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The dispute that occurred among the individuals had caused potential trespass to person claims. Trespass to person tort is involved in intentional, direct interference to claimants and is branched into three elements: assault, battery and false imprisonment. Phil could claim assault against Grant due to him coming at him in an aggressive manner and for throwing a bottle at him. However Phil could also possibly be prosecuted for Battery, from Grant’s girlfriend, because of the unlawful kiss he enforced on her.
On the other hand Grant may be prosecuted by, not only Phil but, Dot for Battery by hitting her with a bottle. Assault is defined as an act that causes another person to apprehend the infliction of immediate and unlawful force on a person. For a case to constitute assault it must be an actionable per se that’s intentional. In R v Belfon 19761 case the judgement concluded that the defendant was not guilty due to the defendant not been proven to have the specific intent required for to be charged with assault. Another criterion of assault is the defendant having to put the claimant in immediate unlawful fear.
Stephen v Myers 18302 was a case that in which the defendant was found guilty for coming at the claimant with a clutched fist, while the defendant’s friends held the defendant back. The defendant was found guilty because he put the claimant in immediate fear. Unlike the case of Thomas v NUM 19853 where the judge held that the claimant was accompanied by the police, during the time of the assault, thus not under immediate fear therefore defendant wasn’t guilty. Battery is defined as the act of infliction of direct, unlawful force on a person without their consent.
This unlawful force must be intentional as seen in Letang v Cooper 19654 where it was determined that unintentional application of force is 1. R v Belfon [1976] 1 WLR 741, CA 2. Stephens v Myers (1830) 172 ER 735 3. Thomas v NUM [1985] 2 All ER 1 4. Letang v Cooper [1964] 2 All ER 292 negligence, not battery. However the intention needs to be to do the action to cause the unlawful contact to the claimant. For example in Livingstone v MOD 19845 the solider missed his target and ended up shooting the claimant instead consequently the judgement proceeded that the intention of the actual shooting of the gun was enough to constitute battery.
In addition defendants can still be charged with battery under the influence of alcohol as seen in R v Brown and Stratton 19986 the judge held that the intention to do the action can’t be justified by being drunk. Furthermore, the contact that amounts to battery doesn’t need to be hostile or cause much harm, as seen in the case of Collins v Wilcock 19847 where the police officer was charged with battery for simply holding the claimant arm to talk to her. In Wilson v Pringle 19868 case the judge ruled that for battery intention touching or hostility instead needed only the intention to inflict injury was required.
Lord Holt in Cole v Turner 17049 stated the least touching of another in anger is a battery but this would be too narrow for an unwanted kiss is as much actionable as a blow10. Moreover, non-consented medical treatment can also constitute assault as seen in Re F 199011 and R v Brown 199312, unless the patient is in critical condition and is unconscious therefore can’t consent. The action of the doctor performing the un-consented treatment will thus be seen as a necessity and can justify the battery. As a result, Phil action toward Grant’s girlfriend can constitute as Battery due to Lord Holts quote in Cole v Turner 1704.
However Phil can charge Grant for assault since 5. Livingstone -v- Ministry of Defence [1984] NILR 356 6. Brown and Stratton [1998] Crim LR 485, CA 7. Collins v Wilcock [1984] 1 WLR 1172 8. Wilson v Pringle 1986 2 all ER 440 9. Cole v Turner (1704) 87 ER 907 10. Torts eighteenth edition, Winifield & Jolowicz, W. V. H. Rogers, chap. 2 pg107 11. Re F [1990] 2 AC 1 12. 12. R v Brown [1993] 2 All ER 75 he was put under immediate fear by Grant throwing a bottle at him and coming at him which is justified by Stephen v Myers 183013. On the other hand Grant could defend his case by using the defence of provotion R v Smith 200014 of mply that Phil was voluntarily participating in fight. However in Lane v Holloway 196815 the court stated for someone to be voluntarily participating in a fight the force used by the defendant needs to be proportionate and in this case the defendants conduct was in excess of that of the claimant. For the defence of provocation however the court in Barnes V Nayer 198616 held that for trespass to person the defence could be contributory negligence not provocation. Contributory negligence is where the damage or injury was due to claimant’s own fault.
Using contributory negligence act 1945 the court has the power to apportion responsibility for damages between defendant and claimant as seen is Pitts v Hunt 199117. Grant can also be charged with battery by Dot, even though he didn’t intent to hit her with the bottle. This is due to the fact that Grant still intended throwing the bottle therefore amounts to battery. Furthermore, Dot cannot hold the hospital doctors liable for battery since it was a necessity as justified in Leigh v Gladstone 190918. 13. Stephens v Myers (1830) 172 ER 735 14. R v Smith (2000) 4 AER 289 15. Lane v. Holloway [1968] 1 QB. 379 6. Barnes v Nayer (The Times, 19 Dec 1986) 17. Pitts v Hunt 1991 1 QB 24 18. Leigh v Gladstone, 1909, 26 TLR, 139 Bibliography Torts eighteenth edition, Winifield & Jolowicz, W. V. H. Rogers, Chapter 2 Tort law Directions, Vera Bermingham and Carol Brennan, Chapter 3 Tort of negligence is an unintentional breach of a legal duty to take care which amounts in harm to the claimant. It is composed of three elements which all need to be present for the claim to be valid, these are: duty of care which the defendant owes the claimant, breach of that duty and damages which claimant received due to that breach.
The main problem that rose from negligence tort was that there was little limitation on liability due to the wide definition used for duty of care. The expansion of duty of care in negligence started at Donoghue v Stevenson 19321 where the judge concluded with the neighbor principle which expanded duty of care to include, not only geographical closeness but, people that we may foresee as in danger from the actions of one’s negligence. This expansion continued by incorporating, employers having a duty of care for the action of their employees2 and local authority’s liability for the negligent inspection of buildings3.
The restriction of Duty of Care was initiated due to rulings from the Privy Council rejecting Ann’s two-stage test which was being used at the time to test for tort of negligence4. Lord Keith, from Privy Council, declared in Rowling v Takaro properties 19885 that Ann’s two-stage test “may be productive failure to have regard to, and to analyse and weigh, all the relevant considerations in considering whether it is appropriate that a duty of care should be imposed. ” Thus, in Caparo Industries Plc V Dickman 19906 a new, more restraint test for duty of care of the negligence tort was devised.
This test was named the Caparo three-stage test that encompassed; 1. Donoghue v Stevenson [1932] UKHL 100 2. Home Office v Dorset Yacht Co Ltd [1970] UKHL 2 3. Anns v Merton London Borough Council [1978] A. C. 728 4. Yuen Kun Yeu v Attorney-General of Hong Kong [1988] A. C. 175 5. Rowling v Takaro Properties Ltd [1988] 1 All ER 163 6. Caparo Industries plc v Dickman [1990] UKHL 2 foreseeability of harm to claimant, proximity to the claimant and is it fair, just and reasonable to impose a duty of care on the defendant.
Therefore for a defendant to have a duty of care to the claimant, the defendant needs to reasonably be able to foresee their actions may cause harm to the claimant. In Haley v London Electricity Board 19657 the defendant could have easily foreseen that by not putting a sign for blind people to be aware of the hole, made by the defendant, that a blind person would injury themselves. Hence the blind claimant who had injured himself by falling into the hole was said to be owed a duty of care by the defendant. In addition, Proximity between the defendant and claimant is needed for there to be a duty of care.
The Marc Rich & Co v Bishop Rock Marine 19958 case proved that there was no proximity therefore no duty of care to the ship surveyor and the cargo owner whose cargo was on a sunken ship that was checked, before sinking, by the surveyor. Furthermore, for a duty of care to be imposed on the defendant it needs to be fair, just and reasonable. For example it wasn’t fair, just or reasonable for the Council to be forced a duty of care when one of their tenants killed another tenant, which was the defendant’s husband9.
The courts analyze fair, just and reasonable by determining the effect, that the outcome of their judgment would have on future negligence claims. Courts tend to avoid an outcome which causes a floodgate of other similar proceeding claims or causes insurance problems. They tend to say these cases have are high 7. Haley v London Electricity Board 1965 AC 778 8. Marc Rich & Co. A. G. v. Bishop Rock Marine Co. Ltd. 1996 1 A. C. 211, 9. Mitchell and Another v Glasgow City Council [2009] UKHL 11. HL policy cases and are therefore not fair just or reasonable10.
In the case of Leach v Chief Constable of Gloucestershire Constabulary 199911, if the court had held the defendant liable it would have caused a floodgate of similar future claims of volunteer appropriate adults suing police service for negligence. Moreover public bodies and emergency services have limited immunity to liability of negligence claims, due to them having limited duty of care imposed on them. The fire services don’t have a duty of care to respond to every distress call they get12 but the fire service do have a duty of care when they do intervene in a rescue and cause more harm than good13.
To conclude, by incorporating all these facts, duty of care is a key limiting device for the tort of negligence. This means that the claimants who want to claim for the tort of negligence will find it harder to find the defendant liable due to the duty of care limiting the liability of negligence claims. 10. X and others (minors) v Bedfordshire County Council [1995] 3 All ER 353 HL 11. Leach v Chief Constable of Gloucestershire Constabulary All ER 215; [1999] 1 WLR 1421 12. Marc Rich ; Co Ag and Others -v- Bishop Rock Marine Co Ltd and Others 1995 UKHL 4 13. Capital and Counties plc v Hampshire County Council [1997] QB 104.