Battery (Torts) Flashcards
Understand Battery in relation to Torts (26 cards)
Development of the Tort → changes over time
Started with Historical cases → NOT THE LAW TODAY
How common law works in action
Law doesnt fit the fact scenario so must tweak the law to enforce it or to get a remedy
History → then how it came to today.
Battery:
Introduction (1)
*There are three torts we examine that are “trespasses to the person”:
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*Battery (we’ll also look at sexual battery as a limitation issue)
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*Assault
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*False Imprisonment
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*These torts are designed to protect a fundamental interest: bodily integrity (a person’s dignity) and personal autonomy.
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*But note ACC and section 317!
Torts designed to protect fundamental interest → bodily integrity
Hierarchy → Top is bodily integrity, → then property → economic loss etc.
There is the body and there is also mental well-being → right to solitude, peace of mind, right not to be harassed.
Battery assault false imprisonment → affect bodily integrity.
THREE TORTS → battery, assault and false imprisonment.
These Torts are meant to protect fundamental interests.
Bodily integrity (Top of the hierarchy in terms of LAW), interfering with this is most egregious, and then others, property, economic loss etc.
Person → actual body → and then there is the mental well-being (right to solitude or peace of mind, right to not be harassed)
All interact with fundamental interest of bodily integrityy
With ACC → why would we covered this, kicked stabbed, shot → they will be covered because it is personal injury by accident.
→ nominal damages. → for justice purposes.
Exemplary damages →
Law recognises a wrong, vindicates rights (declaration), punishes wrongdoers (exemplary damages), compensates for non-personal injury under ACC
BATTERY:
Bodil
Battery:
Introduction (2)
*Depsite ACC, the tort of battery is still useful. Why:
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*Law recognises as a wrong
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*Vindicates rights (i.e. declarations)
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*Punishes wrongdoers (i.e. exemplary damages)
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*Compensates for harm that is not a personal injury covered by the ACA 2001
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*Other jurisdictions have a lot of litigation in this area
Battery:
The history (1)
*Historically, trespass to person was strict liability (no intentionality required). If you caused direct damage (as opposed to consequential damage) you were liable even if it was accidental unless could show was “inevitable accident”.
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*Only much later (20th century) was it determined that trespass to the person must be done intentionally (as opposed to negligently) – and, the focus moved away from damage done to the actual physical act of battery.
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*Trespass to the person is actionable per se meaning no harm/damage is required. It is a form of strict liability (in that you don’t need intent to cause harm/damage).
HISTORY:
Historically trespass to person → was a strict liability. → and still a form of strict liability
Strict liability in true sense → means no mens rea → does not matter if intentional etc.
Battery is a form of Strict liability. → its intention to do the act that matters → if person A punches, and did not intend to hurt the person → does not matter → what matters is the act. → did you intend to make contact with fist → Yes
EGG SHELL SKULL RULE → Liable for full extent of damages → if you punch person and they bleed easily → cannot say no i was joking around → that is why it is a form of strict liability → I intended to do the act → and liable for full extent of the damages.
They bleed out and i would be liable for the full loss.
HISTORICALLY STRICT LIABILITY → BATTERY. → STILL A FORM OF IT.
Unless you can show that it was inevitable.
Writs → was it direct or consequential → NOW we dont do this → we said it does not matter → it is per se tort → Dont need damage → if you do act and tick three elements then you will have liability.
If there is no damage → it will impact damages amount → it is nominal → but you have still done a harm
Battery:
The history (2)
The reason it changed → If you have piece of wood and throw it at someone → in the old writs → before new causes → we had trespass (Direct)→ if intentionally threw that log and it didn’t hit them but tripped over it →
then an action on the case, indirect.
Problem is there were different limitation periods → was not good because created anomalies → why is there two different ways? → It needs to be exactly about the act → did i intend to throw log and hit them → What matters is i intended to hit them.
Does not matter if it hit them directly or not (lol).
Battery:
Defined (1)
*What is a battery?
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*The act of intentionally applying force to the body of another without that person’s consent or lawful justification.
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*Does battery require personal injury?
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*No! Does not require that battery causes personal injury.
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*Blackstone’s Commentaries on the Law of England:
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*“The law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.”
An act of intentionally applying force → need to apply that force to the body of another → directly or indirectly →
Battery does not require personal injury
WHAT IS BATTERY (TODAY):
The act of intentionally applying force → Intending to apply force
and apply the force to the body of another →
can be direct or indirect → Gun for example,
Without the other person’s consent or lawful justification.
Giving someone a hug is intentional. →
arrest is also a lawful justfication. → Read miranda rights and comply with Crimes Act, if they mess this up they will be liable for battery.
Contact sports → rugby, boxing → consent (but is battery).
Lawful justification →
Necessity → person unconscious, and they need to operate, consent cant be given, lawful justification is necessity.
Battery is per se tort → and does not require personal injury.
HARM IS NOT AN ELEMENT → person will sue but will impact the damages → Still a right that has been breached.
Blackstone → prohibits the lower stage of it → every mans person being sacred → nobody having right to meddle with it in any of the slightest manner.
Harm to persons body is too great in the hierarchy of interests we want to protect → we don’t want people battering each other because there is a high threshold.
Battery
Defined (2)
*This is important especially with the bar under ACC. You can have a cause of action in battery with no injury to the victim. However, lack of injury will be reflected in damages award – i.e. nominal damages.
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*Examples of battery (without injury):
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*Spitting at another
*Taking fingerprints without authority
*Searching without consent
*Manhandling a person
*Putting on handcuffs wrongfully etc.
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*Of course, the greater the injury, the greater the damages (if s 317 of ACA doesn’t apply!)
BATTERY WITHOUT INJURY:
Spitting, fingerprints without authority, searching without consent, manhandling a person, putting handcuffs wrongfully.
Greater the injury the greater the damages → If ACC does not apply.
Cole v Turner
*How can the three statements be reconciled?
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*“in anger” read as “without lawful justification” nowadays …
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*Concerned to distinguish between physical contacts which are to be expected in modern world and those that are not
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*What about shooting someone? Battery under Cole v Turner?
The least touching of another is anger is a battery → first you need anger → anger would be hard to prove → and touching
If touches gently → then no battery → doctrine of common intercourse.
Force way in rude and inordinate way → battery.
Now there is no anger → instead it is without lawful justification
COLE V TURNER (WALK THROUGH HISTORY):
TEST BACK IN THE DAY’
The least touching of another in anger is a battery.
First you need anger → if someone touches you but not in anger.
And touching if indirect.
If people meet each other in a passage → in ordinary course of life → train, or classroom → society says it is an acceptable → if you elbow them it would be a battery → rude and inordinate way is a battery.
These days anger is gone → and it is without lawful justification.
Concern to distinguish → common intercourse → vs → those that are not acceptable.
Battery:
Defined (3)
*Law moved on, now can have battery without direct touching:
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*Shining a light (see Kaye v Robertson)
*Pouring water
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*Shoot them
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*Overturn ladder/chair they are on
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*Set a dog onto someone
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*Strike a horse they are riding
Kaye → shining a light is not battery (but this is wrong).
BATTERY WITHOUT DIRECT TOUCHING:
KAYE and Robertson → man is in hospital, something came flying threw windshield and injured him, tabloid journalist snuck into his room and took photos of him
It is a privacy case as well. → intrusion into seclusion
But also alleged it was a battery because of the flashlight →
THE COURT SAID NO DAMAGE SO NO BATTERY → BUT THIS IS WRONG BECAUSE YOU DONT NEED DAMAGE → THERE WAS A BATTERY BUT DAMAGES ARE NOMINAL.
Flashlight did not cause that much harm
Flashlight can be a battery → but does not cause that much harm.
BATTERY:
Shining a light
Pouring water
Shoot them
Overturn ladder/chair they are on
Set a dog onto someone
Strike a horse they are riding.
Letang v Cooper (1)
*The old writs ceased to have any hold on modern battery
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*They were trespass and case (trespass to person and negligence)
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*Trespass was for direct injuries, damage assumed
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*Case was for indirect injuries, damage had to proven
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*Here, the P thought it had to prove it was a trespass and not negligence. Why? The limitation periods under the relevant legislation.
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*(See NZ’s Limitation Act 2010)
Man runs over woman’s legs with his Jaguar
Taken to Court
Limitations Act issue → in this Act → it says you cannot sue if you don’t do it within a specific time period → have a responsibility to bring it in within a particular time. → burden of proof gets harder over time
Harder to prove over time
We need people to exercise rights not sit on them.
Avoids injustice → witnesses can disappear.
Give a reasonable time so defendants know they will be safe after a particular time.
Argued → discrepancy between act one said 3 years another said 6 years. → trying to argue that 6 year limit applied. → tried to bring in old writs
Said that in the wording → it could fall under the 6 years.
Court said no and she was barred from bringing proceedings.
Court says → don’t want to go back in time →
Cole v Turner →
And say three years is the time → because breach of a duty covers intentional tort.
Limitation barred regardless. (3 years).
LETANG V COOPER:
FACTS:
Sunbather, laying there and a man pulls up in a jaguar and runs over both her legs.
She ends up suing him
And the issue in the case is a limitations act issue
In the LIMITATIONS ACT → it says that you cannot sue if you don’t do it within a specific time period. → normally judged from when the act happens, when the harm and act are causally linked (gets ptsd later for example)
Your an adult and have been battered → have to bring it within the Limitations Act →
Limitations Act reasons → the burden of proof gets harder over time, harder to prove 20 years from now, want people to exercise rights not sit on them there needs to be some certainty as to whether they will be held responsible.
Preventing defendants from having to defend after a while →
Ensures plaintiffs dont sleep on their rights.
And also give a reasonable time so defendants know they can be safe after doing SOME Harms
ARGUED:
Distinction between time limitations under two different acts → one said 3 years and 6 years for negligence
Three years after → Tried to argue that the six year limit applied.
Tried to bring in old writs → and say that the wording meant that it could fall under the 6 year act.
Court said no and she was barred.
The Court says → we don’t want to go back in time → we want to stay present.
Intentional torts and negligence → if no intention you can still be tried for negligence.
Say that three year applies → because if negligence covered clearly → but breach of duty also covers intentional tort → because intentional tort of battery → obligation not to interfere with the body of another → IN ANGER OR HOSTILITY (OLD TEST)
Regardless of whether battery or negligence → limitation barred.
COURT → Move away from old writ and into modern form.
Letang v Cooper (2)
*Facts
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*Procedural History
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*Issue: Did the relevant limitation legislation bar her claim? (i.e. was she too late?)
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*Holding
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*Reasoning …
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*Denning not keen to revive old law
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*Anomalies and injustices would result
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*Nowadays we don’t look at directness of damage but instead whether done intentionally or not
Not keen to revive old law.
Intentionality to do the act not to harm
Letang v Cooper (3)
*Was it done intentionally? Or without proper care? (Negligently?) Or neither?
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*Here, was done negligently and therefore barred as past three years
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*Or, if was deliberately, and was trespass to person then still barred as breach of duty
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*All judges do not want to revive old forms of action
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*Note: Defence of Limitation Act
Done negligently, but if done intentionally → it was still trespass to person → battery.
Defence of limitation act.
Beals v Howard
*Facts
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*Issue (for our puposes): Who has the onus of proof? Who must prove intention?
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*Held: Plaintiff has the onus of proof. Plaintiff must prove that trespass committed intentionally (as opposed to negligently).
Kids have a fort, man yells at him to leave, and kids throw stones at his house.
Man gets a gun and shoots it out of the window and hits one of the kids and the kid becomes blind
Dad sues on behalf of him
The plaintiff has onus of proof → the boy must prove the guy shot the gun intentionally and not negligently
BEALS V HOWARD:
FACTS:
Man lives and kids have fort, man gets annoyed and tell them to leave, kids throw stones at house.
Man mentally ill
Gets gun and shoots it out window → hits kid and loses eyesight
Father sues on his behalf
Father sues for battery
ONUS OF PROOF → Plaintiff → the boy has to prove he shot the gun intentionally and not negligently
Wilson v Pringle (1)
*Facts
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*Issue: Do you need to have an intenton to cause the injury to be liable for battery?
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*Holding
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*Reasoning
Schoolboy, one boy pulls schoolboys bag → this boy gets injured from it, falls and suffers injury to left hip.
In Wilson v Pringle → anger and hostility was the test → Court said dont need injury, and either you did intentionally or negligently → they say that in anger should be moved to in hostility
Then eventually moves to without lawful justification
WILSON:
One boy is walking → arm bag over shoulder→ another boy pulls it.
The boy gets injured → falls and gets injury to left hip → and the issue is → hostility is the legal test.
Wilson v Pringle (2)
No need to show injury intended (indeed, no need to show injury at all!). But the “element of contact” must be intentional otherwise it is negligence (like Letang v Cooper).
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*IT IS THE INTENTION TO TOUCH, NOT THE INTENTION TO INJURE THAT MATTERS.
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*But judge referred to Cole v Turner (“in anger”) and then states the act itself must be “hostile” and it is up to the plaintiff to prove. Can do sometimes through nature of act itself (e.g. using a weapon)
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*Why do you think this is required?
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*Distinguish between unlawful battery and physical contact in crowded world which isn’t unlawful
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*Tort ‘Growing Pains’: “Anger” “Hostility” Next Lecture … J
Issue is hostility.
Anger and hostility
Court says —> no need to show injury → have to show that element of contact → which was either intentionally or negligently
Its the intention to touch not injure
In anger should be shifted to Hostility → BUt eventually in different cases it moves to without unlawful justification.
Growing pains → of the tort.
SECOND LECTURE:
WILSON:
Pulled of bag causing injury
Tortfeasor said → I didnt mean to hurt him → it was play
WHAT INTENTION IS REQUIRED FOR INTENTIONALITY TORT
IntentIon to touch → not intention to injure → so bag puller was liable.
It is now unlawful touching with no lawful justification.
This case shows the development of the tort.
Collins v Wilcock (1)
*There is another approach to determine between lawful touching and battery aside from “hostility” requirement …
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*Collins v Wilcock arose before Wilson v Pringle but was repeated and reaffirmed by same judge in HL in In re F.
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*Facts
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*Issue: Whether a suspected prostitute assaulted a policewoman in execution of her duty?
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*Holding
FACTS:
Two police saw two women walking the street → thought they were prostitutes.
One complied and got into the car → one did not want to.
One of the police officers follows her on foot → asks her for name and address
Keeps following her → She says to F OFF.
Police officer takes her by arm to restrain her → then the plaintiff says f off and scratches him with nail
Then Police arrests her for assault of a police officer
ISSUES:
Plaintiff in this case → woman
Said → by police grabbing her arm it was a tortious battery.
Therefore → the police officer should be liable.
In NZ → no personal injury so no ACC.
-COURT → has the police officer done battery?
Concerned with battery → every persons body is inviolable → any touching is a battery
Autonomy and physical safety → at the top of hierarchy of interest.
Least touching of another in anger is a battery.
Reflects fundamental interest.
Concern about touching in everyday life → common intercourse.
Everyone is protected against physical injury or any form of physical molestation.
Reasonable force, arrests, etc → Apart from these where constraint is lawful → a broader exception for contingencies for every day life → common intercourse → nobody can complain about jostling in supermarket, train etc. → general exception → ordinary conduct of life.
DEGREE OF PHYSICAL CONTACT REASONABLY NECESSARY IN CIRCUMSTANCES.
MUST BE WHETHER → physical contact so persisted that it has gone beyond reasonable standards, acceptable conduct.
THIS CASE:
Police officer grabbing arm → Was it unlawful execution of duty
Police officer was liable for battery → not arresting her → went beyond reasonable touching → And it constituted a battery → and conviction is quashed.
If police officers dont comply → they can liable for battery, and false imprisonment → because no lawful justification → So important to read miranda rights before they try to engage.
Sometimes necessity → if person running away → then reading rights etc.
In this case → could have just touched her → grabbed her instead of just touched her → WHICH WAS BEYOND REASONABLE → It was a battery.
Collins v Wilcock (2)
*Reasoning:
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*Robert Goff LJ discusses battery and its fundamental principle: every person’s body is inviolate.
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*Wide principle: everyone is protected from physical molestation
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*However, there must be exceptions:
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*Children
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*Lawful exercise of arresting
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*Self-defence
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*Consent … (see next slide)
DOES TOUCHING TRANSCEND REASONABLE BEHAVIOUR?
It was unlawful in this case.
Collins v Wilcock (3)
“Touching in the course of everyday life” (as a defence):
*You implicitly consent to some touching in course of everyday life
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*Test: Does touching transcend the bounds of acceptable behaviour?
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*Police officer has rights to touch under this exception as well
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*However, in this case, went beyond touching to get attention here to restraint. Therefore, not acceptable and was a battery and was unlawful.
In re f (1)
*Facts
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*Issue: Was sterilisation, without patient’s consent, a battery?
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*Holding
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*Reasoning:
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*Trouble is that it is not performed with hostility (cf Wilson v Pringle)
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*What about prank that gets out of hand?
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*Over-friendly slap on back?
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*Instead, for medical treatment without consent, the question should be one of necessity.
FACTS:
Woman has mental disability → sexually active in the residential home
Does not have ability to consent to be sterilised.
ARE SURGEONS COMMITTING A BATTERY → BECASUE SHE CANT CONSENT?
Traditional case → required anger and hostility → here surgeon is doing it in necessity
WAS STERILISATION without consent A BATTERY?
ISSUE:
Issue for medical treatment without consent → but because of necessity it was done with a lawful justification
Have to shift towards without lawful justification.
OLD TEST → hostility, and anger → BUT NOT NOW.
This is how we arrived where we are at today.
Bettel v Yim
*Facts
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*Issue: Is a defendant only liable for foreseeable damages for battery?
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*Holding: No!
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*Reasoning:
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*Battery different to negligence
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*Defendant is liable for all direct injuries, unforeseeable or not (“Egg Shell Skull Rule”)
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*Why? Reflects the deliberate nature of the tort and the fact that the innocent plaintiff should be preferred over the culpable defendant.
EXTENT TO WHICH YOU ARE LIABLE FOR THE HARM CAUSED?
IF you havent harmed them → you are liable for battery but nominal damages
For example → if person bleeds profusely → are you liable FOR FULL EXTENT OF HARM?
FACTS:
Bettel shaken by YIm → gets broken nose → has to have multiple surgeries → has large issue after being shaken
Bettel said he was not trying to do those damages
ARE THEY LIABLE FOR ALL THESE CONSEQUENT DAMAGES?
COURT → Said yes
EGG SHELL SKULL RULE
Negligence → duty of care, breach of duty, cause which is not too remote.
BAttery is different → Because this is the intentionality to do the act → mens rea is intentional not negligent → this means you have a higher liability for the full loss
Respects the deliberate nature of the tort → innocent plaintiff should be preferred over the guilty.
Battery
Defences (1)
1)Consent
*There will be no liability for battery if the plaintiff consented to the contact either expressly or impliedly.
2) “Touching in course of everyday life”
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*Test: Is the conduct beyond generally acceptable standards of conduct? (Collins v Wilcock)
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*Includes concepts of necessity (see In re F)
DEFENCES IN ORDER:
Consent → if someone consents it is a defence → not an affirmative defence → it is within the ambit of the tort → this matters with burden of proof → Cause of action → has to prove elements → unlawful touching to another, without consent or lawful justificaiton
Person has to show that there was consent → then defendant has to disprove.
TOUCING IN COURSE OF EVERYDAY LIFE →
Battery
Defences (2)
3) “Lawful Justification” Examples
a. Parental Control: Section 59, Crimes Act 1961
(1) Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of—
(a) preventing or minimising harm to the child or another person; or
(b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or
(c) preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or
(d) performing the normal daily tasks that are incidental to good care and parenting.
(2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.
LAWFUL JUSTIFICATION → parental control → large issue with child abuse in NZ → to stop that they enacted section 59 of the CA.
Parental → nothing justifies the use of force for correction.
If it is to stop themselves from touching a hot stove for example → then the parent pushes hand away → trying to prevent harm.
Usually if cant fit into exceptions it will be unlawful.
