Trespass to Person Lecture PDF

TRESPASS TO PERSON 1. ASSAULT  The old view was that assault was an incomplete battery  The modern definition is: Intentionally and directly causing a person to apprehend being a victim of an imminent application of force.  ‘The plaintiff … must also allege that he did it intenti...

TRESPASS TO PERSON 1. ASSAULT  The old view was that assault was an incomplete battery  The modern definition is: Intentionally and directly causing a person to apprehend being a victim of an imminent application of force.  ‘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 4 elements: 1. The mental state of the defendant 2. The effect on the plaintiff 3. Capability to carry out the threat 4. Bodily movement 1. The mental state of the defendant Defendant intends to cause the plaintiff to apprehend an application of force. Turberville v Savage 2.The effect on the plaintiff The plaintiff must apprehend an impending application of force, assessed objectively. R v St George Blake v Barnard 3. Capability to carry out the threat An attempt to commit a battery which is thwarted is still an assault (Stephen v Myers ) 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 ) 4. Bodily movement Requires active behaviour, so merely barring entry in a passive manner is no assault (Innes v Wylie ) Gen. principle: NO! R v Meade & Belt However, Yes! In R v Wilson Also in R v Ireland Abusive words, followed by abusive physical harm will lead to establishing an assault Shalini Shanmugam & anor v Marni Anyim TRESPASS TO PERSON: 2. 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 )  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. 4 elements: 1. The mental state of the defendant 2. Control 3. Contact 4. Without consent 1. The mental state of the defendant The defendant applies the force with intention. Can it be widened by the application of the Doctrine of Transferred Intent, thereby extending the possible liability of the defendant? ❖ Scott v Shepherd ❖ Abd Malek Hussin v Borhan Hj Daud & Ors  Doctrine of Transferred Intent is a doctrine that allows the defendant to be held liable for an intentional tort he intended to commit against A but instead, accidentally committed against B. The defendant can be liable for the tort against the injured party (i.e. B) In order to apply transferred intent, 2 questions may be asked: I. If contact had been made with the intended object, would there have been a tort? II. If the object with which contact was made had been the intended target, would there have been a tort? Doctrine of transferred intent will be applied if the answer to both questions is ‘Yes’. 2. Control The defendant’s act must be done voluntarily and within his control. ❖ Gibbons v Pepper 3. Contact  It’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 vTurner )  The contact must be in hostile manner ❖ Wilson v Pringle : 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 another  Consider facts & circumstances of the case 4. Without Consent  Nobody is allowed to touch another person without his/her consent or lawful justification. ❖ Nash v Sheen ❖ Tiong Pik Hiong v Wong Siew Gieu  However, the contact in the conduct of daily life is acceptable, although it may involve harshness but not amounting to hostility (Collins v Wilcock).  Medical treatment without consent has always been a battery ❖ Ms B v NHS Hospital Trust : A patient having full capacity can refuse life-sustaining treatment even if it leads to death. ❖ Re F (Mental Patient: Sterilisation) Can you now distinguish assault from battery? consent apprehension Vs physical contact protecting what?