Trespass to the Person

What is Trespass to the Person about/concerned with ?

the violation of the claimant’s right to be free from unjustifiable interference.

What are the Trespass to the Persons’

As per Goff LJ in Collins v Wilcock Trespass to the person is made up of three torts

-       Battery

-       Assault

-       False imprisonment

And the Tort in Wilkinson v Downton

What are common characteristics of all trespass to the person torts ?

 

(1)  Committed Intentionally

(2)  Cause direct and immediate harm (albeit harm is misleading)

(3)  They are actionable per se, that is, without proof of loss

Case and Judge which define Battery

Buxton LJ in Home Office v Wainwright and another [2001] at [67]

Case definition of Battery

A battery is the intentional application of unlawful force to another person. It is the ‘physical interference with’ or ‘invasion of’ the claimant’s body or person

An Actionable Battery therefore requires:

 

(1)  Intentional application of unlawful force

(2)  Which is direct and immediate; and

(3)  For which the D has no lawful justification or excuse (i.e. no defence)

Cases for Battery Intention

Iqbal v Prison Officers Association 

Livingstone v MoD

Williams v Humphrey

Fagan v Metropolitan Police Commissioner

Leading Authority on Intention for Battery 

Iqbal v Prison Officers Association [2009]

What does Iqbal v Prison Officers

Association say about intention

Per Smith LJ, That is where the defendant foresees that their

actions will have the relevant consequences (e.g. the

application of force in the case of battery, the

deprivation of the claimant’s liberty in that of false

imprisonment) and goes ahead with those actions

nonetheless. 

What does Livingstone v MoD say ?

Transferred malice also applies in battery but is instead called ‘transferred intent

What does Williams v Humphrey say ?

It does not matter if the D did not intend to hurt or cause harm to the claimaint, he will still be liable to compensate

What happened in Williams v Humphrey

the defendant pushed the claimant into a swimming pool causing him to fall awkwardly and break his ankle. The defendant argued that he did not intend to hurt the claimant, but this did not matter

What does Fagan v MPC say ?

No battery if D acts involuntarily. However, a battery can be committed, even if the original action by the defendant was involuntary, if the defendant has the opportunity to stop inflicting the unlawful force and fails to do so

Why is the force in battery misleading ?

Any unwanted physical touching—from a pat on the back to a violent blow to the head—can amount to a battery. Nor does it matter why the touching occurred; the fact that the contact was the result of a practical joke or that it was intended to convey affection is irrelevant: ‘an unwanted kiss may be a battery although the defendant’s intention may be most amiable’ (R v Chief Constable of Devon and Cornwall, ex p Central Electricity Generating Board [1982] at 471)

So how have the courts distinguished between what is unlawful and lawful force. 

Historically, as per Lord Holt CJ in Cole v Turner [1704], ‘the least touching of another in anger is a battery’

Then, in Wilson v Pringle [1987], the Court of Appeal suggested that in order for the defendant’s actions to be unlawful, and for there to be an actionable battery, there needed to be ‘hostile intent’.

However, the ‘hostile intent’ was heavily criticised because as Peel and Goudkamp (2014) suggest hostile intent appears to mean ‘little more than that the defendant has interfered in a way to which the claimant might object’

The latest approach is that of Goff LJ in Collins who stated that touching will only amount to a battery where it does not fall within the category of physical contacts ‘generally acceptable in the ordinary conduct of daily life’. Although, Goff LJ’s approach was criticised in Wilson it won the day when Goff LJ restated his views in the ACHL in Re F (Mental Patient)

Direct and immediate force

the unlawful touching must be the direct and immediate result of the defendant’s actions. A common example used to illustrate this point is the distinction between the claim of a person who is hit by a log as it is deliberately thrown onto the road and the claim of someone who later trips over it. While the former lies in battery, the latter is said to be restricted to the tort of negligence (Reynolds v Clarke [1725])

In practice is the direct and immediate requirement flexible or rigid ?

Extremely flexible as shown in Scott v Shepherd and DPP v K (A Minor)

As a result of decisions reached in DPP v K and Scott what can be said about the direct and immediate aspect of battery ?

Alastair Mullis and Ken Oliphant (2014) argue that the directness requirement serves little purpose, and that it is likely that a person who trips over a log left in the road (assuming it happened relatively quickly after the log was thrown and the necessary intention could be established) would have a claim in trespass (as well as negligence)

What is unlawful contact ?

Non-consensual contact

Case for Unlawful contact ?

Chatterton v Gerson

Chatterton v Gerson

C was suffering from severe pain from post-surgical scar. Doctor recommended a nerve block and informed patient of the risks. The surgery only gave temporary relief and temporary numbness in leg. The doctor recommended having another surgery, the same procedure a second time. The doctor, this time, failed to warn the C that she might experience numbness or muscle weakness again although did warn about the general risks. After second surgery the C experienced loss of sensation in leg and pain increased.

Issue: C was not informed of the risks so could not consent. Is a lack of valid consent enough for battery?

Held: C was informed of the general risks – this is enough for valid consent

Assault case and judge definition

Defined by Goff LJ in Collins v Wilcock as ‘an act which causes another person to apprehend the infliction of immediate, unlawful force on his person’

What is needed for an actionable assault ?

 

 

1.     the defendant intends that the claimant apprehends the immediate and direct application of unlawful force;

2.     Claiment immediately apprehends the immediate and direct application of unlawful force;

3.     The D has no lawful excuse.

Reasonable Apprehension

For there to be an assault the claimant must reasonably anticipate or expect the application of unlawful force—that is, the infliction of a battery. Thus, if A creeps up behind B and strikes him,A has committed a battery, but not an assault. It would only be an assault if B knew A was about to hit him

Leading authority for apprehend

Stephen v Myers

Stephen v Myers

The claimant was chairing a parish council meeting, sitting at the head of the table. The defendant was also at the table with about six or seven people between him and the claimant. The defendant was asked to leave the meeting (he had become disruptive during the course of the meeting’s discussions), in response to which he threatened the claimant with violence, advancing towards the claimant with a clenched fist. Fortunately, his approach was stopped by the timely intervention of the churchwarden and he was never within striking distance of the claimant. The claimant’s apprehension of a battery was held to be reasonable and so the defendant was liable for assault, though the jury clearly thought the claimant was somewhat timid, their award of one shilling was trivial, even in 1830.

Immediate and direct application of unlawful force

As per Stephen v Myers, ‘It is not every threat, when there is no actual violence, that constitutes an assault, there must, in all cases, be the means of carrying that threat into effect’ - Confirmed by the cases of Thomas v National Union of Miners, and Mbasogo v Logo Ltd

Do words constitute an assault or does it have to be an act ?

Traditionally, the requirement of directness meant that threatening words needed to be accompanied by a physically intimidating gesture: ‘No words or singing are equivalent to an assault’ (R v Meade and Belt [1823]).

Though a threatening gesture can be negated by words suggesting that an assault is not imminent. Tuberville v Savage [1669]

In Ireland, Lord Steyn in the House of Lords rejected the proposition that an assault could never be committed by words alone: ‘A thing said is also a thing done. There is no reason why something said should be incapable of causing apprehension of immediate personal violence, Liability, therefore, depends on whether the claimant in the circumstances reasonably believed that the oral threat could be carried out in the sufficiently near future to qualify as an immediate threat of personal violence. → Lord Hope Agreed with Steyn’s rationale.

Case + Juge definition of FI

Goff LJ in Collins v Wilcock [1984] defines false imprisonment as involving the ‘unlawful imposition of constraint on another’s freedom of movement from a particular place’

What is needed for FI

False Imprisonment requires:

1.     D must intend to completely restrict the claimants freedom of movement;

2.     Without lawful justification or excuse

Is force needed for FI ?

No. though a claimant must not be taken to be consenting to the imprisonment simply because they do not resist → Jalloh

Jalloh v Home Sec

Mr. Jalloh, a Liberian national, was released from immigration detention on bail.

·       His bail conditions required him to:

o   live at a fixed address in Sunderland,

o   wear an electronic tag, and

o   stay inside his home between 11 p.m. and 7 a.m. — a curfew.

·       These conditions lasted for 891 days (over two years).

·       Later, it was accepted that these curfew conditions had no lawful authority.

Mr. Jalloh claimed damages for false imprisonment, arguing that he was unlawfully confined to his home during curfew hours.

The legal question here was did the curfew — requiring him to stay home between 11 p.m. and 7 a.m. — amount to false imprisonment?

The Home Office argued:

·       He wasn’t “locked in” or physically restrained; he could have chosen to leave.

·       He was only under a curfew, not a physical detention.

The question for the Supreme Court was whether this curfew was a complete deprivation of liberty, and therefore false imprisonment.

UKSC ruled in favour of Jalloh, ruling the curfew as false imprisonment because;

·  He was required by the state to stay in a specific place (his house) during fixed hours.

·  He could not lawfully leave without permission.

·  This amounted to a complete restriction of his freedom of movement, even though he was not physically locked in.

“Like the prisoner who goes absent from his open prison, or the tunneller who gets out of the prison camp, he is not imprisoned while he is away. But he is imprisoned while he is where the defendant wants him to be.“ (Lady Hale at [26])

Cases for Intention for FI 

Iqbal

R v Gov of Brockhill Prison, ex p Evans

Esegbona v Kings college

Leading authority on intention for FI ?

Iqbal

What does Iqbal say intention in relation to FI ?

As Smith LJ held in Iqbal, false imprisonment, like the other trespass torts, requires an intentional act. However, as we have seen, this requirement is a little misleading. To use Smith LJ’s example:

“If a security guard in an office block locks the door to the claimant’s room believing the claimant has gone home for the night and not realising that he is in fact still inside the room, he has committed a deliberate act. However, he did not intend to confine the claimant. He may well be guilty of negligence because he did not check whether the room was empty but he would not be guilty of the intentional tort of false imprisonment.”

In terms of precedent set what do Gov of Brockhill prison and Esegbona say ?

While the defendant needs to intend to restrict the claimant’s freedom of movement, it is not necessary for the defendant to intend to do so unlawfully.

R v Governor of Brockhill Prison, ex p Evans (No 2) [2001]

claimant was lawfully imprisoned for various criminal offences. However, the prison governor miscalculated her release date with the consequence that she was imprisoned for longer than she should have been. Her claim for false imprisonment was successful, even though the prison governor clearly did not intend to hold the claimant for any longer than the lawful duration.

Esegbona v King’s College Hospital Foundation NHS Trust [2019}

NHS Trust was found to have falsely imprisoned a patient for almost five months. Mrs Esegbona had suffered heart failure. After almost three months of treatment in the hospital’s Intensive Care Unit, she wished to return home. The doctors believed her to be confused and suffering from cognitive impairment and communication difficulties. A psychiatrist advised that there needed to be an assessment of her capacity. The hospital failed to carry this out and safeguards under the Mental Capacity Act 2005 had not been followed. The patient was ultimately transferred to a nursing home. The court awarded damages of £130 a day—almost £15,000 in total

Cases relating to the complete restriction of freedom of movement ?

Bird v Jones [1845]

Hicks v Young [2015]

Robinson v Balmain New Ferry Co Ltd [1910]

Herd v Weardale Steel, Coke and Coal Co Ltd [1915]

Leading authority on Complete restriction of claimants freedom of movement 

Bird v Jones [1845]; Hicks v Young [2015]

Are Bird v Jones [1845]; Hicks v Young [2015] same principles ?

NOOOO

What does Bird v Jones [1845] say ?

There must be a total and complete restriction of the claimants freedom of movement if he is able to exit another way or the way he came from this is not FI - ‘imprisonment is … a total restraint of the liberty of the person … and not a partial obstruction of his will, whatever inconvenience it may bring on him’

Facts of Bird v Jones

The defendant’s employer had, without permission, installed seating to view a regatta on the River Thames across the public footway on Hammersmith Bridge in London. Although this prevented the claimant using the footway, the defendants were not liable for false imprisonment as his freedom of movement was not completely restrained; he was able to turn back the way he had come:

What happened in Hicks v Young

• Hicks (the claimant) and his girlfriend got into a taxi.

• When they reached what Hicks thought was his destination, he stood up to get out, but the taxi driver (Young) drove off, believing that Hicks and his girlfriend intended to flee without paying.

• The taxi was moving at about 20 mph.

• Hicks jumped out of the moving taxi and suffered very serious brain injuries.

How do Hicks and Bird contrast ? 

In Hicks the court said:
→ Even though Hicks could technically jump out, the situation still amounted to total restraint because no saferoute of escape existed.

So:
Total restraint does not mean the victim must be literally unable to exit — only that they cannot safely or realistically leave.

Robinson v Balmain New Ferry

Claimant had paid a penny to enter a wharf in order to catch a ferry but then changed his mind. He tried to leave the way he came, and claimed he was falsely imprisoned when he refused to pay the defendants a further penny to leave the wharf. His claim failed. It was reasonable for the defendants to have the payment barriers on one side of the wharf, and, in any case, the claimant had known about the charge to leave when he entered the wharf

Herd v Weardale Steel

A miner had descended into the pit at 9.30 am and was due to remain until the end of his shift at 4 pm. At 11 am, he refused to do certain work on the basis that it was dangerous, and demanded to be taken to the surface. His employer initially refused. He was brought to the surface at 1.30 pm, although the lift had been available to carry men to the surface from 1.10 pm, which meant that he had been detained in the mine against his will for 20 minutes. The House of Lords held that the employer was not liable for false imprisonment. The miner had voluntarily entered the mine under a contract of employment and so was deemed to have (impliedly) consented that he would not be brought to the surface until the end of the shift:

“If a man gets into an express train and the doors are locked pending its arrival at its destination, he is not entitled, merely because the train has been stopped by signal, to call for the doors to be opened to let him out. He has entered the train on the terms that he is to be conveyed to a certain station without the opportunity of getting out before that, and he must abide by the terms on which he has entered the train. So when a man goes down a mine, from which access to the surface does not exist in the absence of special facilities given on the part of the owner of the mine, he is only entitled to the use of these facilities (subject possibly to the exceptional circumstances to which I have alluded) on the terms on which he has entered.” (Viscount Haldane LC at 71)

Does the claimant need to be aware that he is FI

Atkin LJ in Meering v Grahame-White Aviation [1920] first floated the idea that “a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious, and while he is a lunatic.”

Atkin LJ’s views were confirmed by obiter by the Law Lords in Murray v Ministry of Defence [1988], However, a person who is unaware of their imprisonment is likely to receive only nominal damages.

What if the claimaint is not yet imprisoned, but the defendant has decided that if they attempt to leave they will be imprisoned ?

In R v Bournewood Mental Health Trust (ex p L) [1998], the potential deprivation of a claimant’s liberty was not held to be sufficient to ground a claim.

Leading Authority for Without Legal Authorisation

Austin v Commissioner of Police of the Metropolis [2009] 1 AC 564

Austin v Commissioner of Police of the Metropolis [2009] 1 AC 564

Demonstrations on labour day in London and as a crowd control mechanism police had cornered off an area so the protestors could not get out or move from the place.

 

Some of the demonstrators claimed false imprisonment and breach of article 5 ECHR. Demonstrators prevented by the police from leaving Oxford Circus 

Question:

Was being kept in a cordon where there was a lack of access to food, water and shelter both false imprisonment and a breach of article 5?

 

Decision:

No. Not unlawful due to the need to maintain public order and ensure the public's safety.

Court had to answer a different question:

Is there a deprivation of liberty done lawfully or unlawfully? The imprisonment is only false if unlawful.

 This type of deprivation of liberty is lawfully due to crowd control undertaken in the interest of the community falls outside of article 5 provided not arbitrary, done in good faith, propionate and not enforced for no longer than necessary. The use of the cordon was not a deprivation of liberty.

 

Wilkinson v Downton Facts

Downton (D) joked to Mrs Wilkinson (C) that her husband, Mr Wilkinson was seriously injured in an accident, that both legs had been broken and that he was lying near the Elms pub.

 

This statement caused Mrs Wilkinson ‘a violent shock to her nervous system’. She suffered acute and chronic effects. These results were not caused by a pre-existing ill- health or predisposition.

 

Issue: Is a false statement enough to form the basis of liability?

It was decided Yes.

Under Wilkinson when does cause of action arise ?

As per Wright J:

Wilkinson v Downton (1897) established a cause of action where:

• The defendant wilfully performed an act calculated to cause physical harm, and

• Physical harm (or a recognised psychiatric injury) in fact resulted.

What does It mean to say that the defendants act was ‘calcualted to cause physical harm’?

Originally ambiguous: could mean intended or simply objectively likely. Later case law (notably Wainwright) clarifies that actual subjective intention (or at least recklessness) is required.

Wainwright v Home Office

• Claimants were subjected to humiliating strip-searches in breach of rules.

• They attempted to rely on Wilkinson to claim damages for distress.

Held: Claim failed.

Why did the claim fail in Wainwright v Home Office ?

The tort requires at least recklessness as to causing harm.

Here, the prison officers did not intend to cause distress; the search was merely poorly performed. Mere distress without recognised psychiatric illness is not actionable.

Wainwright stressed the narrow scope of Wilkinson and refused to recognise a general privacy tort (that would later be recognised under Art 8 via the misuse of private information tort).

Significance:

Clarifies the tort is intentional, not negligence-based. Signals judicial reluctance to expand Wilkinson into a broad “distress” or “privacy” tort.

What is the Modern and leading case for the tort of Wilkinson ?

Rhodes v OPO

What did the UKSC in Rhodes do to Wilkinson ?

Restructured the tort and stripped away any ambiguities. Initially, the EWCA dramatically expanded the tort in OPO v MLA, but they rejected this in Rhodes to show this is a very narrow tort.

Rhodes Facts

A son (latterly his mother and godfather) sought to prevent the publication of his father's

book which details his life experiences of severe physical and mental harm that he suffered. The book is dedicated to the son. The son is vulnerable due to his ASD.

 

What are the Rhodes elements for the tort of Wilkinson ?

As per Lord Toulson

1. Conduct Element 

2. Mental Element 

3. Consequence Element 

conduct element ?

Words or conduct directed at the claimant for which there is no justification or reasonable excuse.

mental element

Requires actual intention to cause physical harm or severe mental/emotional distress, Recklessness is insufficient (contrast Wainwright).

Consequence element ?

Requires physical harm or recognised psychiatric illness. Ordinary emotions (distress, humiliation, embarrassment) are insufficient.