Accident Compensation Act Limitation Act Law Reform Act Intentional Torts: Trespass to the Person...

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Christal Greene
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1 1 Contents Accident Compensation Act Limitation Act Law Reform Act Intentional Torts: Trespass to the Person... 5 Battery... 5 Assault... 6 Sexual Battery... 7 False Imprisonment... 9 Vicarious Liability Intentional Torts: Interference with Goods/Chattels Trespass to Goods Conversion Detinue General Defences to a Claim in Tort Consent (Intentional) Volenti: Voluntary Assumption of Risk (Negligence) Contributory Negligence Necessity Illegality Self Defence/Other Mitigation of Loss General Remedies Damages Injunction Basic Negligence Limitations on Action Is there a Duty of Care? Has there been a Breach of Duty? Causation and Remoteness of Damage Advanced Negligence and Special Types of Loss Mental Injury (Duty of Care)... 28

2 2 Negligent Misstatement (Duty of Care) Relational Economic Loss (Duty of Care) Defective Buildings (Duty of Care) Solicitors (Duty of Care) Special Types of Negligence Doctors Police Intentional Torts: Trespass to Land Nuisance Public Nuisance Private Nuisance Rylands v Fletcher Private Nuisance IIED/Privacy/Defamation IIED (Rare) Privacy Defamation... 69

3 3 Accident Compensation Act 2001 s 20 allows cover for personal injury suffered in NZ caused by accident, treatment, or work related. s 25 s 26 an accident is widely defined, a specific event causing PI defines a personal injury (courts give expansive interpretation) Death, physical injury, mental injury caused by physical injury or criminal acts, damage to dentures or prosthesis. Does not cover gradual process/disease/infection (but WRPI does), standalone mental injury (unless WRPI) Queensland v Palmer (watching wife die), standalone heart attack/stroke (unless WRPI). s 27 s 28 defines a mental injury as clinically significant behavioural, cognitive, or psychological dysfunction. defines a work related personal injury Injury suffered anywhere on work premises, including gradual process/infection, including heart attack from excessive work physical strain. s 32 defines a treatment injury Injury suffered caused by medical treatment. s 33 treatment includes treatment, diagnosing, failure of system. Excluding injuries caused substantially by underlying health conditions, or solely attributable to delayed consent, or treatment failure, or a resource allocation decision. Failed sterilization leading to pregnancy is treatment injury Allenby v H 2012 Misdiagnosis of fetus otherwise terminated is a treatment injury Cumberland v ACC 2013 NZCA s 317 bars common law claims for injuries covered by ACC But s 319 allows for claims of exemplary damages, even if already convicted, but damages less likely where criminal punishment sufficient. Not to be used to top up low levels of ACC McLaren v Somervill 1996 HC Requires intention or subjective outrageousness Couch v AG 2010

4 4 Limitation Act 2010 Limitation Period (General) Limitation Act Why do we have a limitation period? Certainty, unreliability of memory/evidence, finality/closure (not have things hanging over head), also consider the standard of proof for tort.) 2. S 11: a. A timeframe of 6 years from the date on which the act or omission is based. (Primary period). i. For bodily injury prior to 1 Jan 2011, the Limitation Act 1950 applies, for a 2 year primary period. b. Primary period subject late knowledge period extension, 3 years from the late knowledge date, the date the claimant knew or ought to have reasonably known of facts allowing action to be brought. i. Subject to the longstop period of 15 years from date of act. 3. S 17: For child sexual abuse cases, judge can extend long stop period if in interests of justice to do so. 4. S 44: Limitation period for minors starts when they turn S 45: For cases of incapacity/intellectual impairment, long stop period can be extended. 6. S 48: Fraud by the defendant can t extend limitation period until where fraud is detected. Law Reform Act 1936 s 3 A dead person s estate can make claims on the dead person s behalf. This does not include exemplary damages. S 17 Any person who committed a tort, can make a claim from another joint tortfeasor who is also liable in respect of the same damage. Victim can sue any of whom are liable but victim cannot sue a tortfeasor from whom contribution has already been sought. Victim is only able to recover once.

5 Intentional Torts: Trespass to the Person Assault and battery: torts designed to protect the plaintiff s interest in bodily integrity, personal sanctity and dignity. Collins v Willcock [1984] UK (Police arm grabbing) Both torts are actionable per se (without damage). Wilson v Pringle [1987] UK Remember to consider limitation period (6 years), and ACC (bars claims for personal injury). 5 Battery Battery is (Re F (Sterilization) [2000] HL, Lord Goff): 1. Intentional, a. Intent should be for the act, not the injury. Beals v Hayward [1959] SCNZ i. Can t protest I didn t mean to hurt. Act is enough. b. If no intent, then go to negligence, if damage. Fowler v Lanning 1959 CA UK (accidental shooting) c. If intent is established, magnitude > intent is irrelevant. Bettle v Yim (1978) CA i. Eggskull principle. Take the victim as you find them. Accidental nose break via shaking. 2. Application of force to another, a. Should be direct, but can be indirect Iversen v Zendel Industries 1993 (chemicals) i. So long as it is immediate result of actions Letang v Cooper 1. Give some leeway due to interest protected: sanctity. 2. Eg. Putting something in someone s drink, then drink. b. Even where camera flash caused injury to sight? Kaye v Robertson 1991 i. But consider that there does not need to be damage for battery. ii. Photons = same as smoke particles? Maybe? iii. Iverson Williams J expressed approval for heat, light, noise, vapours. c. Can be application to clothes a person is wearing Moir v Police i. Or grabbing an item a person is holding. Extended-plaintiff doctrine. 3. Beyond the bounds of acceptable everyday conduct, Re F (Sterilization) a. So not just brushing past someone in a corridor Cole v Turner [1704]. b. A shoulder tap (Donnelly v Jackman [1970] NZ) vs an arm grab (Wilcock). 4. Without consent or lawful justification. a. For which P must prove balance of probability. b. P can be unaware of battery. Can be asleep. Focus on sanctity of person. c. Go to defences to battery/assault.

6 6 Assault Assault is a direct and intentional threat creating an apprehension of imminent battery, having the present ability to carry out the threat. 1. The potential assault here was [the objective threat of violence or battery], it is direct because assault is an immediate result of D s actions. a. Words alone can constitute assault R v Fogden 1945 b. Including conditional threats where test is filled (Police v Greaves 1964 CA (Police on property)). But not where no intention to inflict violence Turbeville v Savage. c. No need for words. Intimidation with henchmen was enough. Read v Coker P must have had an apprehension of imminent battery, that a reasonable person would have. T v H a. Apprehension must be for an imminent battery. b. Must be a reasonably perceived present ability to carry out the threat. i. Stephens v Myers (1830) brute approaching chairman with clenched fists, even where blocked by others, assault. 3. D must exhibit an intention (subjective) to commit the assault, (else goes to negligence if damage) a. Only need to intend the assault, not the battery. Defences to Battery and Assault 1. Consent (A component of battery, not a defence S v G) a. Explicit consent R v Lee NZ i. But can be removed as a defence for ABH for policy reasons. b. Implicit consent i. Normal touching in everyday life Donnelly v Jackman, UK (shoulder tap) c. Physical sport i. Consent to injury which occurs within rules of the game McNamara v Duncan 2. Self Defence CA 1961, s 48 a. Allows for use of (objectively) reasonable force in defense of self or other. Burden of proof lies on D proving SD on balance of probabilities. Ashley v Chief Constable, UK i. Successful in case of biting off finger coming towards eye. Cockroft v Smith 3. Defence of Property CA 1961, ss a. Defence of Land/Buildings s 56 i. Can use reasonable force to prevent trespass or remove trespasser. Cannot strike or do bodily harm.

7 7 b. Defence of Dwellinghouse s 55 i. Can use reasonable force against person unlawfully breaking and entering dwellinghouse. 4. Lawful Arrest CA 1961, ss a. S 39 allows reasonable force for lawful arrests by public b. S 40 allows necessary force to prevent escape c. S 41 allows reasonable necessary force to prevent suicide or GBH. 5. Necessity a. Re F: Doctors can operate by necessity if person is without competence if in best interests of patient. Damages for Battery and Assault 1. Usually nominal as actionable per se. 2. Not compensatory as barred by ACC. GO TO ACC 3. Sometimes exemplary damages are available for outrageous intentional violation of P s rights, or subjective outrageous recklessness/disregard for P s rights. Couch v AG 2008 a. A prank Wilson v Pringle (schoolboys) less likely to bring ED than something malicious with an intended injury. Sexual Battery 1. Issues that arise in cases of sexual battery: a. Limitation period, what is the timeframe and when can it be extended? b. What remedy is available to plaintiff for sexual battery civil claim? Remedies for Sexual Abuse 1. Usual tort remedy is compensation, but claims for mental injury caused by sexual abuse are barred by ACC s But, victim can make claims for exemplary damages, allowed by ACC s 319. a. ED imposed where D s conduct is high-handed, callous, outrageous, contumelious, unconscionable, etc. 3. These are imposed to punish wrongdoer, and deter. So focus on behavior of defendant. Limitation Period (General) Limitation Act Why do we have a limitation period? Certainty, unreliability of memory/evidence, finality/closure (not have things hanging over head), also consider the standard of proof for tort.) 8. S 11: a. A timeframe of 6 years from the date on which the act or omission is based. (Primary period). i. For bodily injury prior to 1 Jan 2011, the Limitation Act 1950 applies, for a 2 year primary period. b. Primary period subject late knowledge period extension, 3 years from the late knowledge date, the date the claimant knew or ought to have reasonably known of facts allowing action to be brought.

8 8 i. Subject to the longstop period of 15 years from date of act. 9. S 17: For child sexual abuse cases, judge can extend long stop period if in interests of justice to do so. 10. S 44: Limitation period for minors starts when they turn S 45: For cases of incapacity/intellectual impairment, long stop period can be extended. 12. S 48: Fraud by the defendant can t extend limitation period until where fraud is detected. Relevant Cases 1. K(M) v H(M) (1992) SC Canada a. La Forest J: i. Labels of battery and assault do not properly describe incest. Incestuous abuse is complex, unique and has consequential harms unlike other torts. ii. Much of the damage of sexual abuse is latent, and causal connection between the abuse and the psychological injury is often unknown. iii. SC applied a discoverability test to the damage. Where victim finds link later. 2. A v M [1991] NZ a. Case of rape within marriage, wife suffering PTSD. b. No delayed discoverability in NZ in this case. c. Deliberate sexual violation is a personal injury accident for ACC, but can still claim for ED to punish and deter behavior. 3. S v G [1995] NZCA a. G sexually abused by leader of commune, sues in 1995 for abuse upon realization her abuse likely lead to her psychological problems. b. P outside limitation period, so Gault J for CA applies reasonable delayed discoverability, action accrues when P reasonable makes connection between act and injury, but so to avoid making the Limitation Act ineffective: i. Must act quickly upon discovering the link, must be reasonable and just. c. Concerns around double punishment, but now allowed under ACA s T v H [1995] NZCA a. T abused by H as child. T afraid to pursue claim while H alive. b. T argued a form of continuing assault. But court ruled not an assault, because no legitimate threat, unfounded fear is not enough. Limitation period not extended by fear of pursuing claim. c. Cooke P in the minority, following La Forest J, thought period should run from when women able to bring action. 5. Jay v Jay [2014] NZCA a. P succeeded in HC on claims of sexual abuse as a child. $75,00 and delayed discoverability principle upheld.

9 9 False Imprisonment Tort is actionable per se and a strict liability offence. R v Governor of Brockhill Prison False Imprisonment is the direct unlawful total restraint of the liberty (s 22 NZBORA) of a person. Also s 18 Freedom of Movement. For FI claim to succeed, there must be direct total restraint, intention to detain, without consent. 1. Restraint may be: a. Physical Deprivation Barriers or force i. No reasonable means of escape from a limited area (Bird v Jones (1845) UK), such as physical barriers at a police office (Hayward v O Keefe). ii. Restraint must be total. Obstruction is not imprisonment. 1. Blocking a highway one way is not enough Bird v Jones 2. Reasonable condition of exit is not total restraint: Blocking an exit, with ferry option still available, is not total. Robinson v Balmain [1910] PC 3. Not total when held by agreed conditions or with. Herd v Weardale 1915 where P held down mineshaft until end of shift. iii. Being placed in a secluded area, with no means of escape, could constitute FI? Restrains right to go where choose so maybe? b. Mental Deprivation Threat of force or assertion of authority i. False imprisonment can manifest itself in the form of psychological imprisonment where victim has no option but to stay. 1. Chaytor v London 1961 Canada Shop owners/suspects. 2. However, this will not apply where P acted voluntarily or consented. Fogg v Mcknight 1967 HC ii. There needs to be an overbearing on the will such that P feels constrained in some way that she is not free to go. Persico v Woolworths 1981 (escorted to managers office re theft) 1. Must take P as they are. Subjective test based in P s mind. 2. There needs to be an intention to detain (else goes to negligence) a. Intent to detain, not intent to act illegally. However, it does not matter if D wrongly believed they had lawful authority. Strict liability offence. R v Governor of Brockhill Prison 3. No knowledge of detention is necessary Meering v Graham White Aviation 1919 a. Atkins J: Can imprison a sleeping or insane person. i. But it might minimize damages Cooke P in Willis b. Contrary to old English law in Herring v Boyle, son unable to leave school. c. In Murray v MoD [1988], D unaware of detention, no harm, justified, only awarded nominal damages. (Terrorist held prior to arrest).

10 10 False Imprisonment Defences 1. Lawful Justification: Police a. Crimes Acts 315: Arrest needs a warrant or a good cause belief of crime or breach of peace. So test is without warrant (s 32): i. Belief that the person had committed an offence (subjective), ii. Reasonable and probable grounds for that belief (objective). b. Must not exceed authority given: i. Duffy v AG [1985]: Detention of basis of unlawful arrest is false imprisonment. Cancer patient detained as a drunk. $60k. ii. Whithair v AG [1966] HC: A lawful imprisonment can become unlawful where there is undue delay in bringing P before court. S 316 CA. $5k. iii. Hayward v O Keefe: A lawful imprisonment extended without justification is false imprisonment. P unjustifiably walked through mall. $7.5k. iv. AG v Niania: An arrest without reasons given, unless obvious/impractical, in unlawful. Arrested but not told why. 2. Lawful Justification: Citizens a. Justified under s 35 CA to arrest for major offences in the day (over 3 years imprisonment) or any offences at night. 3. Consent a. Agreeing to be detained while waiting for manager Fogg v McKnight b. But consent is vitiated where there is overbearing on the will Persico 4. Other standard defences. Damages 1. Not barred by ACC (Willis v AG). 2. Nominal to mark commission of tort. Always available as actionable per se. 3. Can recover compensatory damages for imprisonment and distress, humiliation or fear (Willis v AG). 4. Exemplary also available for truly outrageous conduct. Couch v AG 2008 Bonus: Public Law Damages and False Imprisonment 1. NZBORA breach gives rise to remedy of damages where public body breaches rights. Baigent s case a. These damages can be for intangibles such as distress. b. Prevent double recovery, NZBORA damages must consider prior civil damages and vice versa. 2. Public law compensation for false imprisonment is not barred by ACC. They are a new type of damages, outside common law, with object of affirming the right infringed. Innes v Wong a. Man kept in police van transport mental issue. 3. Where civil law damages are already awarded, public law claim will lead just to a declaration. Manga v AG

Intentional injuries to the person

Intentional injuries to the person Deals with trespass to the person, which has 3 forms: assault, battery and false imprisonment. Each is an individual tort in it s own right. The torts are actionable