Trespass to the Person and Historical Background

***reread Platt v Nutt, esp dissenting judgment of Kirby P***

Julie and Marsha were watching their respective spouses, Hugo and
Jack (who were in opposing teams) play cricket one Saturday at a
local park. As he left the field after being bowled, Jack in a temper
threw his bat at a tree it bounced and hit Hugo (who was fielding
nearby) on the head, rendering him unconscious for 15 minutes and
causing him to have 10 stitches. Julie suffered nervous shock from
witnessing this accident. Marsha then got into an argument with
another of Hugos teammates, Clive, over Jacks conduct and
stormed off to her car. Clive followed her and they argued through
the open window. Clive had his hand resting on the sill when Marsha
flicked the switch to close the window automatically. Clives hand
was jammed and injured. It is unclear whether or not Marsha knew
his hand was there.
Discuss the legal issues that arise on these facts.
Jack v Hugo (Negligence and Battery)
It is fact that Hugo has suffered loss and damage as a result of being
knocked unconscious for 15 minutes and requiring 10 stitches as a
direct consequence of Jack throwing his bat at a tree, which then
rebounded onto Hugos head. The legal issues, which arise on these
facts, are whether Jack is directly liable for Hugos injury in his
negligence, whether he is liable for battery, and who bears the onus
of proof of fault. Another possible issue that arises is whether Hugo
had assumed any inherent risks in agreeing to play cricket, as the
sport in itself carries potential dangers.
Lawful Excuse/Consent
falls outside the risk of playing cricket
only possible lawful excuse: exception for conduct is everyday
life
Direct Liability for Negligence/Intent
Although the bat did not directly hit Hugo and bounced off the tree,
it was an unbroken series of consequences resulting from Jacks
action (see Scott v Shepherd, Hutchins v Maughon); thus it is a
direct injury. Regarding the issue of negligence, Jack should have
been aware of any likely situations, which would have occurred as a
consequence of throwing his cricket bat so hard that Hugo was
knocked unconscious even after it after it hitting the tree, especially
as he would have known that Hugo was nearby. Thus it would be
reasonable for Jack to assume that his throwing of the bat could
result in it hitting and injuring Hugo. See Williams v Miloton, Platt v
Nutt, where it was held that where the action which caused the
injury was direct and a result of negligent/careless behaviour, both

issues of trespass and negligence could arise. Hugo has not

assumed the risk of getting injured by participating in the cricket
game, and thus is not liable in contributory negligence (see Ollier v
Magnetic Island Country Club). Even if the defendant does not
intend the contact, the action can still be considered as intentional
where contact is substantially certain to follow.
Battery/Assault
Battery is any act of the defendant which directly and
intentionally/negligently causes some physical contact with the
plaintiff and without his/her consent. The facts lie in this category as
Hugo was hit without consent as a result of Jacks negligence.
Jack did not intend to injure Hugo, as his intention was to merely
express his disappointment and anger in being bowled out. Whether
or not he actually intended to injure Hugo is irrelevant to the issue
of battery as authorised by Rixon v Star City. Assault is not in
question as Hugo would not have been aware of any imminent
danger, nor was it Jacks intention for Hugo to feel this way.
Jack v Julie
It is fact that Julie has suffered nervous shock from witnessing the
injury of her husband, Hugo caused by Jack. Thus arises the issue of
whether Hugo is liable for directly causing Julies emotional distress
as a result of negligence. It has been determined that Jack did not
intend to cause Hugos injury and thus did not intend to cause
emotional distress to Julie. Thus this situation does not lie under the
category of intentional infliction of psychiatric injury and the ruling
of Wilkinson v Downton does not apply.
Marsha v Clive (Battery and Negligence?)
It is fact Clive has suffered a direct injury to his hand after it being
jammed in a car window controlled by Marsha (Hutchins v Maughan
- immediacy). Thus it must be made clear whether or not Marsha
knew his hand was resting on the windowsill prior to the incident.
The onus to disprove fault is on Marsha provided that the nonhighway cases dont apply (Venning v Chin). If it is ascertained that
Marsha did know that Clives hand was there and thus it was her
intention to close the window on Clives hand, then arises the
question of whether she is liable for trespass to person and battery.
Furthermore, given the circumstances of the situation, where both
parties would have been emotionally charged, there may lay the
issue of assault, as Clive could have possibly felt apprehension of
imminent physical injury as a result of Marshas words or actions.
However, more facts regarding the nature and intensity of the
argument between the two is needed. For example, if Marsha had
made a threat to Clive outlining her intent to injure him, then
Marsha would be liable for assault, or if Clive had threatened Marsha
in provocation. (CAN 087 528 774 Pty Ltd v Chetcuti)

On the other hand, if Marsha had not been aware of the presence of
Clives hand, then the legal issue would instead be whether or not
she is directly liable for negligence as well as battery. For similar
reasons as outlined above, whether or not she is liable in assault is
dependant on whether certain further facts can be established.
Where there is a case in negligence, there is also trespass. (Williams
v Milotin)
The onus is on Clive to prove that Marsha caused his injury on the
balance of probabilities rather than his own wilful act in placing his
hand on the window. See Platt v Nutt, where it was held that the
onus of proof of the trespassory act is an issue distinct from onus of
proof of fault, and that the plaintiff in trespass must prove that the
defendant committed the trespassory act of which the plaintiff
complains.
1) Hugo v Jack Battery (Direct, Negligence/intent, No
consent/without lawful excuse, positive act)
3. Marsha v Clive Assault (direct, intentional/negligence,
reasonably apprehend some imminent unlawful contact) (dont
know the threat and dont know the defendants state of mind)
1. Read
2. Parties
3. Claims

4.
Elements
5.
Elements
satisfied?

Jack v Hugo; Jack v Julie; Marsha

v Clive
Jack v Hugo
Direct liability of Jack in
negligence
Battery
Onus of proof of fault
Jack v Julie
Direct liability of Jack in
negligence
Battery
Onus of proof of fault
Marsha v Clive
Direct liability of Marsha in
negligence
Battery
Onus of proof of fault
Burden of proof?
Negligence
Assault
Battery
a. Negligence: trespass
includes negligence
(Williams v Milotin:

child + bike run over

by truck driven neg).
Does not exist in
England (Letang v
Cooper: sunbathing girl
overrun by car).
i. Platt v Nutt: D
slammed door
and P put arm
out, injured. Trial:
D failed to prove
absence of
negligence, even
though no
intention. Held:
trespass failed as
the action was
not direct
enough. Kirby
dissented saying
P should bear
onus in all
situations.
6, 7, 8.
Discussio
n of
Issues
AND
Individua
l
Conclusio
ns
9. Overall
Conclusio
ns for
each
Cause of
Action
DAMAGES
nominal damages: no damages done
compensatory damages: aim to return the plaintiff to original
state
aggravated damages: insult to the plaintiffs feelings (Henry v
Thompson)
exemplary damages: focus on the conduct of the defendant
(aims to deter and punish the defendant stopping them from
doing again)