Monica and Ross are brother and sister and live next door to a married couple, Joey and Phoebe. Ross is attracted to Phoebe. One night Monica and Ross are hosting a dinner party for Joey and Phoebe. All goes well, although a lot of alcohol is consumed and Ross flirts with Phoebe. At the end of the dinner party Joey and Phoebe go home, but it is noticeable to all that Joey is quite angry at the behaviour of Phoebe encouraging Ross to flirt with her. As they are clearing up, Monica begins to shout at Ross, telling him his behaviour was unacceptable.
The discussion gets heated and an argument ensues. Ross resents Monica telling him what to do and pushes her. Monica is unhurt but shocked and retaliates instinctively by hitting Ross with a cast iron serving dish she has in her hand. Ross falls to the floor with blood pouring from his head. He slips into unconsciousness. Meanwhile, next door, Joey and Phoebe are in bed arguing. Joey tries to calm the situation by becoming romantic. Phoebe shoves him away, but Joey persists and has sexual intercourse with her despite her protests. He leaves her sobbing on the bed and goes into the lounge.
As he sits there he becomes increasingly angry at the behaviour of Ross and decides to return next door and confront him. When Monica answers the door he pushes her out of the way and she falls, hitting her head. He ignores this and rushes past her to discover Ross unconscious and bleeding. This brings him to his senses and he calls the police. Discuss the liability of all parties, and any defences they may have. In order to fully assess the liability of all the parties, it is necessary to look at each event and scenario separately. This allows for a clear analysis without the confusion of overlapping and related incidents.
It should be noted at the outset that it appears that all parties involved had consumed alcohol. This could be an important factor at a later stage. To give a clear and concise analysis of each scenario, the events of the evening will be broken down into three main sections as follows: In this section, it is necessary to look at two issues. Firstly, Ross pushed Monica so this should be considered first. Secondly, Monica hit Ross. Although, this act may amount an offence in itself, it is also necessary to consider that this only happened in response to the original act.
This will of course be considered when identifying possible defences to any liability. Ross pushing Monica : This happened during a 'heated argument'. Therefore, it could be argued that Ross has committed a battery. Battery is an offence coming from statute but it's definition can only be found in the common law. Battery is the application of unlawful force to another person. This can be the intentional or reckless use of force. The act of pushing someone can amount to battery. It is clearly stated that Monica is unhurt.
Therefore, Ross may be liable to the charge of common assault under the Criminal Justice Act 19881. If the force causes injury, it amounts to actual bodily harm which is an offence under the Offences Against the Person Act 18612. Actual bodily harm describes the level of injury. Injury has been interpreted by the courts to mean any injury that interferes with the health or comfort3 of the alleged victim. The injury need not be serious and can include psychiatric injury4. It is unlikely that Ross could be charged under the 1861 Act as it is unlikely that 'shock' would be construed as injury or harm.
When considering psychiatric harm, it should be noted that: 'it does not include mere emotions such as fear or distress or panic nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition. 5' It should also be noted that the offence of battery requires for the actus reus only the slightest touching6 of another without consent, in that it requires the defendant to come into direct physical contact with the victim. Ross has pushed Monica during an argument. The touching is, hostile and unwanted and, therefore, without consent.
This satisfies the actus reus requirement for the offence of battery. The offence has a mens rea requirement of the force being inflicted either intentionally or recklessly. From the facts stated, it is difficult to assess what Ross' intentions were when he pushed Monica but it appears that it was merely an argument between siblings, suggesting that Ross had no intention to inflict injury. The most likely charge would be reliant upon the mens rea requirement of recklessness. In this situation, recklessness is of the subjective7 type rather than objective8.
This means that it must be shown that Ross realised what the consequences would be of his actions but continued anyway. Without showing this, a conviction could not be secured. There are few defences available to Ross. The consumption of alcohol does not aid him nor does it bring him a defence of intoxication. This is because Ross has voluntarily consumed alcohol and this has been deemed as reckless by the courts. However, if it was shown that Ross was alcoholic or if a medical condition had, unbeknown to him, been triggered by the consumption of alcohol, it may open a new avenue of defences.