TORT LAW BOOK Notes PDF

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TORT LAW BOOK NOTES: CHAPTER TWO: TORTS OF INTENTION:

 False imprisonment. - False imprisonment consists of unlawful and total physical restraint of the liberty of the claimant, brought about by the defendant. Like the other trespass to torts, false imprisonments are actionable, and the claimant need not even have been aware of the detention. - Bird v Jones – 1845, a plaintiff who was prevented by an obstruction from crossing Hammersmith bridge was not falsely imprisoned because he was free to turn back, equally the plaintiff had voluntarily entered. - Robinson v Balmain New Ferry 1910 – a plaintiff had paid to gain entry to a wharf in order to catch a boat but changed his mind and sought to turn around the same way in which he had came in, it was held reasonable for the defendant to charge a penny for him to leave the wharf. - Iqbal v prison Officers Association 2009 – claim in false imprisonment against a trade union whose members had undertaken an unlawful one day strike failed. C had been confined to his cell as a consequence of the strike – COA held that there was no positive act on the part of the trade union members. Smith LJ: “it must be an intentional or at least reckless positive act or, in limited circumstances, omission and it must be the direct and immediate cause of loss of liberty. - Two elements of the constitutional role of false imprisonment: - 1) The definition of lawfulness of detention will frequently depend upon analysis of powers of arrest and or detention. - 2) where the defendant is a public authority within the terms of the HRA 1998, the tort of false imprisonment may coexist with an action for damages in respect of a violation of the Convention right to liberty ART 5. 

Elements of the tort. - Accepted that since Letang v Cooper, this form of trespass to the person, like others, must be confined to intentional conduct on the part of the defendant. Iqbal, noted earlier suggests that the target of intention is imprisonment – there need be no intention nor even knowledge, in relation to the unlawfulness of detention. - R v Governor of Brockhill Prison ex p Evans – Mrs. Evans had been sentenced to two years imprisonment, her released date was calculated by the governor, doubt had been cast on the judicial proceedings and by the time an order was made she had spent 59 days extra in prison – HOL held that the prison governor was liable in damages for false imprisonment – the gist of tort is unlawfulness, not inappropriate conduct, detention for the additional days were not known to have been lawful, even if the governor did not know they weren’t. - R [Lumba] v Secretary of State for the Home Department [read up again!]

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Limits to false imprisonment and comparison with HRA remedies:

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In Hague v Deputy Governor of Parkhurst Prison and others, HOL held that a lawful detention did not become unlawful when the conditions of detention were in breach of applicable prison rules. False imprisonment is not the proper route to take in order to gain compensation where conditions of detention are unacceptable. Karagozlu v Commissioner of Police for the Metropolis 2006 – the loss of residual liberty was held to be actionable damages for the tort of misfeasance in a public office. The right to liberty is also protected by Article 5 of the ECHR [READ UP PAGES 7075]

 Intentional Infliction of Physical or Mental Harm: - Wilkinson v Downton – This case is the first example of an action which depends on showing intentionally caused harm. The target of intention here is harm to the claimant. In fact, it is a tort of both intention and damage. The basis of liability in deceit is that a person who makes a false statement intended to be acted on must make good the damage naturally resulting from its being acted on – the Plaintiff’s physical injury flowed from believing this statement, but not from acting on it. - A restrictive decision was given in Victorian Railways v Coultras 1888 – the decision had been treated psychiatric harm suffered as a result of a railway accident as uncoverable for being too remote, as it did not concern a wilful act. - The need to distinguish Coultras at the time of Wilkinson explains why Wright J described the damage as wilful, he did not claim that the defendant desired the plaintiff to suffer harm. The law here imputes intention to the defendant. Wright J may even be read as saying that in the absence of any other motive, the virtual certainty of the result is evidence that the outcome was desired. - The existence of this cause of action was confirmed by the COA in Janvier v Sweeney 1919, the defendant’s agent purported to be a detective from Scotland Yard, and represented that the plaintiff was wanted for corresponding with a German spy. This pretence was possibly even more likely to cause harm, on the other hand, the purpose of the defendant [to get hold of some letters that were suspected to be forgeries] is not an intention to cause harm. Janvier, the imputed intention is clearly inconsistent with the actual motive of the defendant. - Wilkinson v Downton has been rarely applied successfully in England, argued with partial success in the case of C v D 2006 - claimant was sexually abused in childhood whilst boarding at an abbey school, it is likely that, here, it was assumed that negligence would not offer the appropriate analysis. The action in Wilkinson could only offer a remedy where the actual personal injury could have been shown to have followed from the relevant act. - Considerable support for Wilkinson to cover less tangible injuries i.e. distress or anxiety. Wong v Parkside Health NHS Trust, COA rejected an argument that Wilkinson had been similarly extended in English law. This was a case of bullying at work, if the events followed in present day they would give rise to claims under the protection form harassment act 1997. - Here Hale LJ considers the scope of Wilkinson [in her judgement of Wong] “for the tort to be committed, as with any other action on the case, there has to be

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actual damage. The damage is physical harm or recognised psychiatric illness… false words or verbal threats calculated to cause, and uttered with the knowledge that they are likely to cause and actually causing physical injury to the person to whom they are uttered are actionable” She went on to conclude that the English common law had not developed an action for harassment before the Protection from Harassment Act. It had done so however in the case of Khoarasandjian v Bush [this case is now of limited authority] its interpretation of the action in private nuisance was later disapproved by the HOL in Hunter v Canary Wharf, but still this case is still good authority that an injunction may be issued to restrain harassing behaviour that threatens to cause actual personal injury to the claimant. Lord Hoffmann in Wainwright v Home Office [page 80], makes the point that even if genuine intention is required, the development of an intentional tort, which remedies anxiety and distress alone will go further than civil actions outlined in the protection from harassment act, for this requires a course of conduct. In Wainwright v UK, the ECHR decided that the conduct of the strip search had violated the rights of applicants under Art 8. Because there was no remedy in domestic law, there was also a violation of Art 13, which requires that redress should be available where rights are violated.

 Statutory action for harassment: - Liability under the 1997 Act is based on actual or constructive knowledge that conduct is likely to amount to harassment. - Patten LJ in Jones v Ruth: “conduct of the kind described in section 1[1] is actionable under section 3 in respect of anxiety of injury caused by the harassment and any financial loss resulting from the harassment” - There must be a course of conduct, and a single incident will therefore not suffice, the primary remedy is an injunction, but damages are also available. - Lord Sumption in Hayes v Willoughby [SEE PAGE 83]. 

Vicarious Liability: - The House of Lords accepted that an employer may be vicariously liable for harassment under the Act. - Majrowski v Guys and St Thomas’s NHS trust 2006 – the claimant in Wong v Parkside may now be able not only to proceed against the individual workplace bullies, but also to claim compensation against the employer, even if that employer had not been negligent in its own right in failing to prevent bullying. - Daniels v Commissioner of Metropolitan Police 2006 – was made clear than an employer will not be vicariously liable under the Act for a series of individual acts of bullying where the employees concerned are acting independently. For the employer to be vicariously liable for the statutory tort of their employees under this act, the acts of the employees must amount to a course of conduct with a common purpose. - Lord Nichollls in Majrowski “courts are well able to recognise the boundary between conduct with is unattractive, and conduct which is oppressive and unacceptable.”

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