LAWS1203 Torts Week 3 False Imprisonment PDF

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These are lecture notes on week 3, false imprisonment. It includes case summaries and the relevant law....

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Trespass III: False imprisonment Discussion questions: 1. What is the underlying interest protected by the tort of false imprisonment? 2. On whose point of view is it determined whether a means of escaping imprisonment is ‘reasonable’, so as to defeat a claim in false imprisonment? 3. Why do you think the tort of false imprisonment does not require proof that the plaintiff knew s/ he was being restrained? 4. If directness is a common element of trespass, why does the tort of false imprisonment include instances where the defendant did not physically restrain the plaintiff, but, rather, convinced another individual to restrain the plaintiff? Lecture

- Direct and intentional total restraint of the freedom of movement of the plaintiff by the defendant, without legal authority. (Luntz et al, 673)

- It is a voluntary act which directly and intentional, totally restrains the P liberty - The onus of proof is on the P to prove intentional and direct interference and then the onus of

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proof on the D to prove authorisation justification or excuse. • This apportionment of the burden of proof was confirmed in the Myer Stores case - (quoting Carnegie v Victoria Vic FC, 14 Sept 1989, unreported): “The gist of the action for false imprisonment is the mere imprisonment. As a result the plaintiff carries the burden of establishing no more than imprisonment. He need not prove that it was unlawful. If imprisonment is proved it is for the defendant if he is to escape liability to provide a lawful justification for the imprisonment either at common law or by statute.” Trobridge v Hardy (1955) 94 CLR 147, 152, per Fullagar J: • “freedom from interference with the person is “the most elementary and important of all common law rights” Webster v McIntosh (1980) 32 ALR 603 (FCA (FC)), 607, per Brennan J: • “liberty ends where the power of arrest begins” Ruddock v Taylor (2005) 222 CLR 612, [140], per Kirby J (diss): • “The tort of false imprisonment … reflects the fundamental interest of the common law in protecting individual liberty and freedom of movement” • “This concern is especially significant in respect of a claim for wrongful imprisonment made against members or officers of the executive government. It is a fundamental principle of Australia’s constitutional law that the executive may not interfere with the liberty of an individual without valid authorisation.” Over the past few months the courts have confirmed that the erection of hard borders and the use of quarantine measures is indeed done with valid authorisation • There have been various challenges raised against these measures and the courts have said so far that those measures have valid lawful authorisation The question of false imprisonment is more pertinent in other jurisdictions where the measures have not been clear cut Hypothetical: if the British Parliament had not been clear enough in passing the law which underpinned Britain’s lock down last year, then that would have amounted to false imprisonment

Intention and lawful authority - The relevant intention for false imprisonment is simply an intention to imprison • Regardless of whether there was a steak and believe in a right or authority to imprison, when in fact there was none so it does not matter that the imprisoning was done. - The common laws protection of individual liberty is so strong and important that even then the individual can sue in false imprisonment. - Confirmed in the Cowell case - Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714, 743, per Clarke JA: - Facts

• Authorities were under the belief that they have authority to hold Cowell beyond what the law in fact limited his sentence too

• There was trespass, committed there in force imprisonment • “…where the trespass is intentional there is no occasion to consider underlying fault or

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whether the defendant was negligent.” “In the context of a trespass by way of false imprisonment it is the intention to detain which is • important. If one couples that intention with the unlawfulness of the detention the tort is complete. There is no call to consider negligence. It is irrelevant. Similarly the lack of awareness that the detention is unlawful is irrelevant.” Mistaken beliefs in lawfulness or good intentions to protect the community is all relevant if in fact the law does not authorise the particular act. This is because the tort of false imprisonment must be strict and strong enough to give effective protection to individual liberty R v Governor of Brockhill Prison; ex parte Evans (No 2) [2001] 2 AC 19, 43: • This tort is “one of the most important constitutional safeguards of the liberty of the subject against the executive” That is why, as long as there is intention to detain the tort is action and fault is irrebuttably presumed ∴ it is a tort of strict liability The moral underpinning of the tort of false imprisonment is not to point at the D wrongdoing, but to vindicate or uphold or reconfirm the P liberty and the right against interference with her person. Limitations = Ruddock v Taylor (2005) 222 CLR 612 • British citizen had a visa to stay in Australia • The visa was cancelled by the relevant minister • Officials detained him, relying on that ministerial cancellation which they were authorised to do under statute • However each visa cancellation have later held to be invalid by the High Court → which in this context change its view of the scope of the relevant constitutional powers here • There was a changing judicial interpretation which affected the validity of the visa which gave lawful authority to detain the P • So the question was whether in these circumstances, the P being imprisoned, strained by the state on the reliance of that visa cancellation was false imprisonment • The majority held that it was not false imprisonment because although the visa cancellation was invalid, that statute had allowed the officials to rely on that cancellation entertaining the P Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 State of New South Wales v Kable (2013) 252 CLR 118 (HCA), [38], per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ: • “There must come a point in any developed legal system where decisions made in the exercise of judicial power are given effect despite the particular decision later being set aside or reversed. That point may be marked by a number of ways. On way in which it is marked, in Australian law, is by treating the orders of a superior court of record as valid until set aside”

Total restraint: - Bird v Jones (1845) 7 QB 742: • Per Coleridge J: “Some confusion seems to me to arise from confounding imprisonment of the body with mere loss of freedom: it is one part of the definition of freedom to be able to go withersoever one pleases; but imprisonment is something more than the mere loss of this power; it includes the notion of restraint within some limits defined by a will or power exterior to our own.” • Per Patterson J: “[I]mprisonment is, as I apprehend, a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience it may bring on him.” - Symes v Mahon [1922] SASR 447, per Murray CJ: • “where there has been no application of physical force to the person alleging imprisonment, there must be evidence of complete submission by him to the control of the other party, for it

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is obvious that if he evaded, or refused to go with the latter, it could not be said that he had been deprived of his freedom.” • Mahon “placed himself in the power of the defendant” • “[H]e submitted himself to the defendant’s power, reasonably thinking that he had no way of escape which could reasonably be taken by him.” McFadzean v CFMEU (2007) 20 VR 250, per Warren CJ, Nettle and Redlich JJA: • “just as an intentional wrongdoer should not be heard to defend a claim of false imprisonment on the basis that a more courageous victim might have escaped by an unreasonable means of escape, a wrongdoer should not be heard to defend a claim … on the basis that a more sanguine victim would have called the police” • “the tortfeasor must take the victim as found” • “four factors to be considered in determining whether a means of egress is reasonable. They are: threat or danger to the self; threat or danger to property (including property of others); distance and time; and legality”" • “In the end, it is a matter of degree in all the prevailing circumstances.” • “the judge was not concerned with just some people. His task was to assess the reasonableness of egress through the bush gate for this group of plaintiffs” • “It is not sufficient in law that an act of a defendant may have contributed to or influenced a plaintiff’s decision to remain. In order to be actionable, the defendant’s conduct must have overborne the plaintiff’s will” Louis v The Commonwealth (1987) 87 FLR 277, 282, per Kelly J: • “In any event, it seems to me to be impossible to say that persons who are at perfect liberty to move around Australia … are suffering a state of imprisonment.” State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331, per Doyle CJ, Duggan and White JJ: • “whether, in all the circumstances, it is right to find in a case like this that there was a total restraint of the kind required to establish liability” • “In all the circumstances of that case [Louis], we respectfully agree. In truth, the plaintiffs were able to go wherever they wished other than the place from which they were deported” • “It is artificial to treat the placement of Bruce Trevorrow with Mrs Davies [his foster parent] as a restraint. While Bruce Trevorrow was an infant, he needed care and nurture. That is what Mrs Davies gave him. There is no restraint. It is artificial to describe him, as an infant, as under any restraint. As he grew a little older, and could walk and talk, it can be said that there was a restraint on his movements. But the restraint was one attributable to the obligation of Mrs Davies to care for him, and attributable to his immaturity. We do not think it is realistic to describe the care and protection given by the carer of a child as a restraint on the child, in the relevant sense of the term. Bruce Trevorrow was separated from, and denied, the care of his mother, but that does not establish the fact of a restraint.” • “if the notion of restraint for the purposes of the tort of wrongful detention were taken this far, the potential would arise for the tort to expand into previously untouched areas and situations, with unpredictable consequences”

Contractual consent: - The Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379, per O’Connor J: • “[T]he abridgement of a man’s liberty is not under all circumstances actionable. He may enter into a contract which necessarily involves the surrender of a portion of his liberty for a certain period, and if the act complained of is nothing more than a restraint in accordance with that surrender he cannot complain.” • “Nor can he, without the assent of the other party, by electing to put an end to the contract, become entitled at once, unconditionally and irrespective of the other party’s rights, to regain his liberty as if he had never surrendered it” • “when the restraint is referable to the terms on which the person entered the premises in which he complains he was imprisoned, we must examine those terms before we can determine whether there has been an imprisonment which is actionable.” • “There was no express contract, and the terms must therefore be implied from the circumstances.”

- Herd v Weardale Steel Coke and Coal Co [1915] AC 67, per Viscount Haldane LC: • Referred favourably to reasoning in The Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 - “If a man chooses to go into a dangerous place at the bottom of a quarry or to the bottom of a mine, from which by the nature of physical circumstances he cannot escape, it does not follow from the proposition…about [the importance of protecting] liberty that he can compel the owner to bring him up out of it” Knowledge: - Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44, 53-4, per Atkin LJ: • adopted and quoted in State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331, per Doyle CJ, Duggan and White JJ - “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 … though the imprisonment began and ceased while he was in that state” - Murray v Ministry of Defence [1988] 1 WLR 692, 700, per Lord Griffiths: • adopted and quoted in State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331, per Doyle CJ, Duggan and White JJ - “I cannot agree…that it is an essential element of the tort of false imprisonment that the victim should be aware of the fact of denial of liberty” - State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331, per Doyle CJ, Duggan and White JJ: • “There is a solid body of authority supporting the conclusion that the fact that a plaintiff is not aware of a restraint on him or her, or is not physically able to exercise his or her freedom of movement, does not mean that [false] … imprisonment cannot be made out.” Directness:

- Coles Myer Ltd v Webster (2009) Aust Torts Reps 82-033, per Ipp JA: • (quoting Myer Stores Ltd v Soo [1991] 2 VR 597, 629, per McDonald J): “To be liable for false •

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imprisonment it must be the act of the defendant or his agent that imprisons the plaintiff or the defendant must be active in promoting and causing the imprisonment.” (quoting Ruddock v Taylor (2003) 58 NSWLR 269, [33], per Spigelman CJ): “It is not the case that an act indicating a wish or expectation that another should be imprisoned establishes liability for the tort. There will be such liability if the person who ultimately confines the plaintiff would not have acted at all but for the urging on the part of another. … It is otherwise if the ultimate actor exercises an independent discretion.” “In my opinion, [the manager’s] conduct unequivocally manifested an intention that the plaintiffs be detained.” “There is undoubtedly [a “mischievous quality”] in the instant case. That quality is the fact that [the manager] deliberately and falsely invented the accusations which she communicated to the police officers and which led directly to the arrest of the plaintiffs.” “[The manager’s] conduct was such that she caused and procured the wrongful detention of the plaintiffs.”...