Tag: Assault

Burrell v Harmer [1967]: Exploring Consent and Criminal Liability

Case Name: Burrell v Harmer

  • Citation: [1967] Crim LR 169
  • Court: High Court of Justice (England and Wales)
  • Year: 1967
  • Area of Law: Criminal Law – Consent; Assault Occasioning Actual Bodily Harm (ABH)

Burrell v Harmer [1967] Crim LR 169 is an important English criminal law case that examines the limits of consent, particularly in relation to minors.

Key Facts (Burrell v Harmer)

The defendant, a tattoo artist, tattooed two boys aged 12 and 13. Although the boys had agreed to the process, the defendant was charged with assault occasioning actual bodily harm under Section 47 of the Offences Against the Person Act 1861.

Legal Issue

The main question was whether the boys’ consent to the tattooing constituted a valid legal defence to the assault accusation.

Judgment in Burrell v Harmer

The court held that the boys’ consent was invalid. It determined that the minors lacked the capacity to comprehend the nature and consequences of receiving a tattoo, rendering their consent ineffective. Consequently, the defendant’s conviction was upheld. The actions amounted to assault.

Legal Significance

This judgement established the fact that consent cannot be used as a legitimate defence in assault proceedings unless the individual has the capacity to comprehend the nature of the act.  In the case of minors, this means they must be mature enough to understand the consequences of their consent.  The ruling stressed that simply agreeing is insufficient; the consenting person must have the mental capacity to make an informed decision.

List of references used:

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Day v The Ocean Beach Hotel Shellharbour [2013]: Dual Liability

The case Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] is a notable decision that revolves around a claim of vicarious liability for an act committed by a security guard.

Ratio Decidendi: The theory of dual vicarious liability (two parties both liable for one tortfeasor) is not recognised in Australian law.

Case Name & Citation: Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250; (2013) 85 NSWLR 335
Court: Supreme Court of New South Wales – Court of Appeal
Decision Date: 05 August 2013
Judges: Meagher JA, Emmett JA, Leeming JA
Areas of Law: Vicarious Liability, Agent and Independent Contractor, Assault, Battery

Facts

Ms Julia Day was injured at the Ocean Beach Hotel in 2008 when a security guard, employed by Checkmate Security, pulled the stool from beneath her, causing her to fall.

The security guard acted on a direction from the hotel’s manager to remove her from the premises due to intoxication.

Day sued the hotel and its licensee (Karma Elliott-Cosmos), alleging vicarious liability for the guard’s conduct.

Trial Outcome and Appeal

The District Court found the security guard’s conduct constituted assault and battery.

It held that Checkmate, as the guard’s employer, was vicariously liable. The hotel and licensee were not vicariously liable.

Day was awarded $10,000 in total: $2,500 general damages, $2,500 aggravated damages, and $5,000 exemplary damages.

Day appealed.

Court of Appeal Decision (Day v The Ocean Beach Hotel Shellharbour)

The Court held that Checkmate was an independent contractor, not the agent or employee of the hotel or licensee. The Hotel/licensee exercised limited control, not sufficient to establish a relationship of agency or employment.

The security guard’s act was not authorised or directed by the hotel staff. Though an instruction was given to remove Ms Day, it did not amount to authorising the unlawful act (the assault by pulling out the stool).

Leeming JA stated as under:

“The hotelier and staff had general control of security staff such as Mr James but that control was limited to where in the premises they should work and on what task, but in my opinion, not how to do the task. Mr James and other security staff could delegate any tasks which they were asked to do to another guard.” (at p. 8)

“The security guard was not expressly authorised to commit the assault and battery. The findings of the primary judge, that neither the Hotel’s duty manager nor its licensee were on the spot when the incident occurred, and that all that was authorised was the appellant’s removal, were amply open on the evidence.” (at p. 16)

Furthermore, the Court reaffirmed the principle from Oceanic Crest Shipping Co v Pilbara Harbour Services (1986) that two unconnected entities cannot both be vicariously liable for the same act. That is, holding both Checkmate and the hotel/licensee liable was not feasible.

The damages assessment was upheld.

You can refer to the full case here:

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2013/250.html

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Starks v RSM Security [2004]: Employer Liability for Assault

Starks v RSM Security Pty Ltd & Ors [2004] is an important decision in New South Wales, particularly in the areas of tort law and employer liability.

Ratio Decidendi: Vicarious liability applies even to unauthorised acts if they are closely tied to the employee’s duties. A wrongful act may still be within the “scope of employment” if it occurs as a mode of doing an authorised act (even improperly).

Case Name & Citation: Starks v RSM Security Pty Ltd & Ors [2004] NSWCA 351; [2004] Aust Torts Reports 81-763
Court: Supreme Court of New South Wales – Court of Appeal
Date: 28th September, 2004
Judges: Sheller JA, Beazley JA (lead judgment), Grove J
Areas of Law: Vicarious Liability, Assault, Scope of Employment, Agency, Independent Contractor

Facts – Starks v RSM Security

Byron Starks, a patron at the Bondi Hotel, was assaulted (head-butted) by security guard Eugene Wilson, employed by RSM Security Pty Ltd.

Starks brought proceedings for damages against:

  • Mr Wilson (security guard)
  • RSM Security Pty Ltd (Wilson’s employer)
  • Hotel Bondi Pty Ltd (owner/occupier of the hotel)
  • Cyril Maloney (licensee)

The District Court found Wilson liable for the assault and awarded $97,017 to Starks as damages. The claims against the employer, hotel, and licensee were dismissed. The judge found the assault was not within the scope of Wilson’s employment and the hotel/licensee had no direct control or liability.

Starks appealed.

Court of Appeal Decision

The appeal was allowed in part (RSM Security held liable) and dismissed in part (hotel and licensee not liable).

1. Employer Liability:

RSM Security Pty Ltd was held vicariously liable for Wilson’s actions.

The Court found that Wilson was acting in the course of his duties when he assaulted Starks, even though the act was unauthorised and violent.

Assault was “closely connected” to his duty of removing patrons. Therefore, it was not a personal frolic, but an improper mode of performing his role.

2. Hotel & Licensee Liability:

The Court emphasized that RSM Security was an independent contractor, not under the hotel’s direct control.

There was no evidence of uniforms, instructions, or representational authority that would show the guard was acting as the hotel’s “face” to the public.

Some of the important cases cited by the Court included Hollis v Vabu Pty Ltd [2001] HCA 44, State of NSW v Lepore (2003) 212 CLR 511, and Deatons Pty Ltd v Flew [1949] HCA 60.

You may refer to the full case here:

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2004/351.html

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State Rail Authority of NSW v Chu [2008]: Novus Actus Interveniens

Case Name: State Rail Authority of NSW (New South Wales) v Chu

Ratio Decidendi: A public authority can be held accountable in negligence for injuries caused by faulty public infrastructure.  And an intervening criminal act by a third party (novus actus interveniens) can break the chain of causation between the defendant’s negligence and a subsequent injury, unless the criminal act was foreseeable as a result of the initial negligence.

Court: Supreme Court of New South Wales – Court of Appeal
Citation: [2008] NSWCA 14; [2008] Aust Torts Reports 81-940
Judges: Hodgson JA, Bell JA, Mathews AJA
Decision Date: 6 March 2008
Areas of law: Negligence; Contributory negligence; Causation; Novus actus interveniens; Assessment of damages; Assault

Facts (State Rail Authority of NSW v Chu)

On December 29, 2002, Yu-Mei Chu tripped on damp stairs at Sydenham Railway Station and fractured her ankle. She claimed negligence owing to the slippery yellow-painted nosings on the stairs. She was later sexually assaulted by an acquaintance, which she claimed was a foreseeable consequence given her decreased mobility from the fall.

The Trial Court found the State Rail Authority negligent for failing to maintain safe stair surfaces. Ms Chu was awarded damages totalling $239,405, including those linked to the assault.

Issues

Was the State Rail Authority careless in maintaining the stairs? Did Ms Chu contribute to her fall? Is it possible to legally connect the following sexual assault to the Authority’s initial negligence?

Court of Appeal Decision

The Authority failed to provide safe stairs.  Expert testimony revealed that the painted stair edges were very slippery when wet.  The Authority did not contest the evidence or provide its own.

Further, the Court found Ms Chu was being careful and no negligence was proven on her part.

The Court determined the sexual assault was a new intervening act, breaking the causal chain. It was the deliberate, criminal act of a third party, and not a foreseeable consequence of the Authority’s negligence. The assault was outside the scope of liability of the Rail Authority (s 5D Civil Liability Act 2002 – test for causation).

Damages were reduced to $217,324 (from $239,405). Damages linked to the sexual assault were removed, while there was a correction of a miscalculation in future economic loss, increasing that component.

Mathews AJA at p [53]:

“From a factual point of view there was little evidence to support his Honour’s finding on the causation issue. It was a matter which the respondent was required to prove, and in my view the preponderance of evidence was that the assault would probably have occurred whether or not she had been injured in the fall.”

References:

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2008/14.html

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Murray v McMurchy [1949]: Informed Consent in Medical Law

Case Name & Citation: Murray v McMurchy [1949] 2 DLR 442

  • Court: British Columbia Supreme Court
  • Judge: Macfarlane J.
  • Decision Date: February 1, 1949

Facts (Murray v McMurchy)

Following extended labour and failed forceps delivery attempts, the plaintiff had a Caesarean section.  During the procedure, the doctor (defendant) identified several fibroid tumours in her uterus.  The doctor tied the plaintiff’s Fallopian tubes (a sterilisation technique) without her prior consent, assuming that a future pregnancy might pose health hazards.  The plaintiff eventually filed a lawsuit seeking damages, saying that the sterilisation was illegal and violated her bodily autonomy.

Key Legal Issue

Was the surgeon legally permitted to execute the sterilisation without the patient’s consent, based on a projected future health risk?

Court’s Reasoning

While the fibroids could pose a future risk, there was no acute & immediate medical issue that required sterilisation during the Caesarean section. The court emphasised the right of patients to agree to medical procedures. Sterilisation decisions must be left to the patient, even if medically advisable. The husband’s signing on a generic consent form did not authorise sterilisation, nor did it relieve the surgeon of the duty to get particular consent. The court recognised that sterilisation deprived the petitioner of a fundamental right—the ability to produce children—without any requirement or emergency.

Judgment in Murray v McMurchy

The sterilization was an unauthorized trespass to the person.

The court awarded $3,000 in damages to the plaintiff.

However, it did not award punitive damages, as the surgeon acted with good intentions, albeit wrongly.

Legal Principle Established

The case of Murray v McMurchy [1949] 2 DLR 442 is a landmark Canadian case that has had a significant impact on the medical fraternity, particularly concerning the intervention of doctors.

Informed consent is required for non-emergency medical procedures, particularly those with lasting repercussions (such as sterilisation). Even if the doctor believes it is in the patient’s best interests, the decision is ultimately up to the patient, unless there is an obvious and imminent emergency.

References:

https://www.canlii.org/en/bc/bcsc/doc/1949/1949canlii220/1949canlii220.pdf

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How Grosse v Purvis Redefined Privacy Law in Australia?

Case Name: Grosse v Purvis

  • Citation: [2003] QDC 151
  • Court: District Court of Queensland
  • Judge: Senior Judge Skoien
  • Date of Judgment: 16 June 2003
  • Areas of Law: Tort Law,Invasion of Privacy, Harassment / Stalking,Intentional Infliction of Emotional Harm, Negligence, Assault and Battery, Trespass and Nuisance

The case Grosse v Purvis [2003] QDC 151 is a landmark decision from the District Court of Queensland, Australia.

What the Case Was About?

Alison Grosse (the plaintiff) sued the defendant, Robert Purvis, for stalking, harassment, breach of privacy, and emotional distress. She alleged that he had been following her around, entering her property without permission, making insulting phone calls, and spreading false rumours about her.

More specifically, the plaintiff brought an action against the defendant for a range of torts, with the primary focus being the invasion of privacy, along with harassment, stalking, trespass, assault, battery, and intentional infliction of emotional harm.

Key Facts – Grosse v Purvis

Grosse and Purvis had a brief romantic/sexual relationship in the 1990s.  They had a professional relationship through SCRGAL, a company that helps young people find apprenticeships. 

Grosse alleged that after their personal relationship deteriorated, Purvis gradually began stalking and harassing Grosse, showing up at her house, spying on her, and calling her regularly, often late at night.  He also made false claims about her massage business, implying that it offered sexual services, which she refuted.  Purvis claimed he was attempting to safeguard Grosse’s name, but she felt frightened, emotionally upset, and attempted suicide once as a result of the pressure.

The defendant attempted to justify his actions as concern for her reputation and SCRGAL.

Court Findings

The court accepted Grosse’s account of events over Purvis’s.

It acknowledged that Purvis’s behaviour was intrusive, hostile, and harmful to Grosse’s mental health.

Multiple witnesses corroborated the plaintiff’s claims, and the defendant’s justifications were rejected.

The court recognised the right to privacy as a legal basis, which was a rare and significant development in Australian law at the time.

Result (Grosse v Purvis)

Grosse was awarded $178,000 in damages, including compensatory, aggravated, and exemplary damages.

A permanent injunction was issued, preventing Purvis from contacting or approaching Grosse in any way.

Why This Case Is Important?

It was one of the first instances in Australia to specifically recognise invasion of privacy as a legitimate legal claim. It established a precedent for dealing with stalking and harassment in civil court, beyond just criminal accusations.

References:

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QDC/2003/151.html

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Fagan v Commissioner of Police of the Metropolis: Actus Reus

Fagan v Commissioner of Police of the Metropolis [1968] EWHC 1 (QB), [1969] 1 QB 439, (1968) 52 Cr App R 700

  • Court: England and Wales High Court (Queen’s Bench Division)
  • Judgment Date: 31 July 1968
  • Judges: Lord Parker C.J., James and Bridge JJ.
  • Area of Law: Criminal Law – Assault and Battery

The case of Fagan v Commissioner of Police of the Metropolis [1968] EWHC 1 (QB) is a foundational case in English criminal law, particularly in relation to the concepts of actus reus (the wrongful act of a crime) and mens rea (the mental intention to commit a crime). Here are the key points and principles established by the case.

Facts (Fagan v Commissioner of Police of the Metropolis)

The appellant, Vincent Martel Fagan, accidentally drove his car onto a police officer’s foot while being directed to park. When the officer told him to remove the car, Fagan refused, used offensive language, and delayed moving the car. The court had to determine whether Fagan’s actions constituted an assault.

Legal Issues

Was the act of driving onto the officer’s foot an assault? – Initially, the act may have been unintentional and lacked mens rea.

Did Fagan’s refusal to move the car transform the situation into an assault? – This required considering whether the act was “continuing” and whether the mens rea could arise during the act.

Key Legal Principles Established (Fagan v Commissioner of Police of the Metropolis)

Continuing Act Doctrine:

The court distinguished between acts that are complete and those that are continuing. If the actus reus continues, mens rea can be superimposed at any point during the act. In this case, the act of the car wheel being on the officer’s foot was deemed a continuing act. By refusing to remove the car, Fagan formed the necessary intention (mens rea), thus completing the offence.

No Assault from Omission Alone:

The court emphasized that a mere omission (failure to act) cannot constitute an assault. However, Fagan’s conduct was not considered mere omission but rather a continuation of his initial act.

Mens Rea and Actus Reus Coincidence:

For an assault to occur, actus reus and mens rea must coincide. The court found that they did in this case once Fagan knowingly allowed the car to remain on the officer’s foot.

Judgment

Majority Decision:

Fagan’s actions constituted a battery (a form of assault). The act was initially unintentional but became criminal when Fagan chose to let the car remain on the officer’s foot with knowledge of its position.

Appeal dismissed.

Dissenting Opinion (Bridge J.):

Justice Bridge dissented, reasoning that the appellant’s actions after the wheel initially came to rest on the officer’s foot did not constitute an act that could qualify as assault. He viewed the situation as a failure to act rather than a continuing act.

He said:

“After the wheel of the appellant’s car had accidentally come to rest on the constable’s foot, what was it that the appellant did which constituted the act of assault? However the question is approached, the answer I feel obliged to give is: precisely nothing.”

Conclusion

The appeal was dismissed, and Fagan’s conviction was upheld.

Significance

This case is pivotal in criminal law for illustrating the interplay between actus reus and mens rea in determining liability. It can be cited to illustrate the “continuing act” principle. It beautifully shows how the thin line between accident and offence blurs once intent comes into the picture.

References:

https://www.bailii.org/ew/cases/EWHC/QB/1968/1.html

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New South Wales v Ibbett: Police Misconduct & Damages Case

Case Name: State of New South Wales v Dorothy Isabel Ibbett

  • Citation: [2006] HCA 57; (2006) 231 ALR 485; (2006) 81 ALJR 427
  • Court: High Court of Australia
  • Judges: Gleeson CJ, Gummow, Kirby, Heydon, and Crennan JJ
  • Judgment Date: 12 December 2006
  • Legal Issues: Tort (trespass, assault), damages (aggravated and exemplary), vicarious liability of the State.

Background of the Case (New South Wales v Ibbett)

On 23 January 2001, two New South Wales police officers, Senior Constables Pickavance and Harman, entered the home of Mrs. Ibbett without lawful justification while attempting to arrest her son, Warren Ibbett.

Mr. Ibbett was suspected of a driving offense, and police officers pursued him to his home, where he closed the garage door.

Senior Constable Pickavance forced entry by diving under the roller door and pointed his gun at Mr. Ibbett and later at Mrs. Ibbett when she confronted him.

Mr. Ibbett was forcibly arrested, handcuffed, pushed to the ground, and strip-searched in the garage.

The police officers were not in uniform and had no proper legal basis to enter the property or arrest Mr. Ibbett. In fact, all charges against him were later withdrawn.

Mrs. Ibbett sued the State of New South Wales for trespass to land and assault against Mrs. Ibbett.

Legal Issues

1. Trespass & Assault:

The unauthorized entry by the officers amounted to trespass to land.

Pointing a firearm at Mrs. Ibbett constituted assault, as it caused her to fear immediate harm.

2. Damages Awarded:

The District Court awarded Mrs. Ibbett $75,000 in damages.

•            $50,000 for trespass, including $10,000 for general damages and $20,000 each for aggravated and exemplary damages.

•            $25,000 for assault, including $10,000 for exemplary damages and $15,000 for general damages.

The New South Wales Court of Appeal increased the award to $100,000, adjusting aggravated and exemplary damages.

•            Increased exemplary damages for assault from $10,000 to $25,000.

•            Added $10,000 in aggravated damages for assault.

3. State’s Appeal to the High Court:

The State argued that awarding aggravated and exemplary damages together constituted “double punishment.” It also challenged the vicarious liability imposed on the State for the officers’ wrongful conduct. The State should not be held vicariously liable for exemplary damages.

High Court Ruling (New South Wales v Ibbett)

Appeal Dismissed (State Lost).

The Court upheld that both aggravated and exemplary damages were justified. Aggravated damages were compensatory—acknowledging the humiliation and distress suffered by Mrs. Ibbett. Exemplary damages were meant to punish the police misconduct and deter future abuse of power.

The Court also ruled that the State was vicariously liable for exemplary damages, reinforcing accountability for police actions.

Key Legal Takeaways

•            Police trespassing into private property without lawful justification is a serious violation of rights.

•            Pointing a gun at a person without cause constitutes assault.

•            Aggravated and exemplary damages serve different legal purposes and can be awarded simultaneously.

•            The State can be held vicariously liable for police misconduct, even for exemplary damages, to ensure discipline within law enforcement.

Final Outcome

The High Court dismissed the appeal, confirming Mrs. Ibbett’s right to $100,000 in damages.

References:

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2006/57.html

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Collins v Wilcock [1984] 1 WLR 1172: Self-Defence and Battery

Collins v Wilcock [1984] 1 WLR 1172 is a landmark case in English law that clarifies the definition of battery and the scope of lawful physical contact in daily interactions.

  • Citation: [1984] 1 WLR 1172; [1984] 3 All ER 374
  • Court: England and Wales – High Court (Divisional Court)
  • The learned Judge: Robert Goff LJ
  • Legal Issues: Battery, Assault, Trespass to the Person

Facts of the Case (Collins v Wilcock)

A police officer, suspecting two women of soliciting for prostitution, approached them on the street. One of the women, Ms. Collins, refused to engage with the officer and began to walk away. The officer, in an attempt to stop her, took hold of her arm. Ms. Collins reacted by scratching the officer. She was subsequently charged with assaulting a police officer in the execution of their duty.

Legal Issue

Did the police officer commit battery by grabbing Collins’ arm?

Was Collins guilty of assaulting the police officer?

Court’s Decision in Collins v Wilcock

The court held that the officer’s action amounted to a battery, as it exceeded what is generally acceptable in ordinary conduct. Consequently, Ms. Collins’s conviction for assaulting a police officer was quashed, recognizing her right to self-defense against unlawful physical contact. Since the officer was not in the process of lawfully arresting Collins, the contact was not legally justified.

Legal Principles Established

Lord Justice Goff elaborated on the concept of battery, stating that any intentional touching of another person without consent and beyond generally acceptable conduct constitutes a battery. However, he acknowledged implied consent for everyday physical contacts, such as jostling in crowded places or tapping someone on the shoulder to gain attention, provided no more force is used than reasonably necessary in the circumstances.

Implications

This case underscores the principle that every individual’s person is inviolable, and any physical contact beyond what is generally acceptable in daily life requires consent. It also delineates the boundaries of lawful conduct for law enforcement officers, emphasizing that actions like restraining individuals without legal justification can amount to battery. Physical restraint by an officer is only lawful when executing a lawful arrest or when justified by specific statutory powers.

References:

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Tuberville v Savage (1669): A Historical Legal Case

This case, Tuberville v Savage (1669), is a historic decision from the England and Wales High Court (King’s Bench Division) addressing the law of assault. Here’s a brief summary of the key points and principles of the case.

Court: King’s Bench Division

Citation: (1669) 1 Mod Rep 3, [1669] EWHC KB J25, 86 ER 684

Parties: Tuberville (plaintiff) vs. Savage (defendant)

Date: 30 January 1669

Type of Action: Assault, battery, and wounding.

Facts (Tuberville v Savage)

The plaintiff allegedly put his hand on his sword and stated, “If it were not assize-time, I would not take such language from you.” The court examined whether this constituted an assault.

Issue

Does the act of putting a hand on a weapon, accompanied by the statement mentioned, amount to an assault?

Court’s Decision in Tuberville v Savage

The court held that there was no assault. The reasoning was as follows:

1. Intention: For an act to qualify as an assault, there must be an intent to create an apprehension of imminent harm. In this case, the plaintiff explicitly stated that he would not act (“if it were not assize-time”), which negated any immediate threat.

2. Act: The court emphasized that the intention and the act must coincide to constitute an assault. While Tuberville’s actions might have appeared threatening, the accompanying words negated any intent to carry out the threat.

3. Examples in Judgment

•            Striking someone without intent to harm (e.g., in conversation) does not constitute an assault.

•            Threatening actions, such as holding up a hand in a menacing way without any accompanying words, could amount to an assault.

Principle Established

An assault requires both:

1.           An act that creates reasonable apprehension of imminent harm.

2.           An intention to cause such apprehension.

In this case, the plaintiff’s words negated the intent to harm, so no assault occurred.

Significance

This case remains a foundational authority on the law of assault, illustrating how courts evaluate the combination of actions and intent. It is also notable for its contribution to the principle that words can clarify or negate the meaning/intent of actions in legal disputes.

List of references:

https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/KB/1669/J25.html

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