Trespass to the person

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Trespass to the person

(Q) What is the definition of Assault and what case supports it?

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Trespass to the person

1) Where the defendant's words, act or silence causes the victim to apprehend immediate unlawful force.

2) Fagan v Metropolitan Police Comissioner.

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What is the definition of battery and what case supports it?

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1) Battery is the aplication of an unlawful force.

2) Collins v Wilcock

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What does the case of Letang v Cooper show?

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Intention must be established ; negilgence does not constitute intention. Carlessness on the defendant's part would not allow him to escape liability in trespass.

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What does the case of Fowler v Lanning show?

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Without intention or negligence there is no cause of action. Diplock J wanted to ensure that the claimant could not gain any unfair advantage by relying on trespass rather than negligence.

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Who does the burden of proof rest upon?

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Trespass to the person

On the claimant to show the defendant's negligence.

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Trespass to the person

What is transferred intent and what is the leading case?

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1) Transferred intent is when the defendants actual victim is different from their intended victim.

2) Livingstone v MoD.

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What did Goff LJ say in Collins v Wilcocks?

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The test in whether there was physical contract 'has in the circumstances gone beyond generally accepted standards of conduct'.

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What did the Court of Appeal say in Wilson v Pringle?

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That the claimant must show that the defendant's touching of the claimant was a 'hostile' touching. The case involved two teenage boys engaging in horseplay so the case was insufficent to establish a battery.

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Trespass to the person

What does the case of Re F (Mental Patient: Sterilization) show?

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Trespass to the person

Where a person by reason of some permanent or temporary mental incapactiy cannot himself consent to medical or other necessary procedure the requiste lawful excuse might have to be found in the principle of necessity.

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What act states whether an invidiaul is competent to give consent?

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Mental Capacity Act 2005.

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What is the so called 'rule in Wilkinson v Dawson'?

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Intentional infliction of psychological harm through words is a negligence case. Hard to implement.

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Trespass to the person

What defences may a defendant seek to justify his actions on a number of grounds?

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Trespass to the person

Consent - Whether express or implied, is a defence to battery, but public policy may impose limits (R v Brown). Consent is the basis of the defence in sports case and medical treatment. the latter often poses significant difficulties.

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Why does the defence of medical treatment in consent pose such difficulties?

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It has to be established that the patient is fully informed of what he is consenting too (Chatterton v Gerson).

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What happens when an individual refuses consent in medical treatment?

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R v GMC - Where a competent patient makes it clear that he does not wish to recieve treatment which is in his best interest, it is unlawful for doctors to administer that treatment. Personal autonomyy prevails.

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What happens in cases where consent or refusal cannot be obtained? Give a case example

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Trespass to the person

Re A (Children) (Conjoined Twins: Surgical Seperation) - Medical practioners went to the courts to ask for the permission to operate on the twins knowing that the weaker twin would die in order to save the other twins life. Sought the permission to avoid liability as parents refused to make the decision.

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Trespass to the person

What are the two other defences and give case examples..

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Trespass to the person

1) Necessity - Airedale NHS Trust v Bland - Similar to consent.

2) Self Defence - May be available to a defendant provided that he had a 'reasonable apprehension' of immediate harm and that his actions were proportionate to that threat. (Lane v Holloway).

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What does the Criminal Justice Act 2003 stated in regards to these defences?

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Introduced to clear up a very murky legal area. Even if your suspicions turn out to be correct under common common law you could still be liable for battery because private citizens generally have no power to restrain or search another on a mere suspicion. S 329 CJA 2003 may provide a defence if an individual is convicted of the crime of which he was suspected.

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What is Contributory negligence?

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Can the defendant argue that the claimant to his own by carelessly placing himself in a situation where harm was likely to occur? (Co - operative Group Ltd v Pritchard)

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What is false imprisonment?

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Is the unlawful and total physical restraint of the liberty of the claimant.

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What is the mental element of false imprisonment?

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The defendant must intend to do an act that will restrain the claimant. An intent to retrain claimant even if D believes actions to be lawful (R v Governor of Brockhill Prison ex p Evans)

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What does the case of Bird v Jones show?

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Restraint of the claimant must be total and not merely partial. it is not necessary that the person be locked in a room or a cell; however, 'restraint [must be] within some limits defined by a will or power exterior to the [the claimant's] own'.

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What is ignorance of detention?

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Ignorance of detention is where the individual is unaware thatthey are imprisoned. This could be because they're asleep or drunk etc. The damages might be diminshed. It should remain actionable even without proof of special damage (Meering v Graham - White).

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Trespass to the person

What are conditions of entry

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Where the claimant enters a property under certain condtitions (such as those agreed under a contract) then it may be that a refusal to let the claimant leave will not constitute false imprionment

Case Examples:-

Robinson v Balmain Ferry Co Ltd - There is no law requiring the defendants to make the exit from their premises gratutious to people who come there upon a definite contract which involves their leaving the wharf by another way.

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What are the defences of false imprisonment?

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Trespass to the person

A topical issue at the moment concerns the legality of the police practice of 'kettling' So far this practice has been succesfully defended on the basis of necessity.

Case Example:-

Austin v Commissioner of Police of the Metropolis

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Trespass to the person

Define the Protection from Harassment Act 1997

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Act creates two criminal offences

- Offence of harassing one other person. Requires there to have been a course of conduct that is, conduct on at least two occassions - one off incident of harassing conduct do not fall within the statute.

Harrassment is defined as alarming persons and causing them distress (Hayes v Willoughby) - a persistent and deliberate course of unreasonable and oppressive conduct. What might be harrassment in one environment may not be in another environment.

- Second offence arises where the defendant pursues a course of conduct that involves harassment of two or more persons and this harassment is intended to persuade any person either not to do something he is entitled or obliged to do, or to something that he is not obliged to do.

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