Unlawful Interference with Bodily Integrity Falling - Essay Example

?Part A In battery what is required is intentional contact not an intention to do harm1 –is the main point of the paper ed by F. Trindade. Thisresearcher will critically analyse and discuss this statement with reference to the battery aspect of trespass to the person through breaking down the elements of battery and what sets it apart from the other intentional tort–assault. Battery Intentional torts require that the action must bring about or result to some sort of physical or mental distress effect upon another person.2 Battery is an unlawful interference with bodily integrity3 falling under the category of intentional torts together with assault, false imprisonment and infliction of mental distress. However, unlike the other three, the commission of a battery may not have intent to do harm but what must be present is the intentional contact or physical contact between the doer of the crime and recipient4. This follows the principles surrounding mens rea and actus reus which in theory implies that there can be no criminal liability based on mens rea alone, but if the actus reus element of a crime is defined then it may potentially turn in to a guilt offence.5 In battery, there are two circumstances that may arise wherein it would constitute as battery (1) intent to cause harm or offensive body contact and/or (2) intend to cause an imminent apprehension of a harmful or offensive bodily contact.6 When for example, A throws a dagger at B, A expressed an intention to commit battery against B. But in the event that B throws a dagger at A but intends to miss but making A think that she would be hit, then that is still battery.7 The statement made by Trindade categorically separates battery from assault. Assault requires no physical contact but is a direct threat by the defendant which intentionally places the claimant in reasonable apprehension of an imminent battery.8 This is illustrated in the 1970 battery case where the defendant filed a case of battery against the policeman on the grounds that the policeman tapped the shoulder of the defendant to get his/her attention. The court found that the grounds of the battery charges were not enough to punish the police officer.9 While in the case of Collins v Wilcock, the policewoman grabbed the upper arm of the woman she was questioning to prevent her from walking out on her, and in response, the woman being questioned scratched the policewoman. The woman was charged with assaulting a police officer but the court found that the actions of the policewoman were enough to be convicted for a battery charge and the charges against the woman being questioned was lifted since her actions was to defend herself.10 In the case of R v Parmenter, the father of the baby was charged with four counts of causing GBH to his son. The baby sustained injuries to his bone structure of his legs and arms. The injuries were caused by the father’s mishandling of the baby. Although the father did not know that his actions would cause injuries to his son, the jury believed that the father should have prevented it by taking necessary measures to be more knowledgeable on how to handle a baby. The father was convicted with the four counts of GBH.11 It is the considered view of this writer that the overt act or mere physical contact should constitute as battery if taken against the will of the recipient. The intention to have contact even without the intent to do harm should be considered as a tortuous act. Emotional or psychological distress would accrue if the threat of harm is present. The elements and definition of the act should consider the psychological and emotional distress inflicted even if there was no intent to harm. The mere attempt should be considered tortuous since the possibility of physical harm will cause emotional and psychological distress therefore this should be given weight and credence when a person is charged with battery. Part B Question (a) The right of a person to enjoy a property12 is considered a basic human right and therefore, its peaceful possession and quiet enjoyment cannot be interrupted, enjoined or usurped by other individuals and entities including the State. The right to extract pleasure over the use of a property however it not absolute—property owners must be conscious of the rights of others as well. The exercise of ownership or enjoyment of a property must fairly and equitably exercised so as not to annoy, cause disturbance or unduly intervene with the rights of others. X Ltd (X), an industrial depot, operates seven days a week for 21-hour work period from 9 o’clock in the morning to 7 o’clock in the morning the following day. The residents in the community were affected by its activities but it was only Fred and Preena who sought guidance regarding their predicament. Fred discovered cracks on the front walls of his property and complains about the noise and fumes emitted by X’s boilers and other machinery including the operation between from 6 o’clock in the evening to 7 o’clock in the morning the following day. While Preena claims economic loss since the lorries blocked the entrance of her cafe preventing customers to park nearby. X’s activities may impact the residents of the community however it is not sufficient to consider the same public nuisance. Fred and Preena may institute individual actions to protect their rights which are discussed sequentially. i) Fred may institute a tort action not only to compensate for any physical damage sustained by his property but he may likewise seek injunctive relief to enjoin or prevent X from further committing the harmful acts complained of. However, administrative remedies are likewise available under various laws to abate the nuisance. The claims for compensatory damages is justified considering that Fred’s property is adjacent to X’s depot, the damage or loss he suffered is direct and substantial not to mention that is far greater than the rest of the community. The structural damages sustained by Fred’s property should be for the sole account of X since no appropriate measures were undertaken to alleviate or reduce the heavy vibrations emanating from its machineries. The 21-hour operation is a concrete proof that it completely disregarded the property rights of Fred. The constant pressure applied through its machineries is the proximate cause of the structural damage thus it should pay damages. The other aspect of Fred’s action is nuisance. To be successful in this action, it must be established that the area is identified as quiet area where peaceful and tranquil environment are preserved and protected. If the operator was given permission to create noise or the claimant is aware that a high level of noise is prevalent in the area then any complaint to protect an area from any noise will be defeated. The emission of fumes is likewise deemed a nuisance since it is detrimental to the health and well-being of the public. The general rule is that the exercise of property rights must create harmony rather than impede its free exercise. However, X intentionally and unreasonably interfered with the utility of Fred’s property since its facility is situated in a residential district where peace and quiet must be maintained. The undue interference is equally shown in the unreasonably long hours of operation without due to regard to noise it created and fumes it emitted disturbs comfort and convenience. The State recognizes the right of individuals to health thus the smoke emission and noise emanating from any premises or facility is hazardous and creates a social imbalance. Under the Noise Act 1996, every person is entitled to a good night’s rest and sleep thus noise is prohibited from eleven o’clock in the evening to seven o’clock in the morning.13 The wilful operation of the machinery is indicative of the deliberate and illegal interference of X. This is further emphasized in the case of McKenzie v Powley where the continuous blaring sounds from the Salvation Army were considered a nuisance.14 Since the nuisance is continuing despite several complaints addressed to X, Fred can likewise seek injunctive relief as well as damages for its cease and desist from its activities. As an alternative to the more expensive and tedious court proceedings, Fred can file a complaint with the local authorities through the statutory nuisance regime. According to the Environmental Protection Act 1990, noise is considered statutory nuisance when it is emitted from areas which is prejudicial to health or a nuisance or emitted from a vehicle, machinery or other equipment in the street.15 This remedy is more expedient since an abatement notice may be issued immediately or it can order abatement. Failure to abate or institute the corrective measure can give rise to a criminal liability with the concomitant payment of a fine. The only way that X can escape liability is to adduce evidence that it instituted all means to prevent the deleterious impact of the nuisance. However, from the actuations of X it has not implemented any measures notwithstanding the numerous complaints of the residents including Fred. X should be held fully accountable for damages its utter disrespect over the property rights of Fred and for putting at risk the health and well-being of Fred. ii) With respect to Preena, her claim for any monetary claim based on purely monetary loss must fail since there is no nuisance committed but simply inconvenience. This is anchored on public policy since the usurper must be protected from being swamped with phony claims. The road and the pavements are no longer part of Preena’s property so she cannot seek economic restitution from X for the liberty to use of roads and pavements. She is likewise entitled to free access. Economic loss due to inconvenience is not sufficient justification to warrant the award of damages or to constitute general nuisance. However, if it is public nuisance, Preena can claim pure economic loss. She can nonetheless seek abatement or injunctive relief to prevent X Ltd from cordoning the roads and pavements to the exclusion of other persons. Part B Question (b) Legal Advice to Preena: On the case of Preena and her liability with regards to her actions that involves Roberta, the Managing Director of X Limited the following facts were gathered. Preena, who owns a cafe near the entrance of the Depot owned by X Limited, has lost her business because of the disturbances created in the Depot. In this regard Preena decided to take her complaint in person to Roberta however Roberta refused to accept fault or liability for any kind of disturbance from the activities of the company at the Depot. The position of Roberta with regards to X Limited’s activities infuriated Preena who eventually lost her temper. When Preena lost her temper she locked Roberta and her assistant in her room to harangue her. Preena also called Roberta a “scoundrel” and a “complete idiot” in front of Anwar, Roberta’s assistant. After ten minutes Preena unlocked the door and left. When Preena prevented Roberta from leaving her room it was out of respect than anything else. Roberta and Anwar could have overpowered Preena had they wanted to go out of the room. The facts of the case do not indicate that Preena threatened the life of Roberta or Anwar when she prevented both the employees of X Limited from leaving their office. It is debatable that Preena have criminally detained Roberta and Anwar. However, it is illogical to think or even consider that one person can effectively detain two persons most especially a woman detaining a man and a woman. Preena’s act can only be considered criminally actionable if there was a superior force detaining Roberta and Anwar. It should also be considered that being restraint can also be what the person being restrained perceived of himself. It cannot be argued that confinement is also based on perception subject to certain criteria. However, in order for this determination to accrue, superiority and control of the person confining the individual should first be considered. Moral ascendancy or superiority should be established that will prevent Roberta and Anwar from leaving their own office on account of the perceive superiority. In this case however there is no indication that Preena holds any kind of superiority over Roberta and Anwar. It should also be considered that Preena did not have the intent to harm nor criminally detain Roberta much more Anwar. There was no indication that Preena intends to criminally detain or harm Roberta and Anwar. The heat of the moment or the passion of Preena may have moved her to attempt to prevent Roberta and Anwar for purposes of making them hear her complaints. This is indicated by the action of Preena when she left the office after her tirade has settled her nerves. Even if Preena was the one who went out of her way looking for trouble on account of her going to the office of Roberta and Anwar at X Limited legal liability cannot accrue. It should be noted that Preena did not force her way into Roberta and Anwar’s office. It should be noted that there was no indication that Roberta or Anwar for that matter asked Preena to leave their office. The facts of the case states that Preena’s intention was to lodge a complaint and ask for relief from the difficulty she is experiencing in her business because of X Limited’s activities at the Depot. The event precipitated by Preena’s visit to Roberta’s X Limited office was unfortunate however the only thing legally actionable is Preena’s slanderous attack against Roberta when she called Roberta an idiot and a scoundrel. Any degrading words uttered in front of the person in private is not actionable however when the same words are uttered in front of a third person it is considered slander. If Anwar, the assistant of Roberta heard Preena called Roberta a “scoundrel” and an “idiot” Preena’s outburst may have been precipitated by an argument or Roberta’s action there is no justifiable reason for Preena to degrade the person of Roberta. Thru this she may be held liable for slander. It should be noted that Roberta was not the one who directly caused the problem Preena is facing or experiencing. Roberta is only a representative who may not be a direct participant or party to any disturbance at the Depot. In the same vein, it should be considered that Roberta may not be in a position to correct much more resolve any issues that will help alleviate Preena’s difficulty. As a business person it should be considered that Preena should adapt to the demands of the business climate within the area where she is operating. Changes in the business climate that affects her profitability should not be blamed on others but it should be considered as part of the normal consequences of doing business. References: Primary Sources Collins v Wilcock [1984] 3 All ER 374 Donnely v Jackman [1970] 1 All ER 987 Hunter and Others v. Canary Wharf Ltd. McKenzie v Powley [1916] SALR 1 R v Parmenter [1991] 94 Cr App R 193 Legislations Environmental Protection Act 1990 Human Rights Act 1998 Noise Act 1996 Secondary Sources Journals Trindade, F., ‘Intentional Torts: some thoughts on assault and battery’, (1982) 2 OJLS 211 at 220 Books 'Blackstone's Criminal Practice 2012' (Oxford University Press, 2012) Jenny Steele, 'Tort Law: Text, Cases, and Materials' (Oxford University Press, 2007) Mark Lunney & Ken Oliphant, ‘Tort Law: Text and Materials’, (3rd Edn., Oxford University Press, 2008) Peter Glazebrook, 'Blackstone's Statutes on Criminal Law 2007-2008' (17th Edn., Oxford University Press, 2007) Steven Emanuel & Lazar Emanuel, 'Torts: The Crunch Time Series' (3rd Edn., Aspen Publishers Online, 2008) Read More