tasmania (1979) • Hogan v Gill (1992)

32. DISCIPLINE • PARENTS • A parent may use reasonable and moderate force to discipline a child. What is reasonable will depend on the age, mentality, and physique of the child and on the means and instrument used. • R v Terry

33. ILLEGALITY:Ex turpi causa non oritur actio • Persons who join in committing an illegal act have no legal rights inter se in relation to torts arising directly from that act. • Smith v Jenkins (1970)

34. TRESPASS & CLA 2002 • s.3B(1)(a) Civil Liability Act (“CLA”) i.e. CLA does not apply to “intentional torts”, except Part 7 of the Act. • s.52 (2) CLA subjective/objective test i.e. subjective ("…believes…" & "…perceives…")/ objective ("…reasonable response…") test. • s.53(1)(a) & (b) CLA i.e. “and” = two limb test; "exceptional" and "harsh and unjust“ are not defined in the Act so s.34 of the Interpretation Act 1987. • s.54(1) & (2) CLA i.e. "Serious offence" and "offence" are criminal terms so reference should be made to the criminal law to confirm whether P's actions are covered by the provisions.