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1
Contents
1. INTRODUCTION ..................................................................................................
2
1. INTRODUCTION
This paper basically will answer the question as follow:
Lau had just won a darts game in the Dog and Du...
3
2. ISSUES
a. First Part
The first part is:
Lau had just won a darts game in the Dog and Duck public house. As he returne...
4
bolting and colliding with the plaintiff was outside his control. In apply to this case, Seow did
tapping Lau’s shoulder...
5
b. Second Part
The second part is:
Lau shouted at Seow, ‘You swine, you did that on purpose, I’ll see you outside in two...
6
two minutes” shows that Lau want to act in an immediate and shorter time. The principle in the
case of R v Ireland state...
7
c. Third Part
The third part is:
Fearing for the worst, Lim, the owner of the Dog and Duck, grabbed Lau by the shirt
col...
8
the case of Wilson v Pringle10, where the Court of Appeal held that there must be ‘hostile
touching’ before it can amoun...
9
d. Fourth Part
The forth part:
Lau resisted violently, aimed a punch at Lim, but missed.
The issue here is whether Lim c...
10
case, the defendant has the capability to carry out threat since he advanced with a punch. This is
according to the cas...
11
e. Fifth Part
The last part:
Lim managed to calm Lau and persuaded him to remain in the office in order to avoid
furthe...
12
false imprisonment had also been fulfilled. Lau may take action towards Lim as he had been
confined in the office for f...
13
the police after 4 hours and Lau still not aware of it. As long as Lim has intention towards Lau,
we can charge him und...
14
of property. So, Lim is liable to commit the tort of battery as he fulfill all the element of battery
and he will faile...
15
4. Bibliography
Abdullah, Nuraisyah Chua. Questions & Answers on Malaysian Courts, Statutes, Cases &
Contract, Tort and...
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ASSAULT

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INTENTIONAL TORTS

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ASSAULT

  1. 1. 1 Contents 1. INTRODUCTION ................................................................................................................... 2 2. ISSUES .................................................................................................................................... 3 a. First Part............................................................................................................................... 3 b. Second Part .......................................................................................................................... 5 c. Third Part ............................................................................................................................. 7 d. Fourth Part............................................................................................................................ 9 e. Fifth Part ............................................................................................................................ 11 3. CONCLUSION...................................................................................................................... 13 4. Bibliography .......................................................................................................................... 15
  2. 2. 2 1. INTRODUCTION This paper basically will answer the question as follow: Lau had just won a darts game in the Dog and Duck public house. As he returned to his seat he was cheered on by his friends; Seow, his opponent, slapped his shoulder in a hearty fashion to congratulate him on his victory. Lau was off balance at the time and tumbled over, injuring himself. Lau shouted at Seow, ‘You swine, you did that on purpose, I’ll see you outside in two minutes’. Fearing for the worst, Lim, the owner of the Dog and Duck, grabbed Lau by the shirt collar and frog-marched him to his office. Lau resisted violently, aimed a punch at Lim, but missed. Lim managed to calm Lau and persuaded him to remain in the office in order to avoid further trouble. Having left the office, Lim asked two burly friends, Chong and Cheng, to ensure that Lau did not leave the ground floor room. Four hours later, Lim called the police. In the meantime, Lau slept off the effect of the alcohol and was unaware that Chong and Cheng were there. Consider whether or not any causes of action in trespass to the person are revealed by these facts. Basically, this situation can be divided into five parts. These five parts will be touch different issues with different types of torts. To make it easy for the reader, the situation will divide as accord to the issue arises. All these five parts will touch on the issue of the intentional tort, the trespass to person. Trespass to person occur when a person commit a trespass too person. This is when one did an action either intentionally or unintentionally, that cause other person suffer from grievous hurt. However, not all personal injury that the person did is caused by negligent or reckless behavior. It may due to his intention to cause the injury. “Intentional torts,” including assault and battery, are purposefully inflicted on one person by another. Contrary to popular belief, assault does not require that the defendant make contact with his victim. Instead, assault is an intentional attempt or threat to inflict injury that places another person in fear of imminent bodily harm. Battery, on the other hand, is the intentional touching of the body of another, in a harmful or offensive manner, without consent. In this section, you’ll find articles on assault, battery, and other intentional torts like false imprisonment (Find Law n.d.)1. Basically, an intentional tort is a voluntary act by the wrongdoer who intended to bring about a specific consequence. It is an intentional act that is foreseeable to cause harm to another person. Intentional tort can be divided into three: trespass to person, trespass to land and interference with goods. However, this paper will be touched only on the tort of trespass to person, specifically; Assault, Battery and False Imprisonment. 1 Assault, Battery and Intentional Torts from injury.findlaw.com
  3. 3. 3 2. ISSUES a. First Part The first part is: Lau had just won a darts game in the Dog and Duck public house. As he returned to his seat he was cheered on by his friends; Seow, his opponent, slapped his shoulder in a hearty fashion to congratulate him on his victory. Lau was off balance at the time and tumbled over, injuring himself. The issue is whether Lau can sue Seow for tort of battery for causing him tumbled over and injuring himself. Generally, battery is defined as the intentional and direct application of force to another person without that person’s consent. It is an actual application of physical force without lawful justification. In order for the tort of battery to be established, there are four elements of battery that must be fulfilled. The first element of battery is the mental state of the defendant. The defendant must have applied the force with intention. The intention which is required in battery is not the intention to hurt the claimant, but the intention to apply physical force. The merest touching is probably enough to amount to battery. It is important to note that where a battery causes the plaintiff harm, the defendant must intend the application of force, but need not intend the harm, because the tort is actionable per se. It must be noted that the requirement of ‘intention’ or ‘intent’ or mental state of the defendant could be addressed together with the element of ‘direct application of force’ since the two are interrelated. In the case of Scott v Shepherd2 (1773), the defendant threw a lighted squib into a crowded market place. It landed on a market stall and was thrown on. It landed on another stall and exploded, injuring the plaintiff. The defendant was held liable for the injuries to the plaintiff as they were a direct result of the defendant’s act. The act of throwing the squib on did not break the link between the defendant’s act and the plaintiff’s injury, as it was instinctive. In applying to the case of Lau, the court may have to look at the intention of Seow for tapping Lau’s shoulder. In this case, Seow indeed tapped Lau’s shoulder without Lau’s consent, but however he does not have the intention to cause harm or any injury towards Lau. Although the tort of battery is actionable per but in this case, Seow only slapped Lau’s shoulder in a hearty fashion (gently) to congratulate Lau on his victory. So, the first element of battery was not established. The second element of battery is the defendant’s act must be under his control. No battery is committed if an incident involving contact over which the defendant has no control over the act. As in the case of Gibbons v Pepper,3 the defendant was riding a horse when someone hit the horse from behind, causing the horse to bolt. The horse collided with the plaintiff, and in an action against the defendant, the court found the defendant not liable as the incident of the horse 2 [1773] 2 Wm Bl 892 3 [1695] 2 Salk 637
  4. 4. 4 bolting and colliding with the plaintiff was outside his control. In apply to this case, Seow did tapping Lau’s shoulder in order to congratulate him and it was under his control, but then the act of Seow does not caused Lau to be off balanced at the time and tumbled over, injuring himself, as Seow tapped Lau gently, in a hearty-fashioned and without any violence or design of harm. So, the second element of battery was not established. The third element for a tort of battery to be established is the contact. There should be a contact or application of force on the plaintiff’s body or clothes for a tort of battery to be established. Any physical contact with the body of the plaintiff or his clothing is sufficient to constitute force, not necessarily violence. In the case of F v West Berkshire Health Authority,4 Lord Goff expressed his doubt whether a touching must be hostile for the purpose of battery and it was concluded that the contact between the defendant and the plaintiff is necessary, but ordinary contacts which are part of daily life are not trespass: they fall ‘within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of everyday life’. Contact between persons ranges from violent assaults through accidental bumps in crowded streets. This is a question of physical contact which is generally acceptable in the ordinary conduct of everyday life. Obviously, there is a contact by Seow towards Lau. However, ordinary contacts which are part of daily life are not trespass but they fall ‘within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of everyday life’. The act of Seow tapping Lau’s shoulder to congratulate him for his victory is a generally acceptable in the ordinary conduct of everyday life. So, the third element was also not established. The fourth element of battery is that the touching must be without the plaintiff’s consent. One cannot touch another person without his consent or without justification. However, there are touching where it presumed implied consent exists, such as tapping a person’s shoulder in order to get his attention, or touching that occurs while queuing to go on a bus. In the case of Nash v Sheen5, the plaintiff went to a hairdressing salon where the defendant used a tone-rinse without first obtaining the plaintiff’s consent. The plaintiff unfortunately developed some skin complications due to an adverse reaction to the tone-rinse. The court held that the consent given by the plaintiff did not include the tone-rinse and its consequences. Battery was established. However it must be noted that where the plaintiff expressly and clearly withholds his consent to any contact, then it should be respected and upheld by the law. If however, the plaintiff has had no opportunity to express his choice before the contact occurred, he should not be allowed to take advantage of the law by later claiming that he did not consented to the contact. The court should inquire into the possibility of implied consent, using standards of ‘what is generally acceptable conduct’ for otherwise the law of consent may be misused as a ‘weapon’. Touching another’s body without their consent generally will constitute to a battery but in this case, Lau did not expressly and clearly withhold that he is not consented to Seow’s act for slapping his shoulder before the contact occurred. So, Lau should not be allowed to take advantage of the law by later claiming that he did not consent to Seow’s act just because he got off balanced and tumbled over. So, the fourth element was not established. In conclusion, all the elements of battery were not established in this case. Seow’s act does not constitute to a battery. So, Lau cannot sue Seow for a tort of battery. 4 [1989] 2 ALL ER 545 at 564, HL 5 [1953] CLY 3726
  5. 5. 5 b. Second Part The second part is: Lau shouted at Seow, ‘You swine, you did that on purpose, I’ll see you outside in two minutes’. The issue is whether the words told by Lau towards Seow constitute assault? The general principle has been that mere words cannot constitute assault. This principle was lied down in the case of R v Meade & Belt.6 In this case the defendant surrounded the victim’s house singing threatening and menacing songs. The court stated that “no words or singing are equivalent to an assault”. Later on, the decision in the case of R v Meade & Belt was overruled by the case of R v Constanza.7 In this case the defendant mounted a campaign of hate against an ex-work colleague over a period of 20 months. He sent over 800 threatening letters, would follow her home, wrote offensive word on her front door, drove past her house, and stole items from her washing line. As a result the plaintiff suffered clinical depression. The defendant was charged with ABH under section 47 OAPA 1861. The defendant contended that words alone could not amount to an assault and that the letters could not amount to an assault as there was no immediacy. The jury was entitled in the circumstances to find that immediacy was present and words can amount to an assault. Thus, the defendant was committed assault and therefore liable. The case of R v Wilson is also a strong authority which can be used to establish that words does constitute assault. The fact of this case is the defendant shouted 'get out the knives' and a physical fight developed and the defendant was charged under section 47 OAPA 1861. Lord Goddard stated that the words would by themselves amount to an assault. The case was actually decided on the physical aspects which demonstrated a battery was present and thus the comments relating to words were merely obiter dicta. To constitute assault, the words must be seen in the context which they were spoken or written. Perhaps the tone of voice, facial expression, gesticulation and surrounding circumstances have to be taken into account. The fact that the defendant may be in a position to realize his threat is arguably an important factor in determining the existence of assault in the circumstances. Coming to our case, the word told by Lau which sounds “you swine, you did that on purpose, I’ll see you outside in two minutes” is considered as harsh words. Those words reasonably will instil fear in Seow. At that time Lau was tumbled over and was injured. In a logic sense there is no doubt that a person who is injured and feeling pain must be in an anger condition. The anger can be seen by Lau’s facial expression. Lau at that time did not spoke in a good manner. He shouted in a high anger tone towards Seow. The phrase “I’ll see u outside in 6 [1823] 1 Lew CC 184 at 185 per Holroyd J. 7 [1997] Crim LR 576.
  6. 6. 6 two minutes” shows that Lau want to act in an immediate and shorter time. The principle in the case of R v Ireland stated that words which instils a reasonable fear of unlawful and immediate physical violence does amount to assault. Thus, in this case two minutes is considered as a short period. Moreover the act of Lau threatening Seow is an unlawful act according to law. This is according to the principle in the case of R v Ireland. In this case the defendant made a series of silent telephone calls over three months to three different women. He was convicted under section 47 Offences Against the Person Act 1861. He appealed contending that silence cannot amount to an assault and that psychiatric injury is not bodily harm. Court upheld the defendant’s conviction. Silence can amount to an assault and psychiatric injury can amount to bodily harm. We would like to quote the contention of the Lord Steyn which sounds “It is to assault in the form of an act causing the victim to fear an immediate application of force to her that I must turn. Counsel argued that as a matter of law an assault can never be committed by words alone and therefore it cannot be committed by silence. The premise depends on the slenderest authority, namely, an observation by Holroyd J. to a jury that "no words or singing are equivalent to an assault": Meade's and Belt's case 1 (1823) 1 Lew. C.C. 184. The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence, e.g. a man accosting a woman in a dark alley saying "come with me or I will stab you." I would, therefore, reject the proposition that an assault can never be committed by words." This case had laid down the principle that words which instils a reasonable fear of unlawful and immediate physical violence does amount to assault. All in all, there is a tort of assault on the part of Lau. The words that were shouted by Lau will instil a reasonable fear of unlawful and immediate physical violence towards Seow. We could reasonably infer that Seow was mentally scared and affected by the threatening words of Lau. Seow was affected by the Lau’s word spoken. In a nutshell, words spoken by Lau do constitute assault and there is a cause of action in trespass to person which is tort of assault on the part of Seow towards Lau.
  7. 7. 7 c. Third Part The third part is: Fearing for the worst, Lim, the owner of the Dog and Duck, grabbed Lau by the shirt collar and frog-marched him to his office. The issue that arises in this part is whether Lim has committed battery towards Lau? Battery was defined as the intentional and direct application of force to another person. Battery is the application of direct physical force to the claimant. In other words, battery is the actual application of physical force, however slight, without lawful justification. This touching need not necessarily involve violence and it is actionable per se, so the claimant does not have to show that they have suffered any injury or damage. Firstly, in order to determine whether the battery was established or not, we have to identify all the elements of battery. There are four elements of battery. The first element of battery is the mental state of defendant which means that, the defendant must have applied the force with intention. The intention which is required in battery is not the intention to hurt the claimant, but the intention to apply physical force. Regarding to the situation where Lim, the owner of the Dog and Duck, was in a state of anger, grabbed Lau by the shirt collar and frog-marched him to the office, we can say that Lim have applied the physical force to Lau intentionally. This is regarding to the early case of Cole v Turner8, where the court held that, the least touching of another in anger is consider as battery. The second element of battery is the defendant’s act was under his control which means that, the act must be done voluntarily, or in other words no battery is committed if an incident involving contact over which the defendant has no control occurs. The example of the case that establish this element is the case of Gibbon v Pepper 9, where the defendant was riding a horse when someone hit the horse from behind, causing the horse to bolt. The horse collided with the plaintiff, and in an action against the defendant, the court found the defendant not liable as the incident of the horse bolting and colliding with the plaintiff was outside his control. Applying to this case, we can say that Lim was definitely doing the action under his own control where Lim grabbed Lau by his shirt collar and frog-marched him to the office. He was using his own physical part of body which is hand that is under his own control. So, his act establishes the second element of battery. The third element of battery that must be fulfilled in order to determine whether battery is established or not is contact. There is no battery if there is no contact or application of force with the plaintiff’s body or clothing. The word ‘force’ is referred in the technical sense. Violence is not necessary, but any physical contact with the body of the plaintiff or his clothing is sufficient to constitute force. In this case there is no doubt that Lim had a contact to Lau when he grabbed Lau by shirt collar which is Lau’s clothing and frog-marched him to the office. We can refer to 8 [1704] 87 ER 907 9 [1965] 1 Ld. Raym.38
  8. 8. 8 the case of Wilson v Pringle10, where the Court of Appeal held that there must be ‘hostile touching’ before it can amount to a battery. Hostile touching would be established as long as the defendant understands that he is doing something that the plaintiff may object to. Lim had established hostile touching when he had to grabbed Lau by his shirt collar and frog-marched him in order to take Lau to his office. The last element of battery that has to be fulfilled is touching another person without his consent or without lawful justification. This is regarding to the case of Tiong Pik Hiong v Wong Siew Gieu 11 where the defendant was found liable in battery for scratching the plaintiff’s face and hitting the latter, due to her jealousy of the plaintiff’s friendship with her husband. Applying to this case, Lim had touching Lau without his consent when he grabbed Lau and frog-marched Lau to make sure Lau will follow him to the office. There is no implied or express consent by Lau to be treated that way. There is no way that Lau would give consent to such unreasonable force. However, even though Lim had fulfilled all the elements of battery, he might use the defense of property. The key for success in using this defense is that the person is justified in using reasonable force in order to defend his property. The defense may be raised by a person who has either possession in fact or the right to immediate possession as against a trespasser. Lim in this case is trying to stop Lau from starting a fight at his own public house as he hear Lau shouted at Seow, saying that he want to meet him outside the house in two minutes. The issue arises in order to make Lim success in his defense is, whether he had use a reasonable force on the trespasser. What amount to reasonable force is depends on the fact of the case. This is regarding to the case of Collins v Renison12, where the plaintiff without permission placed a ladder in defendant’s garden and climbed up to his (the plaintiff’s) roof. The plaintiff refused to climb down when the defendant requested him to do so, whereupon shook the ladder, causing the plaintiff to fall. The court held that even though the defendant may use reasonable force to oust trespasser, his conduct in this case is unwarranted. Since Lim is the owner of the public house, he had the possession in fact and also the possession in law of the public house. However, the force he used to stop the chaos from happening was unreasonable. The force he used was excessive. Even if he tries to protect his property, he must use the reasonable amount of force in order to prevent Lau from start the fight. He must first try to ask Lau to leave the public house if he truly wants to protect his property. Instead of grabbed Lau by the shirt collar and frog-marched him to his office, he could just escort Lau out of the public house. Thus, Lim could not use the defense of property. As a conclusion, Lim is liable to commit the tort of battery as he fulfill all the element of battery and he will failed to obtain the defense of property. 10 [1986] 2 All ER 440 11 [1964] 30 MLJ 181 12 (1754) Say 138
  9. 9. 9 d. Fourth Part The forth part: Lau resisted violently, aimed a punch at Lim, but missed. The issue here is whether Lim could sue Lau for tort of assault. It is obvious that Lau in this situation tried to defend himself when Lau grabbed him by the shirt collar and frog-marched him to his office. First of all, we need to refer to the general principle of assault. Assault is an intentional act and conduct of the defendant which causes the plaintiff reasonable apprehension of immediate infliction of a force onto his person. Assault involves an act on the part of the defendant which causes the plaintiff a reasonable apprehension of an immediate infliction of force on him. It is a putting a person in fear of an immediate battery, and this battery is the actual application of physical force. To answer the question whether assault had been established or not in this case, we shall look into the elements of assault. If only the elements are fulfilling, the tort of assault is established. The first element is the mental state of the defendant. With regards to this situation, the mental state of Lau needs to be proved. Lau must have the intention to do the act. In apply to this situation, we can tell that Lau have the intention to transfer an immediate infliction of force to Lim since Lau aimed a punch at Lim. If only the punch not missed, it will hit Lim. This is according to the case: Stephen v Myers13. Where the defendant made a violent gesture to the claimant or plaintiff by waving a clenched fist, but was prevented from reaching him by the intervention of a third party. The court held that the defendant was liable for assault. For the second element, the assault by the defendant must have effect on the plaintiff. The plaintiff must feel reasonable apprehension that a force will be inflicted upon him. Reasonable apprehension is determined by the objective test, that is, would a reasonable man, faced with the same situation that the plaintiff was in, feel apprehensive that a force would be inflicted upon him? Only if the answer is ‘yes’ will the element be fulfilled. In apply to this situation; it is reasonable that Lim will feel apprehensive by the punch. There is no doubt that Lau aimed the punch towards Lim in order to punch Lim. This is according to the case; Thomas v National Union of Minesworkers (South Wales Area)14 where the picketing miners threatened some other miners who did not join in the picketing. The picketing miners were in fact controlled and observed by the police behind police barricades. The court held that the threats issued by the picketing miners did not constitute an assault on the other miners as there was no capability on the part of the picketing miners to commit any form of physical contact with the other miners. The third element is the capability to carry out the threat. Lau must have the capability to carry out the threat. This requirement is measured through the eyes of a reasonable plaintiff. The test is objective: would a reasonable man, who is in the plaintiff’s position, feel reasonable fear that there is a threat of immediate force upon him? In other words, would the reasonable man believe that the defendant will realize his threat? This requirement will be fulfilled when the answer is ‘yes”. Thus, what must be apprehended is actual physical contact. So, in apply to this 13 [1830] 172 ER 735 14 [1985] 2 All ER1
  10. 10. 10 case, the defendant has the capability to carry out threat since he advanced with a punch. This is according to the case Stephen v Myers and Thomas v National Union of Minesworkers (South Wales Area). In order for assault to be proved, the last element is also need to be fulfilled. It is the bodily movement by the defendant. Even though assault involves no contact, it is often said that some bodily movement is necessary. Bodily movement means a positive act in the circumstances, indicating that the defendant will carry out his threat. It cannot be denied that Lau threat’s had been advanced by his bodily movement. He aimed to punch Lim but missed. Thus, the fourth element is also fulfilled as according to the case: Innes v Wylie15. In this case, the police officer blocked (passive obstruction) the plaintiff from entering a room. The court held that there was no assault on the plaintiff as there was no positive act of obstruction from the policeman. Vice versa in this situation Lau had did an active act of attacking Lim when he punched Lim even if it missed. However, even if the tort of assault is established, Lau may raise a defense. He may use a self-defense. Lau resisted and tried to punch Lim in order to defense himself from Lim since Lim had grabbed Lau by the shirt collar and frog-marched him. Even Lim did that for the purpose of protecting his property, still the force he used does not necessary. It is enough for Lim just to mascot Lau outside the Dog and Duck. The force he used is not reasonable. Thus, it is reasonable for Lau to defense himself (self-defense). The general principle is that when a person is being attacked, he must take reasonable steps to defend himself, especially in situation where he does not have the time or opportunity to get help. All persons have the right to defend themselves against any violence that is prohibited by law. The key for a successful defense of self-defense is the element of “reasonableness”. In Lau position, it is no doubt that the force is reasonable and he used the force that is proportionate to that being applied by Lim. In fact, was lesser than the force that had been used by Lim because Lau actually could not get off himself from Lim. This is according to the case Cockroft v Smith16. A court clerk, in a scuffle, ran his fingers towards the defendant attorney’s eyes, which bit off the plaintiff’s forefingers. The court held that, a person must react proportionately in cases of assault. The defendant in this case was found liable as even though the plaintiff’s act constituted a dangerous threat to the defendant’s eyes, it did not justify the latter to react in such a violent and unreasonable manner. Since then, Lau is not liable for the tort of assault towards Lim since he act on the basis of self-defense. 15 [1844] 174 ER 800 16 [1705] 11 Mod 43
  11. 11. 11 e. Fifth Part The last part: Lim managed to calm Lau and persuaded him to remain in the office in order to avoid further trouble. Having left the office, Lim asked two burly friends, Chong and Cheng, to ensure that Lau did not leave the ground floor room. Four hours later, Lim called the police. In the meantime, Lau slept off the effect of the alcohol and was unaware that Chong and Cheng were there. The fifth issue is whether Lau can take action to Lim under false imprisonment? In this case, Lim managed to calm and persuaded him to remain in the office in order to avoid further trouble. First and foremost, we must refer back to the basic meaning of false imprisonment. Actually it is defined as the restriction of a person’s freedom of movement. The person so restrained is ‘imprisoned’ so long as he cannot move to another place in accordance with his wishes and it was not expressly or impliedly authorized by the law. In this case, Lau did not leave the ground floor room and he was controlled by Chong and Cheng although he has slept of the effect of the alcohol and unaware that both of the guys were there to watch him. There are three elements that need to be fulfilled in order to establish the tort of false imprisonment. The first element is the mental state of the defendant. The intention of the doer is important. The defendant must have committed the restrained intentionally. The defendant must intend to do an act which directly results in the confinement of the plaintiff. Although it has been suggested that negligence would suffice, in the case of W Elpinstone v Lee Leng San17 where the court held that negligence could not be established through negligence. Thus, regardless of the situation in the circumstances of the case, the intention of the wrongdoer is crucial. In this case, Lim has an intention to confine Lau in his office when he persuaded Lau to remain in the office. Besides, he also asked his two burly friends, Chong and Cheng to ensure that Lau did not leave the ground floor room. We can infer his intention to confine Lau when he asked the two men to watch Lau. Next, the restraint must be a direct consequence of the defendant’s act. It means that Lau must suffer a confinement from the direct effect of Lim’s action as mentioned in the case Harnett v. Bond18. Only the person who directly causes the confinement may be successfully sued for false imprisonment. He may be liable either because he himself confined or imprisoned the plaintiff or that he instigated another person to confine or imprison the plaintiff.it is therefore not false imprisonment if the confinement or imprisonment arises as a consequence of the act of another. In applying to this situation, Lau’s confinement is a result of direct consequence of Lim conduct. Lau had been confined by Chong and Cheng since Lim asked them to do so. Even Lim did not confined Lau directly himself, he asked his worker to do so. Thus, the second element of 17 [1983] MLJ 130 18 [1925] AC 669
  12. 12. 12 false imprisonment had also been fulfilled. Lau may take action towards Lim as he had been confined in the office for four hours. In addition, the restraint must be complete and total loss of freedom which means there is no alternative ways to go out or any tools to ask help from other people such as handphone. We may refer to the case Bird v. Jones. In this case, there was a regatta on the Thames; a footpath on Hammersmith Bridge was wrongly fenced off to provide seating for spectators. Plaintiff wished to assert his right to use the footpath and climbed the barrier; he was stopped by the police from so proceeding and remained there for half an hour; all that time he was free to go back or cross using the carriageway. The court held that there was no false imprisonment as there was no total restraint. In applying to this situation: Lau did not have any way out since he was beyond the supervision of Chong and Cheng. The only way out is the office door and since Chong and Cheng watched over Lau act, he could not went out of the office. Thus, the third element is also fulfilled. However, before we can conclude that the tort of false of imprisonment had been established or not, we need to consider other element. Other consideration of false imprisonment is the knowledge of the plaintiff. In order to address this issue, we need to look into the past and present situation. Before this, the requirement of knowledge on the part of the plaintiff was essential. The plaintiff must know that he or she has been imprisoned. We can refer to the case Herring v Boyle. The fact of the case is a boy was kept at school during the holidays by the headmaster as a form of security for fees he was seeking to obtain from the boy’s mother. The boy was unaware of the detention. The court held that there was no evidence of imprisonment. Nowadays, we must look at the present situation; the requirement of knowledge from the plaintiff’s part seems not required or not essential. When we refer to the case Meering v. Graham White19, the plaintiff was suspected of stealing and was asked to go to the company office for questioning and he was told his evidence was required but unknown to him, two employees were posted outside the room when the police arrived he was arrested for theft. Later, he was tried and acquitted. The court held that he was entitled to succeed in his action for false imprisonment against his employers, for he would not have been allowed to leave had he attempted to do so. Atkin LJ thought that a man could be imprisoned while asleep, drunk or insane even though, when returning to his senses, he was free to go. Same to the facts of this case, although Lau was slept because the effect of the alcohol and unaware about the present of Cheng and Chong to imprisonment him, we still can consider him under the false imprisonment because Lim asked Cheng and Chong to imprison Lau from escape himself. In addition to that, it would suffice to note that an action for false imprisonment may arise if the claimant was not aware that he was being detained at the time of the detention. We may refer to the case of Murray v Ministry of Defence20 where the claimant house was searched in her presence and she was arrested 30 minutes later. It was unclear whether she was aware that she was not free to leave during the period prior to her arrest. The House of Lords held that there was no requirement ‘that the victim should be aware of the fact of denial of liberty. As if a person is unaware that he has been falsely imprisoned and has suffered no harm, he can normally expect to recover no more than nominal damages’. Same happens in this case while Lim called 19 [1919] 122 LT 44 20 [1988] 2 All ER 521
  13. 13. 13 the police after 4 hours and Lau still not aware of it. As long as Lim has intention towards Lau, we can charge him under false imprisonment. As a conclusion, Lau can take a legal action towards Lim who falsely imprisoned him although he was unaware during the period. However, since he has no knowledge that the tort of false imprisonment had be inflicted upon him, the court may only grant him the nominal damages. 3. CONCLUSION As a conclusion, from this question we understood that some causes of action may be arise by the parties in court. So, we make it easy by divided into five parts. For the first part when Seow slapped Lau’s shoulder in a hearty fashion to congratulate him on his victory and accidently Lau was off balance and tumbled over, injuring him, there shall be no battery since Seow’s act does not constitute to a battery. Even though three element had been fulfilled when: (1) Seow have the intention to slapped Lau’s shoulder, (2) there is contact when Seow slapped Lau’s shoulder and (3) Lau did not consent to the contact, still the act did not constitute the tort of battery. This is because the act falls within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of everyday life. The act of Seow tapping Lau’s shoulder to congratulate him for his victory is a generally acceptable in the ordinary conduct of everyday life. So, Lau has no cause of action to sue Seow for a tort of battery. As for the second part: there is a tort of assault on the part of Lau when he shouted at Seow, ‘You swine, you did that on purpose, I’ll see you outside in two minutes’. The words that were shouted by Lau will instil a reasonable fear of unlawful and immediate physical violence towards Seow. Seow was mentally scared and affected by the threatening words of Lau. Seow was affected by the Lau’s word spoken. Words spoken by Lau do constitute assault and there is a cause of action in trespass to person which is tort of assault on the part of Seow towards Lau. As for the third part: Lim had fulfilled all the elements of battery. However, he might use the defense of property since he tried to stop Lau from starting a fight at his own public house as he hear Lau shouted at Seow, saying that he want to meet him outside the house in two minutes. However, the force he used to stop the chaos from happening was unreasonable when he grabbed Lau by the shirt collar and frog-marched him to his office. The force he used was excessive. Even if he tries to protect his property, he must use the reasonable amount of force in order to prevent Lau from start the fight. He must first try to ask Lau to leave the public house if he truly wants to protect his property. Instead of grabbed Lau by the shirt collar and frog-marched him to his office, he could just escort Lau out of the public house. Thus, Lim could not use the defense
  14. 14. 14 of property. So, Lim is liable to commit the tort of battery as he fulfill all the element of battery and he will failed to obtain the defense of property. While for the fourth part: Lau in this situation tried to defend himself when Lim grabbed him by the shirt collar and frog-marched him to his office. In Lau position, it is no doubt that the force is reasonable and he used the force that is proportionate to that being applied by Lim. In fact, was lesser than the force that had been used by Lim because Lau actually could not get off himself from Lim. Even all the elements of assault had been established, Lau act on the basis of self-defense. Thus, Lau is not liable for the tort of assault and there is no cause of action in this issue. Lastly, Lau can take a legal action towards Lim who falsely imprisoned him although he was unaware during the period. Since, the knowledge is not essential for the tort of false imprisonment. Thus, since all four elements of false imprisonment had been established, Lau had a cause of action to sue Lim for the tort of false imprisonment. However, Lau may only be grant nominal damages by the court since he has no knowledge at the time the tort is happened because he slept off the effect of the alcohol.
  15. 15. 15 4. Bibliography Abdullah, Nuraisyah Chua. Questions & Answers on Malaysian Courts, Statutes, Cases & Contract, Tort and Criminal Law. Selangor: International Law Book Services, 2012. Find Law. n.d. http://injury.findlaw.com/torts-and-personal-injuries/assault-battery-intentional- torts.html (accessed December 2, 2014). Gibbons v Pepper. 87 E.R. 469 (Court of King's Bench, January 1, 1700). Scott v Shepherd. 95 E.R. 1124 (Court of King's Bench, January 1, 1773). Talib, Norcahaya. Law of Torts in Malaysia. Selangor: Sweet & Maxwell Asia, 2010.

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