普通法 案例分析笔记

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

2、 is 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 actionableBut

3、: 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 374FACT:A police woman took hold of a womans arm to stop

4、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 womans question and walked away when police woman persisted to follow her and took hold of her arm t

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

6、tery since it went beyond the generally acceotable conduct of touching a person to engage his attention. The defendants action was therefore in self defence and Ds conviction was quashed(撤销).Rule: unless there is an arrest, officer cannot use physical force to hold a suspect, and such force may cons

7、titute 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 neurosurgeons recommended treatment of cervical cord decompression. Doctor did tell her even if the operation properly p

8、erformed, 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 choice or elective operation“ (she didnt

9、need to have it)Plaintiff 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 sidawat consented. The operation involved a risk,

10、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 had failed to inform her of riskHeld:dismissi

11、ng 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 obtained by fraud or by misrepresentation it c

12、ould be said that consent is not a true consent, allow battery Patients 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 entitled to make the final decision with regard to trea

13、tment which may have disadvantages or dangers , where the patients heath and future are stake ,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 treatment may have the special disadvantages or dangers go hand

14、in hand.False imprisonment非法监禁: l infliction of bodily restraint, which is not expressly or impliedly authorized by the lawl Any restraint of liberty, and can occur anywhere (not just a prison)l Restraint must be completeBird v. Jones, 7 Ad. & El. (N.S.) 742, 115 Eng. Rep. 688 (1845).Case Summary为了演

15、出而限制人流原告强行进去不让原告进入，但允许原告撤退不构成非法拘禁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 had not paid the admission fee. Defendants refused to let

16、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 movement of another such that a way out is available?Holdi

17、ng 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 have left the area another wayMerely obstructing someones wa

18、y 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, eg: an arrest, even if executed by merely touching the claimant, is a restraint as it would be if a person has the physical capatity to leave

19、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:见PPT 75Rule: Four criteria to determine whether egress is reasonable: threat or danger to self/property (e.g., jumping out of movin

20、g truck not reasonable, para. 58), distance and time, and legality Robinson V Balmain New Ferry Facts: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 side. after entry P changed mind and wish to go backwithout payment

21、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 restrain P if he refuse to pay money. a. Trespasses to the person: Batt

22、ery = (per Trindale) direct act by the defendant which has the effect of causing contact with the body of the plaintiff without the plaintiffs consent (English) Protection from Harassment Act 1977 Prohibits a course of conduct which amounts to harassment which the defendant knows or ought to know am

23、ounts to harassment “Harassment” is not defined, but includes “alarming the person or causing the person distress”, and speech can qualify as harassment Remedies: civil action damages, injunction Damages can be awarded for (just) anxiety or financial lossMalcomson Nicholas Hugh Bertram v Naresh Kuma

24、r Metha 前员工骚扰前雇主Fact:The defendant was the former employee of the second plaintiff company and had resigned from his employment, the first plaintiff was the chief executive officer of the second plaintiff,the defendant desired to regain his employment,and when that was not forthcoming he engaged in

25、a series of acts designed to harass both plaintiffs.Issue：能否用harassment 起诉Hold: The plaintiff had no recognizable tort under which to sue the defendant .firstly,they could not sue under the traditional tort of trespass to the person in assault or battery.because:Trespass定义： could apply to acts of th

26、e defendant that interfered with the plaintiffs use and right 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 companys premises, and in the case

27、of the first plaintiff, outside his home and outside the officeTrespass (and nuisance) could not applyHarassment定义： 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, and which he ought reasonably to know would cause, worry, emotional distress or annoyance to another person (at 464, para 31)本案中：Judge noted advances in communications technology meant that persons minded to haras