4288908
Descrição
FlashCards por pavlina.hunt, atualizado more than 1 year ago
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Criado por pavlina.hunt
quase 9 anos atrás
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| Questão | Responda |
| Which are the torts of trespass to the person? | - Battery - a direct and intentional application of unlawful physical contact ; - Assault - intentionally causing the apprehension of an imminent battery (Collins v Wilcock); - False imprisonment - intentional restraint on the freedom of movement of another; - Wilkinson v Downton - D wilfully acts in a way intending to cause harm to the claimant by indirect means, and this results in physical or psychiatric injury. |
| Common characteristics | - committed intentionally (Letang v Cooper - distinguishes between negligence and trespass to the person); - take the form of direct harm by D's act; - actionable per se, that is, without proof of damage. |
| Battery (ingredients) | (1) intentional application of unlawful force, but not need to be hostile (physical contact is required); (2) which is direct and immediate; and (3) for which D has no lawful justification or excuse (that is, no defence). |
| Intention (battery) | - Williams v Humphrey - D pushed C in the pool causing harm, the action was intentional not to cause harm; - Bici v Ministry of Defence - 'transferred intent' D meant to hit A, but instead hit B, becoming liable for battery to B; - Nash v Sheen - the intention does not need to be hostile or malicious - trip to the hairdresser went wrong ending up with manky coloured hair and a rash. |
| Unlawful touching (battery) | Any physical contact which was not generally acceptable in the ordinary conduct of everyday life. (no need for actual injury) Lord Goff in Collins v Wilcock affirmed in Re F |
| Direct (battery) | It is interpreted very widely: - Scott v Shepherd - D threw firework, two stallholders threw it along afraid it might harm them, C suffered injuries, D liable in battery; - DPP v K - schoolboy put harmful chemical into a hairdryer causing injuries, was liable; - Haystead v Chief Constable of Derbyshire - D struck C causing her to drop the baby she was holding: constituted battery in relation to the baby. |
| Defences (battery) (burden of proof on D) | - Self defence (resist unlawful arrest or harm to themselves, others or property) - Cockroft v Smith - the amount of force used has to be reasonable and in proportion to the situation; - Consent (proportionate force) - sporting activities; voluntary fighting; medical consent - Simms v Leigh (broken leg during professional rugby match); - Necessity - s 3 Criminal Law Act 1967 - reasonable force in the prevention of crime |
| Assault (ingredients) | (1) D intends that C apprehends the application of unlawful force; (2) C reasonably apprehends the immediate and direct application of unlawful force; (3) for which D has no lawful justification or excuse. |
| Intention (assault) | D must have acted voluntarily, and have intended to cause C to apprehend the application of immediate unlawful force, or be subjectively reckless as to the possibility that their actions will cause C to apprehend the application of such force. |
| Reasonable apprehension (assault) | Objective test of apprehension, not fear of attack or if C were able to defend themselves. - Stephens v Myers - D went to strike C, but someone stopped him. C anticipated the strike -> assault |
| Immediate and direct application of unlawful force (assault) | - Thomas v National Union of Mineworkers - workers transported past picket lines on buses were being threatened by those on strike, it was obvious that the threats could not be carried out -> NO assault - R v Ireland - words may amount to assault in rare circumstances if they cause C to apprehend immediate personal violence; no gesture is needed. |
| Defence (assault) (burden of proof on D) | Consent - role play |
| False imprisonment (ingredients) | (1) Intention to; (2) directly and completely restrain the freedom of movement; (3) which is not expressly or impliedly authorised by law. |
| Intention (false imprisonment) | - Iqbal v Dean Manson Solicitors - a security guard in an office locked the door to C's room believing he has gone home. The locking was intentional, but not the imprisonment. |
| Direct (false imprisonment) | If A asks B to lock C, then B is liable, unless B did not have a choice, like having a gun pointed at their head. Davidson v Chief Constable of North Wales - A store detective wrongly accused C of stealing. C brought a claim against him, but it was the police who imprisoned him on the information provided by D. Break in causation. |
| Complete restrain (false imprisonment) | - The constraint must be total without reasonable means of escape - Bird v Jones (blocked off path on bridge is not, as C can turn back); - Reasonable restriction is not false imprisonment - Robinson v Balmain Ferry Co Ltd (he could have passed had he paid the agreed 1p); - Knowledge of the restrain is not necessary - Meering v Grahame-White Aviation - no knowledge of the two police officers outside of the detention room, who would have prevented him from leaving. |
| Without legal authorization (false imprisonment) | R v Governor of Brockhill Prison, ex parte Evans - The lawful imprisonment only lasts as long as the sentence lasts. Wrong calculation by the prison added 59 days. |
| Defences (false imprisonment) (burden of proof on D) | - Consent - Herd v. Weardale Steel, Coal and Coke Co - contractual agreement to work his mining shift to the end; - Statutes (lawful authority) - Prison Act, Mental Health Act, Police and Criminal Evidence Act; - Necessity - art. 5 ECHR - reasonable measures for crowd control in 'extreme and exceptional circumstances' - Austin v Metropolitan Police Commissioner |
| The tort in Wilkinson v Downton | P suffered nervous shock after D told her falsely that her husband was involved in a serious accident. - intentional; - words or conduct (spooking someone) will suffice; - requires harm physical or recognised psychiatric illness; - indirect; - was reasonably likely to cause terror in a normal person, unless D was aware of the frailness of their victim. |
| Limitation period | - Adults: Section 2 Limitation Act 1980 The action must be brought within 6 years of the tort being committed - Children: 6 years form turning 18 |
| Remedies | - Nominal damages - no injury = little money; - Punitive damages - abuse of power or injury big amount to make an example; - Declaration - no monetary value, just satisfaction from the recognition that the intervention was unlawful. |
| The Protection from Harassment Act 1997 | A new form of action is available under the act in respect of: - a course of conduct (on at least two occasions); - pursued against C; - which alarmed C or caused distress. |
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