Trespass to the person torts Flashcards

Question

Montgomery v Lanarkshire Health Board [2015] UKSC 11 | consent - medical context - defences to intentional trespass torts ## Footnote Previously, in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 held that the test for breach in failure to warn cases was, subject to some exceptions, the approach in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. This meant that if a doctor could find a responsible body of medical opinion that would support their decision not to inform a patient of a particular risk involved in treatment then they will have met the requisite standard of care. The Supreme Court in Montgomery rejected this approach. Lords Kerr and Reed delivered the judgment of the Court (Lady Hale delivered a short concurring judgment) and noted that there had been a change in the doctor–patient relationship since Sidaway. The law should no longer presume that patients are uninformed or incapable of understanding medical matters (at [76]). These developments ‘point away from a model of the relationship between the doctor and the patient based on medical paternalism’ (at [81]). Instead, the doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, ‘a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it’ (at [87]). Patients can refuse to be informed about the risks of injury in the proposed treatment and a defendant will not be liable for respecting these wishes (at [85]). There is also a ‘therapeutic exception’ that means a doctor will not be liable for failing to inform a patient of the risks involved in treatment if doing so would be seriously detrimental to the patient’s health. However, Lords Kerr and Reed warned (at [91]) that it was a limited exception that should not be abused. Finally, a doctor is also ‘excused from conferring with the patient in circumstances of necessity, as for example where the patient requires treatment urgently but is unconscious or otherwise unable to make a decision’ (at [88])

Answer 1

The court unanimously allowed Mrs Montgomery’s appeal. A doctor’s duty of care to the patient in the tort of negligence encompasses diagnosis, advice, and treatment. If a patient is not warned of the risks of injury involved in a particular procedure, those risks eventuate, and the patient suffers injury then it is arguable that, by failing to warn the patient, the doctor has caused that injury (assuming the patient would not have undergone the procedure if warned). ## Footnote The claimant, Nadine Montgomery, was a pregnant, diabetic woman of small stature. Women with diabetes are more likely to have large babies and there is a 9–10 per cent risk of shoulder dystocia (the baby’s shoulders being too wide to pass through the mother’s pelvis) during vaginal delivery. Shoulder dystocia can normally be resolved with an emergency procedure but there is a small risk that it can have very serious consequences for the mother and child. Mrs Montgomery had raised concerns about vaginal delivery with a doctor employed by the defendants. The doctor failed to advise her about the risk of shoulder dystocia as the risk of adverse consequences was small and, if diabetic women were warned of the risk, they would opt for a caesarean section rather than a vaginal birth, which the doctor believed was not in most patients’ interests. During the delivery, shoulder dystocia occurred and Mrs Montgomery’s baby was deprived of oxygen. As a result, he was born with severe disabilities. She brought an action in negligence on behalf of her son alleging that she should have been warned of the risks involved in a vaginal birth.

Answer 2

unequivocal affirmation that a competent pregnant woman can refuse medical treatment even if that refusal may result in harm to her or the foetus. It also establishes that mental health legislation cannot be used to prevent a competent pregnant woman from exercising this right. =>

Answer 3

his claim succeeded. However, the fact that youbdid not have the section sof the MCA in mind when actimg does not mean that its requirements are not complied with. ## Footnote ZH was a severely autistic, epileptic nineteen year old young man who suffered from learning disabilities and could not communicate by speech. In September 2008, he was taken by the specialist school he attended to a swimming pool for a familiarisation visit. Matters went very badly awry during the course of that visit, in particular following the decision of the manager of the pool to ring the Police when difficulties were experienced in persuading ZH to move away from the side of the pool. The arrival of the police gave rise to an escalating series of events which culminated in ZH first jumping into the pool, being forcibly removed from it, being handcuffed, put in leg restraints and placed in a cage in the back of a police van for a period of around 40 minutes. As a result of this, ZH suffered consequential psychological trauma as and an exacerbation of his epileptic seizures. ZH claimed (by his father as litigation friend) damages against the Commissioner of the Police for the Metropolis for damages, for assault and battery, false imprisonment, unlawful disability discrimination under the Disability Discrimination Act 1995, under the Human Rights Act 1998 alleging breaches of Articles 3, 5 and/or 8 of the ECHR and for declaratory relief.

Answer 4

Held: Appeal allowed. The trial judge was wrong to reject both defences ## Footnote D got into an altercation with the Defendant, a land owner who allowed his land to be used by the hunt. The Defendant had forcibly removed the Claimant's girlfriend from the land. The Claimant then attacked the Defendant with a baseball bat. The Defendant grabbed the bat and grappled to get it off the Claimant. In the course of doing so he struck the Claimant on the head and fractured his skull. In consequence the Claimant suffered epileptic attacks. The Claimant brought an action for damages for the injuries sustained. The Defendant raised self-defence and ex turpi causa. The trial judge rejected both defences but reduced the damages under the Law Reform (Contributory Negligence) Act 1945. The Defendant appealed.

Answer 5

The House of Lords dismissed the appeal, holding in favour of the claimants. A defendant relying on self-defence in tort must have a reasonable belief that he is under attack. The battery claim could vindicate rights, and so should be allowed to proceed. This Case is Authority For… The criteria for establishing self-defence in tort is not the same as in criminal law. It is not enough that the belief in an attack was honestly held. The belief must also be reasonable. There can be value in a claim proceeding to trial even if substantial damages will not be obtained. This will be the case if the claimant shows that a trial would serve the purpose of vindicating his rights ## Footnote The claimants were the estate and dependants of a man (Ashley) who had been shot and killed during a police raid on his home. The officer who shot Ashley mistakenly believed that Ashley was about to attack him. In reality, Ashley was in bed and unarmed. The claimants sued the Chief Constable for Sussex Police in several torts, including negligence and battery. While liability for negligence was admitted, the Chief Constable disputed the battery claim. He argued that officer who shot the deceased was acting in self-defence, and so had a defence to a battery claim. Nevertheless, the Court of Appeal permitted the battery claim to proceed to trial. The defendant appealed this decision to the House of Lords.

Answer 6

e House of Lords held against Hague. The 1964 Prison Rules did not create a private action for breach of statutory duty. This was because the Rules were designed to regulate prison governance rather than to benefit prisoners. The false imprisonment actions failed because, as prisoners serving a lawful sentence, Hague and Weldon had no residual liberty vis-a-vis the prison governors. ## Footnote Hague was a prisoner serving a sentence at Parkhurst prison. The deputy governor of Parkhurst transferred him to the Wormwood Scrubs prison. The deputy then ordered that Hague should be segregated from other prisoners. The 1964 Prison Rules did not permit him to make this order, meaning that the segregation was unlawful. The Prison Rules exist pursuant to s.47(1) of the Prison Act 1954 which states that: ‘The Secretary of State may make rules for the regulation and management of prisons, remand centres, detention centres and Borstal institutions respectively, and for the classification, treatment, employment, discipline and control of persons required to be detained therein.’ Hague successfully brought an action for judicial review of the decision to segregate him. He then sued for damages under the tort of false imprisonment and for breach of statutory duty. Weldon was a prisoner serving a sentence at Leeds prison. He alleged that prison officers burst into his cell and were violent against him. The officers then locked him in a ‘strip’ cell, took his clothes and continued to subject him to violence. He sued for damages under the tort of false imprisonment.

Answer 7

The Court held in favour of the claimant. The defendant was liable for intentionally causing emotional harm. Intentional infliction of emotional distress is a stand-alone cause of action. It is established where: The defendant intended to cause physical or emotional harm; Their actions were serious enough that they were plainly calculated to cause harm, such that they would inflict grave harm on a reasonably firm person; The claimant suffered nervous shock (later defined as a recognised psychiatric illness) as a result of the defendant’s acts. ## Footnote The defendant decided to play a practical joke on the claimant. He told her that her husband had been in a serious accident in which both his legs were broken. This was untrue, but the defendant intended her to believe it. The claimant believed it, and suffered psychiatric damage as a result. When sued by the claimant, the defendant argued that there could be no recovery of damages for nervous shock in tort law.

Answer 8

There was no common law tort of invasion of privacy; that creation of such a tort required a detailed approach which could only be achieved by legislation rather than the broad brush of common law principle; that adoption of a right to privacy as a principle of law in itself was not necessary to comply with Article 8 of the European Convention on Human Rights; and that any gaps in existing remedies for breaches of Article 8 by public authorities had been filled by sections 6 and 7 Human Rights Act 1998; That in so far as there might be a tort of intention to cause harm under which damages for distress which did not amount to recognised psychiatric injury might be recoverable the necessary intention was not established on the facts of the case. ## Footnote The Claimants, a mother and son, were strip-searched for drugs on a prison visit in 1997 in breach of the Prison Rules and they were humiliated and distressed. The second Claimant, who was mentally impaired and suffered from cerebral palsy, developed PTSD. The judge held that trespass to the person, consisting of wilfully causing a person to do something to himself which infringed his right to privacy, had been committed against both Claimants and that trespass to the person, consisting of wilfully causing a person to do something calculated to cause him harm, had been committed against the second claimant in addition to a battery. He awarded basic and aggravated damages of £2,600 to the first Claimant and £4,500 to the second Claimant. The Court of Appeal allowed the Home Office’s appeal against the finding of trespass, dismissed the first claimant’s claim and reduced the award of damages to the second claimant. The Home Office did not appeal the finding of battery.

Answer 9

Held: Appeal allowed. In Wilkinson v Downton, Wright J. recognised that wilful infringement of the right to personal safety was a tort. It had three elements: a conduct element, a mental element and a consequence element. The issues in this case related to the first and second elements. => In this case, there was no basis for supposing that R had an actual intention to cause psychiatric harm or severe mental or emotional distress to O. ## Footnote **Facts:** The appellant (R) appealed against a decision of the Court of Appeal to grant an interim injunction restraining him from publishing certain information in a semi-autobiographical book. R, a talented performing artist, had been subject to sexual abuse at school, leading to episodes of severe mental illness. He wished to speak out about his experiences and to describe them in the book. The respondent (O) was his young son. O suffered from significant disabilities, including Asperger's syndrome. A psychologist had commented that the book would be likely to cause him enduring psychological harm. R's case was that although the book was dedicated to O, he would not expect him to see it until he was much older. The Court of Appeal held that O had sufficiently favourable prospects of establishing at trial his claim under [*Wilkinson v Downton [1897] 2 Q.B. 57, [1897] 5 WLUK 14*](https://uk.westlaw.com/Document/I00A3FC70E42911DA8FC2A0F0355337E9/View/FullText.html?originationContext=document&transitionType=DocumentItem&ppcid=a4174d8582d24525933a1cdc59f3486c&contextData=(sc.Search)) that the book's publication would constitute intentional conduct causing him psychiatric harm to justify an injunction restraining publication of parts of the book pending trial.

Answer 10

The House of Lords held that unless a statute expressly or impliedly indicated otherwise, the principle of vicarious liability was applicable where an employee committed a breach of a statutory obligation sounding in damages while acting in the course of his employment. With respect to the Protection from Harassment Act, neither the terms nor the practical effect of the legislation indicated that the Parliament intended to exclude the ordinary principle of vicarious liability. ## Footnote At issue on this appeal was whether an employer was vicariously liable for breach of statutory duty committed by an employee, and in particular for harassment committed by an employee contrary to statutory prohibition in the Protection from Harassment Act (U.K.) 1997.

Answer 11

Court of Appeal held There is no need for C to show foreseeability of injury or loss in a claim for harassment under the PHA 1997. The starting point is conduct of the kind described in section 1 causing anxiety or injury. Once C proved that D knew or ought to have known that the conduct would amount to harassment, D was responsible for the injury and loss flowing from that conduct. The trial judge was wrong to exclude an award for personal injuries and financial loss. General damages of £28,750 for personal injuries plus interest at 2 per cent from the date of issue and £115,000 for loss of earnings (£23,000 per annum for five years) were awarded. ## Footnote Protection from harassment claim successful against neighbour undertaking building works The claimant (C) and her partner owned a two-storey building adjoining a property owned by the defendant (D). For over four years, D carried out extensive work on their property, causing noise and dust pollution, including adding a third storey. D’s builders could see into C’s property, including her bathroom, garden and patio, for a substantial time. C claimed damages for nuisance and trespass caused to their property by the building works and was awarded £30,000 for loss of amenity and enjoyment during the works, which the court said should have taken no more than a year.A further sum of £45,000 was awarded to compensate the claimant for the defendant’s unauthorised use of her property to develop D’s third storey (by taking support from C’s building to raise D’s roof) in lieu of an injunction compelling D to remove the offending parts of their property. C also claimed damages for harassment under the Protection from Harassment Act 1997 (‘the PHA 1997’). She alleged both she and her female partner with whom she lived suffered a campaign of harassment by D and his family and builders, which included acting in an aggressive and intimidating way, failing to provide information or notice about the commencement of building works, ignoring requests to limit the noise, refusing to make good damage caused to their garden, shrubs and property, and dropping notes from the window containing offensive and threatening remarks about lesbians. C went on to suffer a somatoform pain disorder due to anxiety and depression, leaving her unable to work.

Answer 12

In general, press criticism, even if robust, did not constitute unreasonable conduct and did not fall within the natural meaning of harassment. A claimant who did no more than allege that a series of articles caused distress was liable to be struck out as failing to disclose a claim of harassment. However, where facts did disclose a proper case of harassment, under s.1(3)(c) of the Act it was for the appellants to show that the motive for their conduct was reasonable. Reasonableness was dependent in each case upon the particular circumstances. Appeal dismissed.

Answer 13

Appeal allowed - amounted to harassment (2) The question of harassment had to be considered by reference to a “course of conduct” as a whole, and not by reference to each individual occasion relied on. ## Footnote A civil claim in harassment was brought by C, a solicitor-advocate, against a small firm of solicitors (D) by whom he used to be employed. C’s complaint arose from a series of three letters which contained allegations about C’s professional and personal integrity. Amongst other things, the letters alleged that C had been summarily dismissed from D due to his ‘insubordination and reckless conduct’, had misled the Law Society and was using clients to settle a vendetta against D. The Defence served in the action made further allegations against C, including bigamy and immigration fraud. Judge Ellis in the county court held that the three letters disclosed ‘no credible cause of action’ and could not be construed as harassment under the Act.

Answer 14

A test of rationality applied a minimum objective standard to the relevant person's mental processes. It imported a requirement of good faith, a requirement that there should be some logical connection between the evidence and the ostensible reasons for the decision, and an absence of arbitrariness, of capriciousness, or of reasoning so outrageous in its defiance of logic as to be perverse. => the defence in the PHA is subject to a test of rationality, on the facts the defendnat's conduct was irrational vendetta supported by no evidence. ## Footnote **Facts:** The appellant, Mr Michael Willoughby, alleged that his former employer, Mr Timothy Hayes, had been guilty of fraud and embezzlement. Accordingly, he pursued a lengthy and persistent campaign of correspondence and investigation, involving various law enforcement agencies such as the Inland Revenue, Customs & Excise, the Criminal Investigation Branch of the (then) DTI, Companies House and several different police forces. The campaign continued even after the agencies concerned had investigated the matter and concluded that there was no evidence to support Mr Willoughby's allegations. Mr Hayes brought an action under the Protection from Harassment Act 1997 for damages for harassment and for an injunction to restrain its continuance. The appellant (W) appealed against a decision that he was not entitled to rely on the [Protection from Harassment Act 1997 s.1(3)(a)] as a defence to allegations of harassment made against him by the respondent (H).