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Batchelor v Harrison [2009] WSSC 119 (2 December 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

JACK BATCHELOR and CAROL BATCHELOR
of Saleapaga, Resort Operators.
Plaintiffs

AND:

ANNA HARRISON Businesswoman and
SOGIMALETAVAI TOGISALA matai
both of Saleapaga.
Defendants

Counsel: K Drake for plaintiffs
R V Papalii for defendants

Judgment: 2 December 2009

JUDGMENT OF SAPOLU CJ

Proceedings

1. These proceedings are concerned with a motion by the defendants to strike out the plaintiffs amended statement of claim. As the submissions by counsel unfolded during the hearing of the strike-out motion, it became clear that the ground relied upon in the motion is that the amended statement of claim discloses no reasonable cause of action.

2. There are four causes of action pleaded in the amended statement of claim. These causes of action could have been better pleaded and the pleadings could have been better particularised. However, this is not a ground for striking out the amended statement of claim as disclosing no reasonable cause of action.

3. At the conclusion of the hearing of the strike-out motion, I struck out the fourth cause of action for loss of opportunity as it is not a reasonable cause of action that is maintainable in law, but not the second and third causes of action. As for the first cause of action which is for assault and battery, I asked counsel to provide authorities on the elements of the tort of assault. This was because whilst there was no dispute that the pleadings support a cause of action in the tort of assault and the tort of battery against the second named defendant, counsel for the defendants contended that the pleadings do not support a cause of action in the tort of assault against the first named defendant.

The first cause of action as pleaded

4. The pleadings in support of the first cause of action allege that on 10 August 2009, the first and second named defendants together with members of their family and friends showed up at the tourist resort which is the subject of a partnership agreement between the plaintiffs and the first named defendant and assaulted and battered the plaintiffs.

5. The defendants did that by instigating aggressive and threatening behaviour against he plaintiffs and staff of the resort. This aggressive and threatening behaviour consisted of blocking off the entrances and exits to the resort with large rocks and intimidating the plaintiffs causing the plaintiffs to apprehend fear.

6. Several men including the second named defendant then assaulted and battered the first named plaintiff causing injury to his face and body. As a result, he suffered severe concussion and had to be hospitalised.

Relevant law on the tort of assault

7. Assault is one of the three torts that come under the general heading of trespass to the person. The other two are the tort of battery and the tort of false imprisonment. Often the terms "assault and battery" appear together because a single act or series of acts may give rise to the commission of the two torts at the same time. However, the tort of assault is quite distinct from the tort of battery. Thus a person may commit an assault without committing a battery or commit a battery without committing an assault.

8. It would appear from the authorities that the tort of assault consists of three elements which the plaintiff has to prove in order to succeed against the defendant. These are:

(1) there must have been an overt act by the defendant causing the plaintiff to apprehend the infliction of immediate and unlawful force;

(2) the defendant must have had an intention either to use force or create in the plaintiff an apprehension of the use of force; and

(3) the defendant must have had the capacity to carry out that intention immediately.

9. In the recent English case of Mbasogo v Logo Ltd [2006] EWCA 1370, Sir Anthony Clarke MR in delivering the judgment of the Court of Appeal stated:

"74. There was no dispute between the parties but that the tort of assault requires an overt act causing another to apprehend the infliction of immediate and unlawful force (see eg Collins v Wilcock [1984] 1 WLR 1172 at 1177B). There appeared, however, to be some controversy as to whether the overt act indicating that immediate intention must be coupled with the capacity to carry such an intention into immediate effect.

"75. There is ample authority for the proposition that such a capacity must be proved. The threats made by pickets to those miners who sought to go to work were not an assault because the pickets had no capacity to put into effect their threats of violence whilst they were held back from the vehicles which the working miners were within (see Scott J in Thomas v NUM [1986] 1 WLR 20 at 62B-C). The nineteenth century authorities Stephens v Myers (1834) C & P 349, Cobbett v Grey [1849] 4 Ex 729 at 744, and Read v Coker [1853] EngR 632; [1853] 13 CB 850 at 860, all establish the necessity to prove the means of carrying a threat of immediate violence into effect and no authority was cited to us which disapproves of their teaching".

10. In the above –cited English case of Stephens v Myers (1834) C & P 349, Lord Tindal CJ in his summing up said:

"It is not every threat when there is no actual personal violence, that constitutes an assault, there must, in all cases, be the means of carrying the threat into effect".

11. And in the case of Read v Coker [1853] EngR 632; [1853] 13 CB 850 at 860, Lord Jervis CJ stated:

"If anything short of actual striking will in law constitute an assault, the facts here clearly shewed that the defendant was guilty of an assault. There was a threat of violence exhibiting an intention to assault, and a present ability to carry the threat into execution".

12. The position in New Zealand on what constitutes the tort of assault is the same as it is in England. In T v H [1995] 3 NZLR 37 at 51, Hardie Boys J in the New Zealand Court of Appeal said:

"In Thomas v National Union of Mineworkers (South Wales Area) [1986] Ch 20, 62 Scott J adopted Clerk & Lindsell’s definition of assault as an overt act indicating an immediate intention to commit a battery, coupled with the capacity to carry that intention into effect. [(15th ed, 1982) para 14-10] Professor Fleming’s definition at p24 allows for the ‘overt out’ to be threatening words: ‘Assault consists in internationally creating in another person an apprehension of imminent harmful or offensive contact’. This can be done by words as readily as by actions, and I would accept this definition. Nevertheless the overriding requirement of the tort is the apparent ability to carry out the threat immediately; the victim must have apprehended imminent physical contact: Fleming at p26. This is to be judged objectively, the test being whether a reasonable person in the plaintiffs’ position would have had that fear".

13. In the New Zealand textbook The Law of Torts in New Zealand 3rd ed by Todd et al, the learned authors state at p 98:

"An assault is an intentional act causing the plaintiffs to apprehend the immediate infliction of a battery on his or her person. This is to be judged objectively; the test being whether a reasonable person in the plaintiffs position would have had the necessary fear of immediate harm"

14. On the question of intention to use force or to create on the part of another an apprehension of the use of force, Smith and Kennedy JJ in Hall v Fonceca [1983] WAR 309, 313-314 said:

"At common law, the weight of opinion clearly favours the view that there must be, on the part of the assistant, an intention either to use force or to create an apprehension of the use of force on the part of the person being assaulted...Although the authorities are surprisingly sparse in this area, we accept that an intention on the part of the assailant either to use force or to create apprehension in the victim is an element in an assault."

15. The issue of some difficulty for which no authority was cited by counsel is whether a person who instigates another to commit an assault is liable if that other person commits the assault. I am of the view that, in principle, it is at least arguable that the instigator would be liable as a joint tortfeasor. In other words, the instigator of the assault and the person who actually commits the assault are joint tortfeasors.

16. There seems to be little authority on the point, but in Street on Torts (1988) 8th ed p 450, the learned author stated:

"He who instigates or procures another to commit a tort is deemed to have committed the tort himself: Barker v Braham and Norwood (1773) 3 Wils 368; it matters not whether that other was servant, independent contractor or agent, human or otherwise".

17. Further on at p 526 of Street on Torts (supra), the learned author when discussing joint tortfeasors said that where one person instigates another to commit a tort, both would be joint tortfeasors.

Discussion

18. The pleadings in support of the plaintiffs’ first cause of action in the tort of assault and the tort of battery allege that the first and second named defendants assaulted and battered the plaintiffs. It is then alleged that the defendants instigated aggressive and threatening behaviour against the plaintiffs and staff of the resort by blocking off the entrances and exits with large rocks and intimidating the plaintiffs causing the plaintiffs to apprehend fear. Perhaps, the word "threatening" should have been used here instead of the word "intimidating" to avoid possible confusion with the separate tort of intimidation.

19. In principle, it is at least arguable that the first named defendant by instigating aggressive and threatening behaviour in others against the plaintiffs, which caused the plaintiffs to apprehend fear, was a joint tortfeasor with the people she instigated and who actually caused the plaintiffs to apprehend fear. Whether the first named defendant can also be sued as a joint tortfeasor for the battery that occurred was not made an issue in these proceedings.

20. In the circumstances, I conclude that it has not been shown that the first cause of action in assault is so clearly and plainly untenable in law that it cannot possibly succeed. The plaintiffs’ first cause of action should therefore be allowed to go to the substantive hearing of this matter. The strike out motion insofar as it relates to the first cause of action is accordingly dismissed.

CHIEF JUSTICE

Solicitors
Drake & Co for plaintiffs
R Viane-Papalii for defendants