Week 1 & 2 Trespass to Person Can be battery, assault or false imprisonment. General questions to ask Was there a direct interference with person or property? Direct interference = action in injury follows immediately Man throwing log on the road, person later trips is not trespass. Hutchins v Maughan – Oil not discharged directly on foreshore, so not trespass. Southport v Esso – If other people acting for compulsive self-preservation, trespass by original Scott v Shepherd – person. Was the defendant at fault? - man shall be excused of a trespass except it be adjudged utterly without Weaver v Ward “No his fault” No trespass without fault, liable if intention or negligence present. only Williams v Milotin – English position different, actions divided into whether done intentionally or accidentally (Letang v Cooper). Who has the burden of proof? Defendant must disprove fault (upheld McHale v Watson Weaver v Ward). – However, if highway case plaintiff burden of proof (Venning v Chin). Battery Was there a direct and positive act causing unlawful bodily contact? What mens rea is necessary? Hostility not necessary v Star City). However, exclusions to battery include physical contact acceptable in ordinary course of everyday life (Rixon; Collins v Wilcock). Fault? Defendant has burden of proof except for highway cases. Defences? See separate section. Assault Was a threat by defendant that made plaintiff fear imminent harm? (Rozsa v Samuels)
Week 1 & 2 Trespass to Person Can be battery, assault or false imprisonment. General questions to ask Was there a direct interference with person or property? Direct interference = action in injury follows immediately Hutchins v Maughan – Man throwing log on the road, person later trips is not trespass. Southport v Esso – Oil not discharged directly on foreshore, so not trespass. Scott v Shepherd – If other people acting for compulsive self-preservation, trespass by original person. Was the defendant at fault? Weaver v Ward - “No man shall be excused of a trespass except it be adjudged utterly without his fault” Williams v Milotin – No trespass without fault, only liable if intention or negligence present. English position different, actions divided into whether done intentionally or accidentally (Letang v Cooper). Who has the burden of proof? Defendant must disprove fault – McHale v Watson (upheld Weaver v Ward). However, if highway case plaintiff burden of proof (Venning v Chin). Battery Was there a direct and positive act causing unlawful bodily contact? What mens rea is necessary? Hostility not necessary v Star City). However, exclusions to battery include physical contact acceptable in ordinary course of everyday life (Rixon; Collins v Wilcock). Fault? Defendant has burden of proof except for highway cases. Defences? See separate section. Assault Was a threat by defendant that made plaintiff fear imminent harm? (Rozsa v Samuels)
Tort-Raw-Notes.docx