Question (1,200 words)
Jones J. (extract from judgment): “The plaintiff admits that he broke into the jewellery shop operated by the defendants and caused considerable damage to the premises. The defendants admit that once they subdued the plaintiff, they took turns in beating him over a period of one hour while he was tied up, and was forced to kneel and plead for mercy. They also admit that even though the plaintiff had initially threatened to shoot the first defendant, they could tell that the gun the plaintiff pointed at them was a toy gun. But Counsel for the defendants has submitted that the conduct of the plaintiff in entering the premises operated by the defendants was illegal, the plaintiff is therefore not entitled to any cause of action in tort law for any harm he may have suffered at the hands of the defendants. In the alternative, Counsel also submitted that the defendants acted in defence of their property and were therefore entitled to use force, including deadly force, to restrain the plaintiff. Such propositions are based on a misunderstanding of the defence of illegality and the defence of property in tort law under the Civil Liability Act 2002. ‘There is no general principle of law that a person who is engaged in some unlawful act is to be disabled from complaining of injury done to him by other persons, either deliberately or accidentally. He does not become a caput lupinum (an outlaw)’. (per Latham CJ: Henwood v Municipal Tramsways Trust (1938) 60 CLR 438). It is also a well-established proposition of law that any action taken in defence of property or self-defence must be reasonable and not excessive (Fontin v Katapodis (1962) 108 CLR 177).
The medical report on the defendant’s injuries from the attack shows extensive bruising to his back and a compound fracture to his left femur. The medical evidence also indicates that the fracture will heal with time but he is likely to be left with a permanent disability in his left leg. I find the conduct of the defendants excessive and unreasonable.
They remain liable for the injuries sustained by the plaintiff. I will now turn to the question of damages…”
The defendants have been advised that they should appeal the decision of Jones J. Explain what specific torts they may have committed and why you agree or disagree with this advice.
Answer
The specific torts committed by the defendants must be examined in conjunction with the Civil Liability Act 2002 (NSW) (CLA) and the common law in order to come to a conclusion on whether to take on the advice given and appeal the judgment given.
Specific Torts
False Imprisonment
The first tort committed by the defendants’ involves the false imprisonment of the plaintiff. The key elements of false imprisonment are that there must be an intentional or negligent act by the defendant which directly causes the total restraint of the plaintiff and thereby confines him/her to a delimited area without lawful justification.”[1]
The intentional act executed by the defendants causing total restraint occurs when the defendants tie up the plaintiff and completely restrain him from any freedom with no reasonable means of escape, as is seen in Bird v Jones[2].
When considering the elements of intent and lawful justification, at first instance, it may seem that the imprisonment forced upon the plaintiff was executed with legal authority through the means of self-defence, with the reasonable intention to protect themselves and their property (as the plaintiff admits that he caused considerable damage to the premises). However, after having subdued the plaintiff, it is clear from the facts that the defendants’ intentions were not solely to protect themselves and their property, but was in fact to take the law into their own hands and further assault and beat the plaintiff. The excessive force applied by the defendants was neither reasonable nor lawful and so removes any lawful justification they may have had.
Having totally subdued the plaintiff, the defendants continued to force the plaintiff to kneel and plead for mercy between beatings, therefore, committing a specific tort of assault. Hogarth J discusses in Rozsa v Samuels[3], that a “person is guilty of an assault if he unlawfully displays force against another in such a way…creates in the mind of the other the belief that force is about to be used against him…creation of a fear”[4] The actions performed by the defendants clearly fulfils all the necessary elements of assault as firstly, the fact that the plaintiff was subdued and was no longer a threat to the defendants, removes any legal justification that the defendants might originally have had, and so removes any chance of the defendants’ threats becoming conditional threats. Furthermore, the defendants intentionally and directly threatened the plaintiff, which in return placed the plaintiff in an apprehension or fear of imminent harmful contact.
Battery
Battery is an intentional act of the defendants that directly causes a physical interference with the body of the plaintiff without any legal justification.[5] In this case, the physical trespass was admitted by the defendants when they physically took turns in beating the plaintiff, which clearly violates the plaintiff’s body. This is discussed in Collins v Wilcock[6] where “every person’s body is inviolate, and that any touching of another person, however slight may amount to battery”.
Furthermore, having totally restrained the plaintiff means that the defendants have avoided any further threats arising by the plaintiff. Therefore, the direct acts of the defendants that caused the physical trespass with the body of the plaintiff will no longer be considered as self-defence and so the trespass would have occurred without any legal justification. Additional evidence that proves that the battery was caused out of intention and not self-defence is the medical evidence that displays the blows to the back of the plaintiff.
Advice on Appeal
The defendants lost the case on account of the two points of law that Jones J refers to as a ‘misunderstanding of the defence of illegality and the defence of property’. Furthermore, Jones J concluded that he found the defendants’ conduct to be excessive and unreasonable. It was this decision that the council of the defendants advised them to appeal. In deciding whether to take up this advice, the counsel must keep close attention to the interpretation of the CLA to help comprehend the misunderstanding of the defence of illegality and property in the defendant’s circumstance.
It is important to note that the circumstances of this case fall outside the highway trespass as the trespasses committed do not satisfy any of the elements discussed by Bray CJ in Venning v Chin[7]. Therefore, the onus of proof is on the plaintiff to prove fault and the defendant to disapprove fault.
If the defendants were to appeal the decision, their first appeal would be based upon s52 (a) of the CLA on the basis that they shouldn’t incur civil liability for their act of self-fence as it was in response to unlawful conduct. Furthermore, their acts were a form of self-defence which s52 (2)(c) outlines that it is to protect their “property from unlawful taking, destruction…”[8] However this is not all, s52 (2) also states that the defendant’s conduct is only self-defence if they believed their acts to be necessary to protect their goods within the jewellery store. Furthermore, this section states that the conduct must be a “reasonable response in the circumstance…perceives them”[9]
The original defendants appealing under this section would be placed in the position of the plaintiff. This would rest the onus of proof on them to prove that they honestly believed and perceived at the time, that their actions in self-defence were absolutely necessary to protect their property. In regards to the facts of the case, this is going to be extremely difficult to do, if not impossible, especially after Jones J has already stated that he finds the conduct excessive and unreasonable.
Having had Jones J rule against their conduct as excessive and unreasonable, the defendants may rely on s53 (1), which is authority that does not allow the court to award damages even when the conduct is not a reasonable response, unless it is satisfied that the circumstances of the case are exceptional and that their failure to award damages would be hard and unjust on the plaintiff. In saying this, the onus of proof lies on the plaintiff (original defendant) to prove why it would not be ‘harsh and unjust’ to award damages to the defendant (original plaintiff). In opposition to this, the onus lies on the defendant to prove why the circumstances of the case are ‘exceptional’ and to prove why it would be ‘harsh and unjust’ to not award him damages.
From the facts of the case, it is likely that the court will find in favour of the defendant (original plaintiff) as the injuries sustained by the defendant were extremely excessive to the circumstances and so would result in both an exceptional circumstance and in a harsh and unjust situation for the defendant, if not awarded damages.
In saying this, the original plaintiff would still be liable for the economic loss (injuries) suffered by the defendant, which s53 (2)(b) allows for.
Having satisfied the necessary elements for false imprisonment, assault and battery one can conclude that on the balance of probability, the defendants would be found liable for these specific torts. Furthermore, appealing the decision would not be advised, as under s53, the defendants’ conduct would most likely lead to exceptional circumstances, where the absence of damages would result in a harsh and unjust consequence on the plaintiff.
Words: 1275
Blay, Gibson
and Richards,
Torts Law in Principle,
4th ed. Thomson Lawbook, 2005 (Torts Law) at page 63
Luntz, Harold & Hambly, David. Torts - Cases
and Commentary (Revised 5th ed.) LexisNexis Butterworths, 2006 at page 697