QUESTION Wendy, an elderly woman, doesn’t get along with her new next

QUESTION

Wendy, an elderly woman, doesn’t get along with her new next door neighbour, Rupert. One day their conversation turns into an argument, which ends with Rupert shouting, ‘If you weren’t so old I’d knock your block off! That’d get some sense into you!’

The next day, after Wendy retaliated by creating an inconvenience for Rupert at his house, he knocks at her door. Seeing she is not home, Rupert gets Wendy’s phone number from a neighbour across the road. He decides to give her a scare, hoping it will put an end to their arguments. While she is out walking, Wendy receives an sms from Rupert: ‘You’ve officially gone too far now! Old or not, you’re about to get what’s coming to you! I know where you are too. Watch yourself!’ Rupert doesn’t actually know where Wendy has gone, or try to pursue her. Wendy is terrified by the sms from Rupert, and calls her niece for help.

Wendy heads to the local train station where her niece is coming to pick her up. As she crosses the train tracks she encounters the morning rush of commuters who are arriving to catch the train. Wendy spots Rupert as she is passing through the crowd, but she can’t easily get away. Rupert is oblivious as he’s checking emails on his mobile phone while walking. As they jostle past each other, he accidentally steps on Wendy’s toes.

Sample answers below are based on students’ submitted assignments in LAW5PTO Principles of Tort Law in 2018.

SAMPLE ANSWER 1 (C)

Trespass to the person

Trespass to the person constitutes three torts namely assault, battery and false imprisonment. A battery is a direct intentional act inflicting harmful touching by one person on another. Wendy parks her car in the road in front of Rupert’s house with a view of disrupting his driveway. Whether Wendy’s conduct amounts to trespass to Rupert is a legal issue. Rupert in filing law suit in this regard has the burden of proving that Wendy’s act was direct. The burden of proof is on Wendy to prove whether the trespass was negligent or intentional. Liability for tort of battery and its nature of directness was well recognized in Scott v Shepherd. In here, Shepherd threw a squib into a crowded market and two other persons threw it away to protect themselves. It exploded and injured one of the eyes of Scott. In 1773 the judgement was delivered in favour of Scott making Shepherd guilty of battery. Wendy’s act of parking the car as to block Rupert’s way amounts to a battery as far as Scott’s judgement is concerned. Battery may arise with the use of an instrument which in this case the Windy’s car. Thus, Wendy becomes liable for the tort of battery.

Battery and Assault are mostly similar in their nature. However, what distinguishes assault from battery is that assault is a battery which produces apprehension in a person primarily as a result of threatening. In ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti the Supreme Court of Victoria made the defendant liable for assault holding the fact that defendant’s pursuit feared the plaintiff and injured his wrist and it was serious and permanent. Whether Rupert produced fear in Wendy by sending her a sms to watch herself and challenging her old age is one of the issues in concern. As per the said decision, the fact that Wendy became terrified after reading Rupert’s text message proves assault on the part of Rupert and makes him liable for the same.

In addition, trespass to the person can be negligent. ‘Negligence’ is defined in several legislation as ‘failure to exercise reasonable care and skill’. In Blyth v Birmingham Waterworks Co a fireplug was installed by the defendant in a street near Mr. Blyth’s house. Due to severe frost a flood was caused failing the plug. It caused damage to Mr. Blyth’s house. It was held by Anderson B. “Negligence is the omission to do something which a reasonable man would do or doing something which a reasonable man would not do.” Whether Rupert stepping on Wendy’s toes at the station amounts to negligent trespass to the person or not is a relevant issue. Rupert had a duty of reasonable care towards all those who were around him including Wendy. Checking emails on the mobile phone while walking in a crowded place obviously constitutes negligence and it is something that a reasonable man would not do. Therefore, Rupert is liable for trespass to Wendy.

SAMPLE ANSWER 2 (C)

Issue 3: Did Rupert’s shouting at Wendy that he would knock her block off if she were not so old constitute an assault?

Rule: Assault would be 1) a threat by the defendant, by words, to inflict harmful contact upon the plaintiff forthwith; 2) a subjective intention on the part of the defendant that the threat will create in the mind of the plaintiff an apprehension that the threat will be carried out; 3) the plaintiff’s reasonable apprehension caused injury to the plaintiff. Analysis: Even though Rupert shouts and threats Wendy that he has intentions to do harm to her in condition that Wendy is not so old, it is arguable that Wendy does not show her fear or there is no evidence to show Wendy’s apprehension of being harmed.

And in fact, Wendy does not have any injury.

Conclusion: Rupert’s word that he would be harmful to Wendy would not constitute to an assault.

Issue 6: Did Rupert’s message to Wendy for scaring her constitute an assault?

Rule: Assault would be 1) a threat by the defendant, by words or conduct, to inflict harmful or offensive contact upon the plaintiff forthwith; 2) a subjective intention on the part of the defendant that the threat will create in the mind of the plaintiff an apprehension that the threat will be carried out; 3) the threat must in fact create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith; 4) The apprehension in the mind of the plaintiff must be objectively reasonable.

Analysis: Rupert sends a message to Wendy to scare her saying that she is about to get something to her and ask her to watch herself, which is a threat by words to inflict harmful contact upon her, and Rupert also subjectively intends to create a fear in Wendy’s mind that the things would happen so that it may put an end to the argument

between them. In the meantime when Wendy reads the message, she actually becomes terrified, which means the threat has been created in Wendy’s mind, and consequently she calls her niece to come and pick her up. The content in the message is a objectively reasonable threat since Wendy is having a long walk in a bushland by herself, she would be afraid of someone pursuing her, and plus Rupert seems to know where she is and she has gone too far.

Conclusion: Rupert’s message constitutes an assault because it actually incurs apprehension of fear to the Wendy.

Issue 7: Could Rupert be held liable in trespass for directly causing harm to Wendy due to his stepping on Wendy’s toes?

Rule: An action in trespass to the person lies only for injury directly and intentionally caused, or directly and negligently caused, by the defendant.

Analysis: While Wendy is on the way to the station, she spots Rupert when she is passing through morning rush of commuters, but Rupert is checking his mobile phone and does not notice Wendy. And when they jostle past each other, Rupert steps on Wendy’s toes by accident and he Rupert did not realise his harm to Wendy until Wendy yells and blames Rupert for injuring her. Even though Rupert is proved to hurt Wendy, it is obviously that Rupert is not intentional or negligent to cause harm to Wendy, this accident is owing to the crowd and they jostle past each other.

Conclusion: Rupert’s behaviour of stepping on Wendy’s toes is not negligence or intending to injure Wendy, it is a mere accident.

SAMPLE ANSWER 3 (B)

Trespass to the Person- Rupert

The case of Rupert and Wendy discusses many issues within the torts of trespass to the person and negligence. The first tort to be examined is trespass to the person. There are three main types of trespass to the person. Battery, is the direct and intentional act of the defendant, causing bodily contact to the plaintiff, without the plaintiff’s consent. False imprisonment is the containment of one person against their will and assault. Assault is a threat of battery. In this scenario, assault is the main category of trespass to the person to be observed. While battery is minimally discussed, false Imprisonment isn’t appropriate for this case.

Rupert

When examining Rupert’s behaviour, assault can be seen on two specific occasions towards Wendy. The first when he says ‘If you weren’t so old, I’d knock your block off! That’d get some sense into you!’. The second, when Rupert sends Wendy the SMS which says ‘You’ve officially gone too far now! Old or not, you’re about to get what’s coming to you. I know where you are, too. Watch yourself!’. Based on the initial threat, it can be assumed that the second threat was also physical in nature, constituting assault.

There are five elements that need to be met in order for Rupert to be charged with assault. The first being threats by words of actions to imminently cause physical harm. This threat can be made via words or conduct. This element is clearly met on both occasions, seeing as Rupert threatened to ‘knock Wendy’s block off’ directly to her face, as well as threatened her over SMS after she’d parked her car in front of his property.

The next element that needs to be met for an assault charge is the subjective intention in the mind of the defendant, that battery was imminent5. It is irrespective that Rupert had no actual intention of carrying out his threat, if Wendy believed the threat to be true, this element would be met. While it can be assumed that Wendy didn’t take the first threat seriously, as she carried on with her normal behaviour after it had occurred, Wendy’s reaction to seeing Rupert at the train station after receiving the SMS, indicates her belief that this particular threat was imminent. Rupert’s lack intention can be compared to that of Rixon v Star City Pty Ltd whereby, the trial judge found that ‘the respondent’s employee did not possess the necessary intention to create in the appellant an apprehension of imminent harmful conduct’ therefore, not meeting the criteria for assault.

The third element contains that the threat must make the plaintiff apprehend the threat will be carried out immediately. For this element to be met, Wendy need not necessarily be frightened by the threat, she simply must apprehend that the threat will be carried out. 9

This element once again is clearly met with Wendy’s behaviour once she received the SMS. Comparisons can be drawn for this element in Connex Trains Melbourne v Chetcuti, whereby Chetcuti claimed that his violent actions were necessary for defense against a threat, he believed to be imminent.

Apprehension in Wendy’s mind being objectively reasonable, is the next element of assault. While it wouldn’t be necessarily reasonable for Wendy to truly believe that Rupert would ‘knock her block off’, the contents of the SMS, are more reasonable to consider that they could be serious. The nature and context of the threat are considered in how reasonable it is to take that threat genuinely. The reasonableness of taking a threat seriously in the eyes of the defendant is also discussed in Rixon v Star City Pty Ltd 12, whereby the trial judge found that by the security guard placing his hand on Rixon’s shoulder was not to be considered a serious threat of battery seeing as ‘the touching lacked the requisite anger or hostile attitude’, not making it reasonable to believe the threat was imminent.

The final element to be met for this charge is the plaintiff’s reasonable apprehension actually causing injury, loss or damage. This element of the charge hasn’t got a clear answer. While it must be acknowledged that Rupert did step on Wendy’s toes at the train station, causing her injury, which could potentially be considered battery, Rupert did not intend to do so. Therefore, it can’t be said that these criteria are clearly met. Authority for this situation comes from contrasting the decision of Giumelli v Johnston, whereby a physical injury caused during a game of AFL was decided wasn’t a consequence of playing the sport, as the trial judge discussed ‘consent cannot be taken to include physical violence applied in contravention of the rules of the game…a player who intends to cause bodily harm…knows that such harm is a result of his actions’. This judgement can be extrapolated and contrasted to this case and argued that stepping on someone’s toes in a busy train station, is generally not an intention, more a hazard of being in a crowded public place.

It is likely that a court would charge Rupert with assault against Wendy. Rupert made a threat, the threat was intentional, it created apprehension in Wendy, the apprehension was reasonable, and the apprehension caused injury. However, it is unlikely that the court could charge Rupert with battery, seeing as there was no intention to cause any physical harm to Wendy.

SAMPLE ANSWER 4 (A)

Issue 2.1: Did Rupert’s verbal threats and subsequent SMS threats amount to an assault against Wendy?

Assault is a direct threat by one person to another person causing the threatened person to apprehend harm. Assault can be intentional or reckless. To be actionable, five elements of assault need to be proven:

Element One and Two: Did Rupert intentionally make a threat to harm?

The first two element are for a threat to be made and for it to be intentional. Rupert made two threats to Wendy, the first when he said if Wendy was not so old he would knock her block off and the second by SMS where he told her she would get what was coming to her. Rupert does not require means to follow through, he only needs to create apprehension. Threats over the telephone can constitute assault, they do not need to be face-to-face. This first element could be proven for both incidents. Subjective intention is not intention to follow through with a threat but intention to cause apprehension with a threat. The first threat was not intended to cause apprehension in Wendy, however, the SMS was intended to scare Wendy. The second element could be proven for the SMS but not for the verbal altercation.

Elements Three and Four: Did Wendy present with an objectively reasonable apprehension?

The third and fourth elements are apprehension and for this apprehension to be objectively reasonable. Words can constitute a threat, as long the apprehension is attached to an immediate threat. Without ‘temporal immediacy’ the threat is not immediate and apprehension will be considered unreasonable. It will still assault if Wendy apprehended battery because the apprehension is about what Wendy reasonably perceives, not what a reasonable person believes. Regarding the verbal threat, Wendy was not apprehensive, therefore this element cannot be proven. However, Wendy fearful of imminent harm after the SMS, as she requested for her niece to pick her up from the train station, therefore both elements could be proven.

Element Five: Did Rupert’s threat cause injury, loss or damage to Wendy?

There was no loss or damage in relation to the verbal altercation where Wendy was threatened, but when Wendy saw Rupert at the train station and was unable to get away from him, she was subsequently injured. Despite the injury being accidental, due to the threats, Wendy did not perceive her injury to be accidental and could argue that she was injured because of the threat.

Remedies:

Wendy does not need to prove she suffered damage, as long as the elements were proven, Wendy could sue for damages. Four of the five elements were unproven from the verbal altercation between Rupert and Wendy, so Wendy would have no cause of action. All five elements could be proven from the threat in the SMS, meaning that Wendy would be able to bring an action and claim for damages.

Issue 2.2: Does Rupert standing on Wendy’s foot constitute battery?

Battery is direct contact, without consent, between two people. To be actionable, three elements need to be proven. The first element is intent and directness. Wendy’s injury to her foot was a direct result of Rupert standing on her foot when he walked past her. However, the facts state Rupert accidentally stepped on Wendy’s foot, therefore his conduct, although direct, was unintentional. The second element is bodily contact. It has been established that Rupert stood on Wendy’s foot, however, there was no hostility in the contact. Hostility is not essential in proving battery, however, it is generally assumed to involve a certain level of intentional hostility and anger. The third element is a lack of consent. Incidental touching in day-to-day circumstances, such as walking through crowded areas, involves implied consent and does not constitute battery. If there was no implied consent and it was not incidental contact, Rupert would need to prove that Wendy consented to the contact.

Remedies:

The onus would be on Rupert to prove the battery was not intentional or negligent. Wendy does not need to prove she sustained an injury to be able to bring an action against Rupert. However, the battery needs to have been intentional and direct for any action to be successful. Given the battery was unintentional and there is implied consent because Wendy was walking through a crowed area, Wendy would have no cause of action against Rupert.

SAMPLE ANSWER 5 (A)

Rupert’s Potential Liabilities

Wendy has four potential causes of actions against Rupert, which are examined below.

4 Assaults

Assault is a threat of unwanted bodily contact and a subcategory of trespass to person. The plaintiff has to prove all the facts. There are two possible assaults by Rupert: his shouting to Wendy in the first confrontation and his threatening message to Wendy in the following day.

4.1 First (Conditional) Assault

As it was established in Tuberville v Savage, conditional threat is not a threat if the condition will never be met. So Rupert’s ‘if you weren’t so old, I’d knock your block off!’ is not a threat at all because Wendy is an elder and the condition will never be satisfied. Thus, this is very unlikely to be an assault.

4.2 Second (Assault through Messages)

The key issue is whether Rupert’s threatening message amounts to assault. As it was suggested in ACN 087 528 774 Ptd Ltd v Chetcuti, there are four elements of assault.

4.2.1 A threat by the defendant to inflict harmful contact

This could be done through words or conduct. Rupert’s message to Wendy did not clearly express that he would do any harm to her. However, it was under a context of an escalating confrontation. Thus, the message is likely to be reasonably interpreted as a threat to inflict harmful bodily contact.

4.2.2 A subjective intention to cause apprehension

This requires the defendant to have an intention to make the other party apprehend the threat, where he or she does not necessarily intend to actually carry out the threat. Rupert sent the message because he wanted to ‘give Wendy a scare’. Thus, making Wendy apprehend the threat is evidently his main purpose. This will suffice.

4.2.3 Creation of apprehension

To establish this element, the plaintiff needs to apprehend imminent physical contact, instead of immediately apprehending a contact which will happen sometimes soon. So the key issue here lies on whether Wendy feared that the bodily contact would be happening immediately, not soon or sometime in future. In Balven v Thurston, it was held that neither of the two messages constituted assault. This was because that it was not sufficient for the plaintiff to immediately apprehend the threat, but the threat itself must be an immediate contact. Thus, in this case, Rupert can argue that the threat is not an immediate contact as he was not even with Wendy.

However, Wendy can argue through R v Ireland, where the House of Lords suggested that simple telephone calls could amount to assault as it had the effect of causing apprehension, even though no immediate contact was shown. Also, Macpherson v Beath suggested that it is sufficient if the actual plaintiff apprehended the contact even a reasonable person would not in his or her position. Wendy was terrified on receiving Rupert’s message and called her niece for a pick-up. This indicates that she had the apprehension. So this element is also likely to be satisfied.

4.2.4 Apprehension is reasonable

Apart from that, there must be possibilities of physical contact, in order for the threat to be an assault. The apprehension of Wendy is likely to be reasonable. This is because that Wendy and Rupert were having an escalating confrontation and also she is in a nearby bushland, where Rupert could easily come by. Therefore, the apprehension is not fanciful. This will suffice.

…

6 Battery

To establish a liability of battery, which is a subcategory of trespass to person, there are three elements to establish.

6.1 Bodily contact

In Cole v Turner, it was suggested that the least touching of another in anger is a battery. However, in Wilson v Pringle, it was suggested that anger is not an element. And this is followed in the most of Australian battery cases. Thus, Rupert’s stepping on Wendy can suffice.

6.2 Intentional or negligent act

In tort of trespass to person, fault element is necessary. Due to the fact the step by Rupert was ‘accidental’, this element is unlikely to be satisfied.

6.3 Without consent

To constitute battery, the contact has to occur with no plaintiff’s consent. Consent of bodily contact can be explicit or implied. In Collins v Wilcock, Robert Goff LJ suggested that ordinary contact of everyday life should be a general exception of battery. Thus, Rupert can argue that the stepping on Wendy’s feet happened in a busy train station, which makes it a part of everyday ordinary contact.

Pinning the above three elements together, Rupert’s liability of battery is unlikely to be established.

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