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Tort Law: Harassment Act 1997 Essay

2149 words - 9 pages

INTRODUCTION
The main purpose of this Essay is to advise the parties as to any potential liability in tort and under the protection from Harassment Act 1997, also to find out the particulars of the case and list the points that are necessary in order for someone to be found guilty.
In Caroline and Nicole, A minor must be responsible for his or her own torts. However the issue here is whether Nicole’s actions amounted to a battery?
Battery:
To make a claim, Caroline must establish that Nicole intentionally caused an offensive contact with her. However in (Garratt v. Dailey), Nicole may not be liable for battery because the element of intent is not satisfied as she did not intent to step on Caroline’s foot. On the other hand, Caroline can argue that although it was not intentional but Nicole failure to rectify the situation has rendered it a battery (See: Fagan v Metropolitan Police Commissioner) and Nicole did not consent her as she was a minor (Gillick v West Norfolk & Wisbeck Area Health Authority).
SIMON AND CAROLINE
Could Caroline action amount a battery?
Battery:
To prove tort of battery; Simon must establish that Caroline, Intentionally caused an offensive contact with him, that the force was direct and immediate, and the touching or contact was hostile.
INTENT: Caroline may not have intended to hit Simon with her shoe, although Even if her intention was not to hit Simon the shoe, Caroline may nevertheless have intended a harmful or offensive touching (see Scott v Shepherd). Caroline action alone of not taking a reasonable care of throwing the shoe was foreseeable, as there was possibility that if the shoe did not hit Nicole it would hit somebody (Corn V. Shepard). This is adequate to constitute intent. The facts indicate that Caroline threw off her shoe intending to hit Nicole but missed and hit Simon instead, the doctrine of transferred intent, made the conduct a battery on Caroline (Talmage v Smith) , Simon may also have an action for assault if he saw Caroline shoe coming at him ( R v Lamb).
CONSENT: In most cases, being silence and inaction may patent consent as it is reasonable to assume that a person would act if he objected to the other party actions that is, Simon silence does not mean that he was consented.
Did Simon suffer any harmful or offensive contact?
Harmful contact is usually an objective which a sensible individual might find it destructive or hostile. In this case, it seems probable that being hit by a thrown shoe would be harmful even if it did not cause any serious injury. However, a reasonable person would foresee that being hit by a thrown shoe would be offensive. This means that Caroline caused a harmful contact to Simon.
Furthermore, the law must balance the measures of the risk and the probability of the injury that would have occurred and aligned it with the rate and difficulty of taking precautions. On the other hand, since there was no serious injury, Simon may be entitled to disregard...

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