Law Extension Committee: Summer 2006-07 v2
http://www.studentatlaw.com/articles/24/1/Law-Extension-Committee-Summer-2006-07-v2/Page1.html
By Dominic N
Published on 31/03/2007
Tort Law assignment by student from Law Extension Committee.
This assignment received a mark of 65%.
Torts Assignment
1. Introduction
This is a memorandum that will essentially explain an array of specific torts that the defendants have committed against the plaintiff. The specific torts, which were committed, include assault, battery and false imprisonment. It is essential that each specific tort be analysed in order to advise the defendant on whether or not they should appeal the decision by Jones J in accordance with the Civil Liability Act 2002 (NSW) (“Civil Act”).
2. Specific Torts
The specific torts identified here are classified, as forms of trespass against the person.
When distinguishing the torts of trespass, it is important that the each element be fulfilled. The basic elements of trespass are an intentional act, a direct interference that causes injury to the plaintiff or plaintiff's property and no lawful justification.
2.1 Assault
Firstly, the defendants are guilty of assault. The “intentional act or reckless threat by the defendant that directly places the plaintiff in reasonable apprehension of an imminent physical interference”[1], is distinguished as the essence of assault.
The assault occurred once the intentional act by the defendants' was initialised through directly forcing the plaintiff to kneel and plead for mercy. However, for assault to suffice, the foremost element that must be ascertained is the apprehension of imminent physical interference, as seen in Barton v Armstrong[2]. Therefore, the defendants created that apprehension of fear or anticipation in the plaintiff's mind that further battery will occur if the threat were not complied with. Also, the threat was made during the course of battery and there was a high degree of certainty of further physical harm, as seen in Zanker v Vartzokas[3]
2.2 Battery
Furthermore, the defendants have committed battery. Battery can be defined as “the intentional or negligent act of the defendant which directly causes a physical interference with the body of the plaintiff without the plaintiffs consent or lawful justification”[4].
Once the plaintiff was subdued and no longer a threat to the defendants, the defendants choose to physically beat the plaintiff. It can be seen that the defendants went beyond what was reasonably necessary as a means of self-defence, as seen in Rozsa v Samuels[5]. Thus, there is no doubt that the defendants had no lawful justification in causing physical interference to the plaintiff, as seen in Collins v Wilcock[6]. It is quite clear that the intention of the defendants in subduing the plaintiff was for the purpose of causing physical interference through taking turns to beat the plaintiff repeatedly over a period of 1 hour and not for self-defence.
2.3 False Imprisonment
Lastly, false imprisonment is the final misdemeanour to be committed. False imprisonment requires the “intentional or negligent act of the defendant that directly causes the total restraint on the liberty of the plaintiff and thereby confines the plaintiff to a delimited area without lawful justification”[7].
To correctly comprehend false imprisonment, one must apprehend the facts of the case. The defendants had subdued the plaintiff in order to prevent further damage to their property. This notion would create a lawful justification for their actions. However, their intention was more despiteful in restraining the plaintiff, in order to beat him up, thus their intention based on the facts would now suffice as an unlawful justification for their actions, as seen in Lippl v Haines[8].
Further, it is a distinguishing element that the Plaintiff was subdued intentionally by the defendants in order to create total restraint, thus implying the absence of a reasonable means of escape, as discussed in The Balmain New Ferry Co v Robertson[9].
Additionally, the plaintiff was subject to the defendant’s authority with no option to leave, as seen in Myer Stores Ltd v Soo[10]. The Plaintiff was under the authority and control of the defendants and as a result, the liberty of the Plaintiff was confined to the authority of the defendant.
Consequently, all the elements of false imprisonment have been ascertained and thus, the defendants may also be liable for false imprisonment.
3. Recommendation on appeal_advice
Jones J concluded in his judgement that the conduct of the defendants was excessive and unreasonable, thus they remain liable for the injuries sustained by the plaintiff. On the basis of this decision, the defendant’s counsel has advised the defendants to appeal this decision. In order for one to agree or disagree with this advice, one must refer to the Civil Act in order to clarify the misunderstanding of the defence of illegality and the defence of property in tort law by the defendant’s counsel.
The first issue is that self-defence must be in response to an unlawful conduct based on S52 (1) (a) of the Civil Act, if so then there is no civil liability. The conduct of self-defence by the defendants was necessary in reliance on S52 (2) (c) to protect the defendant’s property from the Plaintiff’s unlawful taking, destruction, damage or interference, as their jewellery shop held expensive goods. Nevertheless, the conduct must be a reasonable response in the circumstances, as he or she perceives them, whereas the defendant’s conduct was through use of deadly force to restrain the plaintiff. Therefore, an objective test must be employed, so that a reasonable man test can distinguish if the conduct was excessive and unreasonable. Based on the objective test it may seem that their conduct was excessive and unreasonable, as the defendants had overwhelming force over the plaintiff, they subdued the plaintiff and took turns beating him, after he was no longer a threat.
Further, the defendants may rely on S53 of the Civil Act to base an appeal. This may limit the amount of damages, since the conduct by the defendants was excessive and unreasonable, as stated by Jones J and proven previously. If the defendants decide to appeal based on S53 (1) then they become the plaintiff and the onus of proof is now with the plaintiff to prove and satisfy to the court that under S53 (1) (a) the circumstances of the case are not exceptional and under S53 (1) (b) that the failure to award damages would not be harsh and unjust, so that the courts do not award damages for their non reasonable conduct. Thus, this off-highway trespass appeal confers to the defendant, to disprove the appeal made under S53 of the Civil Act. It is highly doubtful that the plaintiff in the appeal will not be able to contend S53 (1) (a) and S53 (1) (b) of the Civil Act, as the injuries sustained by defendants were caused direct from battery and unreasonable conduct after he was subdued. It is likely that the damages awarded would be just, as the conduct of the plaintiff was excessive and unreasonable.
Therefore, based on all the facts and interpretation of the Civil Act, it can be concluded that one would disagree with counsel’s advice to appeal Jones J decision.
4. Conclusion
In conclusion, the necessary elements of each specific tort have been satisfied, hence on a balance of probability it may be concluded that the defendants may be liable for assault, battery and false imprisonment. Therefore, based on the specific torts that have been committed, it would prove difficult for the defendants to appeal the decision by Jones J due to s53 (1) (a) and s53 (1) (b) of the Civil Act. Relatively, the circumstances of the case are exceptional and failure to award damages would be harsh and unjust and as a result, damages would have to be paid in compensation for injuries sustained.
Word Count: 1314