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104 Pages • Complete Study Notes • Year: Pre-2021
Section 245 CC (Qld): “Person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, [common law battery] or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other persons consent…” (1). Direct or Indirect Application of Force: (R v Cotesworth) • S245 states that force may be indirect • Must be direct result of def’s actions (Hillier v Leitch) • Cannot be a passive obstruction; i.e. blocking doorway (Innes v Wylie) Was there a direct or indirect application of force to the pl? (2). Consent or Lawful Excuse: • If consent given- no battery (McNamara v Duncan)- may be used as a defence • Lack of consent is recognised by s245 CC • Consent may be expressly implied by situation • Patients undergoing surgery (Department of Health and Community Services v JWB & SMB): “At common law, therefore, every surgical procedure is an assault unless it is authorised, justified or excused by law” o May be implicit due to advice given (McDonald v Ludwig) • People participating in sports o Must occur outside rules of sport (McNamara v Duncan) • Invalidated if fraud or duress or lack or capacity Did ___ give consent to the application of force? Or was there lawful excuse for the def’s actions? (3). Fault- Deliberate or Wilful Act: • Intentional or negligent (Cole v Turner; Exchange Hotel v Murphy) • May still be battery for unintentional interferences if still direct (McHale v Watson) • Knowledge of contact is not required (Law v Visser) • Everyday life (Defence): Physical contact part of everyday life is not battery (Rixon v Star City) Time Limits: • Personal injury- 3 years (LOAA s11) • Property/ no injury- 6 years (LOAA s10 (1) (a)) Were the actions within the relevant time period? Onus of Proof: • HW: onus remain on pl • Non-HW: Pl prove interference, def disprove fault The onus of proof lies upon ___ as the act occurred ____.
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