Obligations, Tort - Trespass to the Person

Intentional torts and Trespass to the person

These can be actionable per se without proof of damage (unlike negligence) - these may be covered by criminal law where the standard of proof is much higher.

Trespass to the person includes battery, assault, and false imprisonment, underlined by Wilkinson v Downton. Some say they are outdated - the most frequent trespass if battery for lack of medical consent - these may not be covered in criminal law.

Battery, Cole v Turner (1704) and F v West Berkshire Area Health Authority [1989]

Touching unlawfully or applying force in some way to someone else is battery. There are three aspects: intentional force (wilful, reckless or negligent), which is direct and immediate, and for which there is not defence.

Cole v Turner (1704) - an alleged fight amounted to a civil harm and defined battery as above with anger.

F v West Berkshire Area Health Authority [1989] - concerned the sterilisation of a disabled woman, and redefined battery to exclude the need for anger or hostility - it is the intentional application of force against another person which goes beyond that which we experience in our everyday lives.

Battery - wilful intention and Collins v Wilcock [1984]

The intent simply needs to be to make contact, not to do the act or cause harm.

Collins v Wilcock [1984] - Police officer grabbing C’s arm was sufficient for a battery.

Battery - reckless intention and Breslin v McKevitt [2011]

D does not care or recognise the risk of harm to C.

Breslin v McKevitt [2011] - IRA phoned to warn of bombs in Omagh, suggesting they wanted it to be discovered - the more likely risk was that people would be injured by the bombs when police accidentally moved people towards the bombs (many were killed). D would have foreseen the possibility for people to be harmed but acted recklessly.

Battery - negligent intention

Difficult to separate from reckless battery, and some argue it should be claimed in negligence instead. It occurs when D does not care for the consequences of their actions.

Letang v Cooper - argued against the claim for negligent battery.

Bici v Ministry of Defence - argued for negligent battery after fatal shootings in Kosovo.

Battery - Transferred Malice, Scott v Shepard (1773) and Haystead v Chief Constable of Derbyshire [2000]

Transferred malice is referred to when the intended victim of battery is unharmed, replaced by a mistaken victim - the intention carries over equally.

Scott v Shepard (1773) -

Haystead v Chief Constable of Derbyshire [2000] - D punched ex-girlfriend holding a baby, causing it to fall to the floor and be injured - D was equally liable for transferred malice to the baby, as well as the ex.

Battery - direct and immediate application of force

This is usually very easy to prove and decide.

What counts: touching (Collins v Wilcock - police officer grabbed arm), bombing (Breslin v McKevitt - Omagh bombs), setting a police dog on someone during arrest (Roberts v Chief Constable of Kent Police).

What does not count: menacing silent phone calls (R v Ireland - ruled an assault not battery), etc.

Assault

This requires an intended act, ability to carry out such an act, and the apprehension by C of immediate unlawful force. Application of force is not necessary, and threats can be sufficient.

Assault - defining acts

These can be things said or done, which reasonably apprehend that someone will use force against you immediately.

Stephens v Myers (1830) - Walking towards someone waving a clenched fist = assault.

Tuberville v Savage (1669) - reassurance given through words (“if it were not assize time,..”) = no assault.

Assault - defining intent

This can either be wilful or reckless, and reasonable foreseeability of negligence does not count - transferred malice does not work for assault.

Assault - ability to carry out intention, R v Ireland and Thomas v National Union of Miners

The D must in fact be able to carry out the threat, or in C’s perception be able to.

R v Ireland - silent phone calls meant the reality of D being able to injure them did not matter, it was the belief they could = assault.

Thomas v National Union of Miners - working miners crossing the picket line in a bus were subject to threats, but could not claim assault, since the striking miners were outside the bus and could not have actually harmed them.

Assault - Apprehension and Breslin v McKevitt

C must be aware of the threat of immediate force.

Breslin v McKevitt - knowledge a bomb had been planted could amount to assault.

False imprisonment

This requires C’s freedom of movement was constrained, D intended to falsely imprison C (though they may be unaware), and D caused this constraint.

False imprisonment - full constraint of freedom of movement, Austin v Commissioner of Police, Lawson v Dawes and Bird v Jones

The imprisonment must be whole with no escape.

Austin v Commissioner of Police - kettling of protesters (controlling their movement outside by surrounding them) was sufficient.

Lawson v Dawes - Coercive and controlling relationship meant she felt she could not leave, though no doors were locked - sufficient for false imprisonement.

Bird v Jones - C was free to move in another direction after getting off of ferry and desired path was blocked.

False imprisonment - Intention and R v Governor of Brockhill Prison, ex parte Evans (No 2)

There must be the intention to act and confine, but not to do harm - wilful or reckless intent will suffice, but not negligent.

R v Governor of Brockhill Prison, ex parte Evans (No 2) - A prisoner was kept 5 days passed release date due to a mistake when calculating the date, and caused liability.

False imprisonment - Causation and Davidson v Chief Constable for North Wales

D’s acts must have directly caused the constraint of C.

Davidson v Chief Constable for North Wales - a store detective gave false information after an alleged theft, leading to the detainment of C - this was not sufficient for false imprisonment.

The rule in Wilkinson v Downton and Wainwright v Home Office

D told C her husband had been in an accident and had his legs crushed, knowing it to be untrue. C developed nervous shock and physical symptoms, before suing. This is often said to be archaic, and that psychiatric injury in negligence should be used instead.

Wainwright v Home Office - reaffirmed the above case, only where wilful or reckless intent could be proven, and only for psychiatric injury where harm can be proven.

Defences - Consent, Simms v Leigh RFC [1969] and Mental Capacity Act 2005

Applies when C impliedly or expressly consents to an otherwise tort - must be given freely, informed and by someone with capacity to do so. If rejected, the act cannot occur.

Simms v Leigh RFC [1969] - contact rugby had implied consent when within the bounds of play - anything outside of the course of play remains a battery.

Mental Capacity Act 2005 - governs who has the capacity to make medical decisions.

Defences - Necessity and Re A [2001]

No statutory element (common law), measured in reasonableness.

Re A [2001] - separation of conjoined twins would have killed one twin, and parents only partially consented, though it would have eventually killed both to not separate - when it is in best interest of patients, the operations / act can be done.

Defences - lawful arrest or detention, Police and Criminal Evidence Act 1984 and Criminal Law Act 1967

Police can detain people without warrants under the following:

s.24 Police and Criminal Evidence Act 1984 - reasonable suspicion sufficient for arrest.

s3(1) Criminal Law Act 1967 - reasonable force can be used to prevent crime or apprehend suspects.

Defences - self defence, Ashley v Chief Constable Sussex Police and Lane v Holloway

This applies where D has an honest and reasonable belief of being immediately attacked, and acts with reasonable, necessary and proportionate force, in order to protect themself or a third party.

Ashley v Chief Constable Sussex Police - D raided C’s flat in early morning when C was naked and unarmed - D had to prove the honest and reasonable belief of immediate attack.

Lane v Holloway - C fought with D one evening due to the noise levels coming from D’s cafe which backed onto C’s flat. D used disproportionate force after C punched their shoulder - ruled not self defence.