False imprisonment Flashcards
False imprisonment
Total, direct, positive and intentional restraint of a person’s liberty. The tort plays a pivotal role in the protection of individual liberty. Since many imprisonments come about through governmental action, it also plays an important part in regulating the relationship between citizen and state. The most important defence in practice is the defence of lawful authority.
Elements of false imprisonment:
Direct
Positive
Intentional
Complete restraint
Without lawful justification
Direct
The same test of directness applies to false imprisonment as it does to all trespass actions (Reynolds v Clarke). E.g. D digs a hole which P later falls into.
Dickenson v Waters
Principle: P must directly cause the imprisonment.
Facts: P was accused of stealing some items from D’s store. The shop inspector told her she had to go upstairs to the manager’s office. She refused to allow the inspector to complete a bag search, stating only a police officer had authority to do so. The shop inspector stated he wanted charges brought against P. She was charged and later acquitted.
The arrest was the act of D as D directly caused the arrest. The police would not have taken P into custody but for D’s answer to the question ‘do you wish us to proceed against this person?’
Coles Myer Ltd v Webster
Principle: A person who gives information to a police officer, who causes another to be wrongly detained, will be liable to the person who is imprisoned.
P was detained and searched by police officers at a mall. The store manager at Kmart gave the police officers the information that led to P’s detainment. The store manager’s conduct directly led to the detainment of P. D was liable as they deliberately and falsely made accusations that led to the detainment of P.
Positive
Innes v Wylie
D must positively interfere with P’s liberty.
Intentional
D must intend to deprive P of liberty.
Cowell v Corrective Services Commission of NSW
Principle: It is not necessary to show that the defendant intended to wrongfully restrain the plaintiff.
Facts: It was held that the CCS was liable for falsely imprisoning a prisoner whose sentence had been incorrectly calculated because, regardless of whether the CCS was negligent in calculating this period wrongly (in fact it was not), it nevertheless intended to restrain the prisoner.
Ruddock v Taylor
Principle: It is normally sufficient for the purposes of proving intention to show either that the deprivation of liberty was a purpose of the defendant’s action, or that they knew that it was an inevitable consequence thereof. Liability can also arise where D is reckless as to P’s liberty. D who locks a door not knowing here is anyone inside is not liable.
Facts: a federal minister who cancelled P’s visa was liable in false imprisonment.
Myer Stores v Soo
Principle: Requiring a person attend, against their will, and remain in a room is a total deprivation of liberty.
Facts: A shop owner erroneously identified the respondent as a shoplifter and reported it to two police officers who happened to be in the store.
Complete restraint
P must be restrained or imprisoned from all directions. If there is a way P can reasonably retain their freedom, there is no false imprisonment.
Bird v Jones
Principle: False imprisonment requires a total restraint on the plaintiff’s liberty. If a person is partially obstructed, this does not constitute false imprisonment. Imprisonment is not a partial obstruction of will, no matter what inconvenience it will bring upon him.
Facts: D placed seats across a bridge for attendees to watch an event. P could not cross the footpath. P’s access was only cut off in one direction, this did not constitute false imprisonment.
Burton v Davies
Principle: If P has reasonable means of escaping from their imprisonment that will not constitute false imprisonment as the circumstances do not constitute complete restraint.
‘If I lock a person in a room with a window from which they may jump to the ground at the risk of loss of life or limb, I cannot be heard to say that he was not imprisoned because he was free to leap from the window’.
R v Macquarie and Budge
Principle: whether an escape is reasonable will depend upon whether the escape route will endanger life or limb.
A bank representative was attempting to claim possession of a boat, D turned the engine on while P was on the boat and cast it off. This was false imprisonment as the only escape was to jump into the water.
Myer Stores v Soo
Principle: P does not have to be physically imprisoned
Facts: respondent was required to stand in a room for questioning. This is not the same as physical imprisonment. A modern application of Symes v Mahon.
Symes v Mahon
Principle: there must be evidence of complete submission by P to D, reasonably thinking that they had no way of escape which could be reasonably taken.
Facts: D told P he was under arrest and had to accompany him to Adelaide. P met D at the train station, and they travelled to Adelaide. There was evidence of complete submission by P to D’s control, reasonably thinking there was no means of escape he could take.
South Australia v Lampard-Trevorrow
Principle: total restraint was not found because of the age of the child and the subsequent limitations of movement that this puts on the child.
Facts: P was put into foster care under s10 of the Aborigines Act 1934 (SA). The state was not liable for false imprisonment as the foster family’s obligation to care for him at his young age were the reasons for P’s restraint while in foster care.
Murray v Ministry of Defence
Principle: It is possible for someone to be falsely imprisoned without knowledge. A person can be falsely imprisoned while they are asleep, in a state of drunkenness, unconscious or a lunatic (Meering v Grahame-White Aviation Co Ltd).
Facts: D entered and searched P’s house at 07:00am, not informing her of her arrest until 7:30am. There was no false imprisonment.
Without lawful justification
In most cases an individual who has given consent is free to revoke it. Difficulties arise when P tries to revoke consent during the inference, and particularly in false imprisonment.
Robertson v New Balmain Ferries
Principle: the means by which P entered D’s premises were conditional. If P is free to leave the premises in one direction (i.e. by complying with the condition) they are not falsely imprisoned.
Facts: a ferry company displayed a sign instructing their customers that one penny had to be paid upon entering and leaving their private wharf. P entered the wharf after paying a penny but missed the desired ferry. P tried to leave without paying a penny. This was held not to be false imprisonment,
Herd v Weardale Steel
Principle: The person who revokes consent to a deprivation of liberty is entitled to liberty as soon as reasonably convenient for the other party to release them - without significant inconvenience, expense, or risk.
Facts: P was a miner who went down into a coalmine at the start of his sift which ran frm 09:30am-04:00pm. He refused to do the work he was ordered to. At 11:00am he requested to be taken back to the surface by the lift. He was not permitted to leave until 01:30pm. Under the terms of the employment contract, he was not entitled to be taken to the surface until the end of his shift.
Reynolds v Clarke
ELEMENT: DIRECT
The same test of directness applies to false imprisonment as it does to all trespass actions. E.g. D digs a hole which P later falls into.
Innes v Wylie
D must positively interfere with P’s liberty.
Cowell v Corrective Services Commission of NSW
ELEMENT: INTENTIONAL
Principle: It is not necessary to show that the defendant intended to wrongfully restrain the plaintiff.
Facts: It was held that the CCS was liable for falsely imprisoning a prisoner whose sentence had been incorrectly calculated because, regardless of whether the CCS was negligent in calculating this period wrongly (in fact it was not), it nevertheless intended to restrain the prisoner.
Ruddock v Taylor
ELEMENT: INTENTIONAL
Principle: It is normally sufficient for the purposes of proving intention to show either that the deprivation of liberty was a purpose of the defendant’s action, or that they knew that it was an inevitable consequence thereof. Liability can also arise where D is reckless as to P’s liberty. D who locks a door not knowing here is anyone inside is not liable.
Facts: a federal minister who cancelled P’s visa was liable in false imprisonment.
Bird v Jones
ELEMENT: COMPLETE RESTRAINT
Principle: If a person is partially obstructed, this does not constitute false imprisonment. Imprisonment is not a partial obstruction of will, no matter what inconvenience it will bring upon him.
Facts: D placed seats across a bridge for attendees to watch an event. P could not cross the footpath. P’s access was only cut off in one direction, this did not constitute false imprisonment.
Burton v Davies
ELEMENT: COMPLETE RESTRAINT
Principle: If P has reasonable means of escaping from their imprisonment that will not constitute false imprisonment as the circumstances do not constitute complete restraint.
‘If I lock a person in a room with a window from which they may jump to the ground at the risk of loss of life or limb, I cannot be heard to say that he was not imprisoned because he was free to leap from the window’.
R v Macquarie and Budge
ELEMENT: COMPLETE RESTRAINT
Principle: whether an escape is reasonable will depend upon whether the escape route will endanger life or limb.
A bank representative was attempting to claim possession of a boat, D turned the engine on while P was on the boat and cast it off. This was false imprisonment as the only escape was to jump into the water.
Myer Stores v Soo
Principle: P does not have to be physically imprisoned
Facts: respondent was required to stand in a room for questioning. This is not the same as physical imprisonment. A modern application of Symes v Mahon.
Myer Stores Ltd v Soo
By its nature the tort of false imprisonment gives rise to aggravated damages
Some students might ask whether Mrs Thrifty should take action against the store detective, the store or both. Just mention that the issue of vicarious liability of the store for a tort committed by an employee will be addressed in Torts II. Myer Stores Ltd v Soo is an example of both the store and an employee being liable for damages for false imprisonment. Mrs Thrifty should sue both the store and the store detective. Please don’t go into any issue of contribution between defendants.
Mrs Thrifty would be awarded aggravated damages for insult and humiliation (amount unknown). The plaintiff in Myer Stores Ltd v Soo was awarded $10,000 for aggravated damages.
Symes v Mahon
ELEMENT: COMPLETE RESTRAINT
Principle: there must be evidence of complete submission by P to D, reasonably thinking that they had no way of escape which could be reasonably taken.
Facts: D told P he was under arrest and had to accompany him to Adelaide. P met D at the train station, and they travelled to Adelaide. There was evidence of complete submission by P to D’s control, reasonably thinking there was no means of escape he could take.
South Australia v Lampard-Trevorrow
ELEMENT: COMPLETE RESTRAINT
Principle: total restraint was not found because of the age of the child and the subsequent limitations of movement that this puts on the child.
Facts: P was put into foster care under s10 of the Aborigines Act 1934 (SA). The state was not liable for false imprisonment as the foster family’s obligation to care for him at his young age were the reasons for P’s restraint while in foster care.
Murray v Ministry of Defence
ELEMENT: COMPLETE RESTRAINT
Principle: It is possible for someone to be falsely imprisoned without knowledge. A person can be falsely imprisoned while they are asleep, in a state of drunkenness, unconscious or a lunatic (Meering v Grahame-White Aviation Co Ltd).
Facts: D entered and searched P’s house at 07:00am, not informing her of her arrest until 7:30am. There was no false imprisonment.
Defences to the trespass to person torts
Necessity
Insanity
Discipline
Illegality
Self-defence
Provocation
Consent
Lawful authority
Necessity
Necessity defence applies in two situations:
1. Interference is reasonably necessary as a means of protecting persons from the threat of real and imminent harm (Southwark London Borough Council v Williams). This situation must exist actually and not solely in D’s belief (Cope v Sharpe). However, it has recently been held that in self-defence, D’s reasonable but mistaken belief as to the source of danger is sufficient (Ashley v Chief Constable of Sussex Police).
It is not necessary for D to prove their means of protecting life or property were successful (Cope v Sharpe).
It is not necessary for D to prove that the person or property they sought to protect would have been injured without the interference (Ibid).
The defence only applies where the actions are reasonably necessary to protect persons or property. The level of interference that could be justified to protect property is less than when seeking to protect life and limb. The latter has limitations. A ship captain may restrain a person but not throw them overboard (Hook v Cunard Steamship).
2. Where a person is unable to consent to medical treatment by virtue of some temporary or permanent incapacity.
Necessity cannot justify treatment against the will of a person at full capacity (Hunter New England Area Health Service v A). Where there is no indication, such as an advance directive, the law resiles from the position that treatment given to preserve the life of the patient must be tortious and treatment may lawfully given under necessity (Re F). Treatment should be limited to what is necessary and life-saving, once capacity is gained the patient can make further decisions (Consent to Medical Treatment and Palliative Care Act).
Necessity is not necessarily limited to emergencies (Re F).
Insanity
Some authority suggests insanity can be a defence to trespass torts (White v Pile), recent authority suggests not (Carrier v Bonham).
If a person is not capable of appreciating the nature or quality of their acts, the acts are not voluntary, and insanity is available as a defence (Lawson v Wellesley Hospital).
Discipline
Parents have a right to discipline their children by inflicting bodily punishment that is moderate, reasonable and proportionate (R v Terry). If disciplinary measures fall within these confines, parents have a defence against a case in trespass brought against them by their child.
Others may need to exercise disciplinary measures towards a child (e.g. teacher). The right to discipline a child derives from a grant of authority by the parents (Cleary v Booth). In cases of compulsory education, it cannot be seen as an express authority because the parent has no choice whether to send their child to school or not. Thus it would be more accurate to see the authority as deriving from the nature of a compulsory education system rather than any parental authority (Ramsey v Larsen).
Discipline from those who operate as carers must derive from the parents (Cf. Lumb v Police). Failure to comply with the set terms results in an inability to use the discipline defence.
Illegality
The defence of illegality applies in two situations.
1. where the claim arises out a joint illegal enterprise. There must be a connection between the joint illegal enterprise and the tort. This is unlikely. If A and B are committing a burglary during which A punches B, the battery is not sufficiently connected for the defence to apply.
2. At the time P suffered injury, P was engaged in illegal activity but D was not. this is rarely seen as a defence with the more appropriate course being seen as reducing P’s damages for contributory negligence (Revill v Newberry).
Self-defence
A person who is threatened or attacked by another and reasonably believes they are in danger of death or serious injury, or who has reasonable grounds to believe they are likely to be the subject of an imminent attack which will place them in danger of death or serious injury (Hall v Fonceca), can act to protect their personal safety. The counter-act must be reasonably necessary to counter the perceived threat and must not be excessive (Fontin v Kadapodis). This is a question of fact decided on a case-to-case basis. Factors considered may be: whether it was necessary for D to stand their ground, whether they could have used some means of escape instead, whether it was necessary to weapon used (Rozsa v Samuels).
D’s response shouldn’t be judged too harshly as it is instinctive (R v Howe).
Provocation
Provocation is not a defence to the trespass torts. Provocation may prevent an award of exemplary damages or reduce the amount of damages which, but for provocation, would have been awarded (Fontin v Katapodis).
Sudden, irrational outburst.
Consent
An interference or injury to which P has consented cannot be wrongful. The onus is on D to prove P consented to the acts in question (Hart v Herron). Consent must be given freely and voluntarily. E.g. D suspects P of shoplifting and asks P to stay in a room while D investigates the situation, P is not falsely imprisoned if they voluntarily go to clear their name. If D charges P with shoplifting and goes into the room to prevent force being used or avoid causing an embarrassing scene, this is false imprisonment (Peters v Stanway). There is false imprisonment if D implies force will be used if P doesn’t comply (Symes v Mahon). What amounts to duress is a question of fact. Consent obtained by fraud also raises difficult issues (R v Williams versus R v Linekar). P must have understood the nature and quality of the act.
Consent can be vitiated on grounds of public policy where wider social interest in preventing such conduct at all mandates a rejection of consent (R v Williams).
Medical practitioners must obtain the patient’s consent before any medical procedures. Consent to one procedure does not impliedly consent to another, subject to the necessity defence (Murray v McMurchy). Where a medical practitioner mistakenly believes there is consent, there is no defence as the defence is consent not the reasonable belief in consent. Informed consent is not necessary for consent to be effective (Chatterton v Gerson). As long as the patient understands the nature of the procedure, that is sufficient (unless D acts in bad faith). Note that a failure to disclose risks is actionable in negligence.
Under the Family Law Act parental responsibility includes the power to consent to medical procedures where children cannot (the same applies to guardians). When the child reaches the age where they understand the implications of their consent, they are able to give their own consent (Gillick v West Norfolk). Gillick competence age depends on the rate of growth of each child.
Consent to sporting contact encompasses that which is within the standards of the game (Hilton v Wallace). The farther removed D’s conduct is from the way the game is usually played, the more likely they are to be liable for battery (McNamara v Duncan).
In most cases an individual who has given consent is free to revoke it. Difficulties arise when P tries to revoke consent during the inference, and particularly in false imprisonment (Robertson v The Balmain New Ferry Company). The person who revokes consent to a deprivation of liberty is entitled to liberty s soon as reasonably convenient for the other party to release them - without significant inconvenience, expense, or risk.
Consent cannot be retroactively revoked.
Lawful authority
It is a defence to trespass torts that D had lawful authority (Competition and Consumer Act 2010).
In Queensland, the primary source of authority for police officers to engage in conduct that is otherwise tortious is the Police Powers and Responsibilities Act 2000 (Qld)
Arrest by others:
Criminal Code 1899 (Qld)
546 Arrest without Warrant Generally
365 Arrest Without Warrant
Good Faith. The fact that a defendant acted in good faith (honestly) is not a defence at common law, but numerous statutes provide specific classes of defendant (such as police officers and fire-fighters) with protection from civil liability provided that, although technically tortious, their conduct was motivated by a desire to honestly perform their statutory duty.
Damages for false imprisonment
Compensatory
Aggravated
Exemplary
Special
Compensatory damages
If there is personal injury, damages will be calculated on the same basis as for battery and assault. Damages are for the derivation of P’s liberty and are assessed for the period that P has been deprived of liberty.
‘Hurt’ or injury to P’s feelings and any indignity, mental distress, disgrace or humiliation suffered by P because of the false imprisonment should be taken into account.
Conduct of D which has the effect of increasing injury to P’s feelings (e.g. absence of an apology, reaffirmation or justification of the imprisonment) can be taken into account.
Aggravated damages
The store detective (and The Big Emporium) is liable for false imprisonment. On the basis of Myer Stores Ltd v Soo, Mrs Thrifty would be awarded aggravated damages for insult and humiliation (amount unknown). The plaintiff in Myer Stores Ltd v Soo was awarded $10,000 for aggravated damages.
Exemplary damages
Where it is appropriate to punish D for anti-social behaviour to P, and to make D an example to others.
Special damages
Any pecuniary loss that follow from the false imprisonment which is the natural and probable consequence of the imprisonment can be claimed as special damage (must be pleaded and proved by P).
