LAW1507 | Tort Law | The Elements Of The Tort Of Assault

10. Steven, 8 years of age, hurries into the school toilet block just as the final bell for the day sounds. He takes his time. Unbeknown to the school or his parents, he is locked in the toilet block by a cleaner.  The cleaner failed to check the block before locking it, and was unaware of Steven being in the toilet. After frantic searching for Steven by his parents and the school authorities, he is located in the toilet, traumatized by being unable to get out. He is locked in for 1 hour before being found. Is Steven (through his parents) able to sue for an intentional tort? Why or why not?

11. Coco has a large statue that she leaves in the front yard of the house she is renting. Chris, a neighbor, finds the statue offensive and request Coco remove it. She refuses. One evening, Chris goes into the yard and takes the statue. He leaves a note for Coco stating he will return the statue when she agrees in writing to not display it in the front yard. What tortious remedy does Coco have against Chris? What are the elements of the tortious remedy?

12. Name two differences in the way damages are calculated between an action for detinue and an action for conversion.

13. What is concurrent liability? Give an example.

14. Ahn has a prize thoroughbred stud. His neighbor, Lucas, one night drops the fence and takes a stallion into his paddock with intention of using it to inseminate his mares. Ahn realises what has occurred. He tells Lucas to return the horse immediately. Lucas states he will, once the stallion has had a chance to “do the job”. Ahn goes to Lucas ’property, cuts the bolt on the gate and seizes the stallion. Lucas sues Ahn for trespass. Does Ahn have any defence available to trespass? What are the elements of the defence?

15. How do the elements of the tort of assault differ from the elements of the tort of battery?

16. If a woman commits assault and battery on her partner, but does so because she believes that the partner is about to harm their children. The couple have a long history of violence. Does the woman have a defence to the common law tort of battery? What is the test at law? Cite an authority.

17. Mikala (22 years old) is in a car accident. Due to her injuries, she has lost considerable blood. Her religion prohibits her from receiving a blood transfusion and she makes this clear. It is the doctor’s opinion that she may die is she does not have the treatment. He accordingly sedates her and gives her the transfusion. Does Mikala have an action for an intentional tort against the doctor? If so, which tort? Cite an authority in support of your answer.

18. Explain the difference between trespass and actions on case in tort law today. Why would a plaintiff want to bring an action in trespass and not in case?

19. Syd operates a tattoo parlour. Rosie (18 years old) comes in one afternoon and demands that Syd put a tattoo of a naked male down her arm. Syd gives her the usual warnings about the permanency of tattoos and has her sign a form acknowledging she wants to proceed and that she understand the tattoo is permanent. Three weeks later, a statement of claim is served on Syd by Rosie’s lawyers. They allege he committed a battery, as Rosie now alleges she was not advised when having the procedure that it was permanent. It seems the tattoo has prevented her from following her life’s dream of entering the police force. Does Syd have a defence? If so, cite relevant authorities.

20. Does the Civil Liability Act 2002 (NSW) apply to the tort of false imprisonment?

21. 1 legal problem requiring you to apply an IRAC analysis.

You are required to review the factual scenario below. On analysing these facts, you should:

1. Identify the legal issues that this problem raises. Express these as questions to be answered.
2. Identify the relevant legal rules that you consider apply to the issues. You should cite all relevant case law and any legislation applicable.
3. Explain (in 1000 words or less) how these rules apply to the facts of this matter.
4. Provide a conclusion – by answering each question raised in your issues section.

Answer:

1. A tort can be committed either intentionally or negligently. According to the definition, when two people contact with each other with certain offensive or harmful intention, it will be known as battery. However, harmful intention of the parties is not necessary. According to Williams v Milotin, negligent act can amount to intentional tort of battery.

2. According to the common law of tort, if any person purposefully or unreasonably enters into the land of others and if the nature of such intrudes, is illegal, then it will be regarded as trespass. If such trespass caused injury to the owner or inhabitants of the property, he has all the right to bring civil action against the trespasser. In this case, Gunther has failed to take all the reasonable steps to prevent the acid waters enter into the land of Greg and caused trespass thereby. Greg can sue Gunther for trespassing.

3. Under the common law of Tort, there are two remedies if any party caused breach such as damages and injunction. In case where certain monetary losses have been committed and one of the parties could not get the full payment, the affected party can be opted for equitable remedies. Under this topic, the victim can ask for temporary or permanent restraining order against the defendant. Therefore, Bill can claim for equitable remedies against Hannai.

4. 

i. Under contract law, all the parties enter into the contract by conveying their consent. Such conditions are not necessary under Tort Law. It is generic in nature.

ii. Under the contract law, remedies are given to repudiate the contract and put the parties in their pre-contractual position. In Tort, remedies are given to compensate the victim.

iii. In contract, rights and obligation of the parties are engraved in the agreement. However, in tort, the rights of the parties are decided by the court based on the common law.

5. According to the definition, it has been proven that when certain goods are taking intentionally from the possession of the real owner, it will be regarded as conversion. Theft or larceny could be the instances of conversion. 

6. There are two types of bailment such as gratuitous bailment and non-gratuitous bailment. Both the bailment can either for the benefits of the bailee or the bailor or for both of them. However, if any of the parties have taking certain quantity of goods without the consent of others, any affected parties may claim for conversion.

7. Detinue is an actionable claim under the tort law where recovery of illegal possession of properties is made. The three main aspects of demand in this case are: the claimant should have to prove the better rights to possession of the personal property or chattels; the defendant has refused to give the property back to claimant on demand and it is required to be proved that the defendant has possessed over the property wrongfully.

The claim is required to be made in written format.

8. According to the Australian Tenancy law, the landlord should have to serve a notice not less than a period of 14 days for making the claim to vacate the land. In this case, Sharmi has failed to serve the notice and the period given to this effect is unreasonable. Therefore, an action for intruding the land could be made by Bryce.

Considering the damage suffered by Bryce, he can ask for aggravated damages (TWNA v Clarke).

9. Under the claim for conversion, the plaintiff has to show that he has a right to posses the goods or chattels. Further, it is required to be proved that defendant has interfered with the property of the plaintiff intentionally and for this, the plaintiff has suffered losses.

10. According to the definition of intentional tort, the offender must have an intention to cause harm to other. However, in this case, it has been observed that the cleaner has failed to check the toilet where Steven has been blocked. However, the cleaner has no intention to harm Steven. Therefore, his action can be known as negligent tort and not intentional tort.

11. Considering the subject matter of the case, it can be stated that the acts of Chris has taken the statue without the consent of its real owner, Coco. Therefore, it attracts the provision of conversion. According to the common rule, Coco can ask for monetary remedies in the form detinue or in the form of trover.

12. The main difference between conversion and detinue has been laid down in its definition. When a person purposefully changed the possession of any goods or property and converted it, it will be regarded as conversion. When any person refused to deliver the goods to the real owner, it will be known as detinue. Further, conversion deals with the illegal possession of personal property. Detinue deals with the possession of goods.

13. Concurrent liability proves the fact that in a single damage; more than one defendant can be held liable. The principle of vicarious liability could be the example of concurrent liability.

14. Considering the case, it can be stated that Ahn could not defend his post for committing trespass to Lucas’s property. According to the elements of the defences available against the trespass, it could be stated that the nature of the acts of trespasser should be reasonable and legal. However, in this case, it has been observed that Ahn trespassed in the land of Lucas for personal revenge.

15. There are certain differences in between the tort of assault and tort of battery. According to the nature of assault, intention of the parties to harm other is essential. However, under battery, intention to cause harm is not necessary. Further, in case of assault, the parties are not generated threats to each other; rather they inflicted harm to them. On the other hand, an opposite mentality could be observed in case of battery.

16. In this case, the women could get the plea of defence of others. According to the law, when the parties have a knowledge that the acts of another could be posed as a threat to harm anyone closed to them. However, the nature of the knowledge or believe should be honest and reasonable in nature.

17. Considering the case, it can be stated that Mikala could bring an action against the doctor under intentional tort, as she has made this clear to him that she could not receive the blood transfusion due to religious prohibition. Therefore, the doctor has proceeded intentionally. According to the kinds of intentional tort, the acts of doctor fall under the category of intentional infliction of emotional distress.

18. The main difference between the terms is that under negligent trespass, rights of the landowner should be violated. In case of negligence, the affected party must have to show that the defendant has failed to perform his duty of care. Intention of the parties forms a part of the negligent trespass. Under negligence, intention of the parties is not necessary.

19. Rosie could not claim for any damage against Syd, as there was a contract between them regarding the permanent nature of the tattoo and Rosie has made her consent regarding the same. Therefore, Syd has a defence of consent against Rosie.

20. According to section 3B of the Civil Liability Act 2002, civil liabilities are excluded from false imprisonment. The test for verifying the nature has been established in White v Johnson (2015). 

21. Issue:

The main issue of this case is to determine the liabilities and defence of Stefan for spitting on the face of Amal.

Rule:

The main subject matter of the case is based on the grounds of intentional torts. According to the common law on torts, if a person does anything with an intention to cause harm to others, it will be regarded as intentional torts. There are certain characteristics of intentional torts, of which intentional infliction of emotional distress is a part. According to the definition of the term, when the intentional act of a person cause severe emotional distress to others, the affected party has an opportunity to hold the defendant liable under the offence. This principle has been established through the case of Wilkinson v Downton. According to the case, certain elements are required to prove the case of intentional infliction against the defendant. The essentials are:

• The defendant has done the act purposefully;
• The nature of the act is outrageous;
• The act of the defendant has caused distress to the plaintiff or the claimant;
• The distress includes severe emotional distress.

According to the common law of negligence, it is the duty of the person to perform all the fiduciary duties against each other. The term fiduciary duties mean act in good faith and perform the duty of care. When a person could fail to perform all these duties against others and his acts caused physical or emotional distress to others, he will be held liable under the provision of intentional tort. According to the provision of Intentional infliction of emotional distress, the act of the defendant should be resulted from certain extreme conduct and should denied the standard of minimum decency. Further, according to the common law of tort, the acts of the defendant should harm the emotional background of plaintiff and the nature of the distress must be severe. According to Slappy & Sadd (2015), extreme anxiety or anger could be the reason for the intentional infliction made by the defendant. However, in Hustler v Falwell), it has been held that any act for the public policy could be excluded for this kind of intentional tort. The passionate trouble endured by the offended parties must be "serious." The power, length, and any physical signs of the misery evaluate this standard. An absence of efficiency or a psychological issue, recorded by an emotional well-being proficient, is ordinarily required here, in spite of the fact that colleagues' declaration about an adjustment in conduct could be influential. Outrageous misery, uneasiness, or outrage in conjunction with individual damage may likewise fit the bill for remuneration.

Analysis:

In this case, it has been observed that Stefan has been affected by the decision of his local council, who has approved the project that blocks his apartment. After that, it has been observed Amal has owned an adjacent property of Stefan and started to concoct certain development works. However, it has been observed by Stefan that the housing materials are brought by Amal over his property and there is a chance to suffer from losses. However, Stefan has gone to Amal and requested her to remove all the staffs from his property and to crave other way for bringing all the building materials. However, Amal has denied the request made by Stefan and certain intense arguments have been made in between them. In that moment, Stefan has spitted on the face of Amal.

Considering the nature and character of the incidents, it can be stated that the matter is falling under the provision of Intentional infliction of emotional distress. According to the conduct of Stefan, it can be stated that he has done the thing that causes distress to the victim. Further, the emotion of Amal has been affected due to the acts of Stefan. It is the responsibility of Stefan to take necessary care for Amal and he has failed to do it. This makes him liable for causing negligent act. Therefore, it can be stated that he could be held responsible for committing Intentional infliction of emotional distress.

However, there are certain defenses that can be pleaded by Stefan against the claim for Intentional infliction of emotional distress. He has to prove that he has not done the act intentionally and the nature of the act is not extreme in nature. Further, Stefan has to establish the fact that he has no intention to injure the plaintiff and all the things have been done due to certain outrageous conditions. Further, it is the duty of the plaintiff to prove that the act of defendant has caused severe emotional distress to him. According to the common law of tort, it can be stated that the ultimate burden is lying in this case on the defendant and he has to prove his innocence to this effect. An offended party must utilize proof to exhibit their passionate misery to a jury. For instance, an offended party can utilize persevering tension and neurosis coming about because of a Halloween trick turned sour to demonstrate that they endured extraordinary enthusiastic pain because of the lead. Occasionally the plain idea of the direct being referred to will do the trick to show that the casualty endured serious enthusiastic misery. In the event that conduct is especially aggravating, the offended party might not bring to the table much proof to help their cases; the conduct itself is reprehensible to the point that the enthusiastic pain is relatively accepted.

Conclusion:

Therefore, it can be stated that Stefan has failed to comply all the fiduciary duties in this case. However, he can take the plea that he has done the thing in outrage and he has no intention to cause emotional distress to Amal.

Reference:

Abraham, Kenneth. The forms and functions of tort law. West Academic, 2017.

Cavico, Frank J., and Bahaudin G. Mujtaba. "The Intentional Tort of Invasion of Privacy in the Private Employment Sector: Legal Analysis and Recommendations for Managers." (2016).

Goldberg, John CP, Anthony J. Sebok, and Benjamin C. Zipursky. Tort Law: Responsibilities and Redress. Wolters Kluwer law & business, 2016.

Hustler v Falwell 485 US (1988)

TWNA v Clarke 2003 BCCA 670

White v Johnston [2015] NSWCA 18

Wilkinson v Downton [1897] EWHC 1 (QB)

Williams v Milotin (1957) 97 CLR 465