Law of Tort - Tresspass to the Person Notes PDF

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TRESSPASS TO THE PERSON INTRODUCTION 1. Protection of interest in the person (rather than land, reputation, economic interests) 2. Intentional as opposed to negligent conduct 3. Does conduct fall within identifiable boundaries developed in the case law. PLACE OF TRESPASS IN MODERN LAW OF TORT -

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Assault, battery, false imprisonment are also crimes Rarely brought as civil action o Action taken by police – sufficient enough o Cost o Co-exists with Criminal Injuries Compensation Scheme o Domination of tort of negligence Important for protection of individual rights; bodily integrity; freedom of movement

SO TRESPASS TO THE PERSON IS… Intentional infliction of harm by ‘indirect means’ under the rule in Wilkinson v Downton [1897] 2 QB 57 An injury inflicted deliberately (e.g. setting a trap) will be a trespass to the person, but an injury resulting from carelessness (e.g. accidentally letting someone fall down a manhole) will be negligence- do not confuse the two. Most notably an assault, battery and false imprisonment involve intentional acts (not omissions), and are actionable per se, i.e. without needing proof of loss or damage (although the more damage that is proved, the more compensation that will be available).

ASSAULT AND BATTERY Goff LJ in Collins v Wilcock [1984] ‘An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person: a battery is the actual infliction of unlawful force on another person.’ ASSAULT Act by the defendant which is intended to and foes cause the claimant reasonable to apprehend the direct and immediate application of force - defendant intend that the claimant apprehend the application of direct and immediate force - claimant reasonably apprehend the direct and immediate application of force.

WHAT IS AN ASSAULT? -

Defendant intended the consequences of conduct which constitutes the tort. Claimant reasonably apprehend the direct and immediate application of force.

Claimant reasonably apprehend the direct and immediate application of force -

Stephen v Myers (1840) Thomas v NUM [1986]

WHAT THREATS ACTUALLY CONSTITUTE AN ASSAULT Mead’s and Belt’s case (1823) (‘no words or singing are equivalent to an assault’) -

HAS TO BE ACCOMPANIED BY A GESTURE, BUT IT SHOULD PROTECT MENTAL CAPACITY TOO. SO WORDS CAN CONSTITUTE AN ASSAULT!!!!

R v Ireland, R v Burstow [1998] (held that silent telephone calls may constitute an assault) Tuberville v Savage (1669) (words accompanying a menacing gesture negative the infringement)

Read v Coker (1853) (conditional threat can constitute an assault)

BATTERY The direct and intentional application of force to another Application of Force: -

Force: Pursell v Horn (1838) R v Cotesworth (1704) held that any physical contact, is battery, does not require to be physical harm and or personal contact. ANY physical contact.

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Must be direct: Scott v Shepherd (1773)

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Intention is required as to contact NOT as to harm: Wilson v Pringle (1987)

IS ALL TOUCHING BATTERY? -

Tort of battery has a wide definition, therefore it is necessary to distinguish batter from legally unobjectionable conduct. Courts have attempted to exclude from the scope of tort touching which occurs in everyday situations.

EXCEPTIONS TO BATTERY: - reasonable punishment of children - lawful exercise of the power of arrest - reasonable force used in self-defense - implied consent/ ‘physical contact which is generally acceptable in the ordinary conduct of daily life’

Collins v Wilcock (1984) FACTS: A police woman took hold of a woman's arm to stop her walking off when she was questioning her. The woman scratched the police woman and was charged with assaulting a police officer in the course of her duty. DECISION: The police woman's actions amounted to a battery. The defendant's action was therefore in self-defense and her conviction was quashed. Goff LJ stated that implied consent existed where there was jostling in crowded places, handshakes, back slapping, tapping to gain attention provided no more force was used than is reasonably necessary in the circumstances. There was no consent given for the grabbing of the arm. IMPORTANCE: Principle - every person’s body is inviolate, the touching of another, however slight may amount to a battery.

FALSE IMPRISONMENT Intentional infliction of bodily restraint which is not expressly or impliedly authorised by law. “An act by the defendant which directly and intentionally causes the complete restriction of the claimant’s freedom without lawful justification. *note: that you need not know that you are being falsely imprisoned at the time.” The wrong concerned is the deprivation or removal of the individual’s freedom of movement. That means we must find the intention, in the sense of purpose and the foreseeing that their action may have the relevant consequences. WE must establish that the defendant intended the consequences of the conduct that constitutes the tort. Intentional infliction of bodily restraint which is not expressly or impliedly authorised by law.

False Imprisonment (2) Complete Restraint within defined bounds: Bird v Jones: Partial obstruction is not the same as total obstruction and detention. False imprisonment must involve boundaries that cannot be crossed. Jones (Defendant) prohibited Bird (Plaintiff) from moving in the direction he wished to go. Plaintiff was free to remain where he was, or move in any other direction but the one direction obstructed by Defendant. Plaintiff sued Defendant for false imprisonment. Hicks v Young: The Defendant drove away from the Claimant's home with the Claimant in the back when he had no right to do so. This caused the Claimant to try to escape and he did so making a serious error of judgment about the level of risk to himself in jumping out of a taxi at 20mph. The Claimant says he is entitled to recover in full despite his folly, and the Defendant says he should have to pay nothing despite his deliberate wrong doing. Austin and another v Commissioner of Police of the Metropolis: Whether there is a deprivation of liberty, as opposed to a restriction of movement, is a matter of degree and intensity. Account must be taken of a whole range of factors, including the specific situation of the individual and the context in which the restriction of liberty occurs. the court should adopt a pragmatic approach taking account of all the circumstances. Crowd control measures resorted to for public order and public safety reasons had to take account of the rights of the individuals and the interests of the community. Such measures fell outside the ambit of Article 5 provided that they were not arbitrary in that they were resorted to in good faith, were proportionate and enforced for no longer than was reasonably necessary. They constituted a restriction of liberty, not a deprivation of it. The police had been engaged in an unusually difficult exercise of crowd control which had as its aim the avoidance of personal injuries and damage to property and the dispersal as quickly as possible of a crowd bent on violence and impeding the police. The police had acted reasonably and properly to prevent serious disorder and violence. The restriction of the claimants’ liberty had not been an arbitrary deprivation of liberty and Article 5 was not applicable. Prison Officers Association v Iqbal

LAWFUL IMPRISONMENT -

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A complete defence to false imprisonment is provided by a lawful sentence of imprisonment passed by a court, R v Deputy Governor of Parkhurst Prison ex p Hague [1991] Claims by prisoners that change in conditions of imprisonment and detention for longer than sentence amounted to false imprisonment? R v Governor of Brockhill Prison, ex parte Evans.

EXAMPLE OF ASSAULT, BATTERY AND FALSE IMPRISONMENT Commissioner of Police for the Metropolis v ZH [2013] Claimant, 16 years old, severely autistic, visiting swimming baths, fixated by water, stood by poolside, after 30 minutes police called. Police approached, touched him, claimant jumped into pool, removed by lifeguards and police, restrained by side of pool, handcuffs, leg restraints applied, detained in police van for 25 minutes Assault, battery, false imprisonment? Statutory defence under Mental Capacity Act 2005 s 5 failed One scenario can give rise to more than one trespass tort. He suffered assault, battery and false imprisonment. Was a breach of article 3- the right to be protected from inhuman treatment. Article 5 and article 8 also breached.

INTENTIONAL INFLICTION OF PHYSICAL HARM BY INDIRECT MEANS Origins: Wilkinson v Downton Principle doubted by HL: Wainwright and another v Home Office [2003] Current Law, SC: James Rhodes v OPO and another [2015] UKSC 32 19

Rule in Wilkinson v Downton Wilkinson v Downton [1897] A patron of Mr WIlkinson’s pub falsely informed Mrs WIlkinson that Mr Wilkinson had suffered severe physcial injury, and that see should go and see him immediately. Mrs Wilkinson suffered severe mental injury as a result of this news. Recover was ALLOWED. Although the law on battery and assault did not apply, the tort of intentional infliction of mental shock was established with 3 conditions which must be satisfied 1. INTENTIONAL infliction physical harm?

Intention imputed; harm was the natural and probable consequence of the def’s act 2. Harm inflicted by indirect means 3. Remedy for psychiatric harm Approved/followed by CA in Janvier v Sweeney [1919] Khorasandjian v Bush [1993], CA injunction preventing Def from ‘harassing, pestering or communicating with cl’

Wainwright and another v Home Office [2003] The claimants were strip-searched for drugs on a prison visit. At trial, the judge found trespass against the person in relation to both claimants consisting of wilfully causing a person to do something to himself which infringed his privacy. The defendant appealed against the finding of trespass and was successful in the Court of Appeal. Lord Hoffmann recognised that the concept of privacy underpins the common law of breach of confidence which was significantly developed in Campbell v MGN Ltd [2003] QB 633 but did not recognise a tort of invasion of privacy. The Court did not consider that there was anything in the jurisprudence of the European Court of Human Rights which required some high-level principle of privacy. Furthermore, this case was decided immediately prior to the Human Rights Act 1998 and the Court noted that the coming into force of that Act weakened the argument that a general tort of invasion of privacy at common law is needed to fill gaps in existing remedies 'If, ... , one is going to draw a principled distinction which justifies abandoning the rule that damages for mere distress are not recoverable, imputed intention will not do. The defendant must have acted in a way which he knew to be unjustifiable and intended to cause harm or at least acted without caring whether he caused harm or not. Lord Woolf ... might have been inclined to accept such a principle. But the facts did not support a claim on this basis.' [para 45] 'In my opinion, therefore, the claimants can build nothing on Wilkinson v Downton [1897] 2 QB 57. It does not provide a remedy for distress which does not amount to recognized psychiatric injury and so far as there may be a tort of intention under which such damage is recoverable, the necessary intention was not established.' [para 47]

PROTECTION FROM HARASSMENT ACT 1997 •s 3 provides civil remedies creating a statutory tort of harassment •Committed when def enters into ‘a course of conduct which amounts to harassment which def knows or ought to know amounts to harassment', s 1(1); requires at least 2 occasions s 7(3)(a) •OR def pursues a course of conduct harassing two or more persons by which he intends to persuade any person not to do something he is entitled or required to do or to do something

he is not under an obligation to do s 1(1A); requires conduct on at least one occasion in relation to each person s 7(3)(b) Objective test i.e. Defendant ought to know amounts to harassment if a reasonable person in d's position would think the course of conduct amounted to harassment s 1(2) •Roberts v Bank of Scotland [2013]: bank repeated called Mrs. Roberts, even after she advised them she did not want to be called. SC held that this was harassment. They had a right to call but not to be abusive. Over 547 calls were made. Mrs. Roberts received 7,500 in damages. •Levi v Bates [2015]: In the court’s view it was not a requirement of the statutory tort that the claimant be a target of the perpetrator’s conduct. The value of targeting as a concept was that it excluded behaviour which, however alarming or distressing, was not aimed at or directed at anyone.

Used against protestors: Huntingdon Life Services v Stop Huntingdon Animal Cruelty & Others [2003] Bayer plc and others v Shook and others [2004] Heathrow Airport Ltd and another v Garman

Against harassment at work: Majrowski v Guy’s and St Thomas’s NHS Trust [2005]

James Rhodes v OPO and another [2015] UKSC 32 19 FACTS: James Rhodes' memoir is an account of the physical and sexual abuse he suffered as a young boy and his subsequent battles with drink, drugs and his own mental health. In February 2014 a draft of the book was leaked to Rhodes' ex-wife who, in June 2014, sought an injunction on behalf of their son that would delete a large number of passages or prohibit publication entirely. The son has been diagnosed with Asperger’s syndrome, attention deficit hyperactivity order, dyspraxia and dysgraphia and evidence was adduced that publication in the present form would cause severe emotional distress and psychological harm. DECISION: High Court rejected injunction. Court of Appeal granted injunction. Supreme Court reversed decision. The Supreme Court held that the tort under Wilkinson v Downton consists of three elements: Conduct: words or conduct, directed to the claimant, for which there is no justification or reasonable excuse [74]

Mental: defendant intended to cause physical harm or severe distress which in facts results in physical harm/recognisable psychiatric illness [83] Consequences: physical harm or recognised psychiatric illness [73]

ABC v WH and William Whillock [2015]

This tort of intentional infliction of harm in its reformulation has three elements: (a) the conduct element: Def acted unjustifiably to Cl by emotionally manipulating her and encouraging her to send indecent images of herself to him and engaging in sexual banter in the texts. (b) the mental element: actions whose “consequences or potential consequences are so obvious the perpetrator cannot realistically say that those consequences were unintended”. (c) the consequence element: established the cl suffered from an adjustment disorder after the disclosure with an acute exacerbation of her mental health problems when the abuse became public.

DEFENCES TO TRESPASS TO THE PERSON DEFENCE: Lawful arrest •A person who uses reasonable force in effecting a lawful arrest without committing the tort of battery. Person who uses reasonable force in resisting an unlawful arrest will not be liable in battery.

•Thus, the lawfulness of arrest can be of importance in determining whether an act amounts to false imprisonment or battery, as in Collins v Wilcock.

DEFENCE: self- defence •Use of reasonable force in the defence self and of others

- use of force must be necessary - amount of force used must be reasonable - Cross v Kirkby [2000] - Gilchirst v Chief Constable of Greater Manchester Police

DEFENCE: LAWFUL ARREST -

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A person who used reasonable force in effecting a lawful arrest without commiting the tort of battery. Person who uses reasonable force in resisting an unlawfularrest will not be liable in battery. Thus, the lawfulness of arrest can be of importance in determining whether an act amounts to false imprisonment or battery, as in Collins v Wilcock.

DEFENCE: SELF-DEFENCE Use of reasonable force in the defence self and of others -

Use of force must be necessary Amount of force used must be reasonable

Cross v Kirby [2000] Gilhurst v Chief Constable of Greater Manchester Police [2019]

CONSENT Contact within rules of sport Medical examinations/surgery: prima facie amount to a battery, no tort committed if consent given to the procedure. To be vaild must be -

Freely given; not obtained by fraud, force or undue influence, Re T [1992] 4 All ER 649

COMPETENT ADULT Airedale NHS Trust v Bland [1993] -

‘it is unlawful, so as to so as to constitute both a tort and the crime of battery, to administer medical treatment to an adult, who is conscious and of sound mind, without his consent….Such a person is completely at liberty to decline to undergo treatment, even if the result of his doing so will be that he will die.’

MENTAL CAPACITY ACT 2005 Decisions about patients who lack capacity (ss.2,3) made according to their best interests S 4 (6) he must consider, so far as is reasonably ascertainable – (a)the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c)the factors that he would be likely to consider if he were able to do so.

An NHS Foundation Trust v P [2014]...