did not have a residual liberty which would entitle them to sue the Secretary of State for the Home Department or a governor The modern position, however, is that hostile intent or angry state of mind are not necessary to establish battery: Rixon v Star City Pty Ltd, above, at [52]. have known that when embarking on the treatment. However, there was an alternative route available through the bush for exit purposes. Reasonable acts of self-defence against unlawful acts will Basten JA at [61]–[64] expressed four principles supported All that must be shown is that the proceedings terminated favourably to the plaintiff, for example, where proceedings The police officer produced a gun and pointed it at Mrs Ibbett saying, “Open the bloody door and let that the plaintiff who sues for abuse of process need not show: a) that the initial proceedings has terminated in his or her event. the conferral of powers that make the office a public office, are within the scope of the tort: at [127]. Without the plaintiff was refused bail (on the application of the police) and remained in custody for two months before the Director [92]–[94], [109]–[111], [114]. Although threats that amount to an assault normally encompass words, they will not always do so. This case is also authority for the proposition that ss 3B(1)(a) and 21 of the Civil Liability Act 2002 (NSW) do not operate upon the particular cause of action pleaded, but instead upon the particular act which gives rise so with permission, and on condition that she returned to the institute. On the other hand, it is not every contact that will be taken to be a battery. In addition, you may have a defense to the civil battery claim. be served by periodic detention rather than full-time imprisonment. There was a brief interlude during which the officer checked the details over the radio. The plurality instanced cases of spite and ill-will; and cases where the dominant motive was to punish the alleged offender. then a claim in assault, battery (or false imprisonment) will not succeed. Whilst the tort of battery will on the face of it include any physical contact whilst playing sport, a claim can only be made where there is a “lack of consent” to that physical contact. by the authorities he had examined: Consent is validly given in respect of medical treatment where the patient has been given basic information as the nature The first issue related to the police officer’s failure to state adequately the reason for the arrest. maintained without reasonable or probable cause. ELEMENTS OF BATTERY: Intention: for the tort of battery, it is important that coming in contact with the defendant with the victim, was accompanied by the intention to cause make a contact. A prosecutor The motive of the practitioner in seeking consent will be relevant to the question whether there is a valid consent. His actions were made against Uber and consisted of a series of “citizens arrests”. apprehension of harm on her part, so as to amount to an assault. the older boy towards the plaintiff. Begin typing to search, use arrow keys to navigate, use enter to select, Please enter a legal issue and/or a location. because he had been under extreme pressure from his superiors to do so, not because he wished to bring an offender to justice. In that sense, the criterion has an objective element Conversely, the victim of a battery may file a civil lawsuit stemming from the same incident, in which the defendant is charged with the tort of battery. Whitbread v Rail Corporation of NSW: In Whitbread v Rail Corporation of NSW [2011] NSWCA 130, two brothers who were intoxicated and belligerent, attempted to travel from Gosford railway station in as to whether Mr Rixon had been the victim of an assault and, in addition, a battery. the young man was arrested and charged with assault and resist arrest. The autonomy of the patient and the right to refuse to consent to medical treatment should be considered fundamental principles of medical law. However, Macfarlan JA The treatment was necessary to preserve his life. The order required her to be detained in a hospital and this was the only relevant order which determined her place Civil Battery (Tort) A battery is an intentional tort, as opposed to an act resulting from negligence. Torts can be a complex part of the law to understand because there are many specifics to each individual case that must be examined. This is one of those rare cases where the court considered matters of public policy in deciding whether In the case of the necklace (above), the plaintiff may ask for monetary damages to cover. soon as reasonably practicable, of taking the arrested person before a magistrate and that the arrest in this case was unlawful. The requisite intention for battery is simply this: the defendant must have intended the consequence of the contact with the Fullerton J agreed with the plaintiff’s contention that, from an objective point of view, the trial had been initiated and [1] It is the intentional contact with another person’s body which is either harmful or offensive. of process is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object Reference was made remarks at a nearby service station. This decision was upheld by the CA. The Court of Appeal agreed with the trial judge that neither of these defences eyes will be regarded as contact: Walker v Hamm [2008] VSC 596 at [307]. in mind: Hyder v Commonwealth of Australia (2012) 217 A Crim R 571 at [18]–[19] per McColl JA. under legislation which was later held invalid) provided lawful authority for Mr Kable’s detention. Ques. In Ea v Diaconu [2020] NSWCA 127, the applicant claimed the first respondent (an officer of the Australian Federal Police) committed misfeasance It is significant however that the plaintiff’s claim of negligence against the State was upheld by the appeal court. Visit our professional site », Created by FindLaw's team of legal writers and editors The plaintiff was a young woman with severe developmental It is necessary to look at the character of the underlying This is also important in distinguishing accidental conduct. Battery is a general intent offense. parents knowing of the removal or the fostering. This constituted a breach of Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) s 201. A defendant who directly causes physical contact with a plaintiff (including by using an instrument) will commit a battery obligation of his foster parents to care for him and also attributable to his immaturity. card. As to words, in Barton v Armstrong [1969] 2 NSWR 451 a politician made threats over the telephone and these were held to be capable of constituting an assault. State of NSW v Kable: In State of NSW v Kable (2013) 252 CLR 118, the High Court of Australia held that a detention order which had been made by the Supreme Court (but nor mere suspicion. whether it is sufficient that the public officer by virtue of their position is entitled or empowered to perform the public Contact a qualified personal injury attorney to make sure your rights are protected. In State of NSW v Zreika, above, the plaintiff succeeded in assault, wrongful arrest and malicious imprisonment claims against police. the exercise of a de facto power, that is, a capacity she had, by virtue of her office, to influence the jury by her reactions authority: Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343, at 379 per Dixon J. The evidence suggested a strong possibility that the younger boy and false imprisonment. in the outcome and had been exercising a public duty. The Act The act must result in one of two forms of contact. tort: it is not enough to prove gross incompetence, neglect, or breach of duty. federal police agent had arrested him without lawful justification and thereby falsely imprisoned him. In relation to the assault issue, the facts were that a casino employee had placed his hand on the the other hand, in the Coles Myer case, the police had acted lawfully in detaining two men identified by a store manager as acting fraudulently in a department tort of intimidation. of the machinery of justice”: Mohamed Amin v Jogendra Bannerjee [1947] AC 322. of a nolle prosequi, the plaintiff in a subsequent malicious prosecution case, is required to prove his or her innocence. The prosecution was not activated by malice. The Victorian Court of Appeal held that the appellants had remained in the forest, not primarily because of the respondents’ These actions were central to the question she had been hit by her father. that the Public Guardian did not consent to Ms Darcy staying at the premises on a permanent basis, nevertheless consented In confirming the Court of Appeal’s decision (Robinson v State of NSW (2018) 100 NSWLR 782), the High Court held by majority, that an arrest under s 99 of LEPRA can only be for the purpose, as Basten JA (with whom Beazley JA agreed) held that “…the dentist probably did not believe at the time that he carried out the Negligence occurs in many different social contexts, including on the roads, in the workplace, or … Commission The following cases provide a range of illustrations of this contemporary enlargement of Common assaults however, lack these aggravating … the Local Court. Any element of restraint, whilst he grew as a young child, was solely attributable to the Because battery is an intentional tort, the victim can file a civil lawsuit against the perpetrator for monetary damages, regardless of the outcome of a criminal trial. Damage is an essential element of the tort. gesturing, rolling her eyes and grinning, which attempted to influence the outcome of the proceedings. that the detention order was valid until it was set aside. In A v State of NSW, above, the High Court expressed the first element of the tort as being “that proceedings of the kind to which the tort applies She found that he had a profound lack of insight into The intent required for the tort of assault is the desire to arouse an apprehension of physical contact, denied liability for trespass to the person. was not a case where a reasonable prosecutor would have concluded that the prosecution could not succeed. of parties succeeding on the basis of the tort are rare: see Williams v Spautz at 553 for examples and the discussion in Burton v Office of DPP (2019) 100 NSWLR 734 at [14]–[42]; [48]–[49], [60]; [124]. Stay up-to-date with how the law affects your life, Name While battery is as a crime, it is also a tort which can expose you to civil liability as well. The respondents imposed a picket near the site which made it impossible for the appellants to leave by the most direct While assault and battery are often paired in peoples' minds, there is a difference: battery requires actual contact, while assault can be brought simply for causing the apprehension of contact. Conversion (in the context of a tort) Conversion, in the context of tort law, refers to another situation when a person exercises dominion over goods which is a violation of the legal rights of the party who has a right to immediate possession of those goods (i.e. to justice and thereby aid in the enforcement of the law, and that a prosecutor who is primarily animated by a different aim The court held that, as malicious prosecution for continuing the proceedings: Hathaway v State of NSW [2009] NSWSC 116 at [118] (overruled on appeal [2010] NSWCA 184, but not on this point); State of NSW v Zreika [2012] NSWCA 37 at [28]–[32]. However, in my view, the power does not have to be expressly attached to the office. The court said at [67]: To allow an action for false imprisonment to be brought by one member of the services against another where that other was he would have been compelled to go along if he had refused. consented to her remaining at the institution. She did not wish to stay there and, while she had a Beckett, above, has laid to rest an anomaly which had existed in Australian law since 1924. Darcy v State of NSW: Darcy v State of NSW [2011] NSWCA 413 demonstrates the width of the concept of imprisonment. contact: Barker et al at p 36. The plaintiff lived in foster care until he was 10 years old. He sought substantial damages to compensate him or (See also Martin v Watson [1996] AC 74 at 86–7.) He or she need not intend to cause harm or damage as a result Although s 99(3) has since been repealed, the primary judge misconstrued important B is thereby induced to refrain from exercising his legal right to deal with C. In Uber BV v Howarth [2017] NSWSC 54, Slattery J issued a permanent injunction to restrain a litigant in person who had engaged in the unusual of the patient required that the primary judge make the order permitting the treatment. The secondary issue was whether the Public Guardian had His Honour conducted a detailed examination of consent to medical treatment, including beyond that which the legal process offers. capable of being known at the relevant time”: Ruddock v Taylor (2005) 222 CLR 612 at [40] per Gleeson CJ, Gummow, Hayne and Heydon JJ. Moreover, the court agreed with the trial judge that an alternative means The primary judge assessed damages at $100,000 but ordered that only $1 be paid because the periodic The appellant had bought proceedings against the Commonwealth of Australia alleging that a The mere fact that she could and should have been detained in another place did not prevent the detention being or maintained the proceeding without reasonable or probable cause. have been involved in a criminal offence. She lived in the community but in circumstances where she had been in trouble with the police on occasions. the circumstances of her stay at Kanangra amounted to imprisonment. In most cases, it will be apparent that an intention to make contact can simply be inferred from the nature and circumstances the fraud vitiated any consent given to the procedure. justification falls on the defendant: Darcy v State of NSW [2011] NSWCA 413 at [141]–[148]. An assault is any direct and intentional threat made by a person that places the plaintiff in reasonable apprehension of an In A v State of NSW, (2007) 230 CLR 500, the plurality of the High Court gave a detailed and historical narrative of the development of the tort. An example of wrongful arrest appears in State of NSW v Smith (2017) 95 NSWLR 662. by later claiming costs incurred in conducting a criminal appeal in later civil proceedings: State of NSW v Cuthbertson at [63]–[67]; [114]; [144]–[145]; [161]. Conversely, if there was only an intended assault, as in a person gesturing toward another in a menacing manner, and the person trips and actually crashes into the other person, both an assault and battery have occurred. It is arguable that the abuse of de facto powers, ie the capacity to act, derived from His employer arranged for him to see the defendant, a dental surgeon. consent to the treatment because it was not necessary for his particular condition. right to be at liberty was already so qualified and attenuated, due to his sentence of imprisonment together with the operation The circumstances were that, when he was about a year old, he was of malicious prosecution”: Willers v Joyce [2018] AC 779 at [25]. at risk and the obtaining of consent is not possible (Hunter New England Area Health Service v A (2009) 74 NSWLR 88); self-defence (Fontin v Katapodis (1962) 108 CLR 177); and consent. expropriation). State of NSW v Exton In State of NSW v Exton [2017] NSWCA 294, the issue related to a police officer directing a young Aboriginal man to exit a motor vehicle. However, strict proof will be required, not conjecture See also Perera v Genworth Financial Mortgage Insurance Pty Ltd [2019] NSWCA 10 at [16] in which an appeal against the dismissal of an action for malicious prosecution in civil proceedings accepted that the dentist had acted fraudulently in the sense that he was reckless as to whether the treatment was either are pending, the action is at best an indirect means of putting a stop to an abuse of the court's process: Williams v Spautz, above at 520, 522-523 citing Grainger v Hill. See also Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 123. Related Studylists. the commission of a tort. This was because the ultimate Finally, as the High Court pointed out in A v State of NSW, there is a need for the court to decide “whether the grounds which actuated [the prosecutor] suffice to constitute reasonable the arrest was necessary for one of purposes in s 99(3) (repealed) and the decision to arrest must have been made on reasonable It is an intentional Consequently, on either basis, the plaintiff was that is not the procedure, the subject of a consent, will constitute a battery. Moreover, the apprehension as between service members in respect of the “bona fide execution of a form of military punishment that could be lawfully The tort of battery has arisen from hundreds and hundreds of years of common law imported from Britain, that is not necessarily relevant to the present conditions in Australia. At common law, battery is the tort of intentionally (or, in Australia, negligently) and voluntarily bringing about an unconsented harmful or offensive contact with a person or to something closely associated with them, such as a bag or purse.Unlike assault, in which the fear of imminent contact may support a civil claim, battery involves an actual contact. so, whether there was a justification for the detention. The three torts that emerged from the concept of trespass to the person — assault, battery and false imprisonment are actionable Importantly, the reasonable apprehension must relate she dismissed the plaintiff’s case on the basis that the prosecutor’s failures, extensive though they were, were not driven 8 Axel (A) was a business competitor with Bart (B), and wanted to kill him so that he would no longer have this competition with his business. He was successful and the State sought leave to appeal in the Court of Appeal. that the plaintiff was the shooter and, five days later, arranged for his arrest and charging. 1.2. was refused. For example, where a prisoner is held in detention beyond the terms of their sentence as a consequence of an honest mistake, to the District Court as the appellant’s claim ought not to have been summarily dismissed because it was arguable he had an JA did not agree with McColl JA’s conclusion. In 2008 Gordon Woods was convicted of the murder of Caroline Byrne. For example, if a person threatens to spit into another's cup of coffee (clearly offensive and possibly harmful), and then proceeds to do so, both a criminal and civil battery have occurred. These were identified as: A gives effect to his intention by threatening B that A will commit an unlawful act as against B, The unlawful act is threatened, unless B refrains from exercising his legal right to deal with C, and. For example, actions may carried out root-canal therapy and fitted crowns on all the plaintiff’s teeth at a cost of $73,640. He produced a pensioner concession card but could not supply any photo case of trespass to the person, there is no requirement that the defendant intend to act unlawfully or to cause injury. At the heart of the tort is the notion that the institution of proceedings for an improper purpose is a “perversion to hospital by ambulance and treated by doctors and social workers. In other words, if in the process of physically gesturing to violently yank the necklace off, contact is actually made and the necklace is pulled from the other's neck, a battery has occurred. the process of issuing an AVO. for the development of a new head of “vindicatory damages” separate from compensatory damages. The plaintiff succeeded in A v State of NSW (on the malice issue) because he was able to show that the proceedings were instituted by the police officer essentially favour; and b) want of reasonable and probable cause for institution of the initial proceedings. the order, the proposed treatment would have constituted a battery upon the young man. The Supreme Court and the High Court dismissed an appeal. 1.1. These were succinctly reformulated by the High Court in Beckett v NSW (2013) 248 CLR 432 at [4] as follows: …the plaintiff must prove four things: (1) the prosecution was initiated by the defendant; (2) the prosecution terminated Let me again define for you the meaning of battery. His Honour did not accept that the dentist’s concessions that the As has been said, proof of damage is not an element of the three “trespass to the person” torts. It is for that reason that a medical procedure carried out without the patient’s consent may be a battery. unlawful. not be actionable at all. Haskins v The Commonwealth: In Haskins v The Commonwealth (2011) 244 CLR 22, the High Court held that a member of the defence force who had been convicted by a military court of disciplinary a. not necessarily an intention to inflict actual harm. to lay a charge is not to be equated with a magistrate’s decision or a judge’s ruling. There was no maltreatment or issue of neglect or any other matter which justified The hypothetical reasonable prosecutor The word “necessary” means “needed to be done”, “required” in the sense of “requisite”, or something Two justices (Kiefel CJ and Keane J) considered term” of 20 months and ordered that she be detained at Mulawa Correctional Centre. in treating him without a valid consent. In the first situation, the police officer suspect, on reasonable grounds, that the arrest was necessary. she remained at Kanangra for some six years before residential accommodation was arranged for her. for the purposes of the Crimes Act 1914 s 3W(1). judges have diluted the requirement of malice at the same time as they have expressed confidence that their changes leave In A v State of NSW, the plaintiff had been arrested and charged with sexual offences against his two stepsons. notwithstanding that the relevant provisions of the Defence Force Discipline Act 1982 subsequently had been held to be invalid. There is a “large question” as to whether the tort of malicious prosecution extends to the commencement and carrying on of the early hours of the morning without tickets. Only public officers can commit the tort, and only when they are misusing their public power or position. See Carter v Walker (2010) 32 VR 1 at [215] for a summary of the definition of “battery”. Section 70 limits the circumstances in which costs in favour of a party who successfully appeals a conviction may be The practitioner had performed the treatment to generate income for himself. The Mental Health Review Tribunal determined Generally, there must be shown a purpose other than a proper purpose. An attorney will be able to connect the legal dots to make a convincing case that your claim satisfies the elements of a battery, while advocating on your behalf. In A v State of NSW, the plurality examined the types of “extraneous purpose” that will suffice to show malice in malicious prosecution proceedings. The word […] Hyder v Commonwealth of Australia: In Hyder v Commonwealth of Australia [2012] NSWCA 336, the judgment of McColl JA contains a valuable discussion of the meaning to be given to the phrase “an honest is given on more slender evidence than proof”: George v Rockett at [112]. The state This may often require the court to consider the proper response of the “ordinarily prudent and cautious man, placed in the what was an appeal from the summary dismissal of proceedings seeking damages for breach of the tort. not capable of addressing the patient’s problem, there would be no valid consent. Copyright © 2020, Thomson Reuters. Conversely, if a person intended only an assault (to cause apprehension of an imminent battery), and harmful or offensive contact actually occurs, the person has committed a battery as well as an assault. disabilities. On the false imprisonment claim, the court found that the Casino Control Act 1992 and its regulations justified the plaintiff’s detention for a short period of time until the arrival of the police. As has been pointed out (Barker et al p 91) there is an important temporal element in determining whether the defendant commenced held. act or compensate for loss, is unsupported by authority or principle. a member of the public has given apparently credible information to the police and the police have then charged the plaintiff See also, HD v State of NSW [2016] NSWCA 85 at [5-7120]. or loss may be claimed and, if proven, damages will be awarded. which can be awarded for disproportionate acts of self-defence. imminent contact with the plaintiff’s person, either by the defendant or by some person or thing within the defendant’s control: steps outside the pale, if the proceedings also happen to be destitute of reasonable cause. of sufficiency”. witness could properly be categorised as “prosecutors”. This was so of the Act, that he suffered no real loss. Consequently, the manager’s employer was vicariously responsible for the wrongful detention. trial judge that the evidence demonstrated that the plaintiff had shown an absence of probable belief in the case of the charge In State of NSW v Robinson [2016] NSWCA 334, the Court of Appeal held that for an arrest to be lawful, a police officer must have honestly believed of Appeal acquitted him on the murder charge. In proceedings between his periodic detention after he failed to report on numerous occasions. In this article, we will discuss more the tort law process and some examples of the tort law cases. staff are responsible for updating it. The defendant need not know the contact is unlawful. ... and causation between the first two elements. as to what happened during a particular occasion or event, whether domestic or otherwise. position of the accuser,” to the conclusion that the person charged was probably guilty. consequence” of the tortious conduct of wrongful arrest. However, harm may be so severe that he or she may qualify for assistance through a "victims' compensation fund.". He had This also means that gross negligence or even recklessness may provide the required intent or (in criminal matters) mens rea to find a battery. Microsoft Edge. prosecutor of some illegitimate or oblique motive”: A v State of NSW at [95]. However, the most important thing to point out is that unless the four elements of tort law mentioned in this post are present, then there can be no case for a tort. Traditionally the notion of false imprisonment related to arrest by police officers or other authorities. 18 ; at 239-240, referred to by Trindade and Cane, note 5, pp 21-22. Battery exists in both the tort law context and the criminal law context. was that the dental treatment had been completely unnecessary to address the problem with his teeth; and the dentist must The Civil Liability Act 2002 s 3B excludes “civil liability … in respect of an intentional act that is done … with intent to cause injury”. would be deeply disruptive of what is a necessary and defining characteristic of the defence force. State of SA v Lampard-Trevorrow: In State of SA v Lampard-Trevorrow (2010) 106 SASR 331, the Full Court of the South Australian Supreme Court gave consideration to whether a member of the stolen that injury as well). Torts Case Digest - This will be useful to you. Discuss Your Battery Claim with an Experienced Attorney. In Dean v Phung [2012] NSWCA 223, the plaintiff was injured at work when a piece of timber struck him on the chin causing minor injuries An excluded person now stands, see New South Wales v Robinson 2019. 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