tort- person

INTENTIONAL

TORTSDr Nadhratul Wardah Salman

Faculty of Law, University of Malaya

INTRODUCTION

Intentional Torts include:1. Trespass to person2. Trespass to land3. Interference with goods

The common element in these torts is the ‘mental state of the defendant’i.e. intention

INTRODUCTION

Letang v Cooper [1965]: intention must exist at the time the defendant does his act. If the defendant was careless in acting as he did, the cause of action would lie in negligence and not in trespass.

Therefore, intention is an important element, without it an action should not be brought in trespass

INTRODUCTION

3 Elements of trespass:

1. A positive act (and not omission); and2. A direct act of the defendant to the plaintiff

or his land/goods; and3. The tort is proven without requiring plaintiff

to prove any injury/loss (actionable per se)

INTENTIONAL TORTS:

TRESPASS TO PERSON

TRESPASS TO PERSON

3 types of trespass to person:1. Assault2. Battery3. False imprisonment

Liability under the principle of Wilkinson v Downton (another tort that of intentional physical harm other than trespass to person) will also be discussed in this topic.

TRESPASS TO PERSON:

ASSAULT

ASSAULT - Definition

The old view was that assault was an incomplete battery

The modern definition is: Intentionally and directly causing a person to fear being a victim of an imminent battery.

‘The plaintiff … must also allege that he did it intentionally or negligently. If intentionally, it is … assault and battery. If negligent and causing damage, it is … negligence’ (Lord Denning in Letang v Cooper [1965])

ASSAULT - Elements

4 elements:

1. The mental state of the defendant2. The effect on the plaintiff3. Capability to carry out the threat4. Bodily movement

ASSAULT - Elements

1. The mental state of the defendant

Intention refers to the impression it will produce in plaintiff, not as to what defendant intends to do.

Turberville v Savage [1669]

ASSAULT - Elements

2.The effect on the plaintiff

The plaintiff must be fearful of an impending battery.

R v St George [1840]Blake v Barnard [1840]

ASSAULT - Elements

3. Capability to carry out the threat

An attempt to commit a battery which is thwarted is still an assault (Stephen v Myers [1840]) but there is no assault if it is impossible to carry out a battery since there could be no apprehension to it (Thomas v National Union of Mineworkers [1985])

ASSAULT - Elements

4. Bodily movement

Requires active behaviour, so merely barring entry is no assault (Innes v Wylie [1844])

TRESPASS TO PERSON:

BATTERY

BATTERY

Def: The intentional and direct application of force to another person without that person’s consent.

‘Since her action went beyond the generally acceptable conduct of touching a person to engage his or her attention, it must follow… that her action constituted a battery’ (Lord Goff in Collins v Wilcock [1984])

BATTERY

The rationale of the law is that protection must be given to the unlawful touching of one’s body.

The touching need not necessarily involve violence.

Battery is also a crime under the Malaysian Penal Code.

BATTERY – Elements

4 elements:

1. The mental state of the defendant2. Control3. Contact4. Without consent

BATTERY – Elements

1. The mental state of the defendant

The defendant applies the force with intention. It is widen by the application of the doctrine of transferred intent, thereby extending the possible liability of the defendant.

Scott v Shepherd [1773]Abd Malek Hussin v Borhan Hj Daud & Ors [2008]

BATTERY - Elements

2. Control

The defendant’s act must be done voluntarily and within his control.

Gibbons v Pepper [1695]

BATTERY - Elements

3. ContactIt’s not battery if there is no physical contact.There must be an application of force

(unwanted) on the plaintiff (or his clothing).The contact arising from the touching, must

give rise to an insult/ indignity.‘The least touching of another in anger is a battery’ (Lord Holt in Cole v Turner [1704])

BATTERY - Elements

The contact must be in hostile mannerWilson v Pringle [1987]: There must be hostile

touching before it amounted to a battery.

As long as defendant understands that he is doing something that the plaintiff may object to, hostile touching would be established.

Differs from one society to anotherConsider facts & circumstances of the case

BATTERY - Elements

4. Without ConsentNobody is allowed to touch another person

without his/her consent or lawful justification. Nash v Sheen [1953]Tiong Pik Hiong v Wong Siew Gieu [1964]However, the contact in the conduct of daily

life is acceptable, although it may involve harshness but not amounting to hostility (Collins v Wilcock).

BATTERY - Elements

Medical treatment without consent has always been a battery

Ms B v NHS Hospital Trust [2002]: A patient having full capacity can refuse life-sustaining treatment even if it leads to death.

Re F (Mental Patient: Sterilisation) [1990]

Can you now distinguish assault from battery?

consentapprehension Vs physical contact

protecting what?

TRESPASS TO PERSON:

FALSE IMPRISONMENT

FALSE IMPRISONMENT

This tort is committed where the defendant imposes intentionally and directly a total restraint on the liberty of the plaintiff.

The law is protecting a person’s freedom from confinement.

It is usually associated with wrongful arrests by police, security guard or store detective.

Def: ‘The infliction of bodily restraint which causes the confinement of the plaintiff within an area determined by the defendant, which is not expressly or impliedly authorised by law (Meering v Graham White Aviation [1919])

False ImprisonmentELEMENTS

3 elements:1. The mental state of the defendant2. A direct consequence of the

defendant’s act3. The restraint must be complete

False ImprisonmentELEMENTS

1. The mental state of the defendant

The act to restraint must be committed intentionally W Elphinstone v lee Leng San [1938]

False ImprisonmentELEMENTS

2. A direct consequence of the defendant’s act

Only the person who directly causes the confinement may be successfully sued Harnett v Bond [1925] Quinland v Governor of Swaleside Prison & Others [2003] R v Governor of Brockhill Prison [2000]

False ImprisonmentELEMENTS

3. The restraint must be complete

The restraint must be total Bird v Jones [1845]

No false imprisonment if a safe means of escape exists Wright v Wilson [1699]

False ImprisonmentOTHER CONSIDERATIONS

a) Plaintiff’s knowledgeb) Entering premises under a contractc) Arrest & restraint by the authorities

False ImprisonmentOTHER CONSIDERATIONSa) Plaintiff’s knowledge

Herring v Boyle [1834]Meering v Graham-White Aviation [1919]Re-emphasised in:Murray v Minister of Defence [1988]:‘… I cannot agree… that it is an essential element of the tort of false imprisonment that the victim should be aware of the fact of denial of liberty’(Lord Griffiths).

False ImprisonmentOTHER CONSIDERATIONS

b) Entering premises under a contract

Robinson v Balmain New Ferry Ltd [1910]Herd v Weardale Steel Coal & Coke Co Ltd [1913]

False ImprisonmentOTHER CONSIDERATIONS

c) Arrest & restraint by an authoritiesi. Police officerii. Penghuluiii. Magistrate / Justice of the Peaceiv. Private citizensJohn Lewis & Co v Tim [1952]PP v Sam Hong Choy [1996]

INTENTIONAL TORTS:

LIABILITY UNDER THE

PRINCIPLE IN WILKINSON V

DOWNTON

Liability under the principle inWilkinson v Downton

Categorised as intentional harm other than trespass to person

This is an action for indirect but intentional harm (intentional indirect harm)

Wilkinson v Downton [1897]Held: Since there was no direct interference, an action in trespass to person was not possible. However, the court found that there was an intentional act that was calculated to cause harm indirectly for which the defendant must be liable, since it was reasonable to assume that the harm was of a type that could be expected of a reasonable person in the circumstances.

Def: ‘The infliction of bodily restraint which causes the confinement of the plaintiff within an area determined by the defendant, which is not expressly or impliedly authorised by law (Meering v Graham White Aviation [1919])

LUTPIWvD - ELEMENTS

4 elements:1. A positive act / statement (not an

omission)2. The act must be wilfully and deliberately

done.3. The act is calculated (foreseable) to

cause some harm4. Plaintiff suffers actual damage

LUTPIWvD - Application

The application of the similar principle were seen in the following cases:

Janvier v Sweeney [1919]Khorasandjian v Bush [1993]Burris v Azadani [1995]

However, it was held in Wainwright v Home Office [2003] that the principle in WvD should ‘disappear’ within negligence except where actual psychiatric injury has been caused.

JUST A REMINDER …

THANK YOU

The lecturer can be contacted at:wardah.@um.edu.my