Professor Jason N.E. Varuhas 

The University of Melbourne, Victoria 3010, Australia

T: +61 3 834 46838 E: jason.varuhas@unimelb.edu.au

SSRN 

I wasn’t assuming anything about the scope of battery (save that we don’t have negligent trespass to the person in English law). It’s perhaps not certain that subjective recklessness is enough to fulfil the intention requirement for battery in English law (in the US, as I understand it, it wouldn’t be). In O v Rhodes [2016] AC 219 the UKSC denied that subjective recklessness was sufficient for liability to arise in the tort of intentional interference with the person (the Wilkinson v Downton tort). It might be thought strange if the position were different in battery, though there are authorities the other way (most obviously the decision of the Northern Ireland Court of Appeal in the Omagh bombing case, Breslin v McKevitt [2011] NICA 33).

All best

Donal

From: Jason Varuhas <jason.varuhas@unimelb.edu.au>
Sent: 06 June 2020 08:44
To: Donal Nolan <donal.nolan@law.ox.ac.uk>; Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; Robert Stevens <robert.stevens@law.ox.ac.uk>; Christine Beuermann <Christine.Beuermann@newcastle.ac.uk>; Barry Allan <barry.allan@otago.ac.nz>; Neil Foster <neil.foster@newcastle.edu.au>
Cc: obligations@uwo.ca
Subject: Re: HCA on battery and use of force with passing comments on bystanders

I took Christine’s point to be that this wasn’t necessarily a battery in English law, as there may have been no intentional application of force to the bystanders (I haven’t read the case, so don’t know if that is a possible view on the facts). That the use of tear gas was illegal doesn’t change that. Hence the possible need for a negligence analysis. If it is unlawful to use the tear gas, and the harm is foreseeable, it may be easy enough to establish negligence, but you do need to do that. There’s no point discussing defences if there is no cause of action in the first place.

All best

Donal

Is the use of tear gas necessarily illegal in all circumstances? If you have a rampaging crowd of rioters including adults but also a number of 16-year-olds, must police with tear gas stand back and allow £ millions of damage to be done for fear of hurting the 16-year-olds? I see no necessary reason why.

Andrew

I don't see much balancing as necessary here. The use of tear gas is unlawful. I can't use it to control disruptive children, and so on its face nor can prison officers. Unless the state authority has a special statutory privilege to gas these individuals, not possessed by persons generally, this should be a tort everywhere. Or at least it damn well should be, see a recent high profile example in the news. The only question should be the interpretation of the statute. 

 

(A statute permitting the use of tear gas against disruptive children would be a disgrace. A statute permitting innocent children to be gassed as collateral damage nearly unbelievable.)

---

From: Christine Beuermann <Christine.Beuermann@newcastle.ac.uk>
Sent: 05 June 2020 17:19
To: Barry Allan <barry.allan@otago.ac.nz>; Neil Foster <neil.foster@newcastle.edu.au>
Cc: obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: HCA on battery and use of force with passing comments on bystanders

 

Leaving aside the statutory interpretation issues, I wonder if this case was brought in England if it would be brought as a negligence rather than a battery case?  It should be remembered that the Australian position on negligent trespass differs (or last time I looked, anyway).  As perhaps does the approach to determining what was 'intentional'.

 

Robinson comes to mind in this respect.  As does R v Deputy Governor of Parkhurst Prison; Ex parte Hague and Weldon v Home Office (in which you might recall a gassed cell was actually mentioned) and the mistreatment of prisoner cases more generally .  The benefit of a negligence analysis is that the court is able to balance the various interests at play (and scrutinise more carefully what Gageler called the 'choice between two evils').  The defence of necessity seems a rather blunt tool in the circumstances.  

 

Cheers

 

Christine

---

From: Barry Allan <barry.allan@otago.ac.nz>
Sent: 04 June 2020 06:44
To: Neil Foster <neil.foster@newcastle.edu.au>
Cc: obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: HCA on battery and use of force with passing comments on bystanders

 

⚠ External sender. Take care when opening links or attachments. Do not provide your login details.

The mention of necessity triggered something in my mind. There was a case where a  building caught fire after the police chucked in a gas canister to flush out a psychopath. This incidental infliction of property damage was caught by a defence of necessity. Austin v Police is probably more on point: to quell a riot, the Police detained thousands in Oxford Circus for hours ("kettling" them), including a large number of innocent passersby. The defence of necessity was held to be available to justify what would otherwise be false imprisonment. It does not seem to be a great stretch to find this defence available for any of the trespass based torts - if, indeed, the actions met the test of being necessary.

 

Barry  

 

	Barry Allan | BA, BCOM, LLM Associate Professor Faculty of Law | Te Kaupeka Tātai ture University of Otago | Te Whare Wānanga o Otāgo

---

From: Neil Foster <neil.foster@newcastle.edu.au>
Sent: Wednesday, 3 June 2020 7:18 p.m.
To: Tettenborn A.M.
Cc: obligations@uwo.ca
Subject: Re: HCA on battery and use of force with passing comments on bystanders

 

Thanks Andrew. One of the interesting features of Gageler J’s comments is that I think he suggests that you could use force in self-defence even if it caused harm to bystanders (ie that you would have a “right” to use force) but that if the harm occurred you would be obliged to compensate the bystanders! I seem to remember we have had discussions previously on the ODG about Vincent v Lake Erie raising similar issues.

See [47]:

 

In working my way to that result, I have benefited from recent academic writing exploring the general topic of "necessity" as a defence to an action in tort in the United Kingdom42 and the United States43. Although I have found them to have no direct utility, I have also considered the concepts of "incomplete privilege"44 and "conditional fault"45 developed in academic and professional writing in the United States by reference to Vincent v Lake Erie Transportation Co46. 

 

But the comments have most plausibility if applied to police and other public officials for whose actions the Crown will be held liable; they seem unfair if applied to individuals. So I am not sure that this sort of rule could be generalised across tortfeasors. Much to chew over.

 

Regards

Neil

 

 

NEIL FOSTER

Associate Professor, Newcastle Law School

Faculty of Business and Law

409 Hunter St

Newcastle

 

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

 

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828 

Blog: https://lawandreligionaustralia.blog

 

 

The University of Newcastle (UoN)

University Drive

Callaghan NSW 2308

Australia

 

CRICOS Provider 00109J

 

 

 

 

 

From: "A.M.Tettenborn@swansea.ac.uk" <a.m.tettenborn@swansea.ac.uk>
Date: Wednesday, 3 June 2020 at 4:01 pm
To: Neil Foster <neil.foster@newcastle.edu.au>
Cc: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Re: ODG: HCA on battery and use of force with passing comments on bystanders

 

My first reaction is to be sceptical of Gageler J's interpretation. I would be surprised if, say, police were unable to use force to keep order merely because there were bystanders at risk. And applying this reasoning to the defence of self-defence would be grotesque: I would lose the right to defend myself against violence by A if there were bystanders B C and D nearby who would be injured.

I also doubt if this is a case of using bystanders instrumentally. If the officer had incapacitated the other bystanders because they obstructed his way to the youth they were subduing it might be. But I'd see this injury as incidental rather than instrumental. Compare the rules of necessity on property damage. I can't destroy your property to prevent damage to mine. But I can take steps to divert a flood from inundatng my land even though the effect is to cause it to inundate yours.

Andrew

Sent from BlueMail

On 3 Jun 2020, at 03:05, Neil Foster <neil.foster@newcastle.edu.au> wrote:

Dear Colleagues;

Very interesting tort decision today from the High Court of Australia in Binsaris v Northern Territory; Webster v Northern Territory; O'Shea v Northern Territory; Austral v Northern Territory [2020] HCA 22 (3 June 2020) http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/22.html . The question is whether the tort of battery was committed when prison officers used tear gas in controlling a disruptive detainee in a youth detention centre; the allegations of battery in this respect were brought, not by the disruptive detainee themselves but by 4 other detainees who were located nearby and were affected by the gas.

This was 5-member bench (Kiefel CJ and Keane J in one judgment; Gordon and Edelman JJ in another; Gageler J wrote separately.) A clear majority (the two “dual” judgments, if I can use that term) found that the use of the CS gas was not justified against either the main offender (and hence obviously not against the “bystanders”) by the relevant legislation governing use of such. While this as a “prohibited weapon” under NT law was allowed to be used in “prisons” (for adults), it was not authorised for use in “youth detention centres”. Hence the use of gas was a battery (confirming the common sense view that causing a substance to be propelled into someone’s body can be just as much an interference with physical integrity as actually hitting them with your hand.) There are some general comments from Gordon and Edelman JJ  that a power to do what is “necessary” to enforce discipline is not sufficient statutory authorisation on its own for the commission of a battery:

 

[100] conferral of powers necessary or convenient to enable the superintendent to perform their statutory functions does not give the superintendent general authority to commit what would otherwise be crimes or torts against detainees.

 

However, Gageler J differed from the other members of the court on the interpretation of the legislation. He took the view that the Acts in question did authorise use of CS gas against the main offender. But this meant that he had to consider the very interesting question as to whether a defence in relation to one person, authorised harm incidentally caused to bystanders. See [38]:

 

Mr Walker SC, who appears with Ms Foley and Mr McComish for the other detainees, submits that the common law power of a police officer to use such force as is reasonably necessary to restrain or prevent a breach of the peace confers no common law immunity from liability in battery to a bystander who is injured through the application of that force. He submits that police have no privilege to make "instrumental use" of a bystander so as to cause "collateral damage" to the bystander with impunity. Despite a surprising dearth of modern authority on the topic, I believe the submission to be correct (emphasis added)

 

There is a very interesting review of the law on this area. For example, his Honour notes that some of the older cases may have been decided on the basis that police officers were personally liable for wrongs and that the Crown could not be sued for the torts of “constables”. He notes that due to a series of statutory amendments around Australia, this is no longer the case- that the Crown will usually be held vicariously liable. And he concludes at [44]:

 

legislative development, and the underlying legislative acceptance of public responsibility for torts committed by police officers, are appropriate to be factored into the contemporary expression of the common law of Australia.

 

In coming to the conclusion that the law should put responsibility for “incidental” harm to bystanders on the Crown, his Honour refers to what he says are analogous principles in property cases and cites Virgo, "Justifying Necessity as a Defence in Tort Law", in Dyson, Goudkamp and Wilmot-Smith (eds), Defences in Tort (2015) 135, esp at 146-147 (at n 42).

 

The conclusion at [49] even involves some comment on equity!

 

Doctrinally, my preferred analysis is to focus on the scope of the common law "privilege" or "immunity" attendant on the common law "power", or "right" and "duty", of a police officer to use force reasonably necessary to restrain or prevent a breach of the peace. The attendant common law immunity is unquestionably such as to provide a defence to a claim in battery by the wrongdoer who is the target of the force. The attendant common law immunity, in my opinion, is not such as to provide a defence to a claim in battery by a bystander who suffers collateral harm by reason of the necessitous use of force. The bystander is entitled to damages at common law to compensate for the harm for the simple reason that the use of force has interfered with the bystander's bodily integrity. The interference is tortious in the absence of a defence. The tortious liability and concomitant entitlement to an award of compensatory damages by a court administering the common law is unaffected by the circumstance that a court administering equity would decline to restrain the tortious but necessitous use of force by pre-emptive injunction. 

 

Hence he agrees with the orders proposed by the majority, because the statutory defences did not authorise the incidental harm caused to the “bystanders”.

 

His Honour’s judgement of course is not part of the ratio of this case, and indeed there is a passing comment by Gordon and Edelman JJ at [54] that the appeals can be resolved by statutory interpretation and “do not turn on engaging or applying any wider principle”. But they provide a very fruitful basis for further discussion of this interesting question.

 

It is also worthy of note that a decision of this sort has been handed down on the day after a high profile incident in the USA where it seems that tear gas may have been used on a crowd outside the White House when it was not really needed to deal with actual or threatened violence. But of course US law is another matter altogether!

 

Regards

Neil

 

 

NEIL FOSTER

Associate Professor, Newcastle Law School

Faculty of Business and Law

409 Hunter St

Newcastle

 

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

 

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828 

Blog: https://lawandreligionaustralia.blog

 

 

The University of Newcastle (UoN)

University Drive

Callaghan NSW 2308

Australia

 

CRICOS Provider 00109J