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Trespass to the Person and Related Torts A.

Introduction

In tort law there is, for the most part, a hierarchy of protected interests. This was central to a book written by Peter Cane in 1997 (see below). The torts in these lectures protect some of the most highly valued interests, and this is significant for the purposes of several key points in Cane’s thesis. Eg

Because our right to bodily integrity is so highly ranked, the tort of battery is actionable per se.

Lumba v Secretary of State for Home Dept [2011] UKSC 12, at [64]. Trespassory torts (such as false imprisonment) are actionable per se regardless of whether the victim suffers any harm. An action lies even if the victim does not know that he was imprisoned [because, as Lord Griffiths once pointed out]… “The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage”. (Lord Dyson)

The relevant intentional torts to the person (as they can be conveniently labelled) are:     

Battery Assault False imprisonment The rule in Wilkinson v Downton The (statutory) tort of harassment

However, also important are the various defences to these torts which we also deal with. SOME READING F Trindade, “Intentional Torts: Some Thoughts on Assault and Battery” (1982) 2 OJLS 211. P Cane, The Anatomy of Tort Law (Oxford: Hart Publishing, 1997).

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B.

Battery

There are several key elements in the tort of battery that are evident from the following working definition of the tort: Battery is any act of the defendant that directly and intentionally (or perhaps negligently?) causes some physical contact with the person of the claimant without the claimant’s consent.

1.

Directness

The hallmark of any trespass – whether to the person, land or personal property – is the requirement that there be directness in the application of force. Reynolds v Clarke (1725) 2 Ld Raym 1399

NB

It need not be D’s actual body that makes direct contact.

DPP v K (1990) 1 WLR 1067

NB

That is a criminal law case. Should tort law say the same?

2.

State of Mind

(a)

Intention and negligence?

At one time one could have said with confidence that both intentional and negligent acts could result in liability for battery so long as there was a direct violation of C’s bodily integrity. But then the law got into a fairly muddled state Letang v Cooper [1965] 1 QB 232. Cf Wilson v Pringle [1987] 1 QB 237 It is the act not the injury which must be intentional. An intention to injure is not essential in an action for trespass to the person. It is the mere trespass by itself which is the offence.

The (hard to fathom) requirement of hostility was later dropped. But as to the rest of decision, and in particular the dictum above, where are we now? Have a think! 2

(b) Intended actions or outcomes (and the transferred malice issue)? Even if intention is all that count nowadays, to what exactly what does that intention refer: intentional conduct or intended outcomes? The English courts might, like the Americans, borrow the criminal law notion of ‘transferred intent’ and apply it in tort law. There are various cases which, together, hint that such an approach might be taken. Scott v Shepherd (1773) 2 Wm Bl 892 [T]hough criminal cases are no rule for civil ones . . . yet in trespass I think there is an analogy. (De Grey CJ)

Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890. There is no difference in logic or good sense between the facts of this case and one where the defendant might have used a weapon to fell the child to the floor, save only that this is a case of reckless and not intentional battery (Laws LJ).

Bici v MOD [2004] EWHC 786 And recall Wilson v Pringle: “It is the act not the injury that must be intentional”. See further A Beever, “Transferred Malice in Tort Law” [2009] Legal Studies 1.

(c)

Harm and Hostility

One clear thing from the case law is that harm is not required for a battery: it is a tort that is actionable per se – ie, without proof of any injury or damage to C. And as to hostility? Cole v Turner (1704) 6 Mod Rep 149 The least touching of another in anger is battery [but] if two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it is no battery (Holt CJ).

F v West Berkshire Health Authority [1989] 2 All ER 545. 3

Lord Goff abandoned the idea that there was a hostility element. He preferred the idea that any deliberate touching of another, beyond the bounds of acceptable everyday conduct, and in the absence of lawful justification, is capable of constituting a battery. NB 1 If a person, by reason of some mental incapacity cannot consent to medical or other necessary procedures, the doctor may justify treating her by invoking the necessity defence: here, proving essential surgery that was in C’s best interests. NB 2 The burden of proof regarding absence of consent rests with the claimant. Does this seem right to you? Have a think! Freeman v Home Office (No 2) [1983] 3 All ER 589

C.

Assault

1.

Introductory observations

The commission of an assault will often occur just before the commission of a battery. An assault is any act of D that directly and intentionally causes C reasonably to apprehend the imminent infliction of a battery. The law of assault is substantially similar to the law of battery except that, in assault, an apprehension of contact (rather than contact itself) must be established.

2. Reasonable necessary

apprehension

of

imminent

battery

Stephens v Myers (1830) 4 C & P 349

The gist of the tort of assault is an act which would cause a reasonable person to apprehend an imminent battery. So there is an objective test? NB

McBride and Bagshaw, think that knowledge of C’s paranoia can be a basis on which to turn an ordinarily innocuous act (nose-rubbing) into an assault.

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One thing is for sure, where someone – like, say, the police – prevent D from carrying out a threat, there is no assault. Thomas v NUM [1985] 2 All ER 1 The tort of assault is not, in my view, committed, unless the capacity in question is present at the time the overt act is committed. Since the working miners are in vehicles and the pickets are held back from the vehicles, I do not understand how even the most violent of threats or gestures could be said to constitute an assault. (Scott J)

Also, if gestures are accompanied by words that negate the apparent threat in the gestures, then there will be no assault. Tuberville v Savage (1669) 1 Mod Rep 3

D.

The Rule in Wilkinson v Downton

This tort derives from the case from which it takes its name. Wilkinson v Downton [1897] 2 QB 57 The test is: has D “wilfully done an act calculated to cause physical harm to the plaintiff … which in fact caused physical harm to her” (Wright J).

So, now that we have a suitably expansive law of negligence, can we discard Wilkinson v Downton? Have a think about this!

O v Rhodes [2016] AC 219 Wilkinson v Downton remains an extant tort and it has a conduct element, a mental element, and a consequence element. “The conduct element requires words or conduct directed towards the claimant, for which there is no justification or reasonable excuse”. “[The] necessary mental element is intention to cause physical harm or severe mental or emotional distress”. “[The consequence element requires] physical recognised psychiatric illness”.

harm

or

[a]

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This tort has an advantage (in only requiring one act on the part of D) over the statutory action for harassment in the Act of 1997. E.

Harassment

Under the Protection from Harassment Act 1997, if A pursues a course of conduct towards B that he knows (or ought to know) amounts to harassment, he will be liable (ss. 1 and 3 read together). Section 7(3) makes clear that a course of conduct involves conduct on at least two occasions. APW v WPA [2012] EWHC 3151 [C] has shown a good arguable case that she was distressed by those messages which she identifies as having distressed her... the sending of such messages is arguably a course of conduct amounting to harassment within the meaning of the Act. (Tugendhat J)

How grave must the conduct be? Iqbal v Dean Manson Solicitors [2013] EWCA Civ 123 The conduct must] go beyond annoyances or irritations, and beyond the ordinary banter … of life. (Rix LJ)

And as to the essence of harassment? Hayes v Wolloughby [2013] UKSC 17 Harassment is a persistent and deliberate course of unreasonable and oppressive conduct … which is calculated to and does cause that person alarm, fear or distress. (Lord Sumption)

NB

Section 1(3) creates 3 defences:  the course of conduct was pursued in order to detect or prevent a crime  the course of conduct was pursued under a statute  the course of conduct was reasonable in the circumstances

Thomas v New Group Newspapers Ltd [2001] EWCA Civ 1233 the test requires the publisher to consider whether a proposed series of articles, which is likely to cause distress to an individual, will constitute an abuse of the freedom of press which the pressing social needs of a democratic society require should be curbed. This

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is a familiar test and not one which offends against Strasbourg's requirement of certainty

This test is woolly, but is clearly designed to preserve freedom of speech consistently with the extent to which that right exists under the ECHR. NB

Equality Act 2010

This statute is of narrow focus, but also creates a tort of harassment. It doesn’t require a course of conduct BUT an action only exists as against (i) employers, (ii) providers of public services or functions, (iii) those who provide education or (iv) those who dispose of or manage premises. The definition of harassment in this Act makes it clear that D must target C on the basis of things like age, sex, race, gender reassignment etc. Also, D’s conduct must be aimed at violating C’s dignity or creating an intimidating or degrading environment. It is too specialised to warrant more detailed attention in our course.

F.

False Imprisonment

This tort (again actionable per se) may be defined in these terms: All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so. (Lumba v Secretary of State for Home Dep (Lord Dyson))

The tort protects the interest in freedom from confinement, and against the loss of liberty more generally.

1.

D’s State of Mind

This tort must be intentional in the sense that the defendant must intend to do an act which is at least substantially certain to effect the confinement.

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Cf Iqbal v Prison Officers Association [2010] QB 372 in my view, the claimant must show not merely an intentional act or omission … but also an intention to deprive the claimant of his liberty (Lord Neuberger MR)

Is this really plausible? Think hard about this and the equivalent rules in the other orthodox trespass torts.

2.

Restraint

There are a number of matters concerning C’s restraint which need to be unpacked.

(a)

Total Restraint

The courts insist upon total (as opposed to partial) restraint of the person. Bird v Jones (1845) 7 QB 742 C’s confinement was partial, only: he was being prevented from going forwards. His liberty had not been completely constrained.

(b)

Length of Restraint

Bird v Jones (1845) 7 QB 742. [I]mprisonment is, as I apprehend, a total restraint of the liberty of the person, for however short a time (Lord Denman CJ).

(c)

Knowledge of Restraint

Does the victim have to know of the deprivation of liberty? For years, the authorities were divided. But then the highest appeal courts stepped in. Murray v Ministry of Defence [1988] 2 All ER 521 (HL) The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable. (Lord Griffiths)

Lumba v Secretary of State for the Home Dept [2011] UKSC 12

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Trespassory torts (such as false imprisonment) are actionable per se regardless of whether the victim suffers any harm. An action lies even if the victim does not know that he was imprisoned. (Lord Dyson)

3

Imprisonment by Omission?

Herd v Weardale Steel, Coal and Coke Co [1913] 3 KB 771

What happens if D is under a duty to confer liberty on C ( eg, at the end of his shift)? R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] 2 AC 19

G.

Damages

Should damages be limited to compensation of harm caused? How much can one, for example, realistically expect for an unwanted kiss? For now, just note that both aggravated damages and exemplary damages may sometimes be available for these torts. Both types of damages will be explained fully, later in the course.

H.

Defences

1.

Self-defence

One is perfectly at liberty to defend oneself when under attack by another person. (a)

Proportionality

D’s response must be reasonable and proportionate. Cockcroft v Smith (1705) 2 Salk 642 [A man may not] in case of a small assault, give a violent or an unreasonable return (Holt CJ).

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(b)

Mistakes as to a Threat and Self-defence

Suppose that A genuinely thinks that B poses a threat and A acts in anticipation of a battery that would never actually eventuate (because A was mistaken as to the existence of the supposedly genuine threat). The HL had to grapple with precisely this issue. Ashley v Chief Constable of Sussex [2008] 1 AC 962

2.

Prevention of Crime

(a) General Statutory Power Section 3 of the Criminal Law Act 1967 confers a general right to use “such force as is reasonable in the prevention of crime”. This will generally enable X to come to Y’s assistance in circumstances where Y is under attack by Z.

(b) Prevention of a Breach of the Peace The police may detain persons in a way that would otherwise be a false imprisonment if so doing will prevent a breach of the peace. But note that C need not be posing an imminent threat to any other person. Austin v Commissioner of Police of the Metropolis [2008] QB 660

3.

Lawful Arrest

PACE 1984 confers various arrest powers.

(a)

Police Officers

Section 24(1) of the Act permits a police officer to arrest without warrant: (a) anyone who is about to commit an offence; (b) anyone who is in the act of committing an offence;

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(c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence; (d) anyone whom he has reasonable grounds for suspecting to be committing an offence. Also, under section 24(2), if an offence has not yet been committed, but the officer has reasonable grounds for suspecting that an offence has been committed, he may arrest anyone whom he has reasonable grounds to suspect of being guilty of its commission.

(b)

Citizens

Under s 24A(1), citizens can arrest (a) anyone who is in the act of committing an indictable offence; (b) anyone whom he has reasonable grounds for suspecting to be committing an indictable offence. And under s 24A(2), where an indictable offence has been committed, citizens can also arrest: (a) anyone who is guilty of the offence; (b) anyone whom he has reasonable grounds for suspecting to be guilty of it. However, the citizens’ power of arrest is limited in various ways. Most obviously, there are no equivalent ‘about to’ provisions. Also… Under s 24A(3): (a) the person making the arrest must have reasonable grounds for believing that it is necessary to arrest the person in question; and (b) it must appear not reasonably practicable for a constable to do it instead. NB

Section 28 states that an arrestee must be told of the fact that he is being arrested and of the reason for his arrest (so far as doing the latter is reasonably practicable) at the time of his arrest.

4.

Consent

(a)

General Considerations

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Under common law, if A consents to B’s touch (eg , a kiss) A cannot sue B. Recall, however, the oddity that although we talk of consent as a defence, the burden of proving the absence of consent lies with C. (Remember Freeman.) Note that consent is an expression of willingness. From this it follows that C must be competent to form such a view and that C’s consent must be genuine. (i) Fraud If C’s consent has been obtained by fraud, then there is no valid consent. Appleton v Garrett [1997] 8 Med LR 75

(ii) Consent obtained by duress If C is forced to consent to something, then the consent given is not valid. Freeman v Home Office (No 2) [1983] 3 All ER 589 (b) Consent to Medical Treatment One must, in this context, treat adults and children separately because adults will – at least presumptively – be autonomous, whereas children will not.

(i)

adults

The idea that, in the absence of some lawful justification, treatment may not be given to an adult was stated clearly in the F case. F v West Berkshire Health Authority (supra) Every human being of adult years and sound mind has a right to determine what shall be done with his own body.

NB

Consent need not be written and may well be inferred from conduct (such as holding out one’s arm to receive an injection).

Equally, patients cannot be expected to know the intricacies of every medical procedure; so for this reason, the law takes a realistic stance. Chatterton v Gerson [1981] QB 432 12

In my judgment once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real.

(ii)

children

Section 8 of the Family Law Reform Act 1969 provides that a minor over 16 may provide an effective consent to surgical, medical or dental treatment. In the case of children under 16, the matter is governed by common law. Gillick v West Norfolk and Wisbech AHA [1986] AC 112 Re W [1993] Fam 64 There is ample authority for the proposition that the inherent powers of the court under its parens patriae jurisdiction are theoretically limitless and … [t]here can therefore be no doubt that it has power to override the refusal of a minor, whether over the age of 16 or under that age but ‘ Gillick competent’. (Lord Donaldson)

5.

Necessity/Best Interests

A person (usually a doctor) will be able to touch others in an invasive/injurious way if the touching is necessary and/or in the claimant’s best interests. Grounds for such action (which may include confinements), exist at common law and under statute. (a) Common Law At common law there exists a defence of necessity. F v West Berkshire AHA [1990] 2 AC 1 Upon what principle can medical treatment be justified when given without consent? We are search...