Someone is about to sit down in a chair, D pulled it out --> it is a battery.
Relevance: Direct contact
Tuesday, August 4, 2009
Scott v Shepherd ( 1773)
o A larrikin tossed a lit firework into a market. It was quickly thrown away to another person and another, and it ended by exploding in the plaintiff’s face.
o Injury arose from the force of the original act
o Each of the other players were a continuance of this original act
---> Acting under compulsive necessity. They were not free agents, not voluntary.
Need to ask: what constitute a direct act?
Giumelli v Johnston 1991) Aust Torts
ESSENCE:
- reasonable consent in sport
Australian rule footie allows strong body contact in the game. Thus, players have consented to the contacts by participating in the game. It is also agreed that some reactions that are not in the footie game rules are also accepted. Consent extends to the application of force within the rule of game and to some commonly infringement of the rule of games. Consent however does not extend to the violence applied in contradiction to the rules of the game by an opposing player who intends to cause injury and who knows that such harm would be highly likely result.
D's action was outsoide the common infringement. So no consent to that.
- reasonable consent in sport
Australian rule footie allows strong body contact in the game. Thus, players have consented to the contacts by participating in the game. It is also agreed that some reactions that are not in the footie game rules are also accepted. Consent extends to the application of force within the rule of game and to some commonly infringement of the rule of games. Consent however does not extend to the violence applied in contradiction to the rules of the game by an opposing player who intends to cause injury and who knows that such harm would be highly likely result.
D's action was outsoide the common infringement. So no consent to that.
Collins v Wilcock [1984] 1 WLR 1172
ESSENCE:
- Implied consent to daily contact. Contact must be reasonable to be consented, i.e within the normal standard.
Facts
Two policemen saw two women that looked like soliciting for prostitution. Police knew one was a prostitute but not the other. Police asked them to get in the car but they walked away. Police followed and requested identity card. Women walked away. Police took hold of appellant's harm to detain her. Appellant swore and scratched the police with her fingernails. Appellant was convicted of assaulting the executive in duty. She appealed and brought action against the police for battery for holding her arms.
Held
(1) Except when lawfully exercising his power of arrest or some other statutory power a police officer had no greater rights than an ordinary citizen to restrain another. Accordingly, whether a police officer's conduct was lawful when detaining a person, to question him in circumstances where the officer was not exercising his power of arrest or other statutory power depended on whether the physical contact the officer used to detain the person was no more than generally acceptable physical contact between two citizens for the purpose of one of them engaging the attention of the other and as such was lawful physical contact as between two ordinary citizens. If the conduct used by the officer went beyond such generally acceptable conduct eg if the officer gripped a person's arm or shoulder rather than merely laying a hand on his sleeve or tapping his shoulder, the officer's conduct would constitute the infliction of unlawful force and thus constitute a battery (see p 378 j and p 379 a to e, post); dictum of Parke B in Rawlings v Till (1837) 3 M & W at 29, Kenlin v Gardiner [1966] 3 All ER 931, Ludlow v Burgess (1971) 75 Cr App R 227 and Bentley v Brudzinski (1982) 75 Cr App R 217 applied; Wiffin v Kincard (1807) 2 Bos & PNR 471 and Donnelly v Jackman [1970] 1 All ER 987 distinguished.
(2) The 1959 Act did not confer power on a police officer to stop and detain a woman who was a prostitute for the purpose of cautioning her. Furthermore, the fact that the reason an officer detained a woman was to caution her regarding her suspicious behaviour did not render the officer's conduct lawful if in detaining her he used a degree of physical contact that went beyond lawful physical contact as between two ordinary citizens (see p 380 b to f, post).
(3) Since the policewoman had not been exercising her power of arrest when she detained the appellant, and since in taking hold of the appellant's arm to detain her the policewoman's conduct went beyond acceptable lawful physical contact between two citizens, it followed that the officer's act constituted a battery on the appellant and that she had not been acting in the execution of her duty when the assault occurred. Accordingly the appeal would be allowed and the conviction quashed (see p 380 f g, post).
----> BATTERY was established.
- Implied consent to daily contact. Contact must be reasonable to be consented, i.e within the normal standard.
Facts
Two policemen saw two women that looked like soliciting for prostitution. Police knew one was a prostitute but not the other. Police asked them to get in the car but they walked away. Police followed and requested identity card. Women walked away. Police took hold of appellant's harm to detain her. Appellant swore and scratched the police with her fingernails. Appellant was convicted of assaulting the executive in duty. She appealed and brought action against the police for battery for holding her arms.
Held
(1) Except when lawfully exercising his power of arrest or some other statutory power a police officer had no greater rights than an ordinary citizen to restrain another. Accordingly, whether a police officer's conduct was lawful when detaining a person, to question him in circumstances where the officer was not exercising his power of arrest or other statutory power depended on whether the physical contact the officer used to detain the person was no more than generally acceptable physical contact between two citizens for the purpose of one of them engaging the attention of the other and as such was lawful physical contact as between two ordinary citizens. If the conduct used by the officer went beyond such generally acceptable conduct eg if the officer gripped a person's arm or shoulder rather than merely laying a hand on his sleeve or tapping his shoulder, the officer's conduct would constitute the infliction of unlawful force and thus constitute a battery (see p 378 j and p 379 a to e, post); dictum of Parke B in Rawlings v Till (1837) 3 M & W at 29, Kenlin v Gardiner [1966] 3 All ER 931, Ludlow v Burgess (1971) 75 Cr App R 227 and Bentley v Brudzinski (1982) 75 Cr App R 217 applied; Wiffin v Kincard (1807) 2 Bos & PNR 471 and Donnelly v Jackman [1970] 1 All ER 987 distinguished.
(2) The 1959 Act did not confer power on a police officer to stop and detain a woman who was a prostitute for the purpose of cautioning her. Furthermore, the fact that the reason an officer detained a woman was to caution her regarding her suspicious behaviour did not render the officer's conduct lawful if in detaining her he used a degree of physical contact that went beyond lawful physical contact as between two ordinary citizens (see p 380 b to f, post).
(3) Since the policewoman had not been exercising her power of arrest when she detained the appellant, and since in taking hold of the appellant's arm to detain her the policewoman's conduct went beyond acceptable lawful physical contact between two citizens, it followed that the officer's act constituted a battery on the appellant and that she had not been acting in the execution of her duty when the assault occurred. Accordingly the appeal would be allowed and the conviction quashed (see p 380 f g, post).
----> BATTERY was established.
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