Law of tort case study - Bert's claims in torts.

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Bert’s claims in torts

Bert v Paulo (Battery)

Paulo’s liability

The tort of battery protects individuals from intentional touch without consent.  However, when applied to sporting contests, Fox J in McNamara v Duncan stated that “…forcible bodily contact is part of [the game]” 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 Johnston, the court concluded that a hit from the elbow is sufficiently reckless that a player should see the potential to inflict harm 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 City stated “any touching of another’s body… is capable of amounting to a battery…” 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”.  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.

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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 Jones 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 ...

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