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PROBLEM QUESTION During the recent hurricane, Andrew who is known as a practical joker, telephones his next door neighbor, Betty, and tells her that a large tree in her yard has been uprooted and has smashed the greenhouse where she keeps her prize orchids. Betty immediately has a panic attack. After the hurricane, Betty ventures outside to discover that the tree is standing and the greenhouse and orchids are in perfect condition. Nevertheless, Betty continues to suffer from anxiety, palpitations and sleeplessness for several weeks after the hurricane.

Having eaten biscuits and corned beef for several days, Andrew and his brother Charlie drive down to JFK's, a local fast food restaurant. They join the large crowd jostling and pushing to enter JFK's. Just as they reach the restaurant's door, Francis, the restaurant's security guard, shouts, "we close, we close", and attempts to shut the door. Andrew and Charley are intent on getting into JFK's and Charley pushes past Francis, knocking off his spectacles which fall to the ground and break. Francis responds by punching Charley in the stomach. Andrew pulls a knife from his pocket, advances towards Francis, saying "You'll pay for this".

Andrew rushes towards a table but Donna gets there before him. Just as she is about to sit down in the chair, Andrew snatches the chair from under her. She falls to the ground and sustains a fractured hip.

Advise the parties as to their legal rights and liabilities if any.

I. i. Issue 1:

Betty

Given the principles of assault and battery should Andrew be held liable if he did not touch Betty however, she had a panic attack after he falsely told her that a large tree in her yard uprooted and smashed into the greenhouse where she kept her prize orchids?

ii.

Rule:

Wainwright v Home Office if there is no intention, however the conduct as causes psychiatric problems one cannot be charged with battery. However, Wilkinson v Downtown states that if there is intention to cause harm and psychiatric problems result one is guilty of battery

iii.

Analysis: Professor Gilbert Kodilinye in Commonwealth Caribbean Tort Law defines battery as a direct act of the defendant which has the effect of causing contact with the body of the plaintiff without the latters consent and further expressed that the modern view of battery is that it cannot be committed negligently. Subsequently, it should be noted that in the instant case Andrew intended to make Betty believe her prized orchids were destroyed.

However, given that Andrew is a practical joker and he is her neighbour, it may be argued that she should not have taken him seriously. Additionally in Home Office the prison guards were not liable since they had no intention to cause harm even though their actions of strip searching two men caused them psychiatric problems. Both the Home Office case and the instant case are similar since it can be argued

that since Andrew is a practical joker then he would not have intended to harm Betty. However the instant case may be distinguished as the prison guards were doing a legal act while Andrews prank calls are illegal. Similarly, Andrew made the false statement during a hurricane - incidents of trees being uprooted are highly probable and he specifically mentioned the place where he knew her prized orchids were. With that said the case of Downtown seems most fitting. In the said case, the defendant falsely told a woman that her husband had met in a serious accident which caused her to have a panic attack. The defendant was consequently found guilty as it was held that the defendant intended for his statement to be perceived as true and as such, this constituted a good cause of action, as his words were calculated to cause the plaintiffs physical harm though it was indirect. The facts of Downtown are similar to those found in the instant case since, Andrew ( like the defendant in Downtown) also made false statements to Betty which were calculated to cause her harm and no direct physical contact was present. As a result of these false statements she had a panic attack which led to her suffering from anxiety, palpitations and sleeplessness. However, given that Andrew is a practical joker and he is her neighbour, it may be argued that she should not have taken him seriously. Additionally in Home Office where the prison guards were not liable since they had no intention to cause harm even though their actions of strip searching two men caused them psychiatric problems. Both the home office case and the instant case are similar since it can be argued that since Andrew is a practical joker then he would not have intended to harm Betty. Therefore the decision made in Downtown should be applied and followed in the instant case. iv. Conclusion: Consequently, there is no defence, Andrew should be held liable under the tort of battery and pay damages for Bettys, pain and suffering, medical fees and any other fees incurred as a result of her psychiatric problem.

II. i. Issue 2:

Charley

Given the principles of battery should Charley be held liable if he pushes past Francis causing his spectacles to fall and break on the ground? ii. Rule:

Cole v Turner states a person is liable for battery if he/she causes harmful or offensive contact whether or not they intended to. Donnelly v Jackman contact which constitutes ordinary and acceptable conduct of daily life may not be considered as battery if one does not intend to commit a crime. According to Collins v Wilcock implied consent exists in ordinary and acceptable conduct of daily life provided that the force used is reasonable given the circumstances iii. Analysis:

In deciding whether or not Charlie should be held liable one must consider whether or not the situation described an intentional application of unlawful force. One element in the definition of battery includes that a person does not have to suffer physical harm for there to be a battery. There is still a trespass to the person though there is no hostility or physical harm suffered. However, if the contact is such of ordinary and acceptable conduct of daily life, it would not normally amount to a battery, unless there is some deliberate application of force. In Jackman, a police officer who tapped on the shoulders of a man to get his attention was not charged for battery was found not guilty under the rule that contact with another is not considered battery unless one intended to commit a crime. However, given that Charley just went pass Francis when his

glasses fell it can be argued, to a large extent, that he did not intend to commit a crime. The rule in Jackman was a departure from the law established in Turner which did not require intent which would have automatically in the instant case make Charley liable. However, in Wilcock, the appellants battery charge was quashed after she scratched a police officer who grabbed onto her arm in an attempt to stop her from walking away. In this case, it was held that the appellant had not committed a battery since her actions were acceptable since, given the circumstances, there was implied consent. Implied consent exists in ordinary and acceptable conduct of daily life provided that the force used is reasonable given the circumstances. However, the police officers grab at the womans arm was considered excessive force. Consequently the police officers actions amounted to a battery and the appellants actions were of self-defence. Similarly in the instant case, a large crowd was jostling in order to enter the restaurant after a hurricane. Charlie intended to get in and pushed past Francis causing his spectacles to fall and break. Under the rule of Jackman he would not have been guilty since there was no intent to harm Francis. Charlies intention was to enter the restaurant, not to knock Francis spectacles to the floor. It may be argued that considering the circumstances (of a crowd jostling) his behaviour was acceptable and thus his actions were reasonable given the situation. However, Charlies actions may be considered largely excessive or unreasonable since he was informed that the restaurant was closed before he pushed past Francis. Thus the instant case should be distinguished from Jackman and the rule of Wilcock should be followed. Therefore Charlie should be charged with battery and he should pay for damages to Francis inclusive of glasses replacement.

III. i. Issue:

Francis

Given the principle of battery and defences should Francis be held liable if he punched Charley in the stomach after Charley pushed past him to go into the restaurant although he was informed by Francis that it was closed and; what defences are available to Francis since he was performing a duty. ii. Rule:

Cachay v Nemeth states that one may be charged with battery if one uses excessive force while acting in self-defence.

iii.

Analysis:

The two principles of self-defence according to Kodilinye are: firstly that a battery must be in actual defence from attack and not retaliation after an attack and secondly self-defence/defence of another must be reasonably commensurate with the attack. In Nemeth, the defendant was found guilty of battery after he broke a mans jaw after the man attempted to kiss his wife. It was held that although the defendant was entitled to defend his wife, his actions were excessive given the circumstances. Nemeth, is similar to instant case since although Francis has a right to act in self-defence his actions may be viewed, to a large extent, as excessive or unreasonable as there is a vast difference between a broken glasses and a punch in the stomach iv. Conclusion

. Therefore the defence of self-defence should not be made available to Francis and he has in the process of trying to defend himself committed a battery.

IV. i. Issue 1:

Andrew

Given the principles of assault and battery should Andrew be held liable if he pulled a knife from his pocket and threatened Francis even though it was in self defence of his brother Charley? ii. Rule: According to Hull v Ellis in assault the act must be such that the reasonable man would fear the force which was to be applied on him. Lord Parker CJ stated in R v Hussey that: where a forcible and violent felony is attempted upon the person of another the party assaulted, his servant, or any other person present, is entitled to repel force by force, and if necessary to kill the aggressor iii. Analysis

To determine Andrews actions it is important to note the difference between assault and battery. According to Kodilinye an assault is something of direct threat made by the defendant to the plaintiff, the effect of which is to put the plaintiff in reasonable fear or apprehension of immediate physical contact with his person. According to Ellis act of the defendant must have been such that a reasonable man might fear violence was about to be applied to him. The test to determine fear and make the defendant liable is objective. Therefore, it is relevant to note that a reasonable man, approached in such a manner with a deadly weapon would likely take such a threat seriously and thus fear that his life is in danger. Andrew however, took out the knife in defence of his brother. This may be viewed as reasonable given that in R v Hussey Lord Hussey indicated that any person present may defend another against a forcible or violent felony. However, to a large extent his conduct was unreasonable given that firstly Lord Parker highlighted that the crime which is being defended against must be a felony - A

punch in the stomach is not a felony. Secondly the threat of a lethal weapon in response to a stomach punch presents a vast difference on the scale of proportionality of threat versus harm. Therefore his actions voids the applicability self-defence and consequently he is guilty of assault.

i.

Issue 2:

Given the principles of battery should Andrew be held liable if he snatched the chair away while Donna was about to sit down causing her to fracture her hip? ii. Rule According to Fagan v Metropolitan Police - It is not necessary for there to be any bodily contact between Plaintiff and Defendant iii. Analysis Professor Gilbert Kodilinye in Commonwealth Caribbean Tort Law defines battery as a direct act of the defendant which has the effect of causing contact with the body of the plaintiff without the latters consent and further expressed that the modern view of battery is that it cannot be committed negligently. Andrews action meets the requirement of a battery as he intentionally removed the chair and as a direct consequence of this Donna suffered from a fall and sustained a fractured hip. In Metropolitan Police Commissioner a man was instructed to move his vehicle by a police officer. The vehicle accidentally went on the officers foot however the driver refused to move it and was charged with battery. This although distinguishable from the instant case can be applied as it uses the rule that one does not need to come into physical contact with the person being battried to be guilty of battery. In the instant case, although Andrew did not come into contact with Donna he moved the chair thus resulting in her falling and fracturing her hip.

iv.

Conclusion Andrew is guilty of battery and thus should pay for damages inclusive of pain and suffering as well as medical fees and transportation as well as any other fees incurred as a result of her hip fracture.

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