Topic 6 False Imprisonment & Trespass Defences PDF

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Topic 6 - False Imprisonment and Defences to Trespass ! What is false imprisonment?

Onus of proof and negligent trespass

• False imprisonment is the direct, intentional (or negligent) wonderful total restraint of a person’s freedom of movement without legal justification. !

• Tort of negligence - onus of proof that the defendant was negligent, on the plaintiff. !

• Deprivation of the plaintiff’s liberty must be total. ! • Bird v Jones: ‘I cannot conclude that if one man merely obstructs the passage of another in a particular direction … leaving him at liberty to stay where he is or to go in any other direction if he pleases, he can be said thereby to imprison him.’! • McFadzean v CFMEU: Defendants set up picket line to prevent plaintiffs (environmental protesters) from leaving protest camp. Plaintiff’s feared violence if they crossed line. There can be false imprisonment if there is a means of escape, provided it is unreasonable’ Here the means of escape was not unreasonable.! • Symes v Mahon: ’There must be evidence of complete submission by him to the control of the other party, reasonably thinking that he had no way of escape which could reasonably be taken by him.’ Here plaintiff accompanied defendant voluntarily. Deprivation of liberty must be total, but a Pl may be falsely imprisoned without being physically kept in one place by the Def, if they’re deprived of liberty by a submission to Def’s power. ! • New South Wales v Kable: Pl imprisoned under Act found to be unconstitutional. ‘There must come a point in any developed legal system where judicial decisions are given effect despite the particular decision later being set aside or reversed. One way is by treating the orders of a superior court of record as valid until set aside.’ Disobeying order would have meant ‘predicting whether this court would accept what were then novel constitutional arguments.’ For total deprivation of liberty to = false imprisonment must be done without lawful justification. !

• Tort of trespass to the person - onus is on:! • Plaintiff to prove the facts that constitute the trespass (i.e. the fact of contact, the threat or deprivation of liberty), then! • Defendant to prove that trespass was neither intentional nor negligent! • McHale v Watson: ‘it for the defendant who threw [the missile] to prove an absence of intent and negligence on his part…’ This view now abandoned in England.! • The plaintiff need only prove the fact of the trespass, and that it was the direct act of the defendant, to establish a prima facie cause of action. If the plaintiff cannot prove the elements – action fails! • Platt v Nutt: Defendant was not liable for trespass by battery, as the plaintiff had failed to prove that her injuries were caused by the direct act of the defendant, rather than as a consequence of her own wilful act in putting out her hand.!

General defences to trespass

Consent

• Cases: Balmain Ferry v Robertson; Herd v Weardale Steel; Bahner v Marwest Hotel; Gold v Healco Services (Vic)

Necessity

• Elements: (1) An urgent situation of imminent peril? (2) A reasonable response?! Cases: Proudman v Allan; State • of NSW v McMaster; Re F (Mental Patient: Sterilisation).

Self-defence

• Elements: (1) Did D believe at the relevant time that the act was necessary? (2) Did D have reasonable grounds for that belief?! Cases: Watkins v State of • Victoria; Rozsa v Samuels; Fontin v Katapodis).

Defence of others, property, etc.

• Cases: Goss v Nicholas; Workman v Cowper.

Provocation

• Cases: Fontin v Katapodis; Queensland Criminal Code, s 269.

Elements of False Imprisonment 1. ‘Direct’

See Coles Myer Ltd v Webster; Cubillo v Commonwealth of Australia See Bird v Jones Knowledge? - not a defence (Murray v Ministry of defence; South Australia v Lampard-Trevorrow)

2. Total restraint

No reasonable means of escape (Zanker v Vartzokas; R v Macquarie; Burton v Davies; McFadzean v CFMEU) Psychological restraint (Symes v Mahon; Myers Stores v Soo; R v Garrett)

3. Intentionally (or negligently)

See McHale v Watson; Cowell v Corrective Services Commission...