The tort of battery protects individuals from intentional touch without consent. However, when applied to sporting contests, Fox J in McNamara v Duncan1 stated that "… forcible bodily contact is part of [the game]"2 which may lead a court to find that even the apparently harsh contact of Paulo's elbow is permissible. The issue for Paulo is, was his contact with Bert done with intent. In the case of Giumelli v Johnston3, the court concluded that a hit from the elbow is sufficiently reckless that a player should see the potential to inflict harm4 and is therefore an action of intent.
Paulo has made contact using his elbow, which is not an action within the rules. This may lead to the court finding he had intent to cause Bert harm. Conclusion' If Paulo can show that the contact was within the rules, he would not be liable. Conversely, if Bert can show that Paulo's intent to injure him by playing outside the rules, this would prove intent. The likely outcome is the latter in this case. Sally's claims in torts Sally v Dan (Battery) Dan's liability It is clear from the facts that Dan contacted Sally with intent (albeit to console her). The issue of law is, was the contact implicitly consensual?
Sheller JA in Rixon v Star City5 stated "any touching of another's body… is capable of amounting to a battery… "6 and Sally would argue that she did not consent to Dan's touch, regardless of the intent. Dan may also refer to the same case in saying that his touch was "not outside of … what is generally acceptable in the … conduct of daily life"7. Had he only touched Sally's shoulder, the court may have accepted the argument, but the fact that he placed his arm around her shoulder would not doubt be considered in excess of acceptable touch, and even invasive.
Conclusion For Sally's claim to succeed the court needs to conclude that she did not consent to Dan's touch. Dan's defence of implied consent relies on the court's interpretation of the touch. Dan would most likely be found liable in battery. Sally v Roger (false imprisonment) Roger's liability Roger will be liable if it is proven that he intentionally, totally restrained Sally without consent. Restraint is defined in Bird v Jones8 as total "when there is no possible means of escape". Sally's only means of escape from restraint was to jump from a moving car.
As in the case of Zanker v Vartzokas 9 this is not a reasonable alternative and therefore restraint is considered total. Roger may use a defence of necessity as he was acting to protect his sheep. The test for necessity as stated in State of NSW v Riley10 is whether the "act in question was reasonably necessary to prevent harm to a third party. "11 The court is unlikely to find that totally restraining a person without their consent to protect an animal is a reasonable response. Conclusion
It is likely that the court would find that Roger acted outside of what is reasonable to protect livestock by totally restraining Sally against her will, and would therefore find him liable. Claims against Sally Dan v Sally (Battery) Sally's liability It is clear from the facts that Sally intentionally contacted Dan without his consent and as per Rixon v Star City "any touching … is capable of amounting to a battery"12. Sally would be liable based on this fact alone, as it is unlikely that Dan consented to being hit in the face.
Sally may raise a defence of self-defence as Dan initiated the contact. The test for self defence as stated in Fontin v Katapodis13 is, was reasonable force used that "was proportionate to the threat offered? "14 Dan placed his arm around Sally's shoulder, and her response was to hit him in the face. It is unlikely that a court would find this to be a reasonable response, especially given that Sally and Dan were already acquainted. Conclusion Dan has a clear case in battery unless Sally can prove the reasonableness of her response in self-defence.
Provocation however is no defence, therefore it is likely that the court would find Sally liable. Graziers v Sally (Trespass) As tenants of the land, according to Vaughn v Shire of Benally15 the graziers 'can sue even though not sole possessors of land". 16 The question of law is was Sally's trespass intentional. The graziers did not consent to Sally entering the land, however this does not assume intent to interfere with the land. The Civil Law (Wrongs) Act 2002 states that Sally has a defence to trespass if she can prove that she: 1. had no interest in the land;
2. trespassed with negligence not intent; and 3. made a reasonable offer to make amends. 17 As this information is not clear from the facts, it is difficult to say whether or not a court would accept this defence. Conclusion If Sally can prove all three elements of the part of legislation relating to trespass she may not be found liable. The graziers would need to prove Sally's intent to interfere with the land and given the facts, the former is a more likely outcome. Charles' claims in torts Charles v Gerry (false imprisonment) Gerry's liability
For a successful claim of false imprisonment, "escape must not be available at all"18 to the imprisoned. Charles was locked in a room from which there was no exit therefore he was totally restrained within that room. Gerry controlled the situation and therefore may be liable to Charles. Gerry may claim in defence that he was acting out of a duty to protect the players. Toohey J in Webster v Lampard 19 stated, "It is not necessary that the belief [of duty] be based on reasonable grounds"20. Was it reasonable that Gerry felt as an employee of the ground that he was authorised to imprison a spectator?
The court would likely find that this was not reasonable, as there would have been other options for Gerry to prevent Charles from entering. Conclusion Charles was confined against his will, and although it is likely that Gerry believed he was performing his duty as an employee of the ground, the court would likely find for the plaintiff in this situation. Charles v Gerry (Assault) Gerry's liability The question of law in this case is whether Gerry's words created fear of imminent physical harm in Charles.
Taylor J in Barton v Armstrong21 stated, "… an assault can occur where a defendant threatens physical harm… unless he does what the defendant requires him to do. " The threat was made by phone and was still found to be sufficiently imminent for an assault to have occurred. In this situation, Gerry made a conditional threat to Charles in person, providing the opportunity for the threat to be carried out immediately. This would almost certainly have created a legitimate fear in Charles' mind of imminent physical contact.
Gerry may claim in defence that he had no intention of carrying out the threat and that he was attempting to deter Charles from proceeding. The court would likely find as in Barton v Armstrong,22 that there were other, less offensive and insulting means of deterring Charles from entering the change room. Conclusion Given the facts, it is likely in this case that even though Gerry may claim that he did not intend to carry out his threat, the threat was such that Charles reasonably believed he was in imminent danger and therefore constitutes an assault.