Lecture 2: Trespass to the Person - Assault & False Imprisonment

Do Assault -


Assault

  • Assault: defendant voluntarily does a positive act, intending (or being subjectively reckless so as) to cause the claimant to reasonably apprehend immediate battery

  • Spoken words and gestures are sufficient for an assault

  • Claimant must actually believe that they be subject to an immediate battery (subjective part) AND a reasonable person in C’s situation must believe the same. (objective part)

  • Giving a condition can remove a belief about immediacy: its possible that the reasonable interpretation of D’s words is that force will not be applied immediately. If the condition is lawful is may negate a reasonable apprehension of immediacy e.g. bouncers threatening to kick everyone out of a club once it has closed. An unlawful condition may reinforce the apprehension of immediacy e.g. come with me or I’ll stab you. Note: this belief can also be removed by a gesture.


False Imprisonment

  • False Imprisonment: defendant voluntarily does a positive act, intending (or being subjectively reckless so as) unlawfully to cause the claimants freedom of movement from a particular place to be completely constrained.

  • Motive: not relevant, there is no Mens Rea (criminal law concept). Carelessness and Negligence is not sufficient for false imprisonment as these are different from an intentional act or subjective recklessness which are sufficient for false imprisonment.

  • False imprisonment also can include grabbing, tackling or physically restraining someone.

  • In Bird v Jones (1845), the case concerned false imprisonment. The claimant wanted to walk along a public footpath, but the defendant had blocked part of it for a spectator stand. The claimant was told he could go another way but insisted on passing through the blocked area.

    The court held that this was not false imprisonment because the claimant was not completely restrained—he had another route available. False imprisonment requires total restriction of movement, not just a partial obstruction. This case clarified that restricting one direction of movement alone does not amount to false imprisonment if alternative routes exist.

  • Escape: if the elements of false imprisonment was not met because C had a reasonable way to escape, D will not be liable.

  • The claimant does NOT need to know that they are being imprisoned for it to still constitute false imprisonment however it is likely they will be awarded nominal damages

  • If C agreed or consented to a reasonable condition for release imposed by D then it may not be false imprisonment e.g. getting stuck after going through a turnstile and refusing to pay to get back through.


Defences

  • there is 5 key defences to all trespass to the person torts: consent, self-defence, step taken to deal with a breach of the peace, lawful authority, necessity. All of these are full defences meaning if one of these is proven, there is no longer any claim.

  • Filters: there is filters for preventing tort claims for things that happen in ever day life. For example, to claim that someone brushing against you on a busy street, the metro or a bus does NOT constitute a battery because you have impliedly given consent by entering those situations. The two filters are: requiring C to prove that D acted with hostility or allowing D to prove that C has impliedly given consent.

  • Consent: a full defence that can be expressed (like giving consent to a doctor for an operation) or implied (playing sports or getting on the bus)

  • Consent can be invalidated by fraud, duress or lack of mental capacity.

  • Self-Defence: D uses reasonable force in response to an honest and reasonable belief that it is needed to protect D, another person or property. Must be subjectively honest and objectively reasonable.

  • Step taken to deal with a breach of the peace: D takes reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so. Containment (physical restraint) must be a last resort only used when proportionate to the threat specifically used to prevent the breach of peace and no other purpose.

  • Lawful authority: D. has lawful authority, from statute or from the common law, to do something which would otherwise amount to a trespass to the person. Examples include police and non-police powers of arrest, mental health/public health detention. e.g. police restraining someone or detaining someone for the safety of their mental health.

  • Necessity: D has acted proportionately to prevent greater harm to other persons or property, e.g. administering emergency first aid to save life.