1. Lecture 2 Assault & False Imprisonment
Clary Castrission

2. In this lecture Assault False Imprisonment
Defences to Intentional Torts

3. ASSAULT

4. ASSAULT
The intentional/negligent act or threat of D which directly places P in reasonable apprehension of an imminent physical interference with his or her person or of someone under his or her control

5. The Gist of the Action
…Assault necessarily involves the apprehension of injury or the instillation of fear or fright. It does not necessarily involve physical contact with the person assaulted: nor is such physical contact, if it occurs, an element of the assault. (Barwick CJ in The Queen v Phillips (1971) 45 ALJR 467 at 472

6. THE ELEMENTS OF ASSAULT
There must be a direct threat:
Stephens v Myers (1830)
In general, mere words are not actionable
Barton v Armstrong (1969)
Conditional threats
Tuberville v Savage (1669)
Police v Greaves (1964)
Rozsa v Samuels (1969)

7. Zanker v Vartzokas and the issue of imminence/immediacy
The Facts:
Accused gives a lift to victim and offers money for sex; victim refuses.
Accused responds by accelerating car, Victim tries to open door, but accused increases acceleration
Accused says to victim: I will take you to my mates house. He will really fix you up
Victim jumps from car then travelling 60km/h

8. Zanker v Vartzokas: The Issues
Was the victim’s fear of sexual assault in the future reasonable?
Was the feared harm immediate enough to constitute assault?

9. Zanker v Vartzokas: The Reasoning
Where the victim is held in place and unable to escape the immediacy element may be fulfilled.
The essential factor is imminence not contemporaneity
The exact moment of physical harm injury is known to the aggressor
It remains an assault where victim is powerless to stop the aggressor from carrying out the threat

10. So main issues with Assault
Threat possible to be carried out?
Future threats?
Conditional threats:
Not assault if its lawful (except will be if it is excessive)
Must be possible to carry out

11. FALSE IMPRISONMENT

12. FALSE IMPRISONMENT
The intentional or negligent act of D which directly causes the total restraint of P and thereby confines him/her to a delimited area without lawful justification
The essential distinctive element is the total restraint

13. THE ELEMENTS OF THE TORT
It requires all the basic elements of trespass:
Intentional/negligent act
Directness
absence of lawful justification/consent , and
total restraint

14. “A prison may have its boundary large or narrow, visible and tangible, or, though real, still in the conception only; it may in itself be moveable or fixed; but a boundary it must have; and that boundary the party imprisoned must be prevented from passing… Some confusion seems to me to arise from the confounding imprisonment of the body with mere loss of freedom; it is one part of the definition of freedom to be able to go whithersoever one so pleases; but imprisonment is something more than the mere loss of this power; it includes the notion of restraint within some limits defined by a will or power exterior to our own.”
Coleridge J in Bird v Jones (1845) at 744.

15. RESTRAINT The restraint must be total
Bird v Jones ((1845)
Total restraint implies the absence of a reasonable means of escape
“If I lock a person in a room with a window from which he may jump to the ground at the risk of life or limb, I cannot be heard to say that he was not imprisoned because he was free to leap from the window.”
Burton v Davies (1953)
Barrier need not be physical
Symes v Mahon (1922)
Myer Stores v Soo

16. VOLUNTARY CASES
In general, there is no FI where one voluntarily submits to a form of restraint
Herd v Weardale (1913)
Robinson v The Balmain New Ferry Co. (1904)
Where there is no volition for restraint, the confinement may be FI
Bahner v Marwest Hotels Co. (1970)

17. WORDS AND FALSE IMPRISONMENT
In general, words can constitute FI
see Balkin & Davis pp. 55 to 56:
“restraint… even by mere threat of force which intimidates a person into compliance without any laying on of hands” may be false imprisonment
- Symes v Mahon

18. KNOWLEDGE IN FALSE IMPRISONMENT
The knowledge of the P at the moment of restraint is not essential.
Meering v Graham White Aviation (1919)
Murray v Ministry of Defense (1988)

19. WHO IS LIABLE? THE AGGRIEVED CITIZEN OR THE POLICE OFFICER?
In each case, the issue is whether the police in making the arrest acted independently or as the agent of the citizen who promoted and caused the arrest
Dickenson v Waters Ltd (1931)
Bahner v Marwest Hotels Co (1970)

20. DAMAGES False imprisonment is actionable per se
The failure to prove any actual financial loss does not mean that the plaintiff should recover nothing. An interference with personal liberty even for a short period is not a trivial wrong. The injury to the plaintiff's dignity and to his feelings can be taken into account in assessing damages (Watson v Marshall and Cade )

21. OTHER FORMS OF TRESPASS
PERSON
PROPERTY
BATTERY
ASSAULT
FALSE IMPRISONMENT

22. Defences to Intentional Torts

23. MISTAKE An intentional conduct done under a misapprehension
Mistake is generally not a defence in tort law
Basely v Clarkson (1682)
Cowell v Corrective Services Commission (1988)

24. CONSENT
In a strict sense, consent is not a defence as such because in trespass, the absence of consent is an element of the tort
See: Blay; ‘Onus of Proof of Consent in an Action for Trespass to the Person’ Vol. 61 ALJ (1987) 25
But McHugh J in See Secretary DHCS v JWB and SMB (Marion’s Case) CLR 218

25. VALID CONSENT Must be given to act complained of
Mullloy v Hop Sang [1935]
Must be no vitiating factors to nullify consent
Hegarty v Shine (1878)
Consent must be genuine
Gillick v West Norfolk Health Authority (1986)
Re F (1990)

26. CONSENT IN SPORTS McNamara v Duncan; Hilton v Wallace
People who pursue recreational activities regarded as sports often do so in hazardous circumstances; the element of danger may add to the enjoyment of the activity
Accepting risk, sometimes to a high degree, is part of many sports. A great deal of public money and private
effort, and funding, is devoted to providing facilities for people to engage in individual or team sport. This reflects a view, not merely of the importance of individual autonomy, but also the public benefit of sport. Sporting injuries that result in physical injury are not only permitted: they are encouraged (Gleeson CJ in Agar v Hyde (2000) )
McNamara v Duncan; Hilton v Wallace
Giumelli v Johnston
McCracken v Melbourne Storm (2005)

27. STATUTORY PROVISIONS ON CONSENT
Minors (Property and Contracts) Act (NSW) ss 14, 49
Children & Young Persons (Care and Protection Act) 1998 (NSW) ss 174, 175

28. SELF DEFENCE, DEFENCE OF OTHERS
A P who is attacked or threatened with an attack, is allowed to use reasonable force to defend him/herself
McLelland v Symons (1951)
In each case, the force used must be proportional to the threat; it must not be excessive.
D may also use reasonable force to defend a third party where he/she reasonably believes that the party is being attacked or being threatened.

29. NECESSITY
The defence is allowed where an act which is otherwise a tort is done to save life or property: urgent situations of imminent peril
Mouse’s Case (1609)
Leigh v Gladstone (1909)

30. INSANITY Insanity is not a defence as such to an intentional tort.
What is essential is whether D by reason of insanity was capable of forming the intent to commit the tort.
White v Pile (1951)
Morris v Marsden (1952)

31. INFANTS Minority is not a defence as such in torts.
What is essential is whether the D understood the nature of his/her conduct
Hart v AG of Tasmania (1979)
Hogan v Gill (1992)

32. DISCIPLINE PARENTS R v Terry
A parent may use reasonable and moderate force to discipline a child. What is reasonable will depend on the age, mentality, and physique of the child and on the means and instrument used.
R v Terry

33. ILLEGALITY:Ex turpi causa non oritur actio
Persons who join in committing an illegal act have no legal rights inter se in relation to torts arising directly from that act.
Smith v Jenkins (1970)

34. TRESPASS & CLA 2002
s.3B(1)(a) Civil Liability Act (“CLA”) i.e. CLA does not apply to “intentional torts”, except Part 7 of the Act.
s.52 (2) CLA subjective/objective test i.e. subjective ("…believes…" & "…perceives…")/ objective ("…reasonable response…") test.
s.53(1)(a) & (b) CLA i.e. “and” = two limb test; "exceptional" and "harsh and unjust“ are not defined in the Act so s.34 of the Interpretation Act 1987.
s.54(1) & (2) CLA i.e. "Serious offence" and "offence" are criminal terms so reference should be made to the criminal law to confirm whether P's actions are covered by the provisions.