Both torts are actionable per se (without damage) it is the mere trespass by itself which is the offence (Wilson v Pringle).

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1 Assault and Battery Tort of assault & battery: designed to protect the plaintiff s interest in bodily integrity, personal sanctity and dignity. (Collins v Wilcock, Wilson v Pringle, Hayward v O Keefe) Both torts are actionable per se (without damage) it is the mere trespass by itself which is the offence (Wilson v Pringle). Assault = apprehension of harm Elements: (T v H establish the elements of the tort of assault in New Zealand to be) 1. Overt act (threat of force) a. Must have means or present ability of carrying the threat into effect (Stephen v Myers) 2. Intentionally creating in another person an apprehension of the imminent infliction of a battery a. Must intend the act (not injury) b. Intention as well as the act makes an assault (Turbeville v Savage) c. A conditional threat may be an assault if all the elements are met (Police v Greaves) i. NB: but not if indicated no present intention to inflict violence as in Turbeville v Savage) 3. Person being threatened must be aware of the harm a. Assault must involve the immediate apprehension of a battery (Hardie boys J in T v H, rejecting claim) b. There is no assault if the person is unaware of the intended battery. 4. Test is whether a reasonable person in the plaintiff s position would have had the necessary fear of immediate harm (i.e. battery). a. Objective test whether person making the threat or causes the other person to believe on reasonable grounds that he has the present ability to carry out the threat. Elements: Battery = infliction of harm 1. Intentional a. Hostile touching (Wilson v Pringle) i. Least touching in anger is battery (Cole v Turner) b. BUT not a touch as part of everyday life without violence or design of harm (Cole v Turner) NB: comes under consent i. Touch on shoulder to draw attention (Donnelly v Jackson) ii. But not when take hold of harm to restrain (Collins v Wilcock) 2. Application of force to another a. Mere touching is enough (Cole v Turner) 3. Without consent or lawful justification

2 Sexual Battery same elements as battery Note limitation period and discoverability: In T v H, actionable damage treated as not having ben suffered until the victim has emerged from the effects of the abuse so far as to be able to make a claim based on it. Once the cause of action has accrued, the victim may sue on all the damage that has occurred previously, as in cases of delayed discoverability (6 years). Not applicable now with Limitation Act years only. DEFENCES to Assault and Battery 1. Consent a. Everyday touching (in the course of normal day life) has implied consent (Cole v Turner) i. Touching on shoulder to draw attention (Donnelly v Jackson) ii. Touch of two meeting on a passageway without any violence or design of harm (Cole v Turner) iii. NOT when it goes beyond the scope of the consent attempt to restrain by taking hold of woman s arm unlawful (Collins v Wilcock, distinguished from Donnelly v Jackson) b. Physical sport i. Consent to injury which occurs within the rules of the game (McNamara v Duncan act was serious infringement of the rules, and risk of this injury in the way it occurred was not consented to) 2. Lawful justification 3. Self defence a. Section 48 of CA: act in defence of self or another which was objectively reasonable in the circumstances as subjectively perceived by the D. i. Honest belief is not enough must be reasonably held (Ashley) ii. Defence successful for S biting off finger of C, which was coming towards, and thus threatening, S s eye (Cockroft v Smith) b. Burden falls on D in civil cases (Ashley v Chief Constable of Sussex) 4. Defence of property (section of CA) a. Defence of land/buildings (s 56) can use reasonable force to prevent trespass or remove trespasser. Cannot strike or do bodily harm. b. Defence of dwellinghouse (s 55) belief on reasonable and probable grounds that no lawful justification to enter: can use necessary force. 5. Lawful arrest (s 39) reasonable force in relation to lawful arrest, warrants. 6. Parental discipline (s 59) cannot smack after event for correction 7. Necessity In Re F: Doctors can operate by necessity if person is without competence (children > 13, psychiatric patients) if in best interests of patient. Damages 1. Usually nominal (as actionable per se) 2. Not compensatory ACC: application of force external to body = accident. 3. Sometimes exemplary damages for highhanded conduct in contumelious disregard for the rights of P.etc (although note double punishment arguments) 4. ACC claim if personal injury suffered physical injury producing mental injury: a clinically significant behavioural, cognitive, or psychological dysfunction (s 27) or from sexual offences that are within ACC.

3 Defamation 1. Definition of defamation: a. Defamation protects the plaintiff s reputation from unjustifiable attack. i. Defamation includes libel and slander (s 2 Defamation Act 1992) b. Defamation balances: i. The right of the individual to his or her reputation unimpaired by false statements 1. Privacy true statements 2. Defamation false statements (truth is a complete defences) ii. The fundamental notion of freedom of speech. 2. The tort protects reputation and individual dignity. a. Reputation: the right to have the estimation in which you stand with others unaffected. i. A false statement alone is not enough must injure the plaintiff s reputation and it must be in the eyes of right thinking persons of society, and not just a small group. 3. Freedom of expression a. Freedom of expression is the lifeblood of democracy acts as the break on the abuse of power by public officials and facilitates the exposure of errors in governance (R v Secretary of State for the Home Department) 4. Who can sue in defamation? a. Individuals can sue with no restrictions i. Not necessary to allege or prove special damage as a result of the words (s 4 Defamation Act 1992) ii. Cannot defame a dead person (s 3(1) Law Reform Act 1936) but could imply something about living family. b. A politician can sue, but there are limitations (see Lange v Atkinson) c. Companies can sue i. Must prove that the publication of the matter has caused pecuniary loss, or is likely to cause pecuniary loss (s 6 Defamation Act 1992) d. CANNOT SUE: Local authority or department of a central government i. To permit such an action is contrary to public interest as it places an undesirable fetter on freedom of speech must be able to criticise local governments for what they do (Derbyshire County v Times) 5. Limitation period a. Two years from the date of publication, or two years from discovery if late knowledge with 15 year long stop (Limitation Act 2010 applies) b. If 1950 Act: 2 years from accrual unless has leave of court 6 years. 6. Role of judge and jury a. Judge whether the statement is capable of being defamatory to the plaintiff. Will withdraw the case from the jury if the judge thinks that no reasonable person could regard the words as being defamatory. b. Jury whether the words are actually defamatory, i.e. whether in fact the statement is defamatory. 1

4 The Plaintiff s case: The plaintiff must prove: (i) That the words are defamatory 1. Whether, under the circumstances in which the writing was published, the reasonable person to whom the publication was made would be likely to understand it in a defamatory sense (NZ Magazines v Hadlee (No 2) CA) a. Reasonable person: i. Not unduly suspicious or the unduly naïve people between these two extremes (Lewis v Daily Telegraph) ii. Will take into account the context of the publication 1. E.g. reading the article casually and not expecting a high degree of accuracy from an item that was obviously designed for entertainment, rather than instruction or the provision of accurate information (Morgan v Odham Press) iii. Has considerable capacity to read between the lines and make inferences (NZ Magazines v Hadlee) 2. Different formulations of the test: a. Would the words lower the plaintiff in the estimation of right thinking members of society? (Lord Atkin in Sim v Stretch) b. A false statement about a person to his or her discredit (Youssoupoff v MGM) c. A statement which is calculated to lower the plaintiff in the estimation of right thinking persons, or cause the plaintiff to be shunned or avoided or exposed to hatred, contempt or ridicule or one which is calculated to convey an imputation disparaging him to his business or office or calling (Collerton v Maclean, taking from Gatley s text) i. Document alleged undermining tactics of union secretary found to be defamatory as the meaning taken from the words would be that P was inefficient, incompetent, unfaithful, and therefore unfit to be secretary of the union. 3. The words may be defamatory: a. In their natural and ordinary meaning i. Objective test of reasonable person (without special knowledge), reading the words in context. ii. False or popular innuendo meanings attributed to the ordinary and natural meaning of the words which arise by inference or implications. 1. Broad impression conveyed that must be considered, not just meaning of each word (Lewis v Daily Telegraph) 2. Two newspapers publish report of inquiry/investigation on firm by police fraud squad; chairman of firm named. Ordinary and reasonable reader would think inquiry conveys an impression of suspicion but not impression of guilt (Lord Devan in Lewis v Daily Telegraph) 2

5 iii. Only or additionally in the light of facts and circumstances known to the person to whom the words are published. 1. Impression which the article would have conveyed to the ordinary sensible reader who knew the relevant extrinsic facts (Morgan v Odhams Press) 2. Truth or legal innuendo apparently innocent words can be understood in a defamatory sense wholly different from their face value by persons who know some special extrinsic facts which lend a different colour to the words. a. Publication contained material capable of being understood by some reasonable readers as being a repetition of allegations relating to the P (Hyams) b. Juxtaposition i. Mere juxtaposition to noxious matter may make an otherwise innocent representation defamatory 1. Wax model of P with gun displayed in room adjoining the chamber of horrors (associated with murder) and P had been tried for murder but released with not proven verdict; Court accepted putting next to chamber implied P was guilty (Monson v Tssauds) c. Examples of defamatory statements: i. Imputing anti-social conduct 1. Photo taken, told photographer was a tourist and unaware that it would appear in a newspaper, posed with a beer against rubbish tin caption ( Xmas beer ) and picture suggested P was someone who got drunk a lot, something that would adversely affect his reputation (Kirk v Reed) ii. Imputing fraud or dishonesty 1. Statement read as a whole suggested game being fixed and a reasonable person would have thought game was not being played properly (Lloyd v David Syme) iii. Imputing criminal conduct 1. spent most of the next 15 years in jail suggested reputation as a serious criminal, but actual record (petty crimes) fell far short of the statement (Mihaka v Wellington Publishing) iv. Statements that make people shun and avoid the plaintiff 1. P associated with skifield, advertisement and later words spoken about sexist advertisement found could bear defamatory meaning (Mt Cook Group v Johnstone Motors) v. Holding the plaintiff up to ridicule 1. Professional sportsman called fat, slow and predictable held to be defamatory because it impacted on his professional reputation (Boyd v Mirror Group) 2. Review of film director: notoriously hideous-looking people (Berkoff v Burchill) vi. Imputing incompetence. d. What may be considered defamatory may change over time i. E.g. immoral cohabitation in Cassidy v Daily Mirror 3

6 (ii) Defamatory statement must refer to the plaintiff 1. Words used or the circumstances attending the publication must be such as to lead reasonable persons to understand that it was the plaintiff to whom the defendant referred to. a. The plaintiff does not need to be named, but enough description for ordinary person to think of the plaintiff (Hyams v Peterson) 2. Intention of the defendant (author) is irrelevant if the words in fact do so a. Intention is irrelevant if in fact it does link to the plaintiff lack of intention is not a defence (Hulton v Jones HL fictitious character with same name as plaintiff attending races with another woman) i. disclaimers referring to resemblance have no effect 3. Possible to defame a class of persons: a. Words published must reasonably lead people acquainted with P to the conclusion that he (as an individual) was referred to (Knupffer) b. Whether anything in the article or admissible surrounding circumstances to identify him as the person or one of the persons referred to or aimed at in the article itself (Hyams v Peterson) i. Not enough for attack on group, knowing P s membership in group. 1. Unless group so small people would know who. ii. Names of gang read in Parliament and later reference in article to gang of 20 sufficient (Hyams v Peterson) c. If a defamatory statement made of a class or group is reasonably to be understood to refer to every member of it equally, each has a cause of action individually (Knupffer, affirmed in Hyams v Peterson) (iii) Words must be published to a third party 1. There must be a communication of the defamatory material to a third party (Pullman v Hill) a. Must be made known to some person other than the person about whom it is written (Collerton v Maclean) 2. There is no defamation if the words are spoken or written only to the plaintiff (Collerton v Maclean) 3. BUT where letter/ is addressed to the plaintiff but out of your control as to who will be on the receiving end, there will be publication (and thus defam. if someone else reads it, even if you did not intend for them to read: a. Would occur where: (Collerton v Maclean) i. D anticipated someone other than the P would open and read the letter/ , or ii. Something that could easily and naturally happen in the ordinary course of events (e.g. secretary) b. Letters: opened by husband (Theaker v Richardson) and opened by secretary (Gomersall v Davies) 4. Every repetition of the defamatory words is a new publication a. Every publication gives rise to a fresh cause of action (Pullman v Hill) b. Internet publication new publication every time the material is read. 5. NB: repeating someone else s defamatory statement (e.g. rumour) is just as bad as making the statement directly (Lewis v Daily Telegraph) 4

7 The Defendant s case: Bane and Antidote 1. Definition a. An instance where in one part of the publication something disreputable of the plaintiff is stated, but that is removed by the conclusion. 2. The bane and the antidote must be taken together (NZ Magazines v Hadlee) a. Where someone has repeated a rumour whilst at the same time saying it is not so, the jury must weigh up the bane and the antidote b. The antidote must completely nullify the inferences that can be taken from the allegedly defamatory words (NZ Magazines v Hadlee) i. Medicine has not counteracted all the effects of the poison open to reader to conclude that there would not have been a rumour about the two women of the kind re-published by the D unless they were bisexual (no smoke without fire) (NZ Magazines v Hadlee) Absolute privilege (defence) 1. Protected absolutely from defamation suit a. Rationale: need to protect freedom of speech in certain privileged circumstances to maintain their proper function. i. Not necessary for the proper function of the House of Servants for public servants to have any more protection than what is provided for under qualified privilege (A-G v Lee) 2. Circumstances where absolute privilege applies: a. Parliamentary proceedings (s 13 Defamation Act 1992) i. Proceedings in the House of Representatives; ii. Live broadcasts. iii. Publication of any document, of what is said or done. b. Judicial proceedings and other legal matters (s 14 DA) i. Anything said, written or done in proceedings by member of tribunal/authority, party, representative, witness in proceedings before: 1. Tribunal or authority established by enactment with power to compel attendance of witnesses; or 2. Tribunal or authority with duty to act judicially. ii. Communication between any person (client) and barrister or solicitor for purpose of enabling client to seek or obtain legal advice, and the communication between that solicitor and any barrister for the purpose of enabling legal advice to be provided to client. 3. Cannot question things said or done in Parliament (Prebble v TVNZ) a. TVNZ unable to rely on things said or done in Parliament in court as a defence to show the truth of the alleged defamatory statements (Prebble v TVNZ) b. This would cut across Article 9 of the Bill of Rights Act

8 i. Freedom of Speech that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament c. Privilege is the privilege of Parliament itself cannot be waived by an individual. d. Can rely on Hansard to show what was said (as a matter of history) but may not go beyond those words would amount to a questioning of what was done in Parliament. e. Once a member is outside the house, they are no longer protected by the privilege (Jennings v Buchanan) i. If a MP chooses to repeat remarks outside Parliament, no longer protected I don t resile from what I said took what was said outside Parliamentary privilege and allowed the defamation action to go ahead. ii. Rationale: will not inhibit members from speaking within the house can saying anything they like within the House. iii. Note Cooke s dissent: what was said means nothing. Statutory qualified privilege (defence) 1. Sections of the Defamation Act Acts protected by qualified privilege: Part I of the First Schedule (s 16 DA) a. Includes: i. Delayed broadcast of proceedings in the House. ii. Publication of a fair and accurate report of proceedings in the House or any Committee. iii. Publication of fair and accurate report of proceedings in any Court of New Zealand or of the result of those proceedings. b. Subject to: i. Section 17: where publication is prohibited by law in NZ or in a territory to where the subject matter relates) ii. Section 19: where D, in publishing the matter, was predominately motivated by ill will towards the P or otherwise took improper advantage of the occasion of publication c. Matters in Part I have a stronger privilege than matters in Part II, as they are recognized to be necessary for the functioning of democracy. 3. Acts with limited protection by qualified privilege: Part II of First Schedule a. Includes: i. Fair and accurate report of: 1. Proceedings of legislature outside NZ 2. Proceedings of a Court outside NZ 3. Proceedings of an international organization of countries or legislatures or governments 4. Meeting or sitting of local authority b. Subject to: i. Section 17: see above where publication is prohibited ii. Section 18: 1. (1) Report or matter must be a matter of public interest in any place where the publication occurs in order for statutory privilege to attach. 6

9 2. (2) News media will lose the privilege if they refuse to publish (or only publish unreasonably or inadequately) a statement by way of explanation or contradiction, if requested by P, to be proved by P. iii. Section 19: motivated by ill will or taking improper advantage. Common law qualified privilege (defence) 1. Rationale: protection granted for the common convenience and welfare of society (Adam v Ward) a. But there are limitations to the protection afforded by the privilege. Qualified privilege is subject to section 19: 1. P may defeat the privilege by proving that D was predominately motivated by ill will or otherwise took improper advantage of the occasion (s 19 applies to any proceedings for defamation) a. Rationale: privilege is granted on the basis that it will be responsibly used. There is no public interest in allowing defamatory statements to be made irresponsibly/recklessly under the banner of freedom of expression. 2. Privilege must be responsibly used (Lange v Atkinson) a. Focus is on responsible journalism (Lange v Atkinson) i. Where false and defamatory statement qualifying for protection is made and is disseminated to large audience, will have close scrutiny of motives of publisher and whether the publisher has a genuine belief in the truth of the statement. b. Court may consider: steps taken to verify the information before publication, status or source of information.etc c. Unwillingness to disclose any responsible basis for asserting a genuine belief in truth may give rise to inference that no such belief existed. d. Publisher who is reckless or indifferent to the truth of what is published cannot assert a genuine belief that it was true. 3. Evidence of ill will: a. Did D believe that what was published was true? Or was D reckless? Did D misuse the occasion of privilege? (Peters v Cushing) Interest and duty 1. Privilege depends on the reciprocity of duty and interest: a. Occasion where the person who makes the communication has a legal, social or moral duty to make the communication to whom it is made, and b. The person to whom it has made has a corresponding duty or interest in receiving the communication. 2. Protects false matters of fact published to a small audience. 3. Privilege may exist where: a. Statement made to superior (duty) and superior had an interest in hearing about it (Dehn v A-G) b. Providing information requested by Minister necessary reciprocity present (A-G v Lee) 7

10 c. Duty (by MP) to pass complaint received from constituent to Law Society, who has a corresponding interest in receiving the complaint (Beech v Freeson) d. Duty by auctioneer to notify other auctioneers of his incident with fraudulent party (Boston v Bagshaw) Defence against attack 1. Someone whose character is attacked is entitled to answer such an attack and in doing so any defamatory statements made about the person who did the attacking will be privileged, provided they are published bona fide and are fairly relevant to the accusation made. a. Must not go further than is reasonably necessary in defence. 2. Privilege will be lost where the reply becomes a counter-attack raising allegations which are unrelated or insufficiently related to the original attack (News Media Ownership v Finlay) a. Finlay spoke of Truth as being more concerned with profits than truth, Truth responding with a personal attack on Finlay s own behavior held to go beyond defending the original statement (News Media Ownership v Finlay) Political discussion in New Zealand Lange expanded form CL QP 1. Political statements may be protected by common law qualified privilege (Lange v Atkinson CA 2000) a. The statement may be published generally b. Protection will extend even if false matter of fact 2. Expanded form of the privilege because it allows wide publication. 3. Balance to be struck between freedom of expression and protection of reputation, which calls for a value judgment dependent upon local political and social conditions. a. NZ CA not prepared to follow Reynolds in England. 4. Must be a matter of public concern and not private concern a. The wider public has an interest in respect of statements that directly concern the functioning of representative and responsible government. 5. Available for past, present and future politicians: a. A proper interest exists in statements about the actions and qualities of those currently and formerly elected to Parliament, and those with aspirations of office, insofar as those actions and qualities directly affect or affected their capacity (including personal ability and willingness) to meet their public responsibilities. b. NB: private life can impinge on public office, so distinction between private and public may be sometimes blurry. 6. Other jurisdictions: a. England: must show what was published was responsible journalism (Reynolds v Times Newspaper, held to be a new form of qualified privilege in Loutchansky) 8

11 i. NZ not follow (Lange CA 2000) because of different societal and legal positions, and that factors considered in Reynolds merged two separate enquiries: (1) whether it was a privileged occasion, and (2) even if privileged occasion, whether it was motivated by malice i.e. reasonableness goes to existence of privilege, cf NZ where it goes to whether privilege is lost. b. Australia: must show that D acted responsibly (Theophanous, Lange v ABC) Matters of public concern generally? 1. HC decision of Osmose which does suggest a move towards the English position where Lange may be extended to matters of public interest generally, and not just politicians. 2. Case involved leaky buildings (public interest, but not political discussion) and judge thought Lange could have been applied. Honest opinion (defence) 1. Sections 9 12 of the Defamation Act Rationale: If a matter is of public interest, anyone has a right to express their opinion on it provided the opinion is honestly held and the speaker gets their facts right. a. Common law requirement of public interest unclear obiter comments suggest no requirement, which would be in line with s14 NZBORA 3. Where D is not the author of the piece (e.g. editor) a. Defence of honest opinion will fail unless: (section 10(2)(a), (b)) i. Employee can show opinion did not purport to be opinion of the D, and D believed that the opinion was the genuine opinion of the author of the matter containing the opinion. ii. Not employee/agent can show opinion did not purport to be opinion of D or any employee/agent, and D had no reasonable cause to believe that the opinion was not the genuine opinion of the author. 4. Honest opinion where corrupt motive attributed to plaintiff does not change what the D needs to prove (section 12) Elements: 1. Must be recognizable as an opinion or comment a. It must be apparent that the writer is expressing their opinion and not putting it forward as fact (Telnikoff v Matusevitch) i. If statement of fact, only defence open is truth. b. Assess statement in its own piece principle does not turn on likelihood of whether readers of a criticism of some subject matter is familiar with the subject matter or not 9