普通法-案例分析筆記

1、Cole v. TurneIssue.Under what circumstances and with what mindsets may a touching constitute battery?Synopsis of Rule of Law.The lightest angry touch constitutes battery. A gentle touch made in close quarters with no ill intention is not a battery. A forceful or reckless touch, in close quarters is

2、a battery.即：?"the least touching of another in anger is a battery”?"if two or more meet in a narrow passage, and without any violence or design of harm,the one touches the other gently, it will be no battery”Key point - the degree of contact is irrelevant: the" least touching is actio

3、nableBut: current rule is that battery does not require anger:? Is an unwanted kiss battery? Yes.Shooting a person with the best of intentions? Yes.No anger, no damages, no have to be conscious at the time of the contactCollins v Wilcock 1984 3 All ER 374FACTA police woman took hold of a woman's

4、 arm to stop her walking off when she was questioning her. The woman scratched the police woman and was charged with assaulting a police officer in the course of her duty.Me:the defendant refused to answer police woman' s question and walked away when policewoman persisted to follow her and took

5、 hold of her arm to restrain her. The defendant swore at and scratched the officer' s arm, As a result, the D was arrested and charged with assaulting apolice officer in the course of her duty.Issue:_whether officer can physically hold suspect without arrest ?(P3)Holding :officer ' action is

6、 unlawful and amounted to a battery since it went beyond the generally acceotable conduct of touching a person to engage his attention. The defendant's action was therefore in self defence and D' s conviction w鐮)ashed(Rule: unless there is an arrest, officer cannot use physical force to hold

7、 a suspect, and such force may constitute tort of batterySidaway v. Bethlem Royal Hospital Governors (1985 HLs)Facts:Claimant suffered persistent pain in her neck, right shoulder, and arms.Claimant consented to the neurosurgeon' s recommended treatment of cervical corddecompression. Doctor did t

8、ell her even if the operation properly performed, risk of disturbing a nerve root/consequences. But doctor not explain the fact that in less than 1% of the cases, the decompression treatment caused spinal cord damage, paraplegia. Doctor also not informed the plaintiff that this was an operation of c

9、hoice or "elective operation” (she didn ' t need tcPlaintiff patient developed paraplegia after the spinal operationCasebook:Mrs Siddeway suffered persisitent pain in her right arm and shoulder and a surgeon employed by the defendants recommended an operation to her spine to which Mrs sidaw

10、at consented. The operation involved a risk,put at least 1%, of damage to the spine and Mrs Sidawat was not informed of the risk ,The operation was properly conducted but unfortunately the risk materialized and the clainmanr became severely disabled.She sue the defendants on the groud that surgeon h

11、ad failed to inform her of riskHeld :dismissing the appeal ,that the defendant were not liable.Rule and notable points of law:Unlike US law, in English law consent not vitiated by the failure of the doctor to give the patient sufficient information before the consent is givenOnly if the consent is o

12、btained by fraud or by misrepresentation it could be said that consent is not a true consent, allow batteryPatient ' s consent must still be real: to be real patient should be told enough about the treatment to understand what will be done to themCasebook: at the same time the doctor is not enti

13、tled to make the final decision with regard to treatment which may have disadvantages or dangers , where the patient' s heath and future arestake ,the patient must make the final decision. Thus, the right to make the final decision and the duty of the doctor to inform the patient if the treatmen

14、t may have the special disadvantages or dangers go hand in hand.False imprisonment 非法監(jiān)禁:infliction of bodily restraint, which is not expressly or impliedly authorized by the lawAny restraint of liberty, and can occur anywhere (not just a prison)Restraint must be completeBird v. Jones, 7 Ad. & El

15、. (N.S.) 742, 115 Eng. Rep. 688 (1845).Case Summary為了演出而限制人流一原告強(qiáng)行進(jìn)去一不讓原告進(jìn)入，但允許原告撤退一不構(gòu)成非法拘禁Facts: part of Hammersmith Bridge, ordinarily used as a public footway, had been closed for spectators of a boat race. Bird (P) wanted to enter but he was prevented by Jones (D) and other policemen because he h

16、ad not paid the admission fee. Defendants refused to let him go forward but would allow him to retrace his steps. P refused to leave and was in the enclosure for half hour. Bird sued Jones for false imprisonment.Issue: Can a party be liable for false imprisonment if he only partially restricts the m

17、ovement of another such that a way out is available?Holding and Rule: No. P could have left but chose not to. D did not totally restrict his movements. D merely did not allow P to go where he wanted to go.Rule and notable points of law:Did not constitute false imprisonment as the plaintiff could hav

18、e left the area another wayMerely obstructing someone ' s way is not false imprisonment if the plaintiff has another means of going out (egress)When a person is restrained, there need not be actual physical restraint, e g: an arrest, even if executed by merely touching the claimant, is a restrai

19、nt as it would be if a person has the physical capatity to leave but it is unreasonable to expect him to do so.McFadzean v. Construction Forestry Mining and Energy Union(2007 Australia, Supreme Court of Victoria - Court of Appeal)Fact:見 PPT 75Rule: Four criteria to determine whether egress is reason

20、able : threat or danger to self/property (e.g. jumping out of moving truck not reasonable, para. 58), distance and time, and legalityRobinson V Balmain New FerryFacts:The P had contracted with D to enter their wharf & stay there till the boat should start , and then be taken by the boat to other

21、 side. after entry P changed mind and wish to go backwithout payment of prescribed fee , which was required by D P was prevented to leave and sued D for false imprisonment.Judgment: There was no false imprisonment.Reason- P had the contractual obligation to pay fees to leave , D was reasonable to re

22、strain P if he refuse to pay money.a. Trespasses to the person:Battery =(per Trindale)? direct act by the defendant? which has the effect of causing contact with the body of the plaintiff? without the plaintiff ' s consent(English) Protection from Harassment Act 1977? Prohibits a course of condu

23、ct which amounts to harassment which the defendant knows or ought to know amounts to harassment?"Harassment" is not defined, but includes“alarming the person or causing the persondistress ” , and speech can qualify as harassment? Remedies: civil action - damages, injunction? Damages can be

24、 awarded for (just) anxiety or financial lossMalcomson Nicholas Hugh Bertram v Naresh Kumar Metha前員工騷擾前雇主Fact:The defendant was the former employee of the second plaintiff company and had resigned fromhis employment, the first plaintiff was the chief executive officer of the second plaintiff,thedefe

25、ndant desired to regain his employment,and when that was not forthcoming he engaged in aseries of acts designed to harass both plaintiffs.Issue：能否用 harassment 起訴Hold: The plaintiff had no recognizable tort under which to sue the defendant .firstly,they couldnot sue under the traditional tort of tres

26、pass to the person in assault or battery.because:. the dekridunt had not, by his huras5rnerit>aiitie into any unwanted physitdl luliUcI with (lie plaintiff, ds required under battery; nor did he cause the plaintiff to reasonably apprehend any such contactf as required under jwwlt.There was also n

27、o possible action under the rule in Ukinsm v Do'ntom in Malc/nson. the plaintiffs did not suffer any bodily harm or recognisable psychiatric illness to sue under this tort. Finally, while some of the harassment took place in the first plaintiff s home and the second plaintiff s premises, much of

28、 the harassing acts took place outside these premises. Accordingly, the tort of private nuisance, which protected one's right to the enjoyment of one's cm n property, did Tint help for the most ptut in Malcomsott,Trespass 定義：could apply to acts of the defendant that interfered with the plain

29、tiffs' uright of enjoyment of landApply: But some of the emails, phone calls and SMS messages by mobile phone sent to the first plaintiff and to the employees of company had been received or retrieved by them outside company' s premises, and in the case of the first plaintiff,outside his hom

30、e and outside the office Trespass (and nuisance) could not applyHarassment 定義：harassement defined as ' a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, andwhich he ought reasonably to know would cause, worry, emotional distress or annoyance to another person ' (at 464, para 31)本案中： Judge not