Tort Law and Remedies Law

Tort Law and Remedies Law

Introduction

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The purpose of this survey is to put a focal point on a treatment on how far aggravation has an impact upon the awarding of amendss in the country of assault as an knowing civil wrong. Particular mention will be made to Lane v. Holloway [ 1 ] ; Fontin v. Katapodis [ 2 ] and Colette Ward v. Chief Constable of the Royal Ulster Constabulary [ 3 ] . Reference will besides be made to any other instances to which the opinions from the above instances may hold been applied to. During the class of this survey considered will be given to each instance in separate subdivisions and the decisions drawn from each instance will be discussed in the decision to this survey. Consideration will besides be given to the legal attack to aggravation.

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1. ) Aggravation By and large

Aggravation is defined as being, ‘conduct or words doing person to lose his self-control’ [ 4 ] . Aggravation is non recognised as a general defense mechanism to a condemnable charge in English jurisprudence, though what otherwise would hold been deemed to be slaying may be cut down to being manslaughter if aggravation is shown.

There is a recognized trial for aggravation which is to see whether or non the Acts of the Apostless or words involved did in fact make the suspect lose his self-denial and, if the Acts of the Apostless or words did consequence in a loss of self-denial, whether they would besides hold made a sensible individual in the defendant’s place to make the same. This is a inquiry of fact which the jury must make up one’s mind in each instance and a sensible individual for these intents must be individual of the same sex and age as the suspect and sharing any features of the suspect that might impact the earnestness of the aggravation.

There has been argument on whether or non the defense mechanism of conducive carelessness can be relied as a defense mechanism or partial defense mechanism to assail and battery. Clerk and Lindsell [ 5 ] province that:

“Should the plaintiff’s behavior, albeit non amounting to accept to the usage of force

against him, however have contributed to the defendant’s actions, for

illustration by torment of the suspect or aggravation, so that contributory

mistake will afford the suspect a partial defense mechanism under the Law Reform

( Contributory Negligence ) Act 1945.”

As will be shown by this survey, positions sing whether or non conducive carelessness can be used as a defense mechanism or partial defense mechanism to assail or battery have a broad grade in fluctuation as a consequence of reading by the tribunals. This fluctuation will demonstrated by mention to the aforesaid instances and their opinions.

2. ) Fontin v. Katapodis[ 6 ]

This instance is the first for consideration as it was decided before either of the other two instances. It is an Australian instance and the facts are as follows. Katapodis had purchased goods for hard currency at the shop conducted by Millars and Sandovers. Fontin was a retainer of this house and worked in the glass section of the shop. His chief responsibility was to cut glass to sizes suited for louvres ordered by clients. He did his work at a tabular array behind which the uncut glass was stacked. The tools which he used were a wooden T square and a little cutter operated by manus. When Katapodis purchased the goods Fontin, a fellow Greek, assisted him because Katapodis was non able to discourse in English. Katapodis paid hard currency and took the goods off with him, but the books of the house contained no record of the payment. A few yearss afterwards Katapodis was at the shop and Fontin pointed him out to the helper director as the client who had non paid his history. This accusal enraged Katapodis who thereupon went place, found the reception and produced it to the helper director at the shop. The helper director apologized unreservedly to Katapodis and told him that the incident was closed. Katapodis insisted on his conveying the reception to Fontin. Fontin was working at his tabular array, go toing to a client. Katapodis and the helper director stood in forepart of the tabular array and the reception was shown to Fontin. The helper director apologized to Katapodis and repeated his confidence that the incident was closed. Katapodis called Fontin “ a bad adult male ” . As the helper director turned to travel off Katapodis began an affray with Fontin and made an contemptuous comment to him. Fontin replied to Katapodis in similar manner. Katapodis so grabbed the T square by the terminal without the cross-piece and hit Fontin with it one time on the arm and one time on a shoulder. Katapodis had raised the T square to hit Fontin once more. Fontin, thereupon, picked up an off-cut of louvre glass 15 inches long and two to three inches broad and threw it at Katapodis ‘ face. Katapodis dropped the T square and raised one of his custodies to fend off the missile. It cut the socket of the pollex and severed the ulna nervus. Serious and lasting hurt was done to the manus. The assault and battery alleged in the action was that Fontin threw the piece of glass at Katapodis and wounded him with it.

The tribunal held that conducive aggravation or the behavior of another individual could non be called upon in an effort to help the decrease of compensatory amendss but would be given strong consideration when sing whether or non model or aggravated amendss should be awarded. In his judgement in the High Court of Australia Owen J, with whom Dixon CJ agreed, stated:

“In an action for assault as in other instances of civil wrong the behavior and motivations of the

parties may be taken into history either to worsen or extenuate amendss. In a

proper instance the amendss recoverable are non limited to compensation for the loss

sustained but may include model or punitory amendss as, for illustration,

where the suspect has acted in a high handed manner or with maliciousness. But the

regulation by which the suspect in an action in which model amendss are

recoverable is entitled to demo that the plaintiff’s ain behavior was responsible

for the committee of the tortious act and to utilize this fact to extenuate amendss

has no application to amendss awarded by manner of compensation. It operates

merely to forestall the award of model amendss or to cut down the sum of such

amendss which, but for the aggravation, would hold been awarded.” [ 7 ]

3. ) Lane v. Holloway[ 8 ]

The logical thinking that the sum of amendss awarded may be affected by aggravation has been discussed by Hodgson and Lewthwaite [ 9 ] . They province that aggravation does non look to be a defense mechanism in the usual sense but it may run as mitigating factor. In Gray v. Barr [ 10 ] , which was distinguished in Lane v. Holloway [ 11 ] , Lord Denning stated that:

“the tribunal can take into history in presenting amendss non merely fortunes

which go to worsen amendss, but besides those which go to extenuate them.”

Hodgson and Lewthwaite [ 12 ] submit that this is authorization for the preposition that aggravation may good impact the sum of amendss awarded. In Lane v. Holloway [ 13 ] , as will be seen below, it was held that aggravation would function to extinguish any model amendss but would non impact any general compensatory award.

The facts of Lane v. Holloway [ 14 ] are that the complainant, an old adult male of 64, and the suspect, a immature adult male of 23, were neighbors. Relationss between them were strained because of the suspect ‘s coffeehouse, noise from which disturbed the tribunal where they both lived. One dark at approximately 11 p.m. the complainant, holding returned from a public house, was speaking to a neighbor in the courtyard. The suspect ‘s married woman called out to them, and the complainant replied ; this was coarse maltreatment between them. The suspect came to the window and said “ What did you say to my married woman? ” . The complainant replied with words that amounted to a challenge to contend. The suspect came down into the pace and approached the complainant threateningly. The complainant punched him on the shoulder, whereupon the suspect hit the complainant a terrible blow on the oculus. The complainant was in infirmary for a month from the hurt therefore caused, and had 19 stitches round his oculus. The suspect was found guilty, by a magistrates ‘ tribunal, of improper wounding. In an action for personal hurts the test justice found that the hurt to the complainant ‘s oculus was caused by the suspect ‘s fist entirely, and, on the inquiry of the sum of amendss, took into consideration the complainant ‘s ain bad behavior by manner of extenuation of amendss and awarded ?75 amendss.

Dissatisfied with the court’s determination the complainant appealed. On hearing the plaintiff’s entreaty, the tribunal held that the suspect would be apt in amendss as the defendant’s action in striking the complainant viciously was seen by the tribunal to out of all proportion given the juncture. The tribunal held that neither defense mechanisms of axiom ex turpi lawsuit non oritur actio or volenti non fit injuria would be applicable to the suspect. In leting the entreaty, the tribunal besides decided that the sum of compensation that the complainant should have as a consequence of his physical hurt should non hold been reduced as a consequence of aggravation but should be increased. The plaintiff’s amendss were later increased from ?75 to ?300.

In this instance the Court of Appeal overruled the first judgement keeping that the justice was incorrect to keep that amendss should be reduced for contributory carelessness. The Court of Appeal held that such amendss should non be reduced. Lord Denning held that:

“provocation by the complainant can decently be used to take away any component of

exasperation but non to cut down the existent damages.”

The judgement of Owen J in Fontin V Katapodis [ 15 ] was applied to this instance by the Court of Appeal with Salmon LJ keeping the position that:

“The instance of Fontin V Katapodis seems to me, for all practical intents, identical from the present and it states in the plainest footings, what, as I have already said, I should hold been prepared to keep without any authorization, viz. , that on rule, when sing what amendss a complainant is entitled to as compensation for his physical hurt the fact the complainant may hold behaved severely is irrelevant.”

Lord Denning decided to modify his position that the plaintiff’s aggravation of the suspect can be used in a mode which will take away the component of exasperation but non to cut down the existent amendss in Murphy v. Culhane [ 16 ] . In Murphy v. Culhane [ 17 ] the complainant ‘s hubby was killed by the suspect, who later pleaded guilty to manslaughter. It was alleged that this occurred during a class of condemnable altercation brought approximately by the deceased and others who decided to crush up the suspect. As a resul of this the deceased’s widow issued proceedings against the suspect in which she claimed amendss for the assualt by the suspect which caused the victim’s decease. Her statement of claim stated that she, as the complainant, would trust upon the fact that the suspect was convicted of the victim’s decease. In his defense mechanism, the suspect admitted assault and admitted the strong belief but contended that the assault had really occurred during a reprehensively altercation that had been initiated by the deceased and other people with the position to unlawfully assailing the suspect. The suspect placed trust on the axioms maxim antique turpi lawsuit non oritur actio or volenti non fit injuria and on the averment that the victim’s decease was partially due to his ain mistake. The tribunal found in favor of the complainant and held that the fact that the suspect in acknowledging the strong belief had deprived himself of a defense mechanism. The suspect appealed to the Court of Appeal.

The Court of Appeal allowed the defendant’s entreaty and held that the suspect was entitled to support the action by puting trust upon the axioms. The tribunal besides held that if the defense mechanism failed it would be necessary to look into the facts in order to find whether or non any amendss that are collectible should be reduced in order to take into history any mistake on behalf of the deceased. Denning MR held that the widow’s amendss had failed to be reduced under the Law Reform ( Contributory Negligence ) Act 1945 because her husband’s decease had consequence from a condemnable altercation in which he was involved.

At first case in this instance the complainant successfully applied for a judgement based on the admittances in the defense mechanism and based on the fact that there was no defense mechanism to the claim in inquiry. However, the Court of Appeal found otherwise. It held that the defense mechanisms that had been pleaded should travel to test and that the defense mechanism of conducive carelessness may be handiness to the suspect based on the facts of the instance. In his judgement, Lord Denning stated that:

“There are two instances which seem to demo that in civil action for amendss for

assault amendss are non to be reduced because the complainant was himself guilty of

aggravation. Aggravation, it was said, can be used to pass over out the component of

model amendss but non to cut down the existent figure of monetary amendss. It

was so said by the High Court of Australia in Fontin V Katapodis and followed

by this tribunal in Lane v Holloway. But those were instances where the behavior of the

injured adult male was fiddling – and the behavior of the suspect was barbarous – wholly

out of proportion to the juncture so much so that the suspect could reasonably be

regarded as entirely responsible for the harm done. I do non believe that they can

or should be applied where the injured adult male by his ain behavior can reasonably be

regarded as partially responsible for the harm he suffered.”

The point of whether or non amendss should be reduced where the defendant’s committing of a condemnable altercation was as a consequence of aggravation was discussed farther in Barnes v. Nayer [ 18 ] . In Barnes v. Nayer [ 19 ] the suspect made the allegation that both he and his household had been the topic of a drawn-out changeless maltreatment and aggravation by their neighbors. The aggravation and maltreatment had grown to be so serious that on one such juncture and after menaces had been made to his boy, the suspect took affairs into his ain custodies and attacked a adult female with a matchet and killed her. The suspect was convicted of manslaughter. The estate of the deceased decided to convey a civil action against the suspect for amendss for trespass to the individual. Even though the suspect claimed that deceased and the household of the deceased had abused and provoked him and had made his and his family’s life a wretchedness every bit good as promoting his boy to contend with the deceased’s family’s boy and made menaces of a violent nature towards one of his boies, the tribunal found that his behavior, in that he had attacked the dead adult female with a matchet and killed her, was out of all proportion to any behavior that had been put frontward by the asleep. In the judgement of the tribunal it was held that the plaintiff’s behavior was so disproportional to the behavior of the suspect that any decrease in the sum of existent amendss, as opposed to model amendss or aggravated amendss, was prevented. In his opinion May LJ wholly agreed with the extenuation of model amendss but did non hold with the point on extenuation of compensatory amendss because he stated that he was of the position that if a individual provokes person else and the response by the other individual to that aggravation was wholly disproportional to that which has been offered by the other side so the individual who provoked the other individual should be entitled to full compensation as a consequence.

Before consideration can be given to Colette Ward v. Chief Constable of the Royal Ulster Constabulary [ 20 ] it is necessary to summarize the points that have arisen from the instances discussed sing how far aggravation impacts upon the awarding of amendss in the country of assault as an knowing civil wrong.

In decision, it would look that the position of the bench, both domestic and within the commonwealth, is that in instances where the suspect has been provoked, this aggravation will hold the consequence of guaranting that the complainant will non be able to have model amendss but will non consequence a decrease in the sum of monetary amendss received by the complainant.

Some of the Judgess in the aforesaid instances have held the principle that the suspect should be allowed to trust on the defense mechanism of contributory carelessness within the commissariats of subdivision 4 of the Law Reform ( Contributory Negligence ) Act 1945 and subdivision 6 of the Law Reform ( Personal Injuries ) Act 1948 which both make proviso for what is considered to be ‘fault’ . ‘Fault’ is defined in subdivision 4 of the Law Reform ( Contributory Negligence ) Act 1945 as being, ‘negligence, breach of statutory responsibility or other act or skip which gives rise to a liability in civil wrong or would, apart from this Act, give rise to a defense mechanism of contributory negligence’ . Where this suspect wishes to prosecute a claim for amendss for hurt suffered partially through is ain mistake and partially through the mistake of another, the amendss the suspect receives will be reduced in a mode that the tribunal sees fit with such a decrease accounting for the defendant’s portion in the duty for the harm done. This position was put frontward most affectingly by May LJ in Barnes v. Nayer [ 21 ] while he was trying to recognize with the position held by Lord Denning in Lane v. Holloway [ 22 ] . May LJ stated that:

“In so far as conducive carelessness is concerned prima facie I

can see no ground why once more given the facts the suspect who

took a claim for amendss for assault can non trust on the Law

Reform ( Contributory Negligence ) Act.”

As will be seen in Colette Ward v. Chief Constable of the Royal Ulster Constabulary [ 23 ] Girvan J held the position that prior to the passage of the statute law, if a suspect doing assault claim was shown to committed Acts of the Apostless of aggravation or Acts of the Apostless deemed to be conducive which may represent contributory negligence his claim for amendss would neglect because, as Salmon LJ noted in Lane v. Holloway [ 24 ] , there would hold been no back uping authorization. However, the overlying factor that should be acknowledged as being the common jurisprudence and should non be ignored is that aggravation in assault instances where the assault was an knowing civil wrong will non be used as a factor in cut downing the amendss awarded.

4. Colette Ward v. Chief Constable of the Royal Ulster Constabulary[ 25 ]

This instance provides the most up to day of the month illustration of an assault that has occurred as consequence of aggravation. This instance is an appeal instance from Northern Ireland but which uses the pronouncement from the aforesaid instances [ 26 ] . A sum-up of the facts and grounds that was presented to the tribunal will now be analysed.

This is an entreaty brought by the complainant against the dismissal of her claim in the County Court for amendss for alleged assault, battery and trespass to the individual which are alleged to hold occurred on 26September 1997. The complainant issued a civil measure on 18 February 1999 in the County Court for Division of Craigavon claiming amendss for the alleged civil wrongs. The specifics of her claim alleged that she was pushed over a wall into a garden by Reserve Constable McCormick whereby she sustained hurts. It is besides alleged that slightly later the complainant was grabbed by the cervix and had a finger poked in her face by the same constabulary officer.

The complainant stated that in July 1997 her younger boy, Jim, informed her that the senior boy, Martin was being assaulted at Legahorry Court, near to the plaintiff’s house. Arriving at the scene she saw Martin being held on the land by two constabulary officers, face down, his custodies behind his dorsum, with another standing beside him.

The complainant noted Martin’s face was bluish with one officer, whom she recognised from the estate, but did non cognize his name, keeping Martin’s legs she shouted at the officers to let go of him and denied doing physical contact with any officer. The officer, identified as Reserve Constable McCormick, harmonizing to the complainant, rose, walked to her and pushed her on the right shoulder. This resulted in her falling over a wall landing on the debris and debris buttocks. From which she arose and backed off from the officer. However, the officer concerned pursued her and with his custodies on her pharynx indicated that her boy, Jim, would be “the following to acquire it.” The uncomfortableness from her hurts made her visit her GP after the weekend. Dr. Hunter’s study indicated, clear hurt, unusual for this patient, apparent bruising, limited motion of flexure and extension, plus limited abduction to 40 % of the right shoulder. Cervical spinal column motions decreased by 10 % of flexure and extension, rotary motion was impossible owing to trouble. Lumbar spinal column was merely possible when aided and she suffered neck hurting.

Mr. O’Reilly’s study of September 1999 summarised that the complainant, aged 43 was involved in an incident with the constabulary during the apprehension of her boy. Her intercession resulted in a push to her anterior right shoulder from which she fell backwards over a low wall, prolonging immediate hurt to her cervix, shoulder and back and required aid to acquire up. She remained for two yearss at place agony hurting and unable to travel, treated with analgesics until seeing her GP on the Monday. He concluded she experienced terrible cervix hurting for the following 6 to 8 hebdomads, chairing during the following month. This remains intermittent. Back hurting continued for 10 hebdomads and moderated during the following month. Her right shoulder was really sore for approximately 2 months and continues when exacerbated by cold, moistness conditions.

The officers’ grounds contradicted the plaintiff’s. Reserve Constable McCormick was involved in Martin Ward’s apprehension associating to taking a driving a lorry off and stated that Constables Armstrong and Mooney held and handcuffed Martin. He was non on top of Martin, but was a distance off when a piece of concrete, thrown by person from the disorderly witnesss struck him on the arm. Sing the complainant arrive on the scene, from the tunnel shown on one of the exposure, behind Martin’s caput, which contradicts the plaintiff’s statement. McCormick witnessed Constable Armstrong push the complainant back and she fell on the land on her buttocks. He besides noted that a tile was thrown, he thought, by James Ward. He agreed he informed the complainant he would describe James for disorderly behavior, denied touching or endangering her, but noted she rose unaided and left the scene.

Police Constable Armstrong acknowledging forcing the complainant off without undue force, whilst keeping Martin and she fell backwards on to the paving amid rubble.

Police Constable Mooney did non remember seeing the complainant, agreed the state of affairs was disorderly and that missiles were being thrown, but as he was confronting off did non witness the incident sing the complainant.

In cut downing the plaintiff’s amendss on the evidences that the complainant had contributed to the harm she had suffered, Girvan J held that:

“In the present instance if the complainant did non touch the constabulary and simply verbally

called on them to let go of Martin Ward she could non be said to hold contributed

to the resulting amendss for the intents of the 1945 Act. If on the other manus

she had physically made contact with the constabulary in the fortunes that would

hold called for some proportionate reaction by the constabulary. On the facts I

conclude on the balance of chances that she did do some minor physical

contact with the constabulary and I consider that had she non done so the constabulary would

non hold pushed her violently. The constabulary used inordinate force in response to

the actions of the complainant but the plaintiff’s actions constituted a civil wrong vis a six

the constabulary officer concerned and in all the fortunes she bears a grade of

duty for the ensuing harm. I consider that the amendss should be

reduced by one tierce. Furthermore inasmuch as I conclude that she contributed

to the fortunes doing the incident this would non be a proper instance in

which to present model or aggravated damages.”

In this instance Girvan J decided that, even though there had been aggravation which had lead to the assault and amendss suffered by the complainant, the amendss that amendss that had already been received by the complainant from old judgements should be reduced on the footing that she had contributed to and must bear some of the duty for the harm that she had suffered. It would look the Girvan J made the determination to follow the pronouncement of Salmon J [ 27 ] and May LJ [ 28 ] in that the suspect in instances such as these should hold the right to trust on the commissariats of subdivision 4 of the Law Reform ( Contributory Negligence ) Act 1945 and subdivision 6 of the Law Reform ( Personal Injuries ) Act 1948 in order to demo that the complainant conveying the claim for amendss committed a breach of statutory responsibility or was negligent and caused or provoked an action from the suspect from which they have suffered.

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