Intentional and Negligent

Torts
- Week 3

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Outline

1. Introduction
2. Intentional and negligent torts
3. Examples of intentional torts: Trespass
to the person (assault, battery, false
imprisonment)
4. Categories of negligence
5. Trespass to the person: generally
(assault and Battery)
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1.Introduction
 Intention in tort is different from that in criminal
law.
 In criminal law, the defendant’s (D) intention
includes motive. In tort, the wrongdoer’s motive
may not be taken into account.
 In tort ‘intention’ refers to D’s knowledge, actual
or presumed, whether or not there was any
motive to bring about the consequences that
follow or not does not matter.
 In some circumstances, ‘recklessness’ may also
amount to intention, eg when there is
inadvertence to the risk involved.
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Requirements for bringing an action in
intentional and negligent torts
If D intentionally and directly applies force
to another, the victim has a cause of
action in trespass to the person. If D
inflicts the injury unintentionally the
victim’s only cause of action is in
negligence (Letang v Cooper,1965).

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Letang v Cooper,1965
Court:
 English Court of Appeal

Facts:
 Mr Cooper (the defendant) negligently ran over Mrs Letang
(the plaintiff) in his Jaguar motor car while she was
sunbathing on a piece of grass where cars were parked.
 The plaintiff filed a claim in trespass to the person, because
the claim in Negligence was time-barred.

Held:
 No intent. Therefore claim cannot be made under trespass.
See Lord Denning’s judgment.
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3.The provinces of intentional and
negligent torts
 Intentional torts embrace a range of wrongful
conducts, e.g. the torts of trespass to the person,
assault, battery and false imprisonment.
 Some of the intentional torts are actionable per
se without proof of any injury or damage to P or
his property.
 The tort of trespass to the person is one of
such trespasses which is actionable per se, e.g.
if someone threatens to beat you , there is no
injury to you yet you may claim damages in
assault.
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3.The provinces of intentional and
negligent torts
 In some of the intentional torts, damages may be
awarded for injury to feelings as well, e.g. where
a trespass to the person is committed or D’s
conduct causes P’s defamation or in cases of
sexual harassment.
 Negligence on the other hand is the breach of a
legal duty to take care which results in damage.
Since the decision in Donoghue v Stevenson
1932, several torts of negligence have emerged.

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4.Categories of negligence

Product liability
Pure economic loss
Psychiatric Illness (Nervous Shock)
Rescuers

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5.Trespass to the person

The tort of trespass to a person may

take one of the three forms:
Assault;
Battery; and
False Imprisonment.

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5.Trespass to the person

There are three features of the tort of

trespass to the person
the tort is actionable per se (without proof of
any damage): In Stephen v Myers, (1830) P did
not suffer any injury to his person or damage to
his property. He was therefore awarded one
shilling as damages.

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5.Trespass to the person

P must establish that D’s interference was

direct; a conduct could be direct even if
there is an intervention by D’s agent or
another person or object which is under
D’s control: Scott v Shepherd (1773) (the
lighted squib case).

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5.Trespass to the person
 P must prove a deliberate or intentional harm on the part
of D: until 1965 the position was not clear and even a
negligent harm could ground an action in trespass to the
person provided the injury to P was directly caused by
D’s act.

 Mistake of fact does not mean that there was no

intention, e.g. When you trespass on to another’s land
thinking that the land was yours.

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5.Trespass to the person
 D cannot argue that he did not know that he was
committing a wrong.
 But an involuntary act cannot be regarded as intentional,
e.g. if D is thrown on to P’s land by another, P cannot
argue that D committed trespass on P’s land. Again a
sleepwalker who goes on to P’s land cannot be sued in
trespass to land

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Negligent Trespass to Person?

UK – Letang v Cooper

See also Stubbings v Webb (1993) AC 493
Australia – how have the courts
interpreted this principal?
Willliams v Milotin (1957) 97 CLR 465
McHale v Watson (1964) 111 CLR 384

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Assault
 Assault means any direct and intentional act or conduct
of D which puts a reasonable person in apprehension of
an imminent physical contact with his person.
 Elements:
 A voluntary intentional act
 Directly causing
 The plaintiff to reasonably apprehend
 Imminent physical bodily contact
 D’s conduct must constitute imminent physical danger:
e.g. where:
 D picks up a stick to hit P
 D is likely to immediately attack P
 D uses threatening words in P’s presence or on the telephone or
intercom system: Barton v Armstrong (1969)
 In the above cases there was no actual physical contact
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but such contact was very likely to happen
Apprehension of striking
 The essence of assault is putting a person in
fear of being struck. It is that person’s
apprehension of being struck which is
important, rather than the aggressor’s actual
interference with the body or intention to do
harm.
 Since the gist of assault lies in the apprehension of
impending contact the effect on the victim’s mind created
by the threat is the crux, not whether the defendant actually
had the intention or the means to follow it up. The intent
required for the tort of assault is the desire to arouse
apprehension of physical conduct, not necessarily to inflict
actual harm.
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Assault

Using foul language could constitute

assault
Barton v Armstrong [1964] 2 NSWLR 295
R v Ireland (1997) All ER 225

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Assault

Conditional threat, e.g. “If you don’t leave

I will kill you” could also constitute
assault Police v Greaves (1964)
Tuberville v Savage [1669] 2 NSWR
451
D threatened P with words “if it were not for
Assize time, I would not take that…”. The
court found this was not an assault as it was
assize time.
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Intention

Intention to actually carry out the threat is

not necessary, only the intention to 'make'
the threat.
Rixon v Star City Casino (2001) 53
NSWLR 98
'Proof of assault requires proof of an intention
to create in another person an apprehension of
imminent harmful or offensive contact...proof of
the assault does not require proof of an
intention to follow it up or carry it through'.
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Assault

Meaning of reasonable apprehension:

The test to determine apprehension is an
objective one.
‘A man too courageous to be intimidated cannot
lose his action. Nor can a man who is too timid,
succeed if he is easily frightened.’
This is an objective test (because it is a
'reasonable person', and not the specific plaintiff
in the present case

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Battery
 ‘Battery’ means any direct and intentional application of
force by D to the person of P, without the consent of P.
 The contact need not be direct i.e., touching someone’s
flesh;
 Any physical contact with P in excess of that generally
accepted in daily life would constitute battery;
 Acts constituting battery: e.g. striking P or striking P with
an object; unlawful handcuffing; unlawfully forcing
another’s head into a pool of water; pushing P against a
wall; seizing another’s coat lapels; kissing a colleague
without consent.

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Barton v Armstrong [1969] 2 NSWR 451
Facts:
 Plaintiff was coerced into executing (signing) a deed (contract) by both threats of
violence and to take his life.
 Many of the threats were made over the phone and in the early hours of the
morning.
 Plaintiff was also allegedly being kept under surveillance by men hired by the
defendant.

Held:
 Can threats over the telephone constitute assault?
 'To telephone a person in early hours of the morning, not once but on many
occasions, and to threaten him, not in a conversational tone but in an
atmosphere of drama and suspense, is a matter that a jury could say was well
calculated to not only instill fear into his mind but to constitute threatening acts,
as distinct from mere words‘
 Because of the advancement of technology, 'physical violence and death can be
produced by acts done at a distance by people who are out of sight and be
agents hired for that purpose'.
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Assault
 In Allen v Hannaford (US case, 1926) it was held that it
constitutes an assault to point a pistol at another
threatening to shoot, even though such person may not
know whether it is loaded or not.
 P was awarded damages. A verdict for $ 750 for assault
by pointing a pistol at plaintiff and threatening to shoot,
held not excessive in view of its immediate effect and the
nervous condition thereafter resulting.

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 In Beach v. Hancock, 27 N. H. 223, it was said:
"One of the most important objects to be attained by the
enactment of laws and the institutions of civilized society is,
each of us shall feel secure against unlawful assaults.”
 Without such security, society loses most of its
value. Peace and order and domestic
happiness, inexpressibly more precious than
mere forms of government, cannot be enjoyed
without the sense of perfect security. We have a
right to live in society without being put in fear of
personal harm.
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But it must be a reasonable fear of which
we complain. And it surely is not
unreasonable for a person to entertain a
fear of personal injury, when a pistol is
pointed at him in a threatening manner,
when, for aught he knows, it may be
loaded, and may occasion his immediate
death. The business of the world could not
be carried on with comfort, if such things
could be done with impunity. 25
Imminent Harm -- Necessity A threat to
harm another does not constitute
common-law assault if the threatened
harm is not imminent. A threatened harm
is imminent if the circumstances of the
threat indicate that the party making the
threat has an immediate ability to reach
the victim and inflict the harm almost at
once. A threat to cause harm in the near
future does not constitute imminent harm. 26
Other examples:

Bavisetti Venkata Surya Rao vs. Nandipati

Muthayya (1963)
Birbal Khalifa vs. Emperor (1902)

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Battery: Nature of acts constituting battery

 Any offensive behaviour would also constitute

battery and the fact that it was not actuated by
anger is irrelevant, e.g. kissing a person without
consent.
 Touching in anger is no doubt battery.
 Physical contact does not constitute battery
when the occasion demands it.
 Is hostility a necessary element of the tort of
battery?

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Battery: Elements of battery

A voluntary intentional act

Directly causing
Physical bodily contact with the plaintiff
without consent of the plaintiff

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Battery: Nature of acts constituting battery

Wilson v Pringle (1987) held that if there

was no hostility, there would be no battery
(horseplay)
Collins v Wilcock (1984) shows that it is
not necessary to prove hostility (no lawful
justification for physical contact would be
battery).

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Voluntary and Intentional Act

Can a negligent act amount to a battery?

Position in the UK
Letang v Cooper [1965] 1 QB 232
 Stubbings v Webb (1993) AC 493
Position in Australia
Willliams v Milotin (1957) 97 CLR 465
McHale v Watson (1964) 111 CLR 384
Platt v Nutt (1988) 12 NSWLR 231
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Positive Act of the Defendant

Consciously, voluntarily brought physical

contact. See:
 Innes v. Wylie 174 ER 800 (1884) 1 C & K256
Fagan v. Metropolitan Police Commissioner
(1969) 1 QB 439

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Direct Contact?

See:
Scott v Shepherd

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Battery and consent

Medical Procedures and battery:

Marion’s Case (1992) 175 CLR 218
 Every surgical procedure is a battery unless authorized, justified or
excused by law
 Question of consent
 14 year old girl, severe intellectual handicap, family applied to court for
order to sterilize her.
 Court found not lawful for parents to consent to such a procedure of
their own accord, only the court could provide such consent

Murray v McMurchy 1949) 2 DLR 442

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Battery and consent

Consent in Sports
Assumption that consent to physical contact,
consistent with the rules of the game, during
sports.
E.g. Australian Football, Boxing, Fencing

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Battery: mistake of fact

Where A intending to strike B hits C by

mistake, A is still liable to C on the fiction
of transferred intent: Livingstone v Ministry
of Defence (1984)

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Wilkinson v Downton (1897)

Intentional infliction of emotional distress

Where emotional distress was considered
a possible battery despite no physical
force being used
Facts:
The defendant told the claimant (as a practical joke)
that her husband had been seriously injured.
As a result the claimant suffered a nervous disorder
and was thought to be suicidal for a time.
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Intentional infliction of emotional
distress
In Wilkinson v Downton (1897), it was held
that such an action will be valid under
battery where it is calculated to cause
physical damage and does so.
What are the recognised forms of harm?
See Mount Isa Mines Ltd v Pusey (1971) –
Australian case

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Types of Damages:

Nominal
Compensatory (special and general)
Aggravated
Exemplary (Punitive)

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DEFENCES TO ASSAULT AND
BATTERY
consent;
superior lawful authority;
mistake (under some circumstances);
self-defence;
necessity;
involuntariness and duress; and
the use of force or threats to recover
property.
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Consent
 Consent must be real
it must be an informed consent;
the person must give it voluntarily;
consent must be genuine; and
the defendant must have acted in a way which
remained within the scope of the consent which
the plaintiff actually gave.
 Can be implied consent (sports / surgery)
 A mistaken belief in consent will not prevent
liability from arising.
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Superior lawful authority
Police officers
Citizens
Parents?
Teachers?

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Self-defence

The action of self-defence must only be

such as is appropriate to repel the attack;
it must not be excessive.
If an attacker is unarmed, it would be
excessive action to repel the attack by
shooting him or her. It would also be
unreasonable and excessive to kick an
attacker after you have knocked him or her
unconscious.
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Self-defence: elements

It must be necessary to use defensive

force.
The force used by the defendant must be
proportionate to the threat that he faced.

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Necessity

Is an excuse to prevent harm to oneself or

a third party
Must be proportional to the harm
prevented
Two elements:
1. Actual situation of imminent danger OR what
seems to be so to a reasonable person AND
2. The action taken must be reasonably
necessary
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Infancy

See:
Smith v Leurs [1944] SASR 213
McHale v Watson (1964) 111 CLR 384 at
386
Ellis v D’Angelo (1953) 352 P. 2d 675

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Incapacity

Mental Capacity as a defence?

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Mistake

Mistake is generally not relevant in

intentional torts, except for matters of
mistaken self-defence and therefore the
court will consider whether the belief of the
defendant that he or she needs to take
action in self defence, although mistaken,
was in the circumstances reasonable and
so justifiable.

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