Intentional torts to the person

Question 1

Reynolds v Clarke

direct/indirect distinction

Answer 1

‘[I]f a man throws a log into the highway, and in that act it hits me; I may maintain trespass because it is an immediate wrong; but if, as it lies there, I tumble over it, and receive an injury, I must bring an action upon the case, because it is only predjudicial in consequence, for which originally I could have no action at all’ (Fortesque CJ)

Question 2

Letang v Cooper [1965] 1 QB 232

trespass and negligence

Answer 2

Held: The claimant’s correct cause of action was negligence because the action was unintentional (in fact the plaintiff was asking them to reconstrue the statue by using the old case/trespass distinction)

Principle = trespass can only be claimed for intentional torts
+ Contact with the person of another must be intended

Denning MR:
> You will remember the illustration giveninReynolds v. Clarke, in 1726
“If a man throws a log into the highway and in that act it hits me, I may maintain trespass because it is an immediate wrong; but if, as it lies there, I tumble over it and receive an injury, I must bring an action upon the case because it is only prejudicial in consequence”.
Nowadays, if a man carelessly throws a piece of wood from a house into a roadway, then whether it hits the plaintiff or he tumbles over it the next moment, the action would not be trespass or case, but simply negligence

Could a non-intentional act constitute trespass to the person?

Facts: Mrs. Letang (plaintiff) was sunbathing on a grassy area that was used to park cars at a hotel, Mr. Cooper (defendant), who did not see Letang, drove his Jaguar over her legs and injured her. More than three years later, Letang sued Cooper for negligence and trespass to her person and claimed damages. The applicable statutes of limitations barred actions for negligence after three years and barred actions for trespass to the person after six years. Letang conceded that her negligence claim was time barred but alleged that her trespass-to-the-person claim was not barred under the six-year statute of limitations. The trial judge agreed and awarded Letang £575 in damages for her trespass-to-the-person claim. Cooper appealed.

Question 3

Tuberville v Savage

Conditional threats - assault

Answer 3

= words here negatived what otherwise might have been an assault but no rule that conditional threats as a class cannot amount to assault (Read v Cocker)

‘If it were not assize time, I would not take such language from you’ while putting hand on sword.

Question 4

Read v Cocker

assault - conditional threats

Answer 4

Held: the threats constituted an assault

The claimant came to the defendant’s workshop to discuss a business dispute involving some of the goods in the workshop. He refused to leave when asked. The defendant and his employees surrounded the claimant and threatened to break his neck if he did not leave. Fearing violence, the claimant left

Question 5

R v Ireland; R v Burstow

assault - mere words

“The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence, e.g. a man accosting a woman in a dark alley saying “come with me or I will stab you.” (…) Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller’s arrival at her door may be imminent. She may fear the possibility of immediate personal violence.”

Answer 5

– silent telephone calls – depending on the facts of the case could create a reasonable apprehension – note the reasoning of Lord Hope as to why the phone calls may satisfy the requirements is that the apprehension must be reasonable.

see also Smith v Superintendant Chief of the Working police station

The defendant made a series of silent telephone calls over three months to three different women

Question 6

Stephens v Myers (1830) -

assault - reasonable apprehension

contrast with Thomas v NUM (1986) - group of strike miners threatened by other miners but large police cordon between them – no reasonable apprehension of imminent battery.

Answer 6

reasonable apprehension requires an ability to carry out the threat but not judged with hindsight (only the facts as they appeared to the claimant at the time)

The claimant was chairing a meeting at a local parish. The defendant sat at the other end of the table. The discussion became very heated. The defendant got out of his chair and told the claimant that he would ‘rather pull the chairman out of the chair, than be turned out of the room’. He then advanced on the claimant shaking his fist. Witnesses thought that the defendant’s intent was to hit the claimant. However, he was stopped by the churchwarden before he got near enough to strike.

The claimant sued the defendant for assault. The defendant argued that it was not an assault because he had no power to carry out any threat.

Question 7

Rex (RN) v First-tier Tribunal (Social Entitlement Chamber) [2024] 1 WLR 814.

assault immediate violence

More remote threats are not actionable as assault (Mbasogo v Logo)

Answer 7

CA held that: The immediacy of the violence had to be judged at the point when the victim apprehended the threat, and while the fear had to be of immediate violence, that was a fear of violence at some time not excluding the immediate future. He did not need to know the exact form of the threatened violence, only to fear that violence might be used against him

A 12-year-old boy who had been subjected to online grooming was the victim of a crime of violence for the purposes of the Criminal Injuries Compensation Scheme 2012. The First-tier Tribunal had applied the wrong test when determining whether threats made to him had caused him to be in fear of immediate violence. .

Question 8

Bici v MOD

intention - assault - intention

Ex. Hence: pointing an unloaded gun (D knows but not C) has been held to amount to assault. In such cases, would it have made any difference if D says that they did not intend C to have a reasonable apprehension? Normally, the court would not believe it. (Logdon v DPP (1976) - CRIMINAL CASE)

Answer 8

D must intend for C to have a reasonable apprehension of imminent battery

NB => likely to be inferred from the nature of D’s conduct.

NB: ubjective recklessness may suffice: Elias J, ‘I accept that recklessness will in principle suffice, but it must be a subjective recklessness that they appreciated the potential harm to the claimants and were indifferent to it.

Soldiers taking part in United Nations peacekeeping operations in Kosovo owed a duty to prevent personal injury to the public and had breached that duty by deliberately firing on a vehicle full of people when they had no justification in law for doing so.

Question 9

Wilson v Pringle

battery - intentional touching

Answer 9

D’s appeal is allowed; no battery had been committed
Battery required the application of force to be intentional and hostil
= So, while some cases say that the act must be intended (Wilson v Pringle), usually cases where the contact occurs as part and parcel of the act

Two schoolboys were involved in an incident in a school corridor as a result of which one fell and was injured. The boy who fell claimed damages, alleging a battery by the other boy. The defendant admitted that he had indulged in horseplay with the plaintiff but claimed that this was insufficient, as the ingredients of trespass to the person were a deliberate touching, hostility and an intention to inflict injury, and therefore horseplay in which there was no intention to inflict injury could not amount to a trespass to the person. The plaintiff contended that there merely had to be an intentional application of force, such as horseplay involved, regardless of whether it was intended to cause injury.

Question 10

Colins v Wilcock

intentional touching - exceptions - battery

NB: The ‘contact of everyday life’ exception => NOT defense. There is simply no battery

Answer 10

=> the police officer had committed a battery

Goff LJ - defined assault and battery: ‘An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person.’

Goff LJ – general exception for contacts generally acceptable in the ordinary conduct of everyday life (crowded place, social contact at parties, tapping someone on the shoulder : he creates the exception on implied consent in Colins but precises it in Re F)

NB: it is also a question of degree – clear that only minor contacts fall within thin exception (medical contact would be outside the exception)

The defendant was on the street with her friend. Both were known by the police to be prostitutes. An officer approached the two, suspecting that they were soliciting. The friend agreed to be questioned, but the defendant walked away. The police officer took hold of her arm to stop her from leaving, at which point the defendant swore and scratched at the officer. The defendant was convicted of assaulting a police officer in the course of duty. The defendant argued that she was not guilty of this offence, because the officer had not been acting in the lawful course of her duties.

Question 11

F v West Berkshire Health Authority [1990

intentional touching - battery

Lord Goff: the judge that made exception in Collins v Wilcock

• “This exception has been said to be founded on implied consent, since those who go about in public places, or go to parties, may be taken to have impliedly consented to bodily contact of this kind. Today this rationalisation can be regarded as artificial; and, in particular, it is difficult to impute consent to those who, by reason of their youth or mental disorder, are unable to give their consent. For this reason, I consider it more appropriate to regard such cases as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of everyday life.”

⇒ The exception in Collins is based on implied consent, here Goff LJ expands it by allowing contact generally acceptable in the ordinary life.

> “Medical treatment, even treatment for minor ailments, does not fall within that category of events. The general rule is that consent is necessary to render such treatment lawful. If such treatment administered without consent is not to be unlawful, it has to be justified on some other principle” => ⇒ medical treatment is outside of the ambit of the exception he has carved out on ordinary life. The ‘other’ principle will be necessityGoff ⇒ the common law principle of necessity: 3 categories:

• private interest
• public interest necessity
• action taken as a matter of necessity D to assist another person without his consent

Requirements of necessity:

(1) necessity to act “ when it is not practicable to communicate with the assisted person,
(2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.
NB: intervention cannot be justified when another more appropriate personis available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

Answer 11

held: The appeal was dismissed as the granting of the declaration was legal.

NB: But the judges seemed to exclude surgical operations form the range of ordinary life events exception

(see the discussion on necessity below)

Lord Bridge

> It would be intolerable for members of the medical, nursing and other professions devoted to the care of the sick that, in caring for those lacking the capacity to consent to treatment they should be put in the dilemma that, if they administer the treatment which they believe to be in the patient’s best interests, acting with due skill and care, they run the risk of being held guilty of trespass to the person, but if they withhold that treatment, they may be in breach D of a duty of care owed to the patient.

seen in criminal: necessity, duress of circumstances

facts: 36 year old woman (F) with a minor’s mental age lived in permanent medical care. The hospital staff and F’s mother wished to sterilise her, irrespective of F’s inability to consent, on the grounds that pregnancy would carry severe negative consequences for F due to her disability. F’s mother applied for a declaration from the court that a sterilisation operation would be legal notwithstanding the lack of F’s consent. The declaration was granted by the judge and upheld by the Court of Appeal; the Official Solicitor appealed to the Lords.

Question 12

Pile v CC Merryside (2020)

battrey - borderline cases - implied consent

see also: McMillan v CPS; Marland v DPP

= In both cases, alcohol affected victims touched (in McMillan by police, in Marland by boyfriend) without consent – in Marland clear evidence that the victim did not agree to the touching – is this relevant?

Answer 12

Held: was not a battery

‘Cheryl Pile brings this appeal to establish the liberty of inebriated English subjects to be allowed to lie undisturbed overnight in their own vomit-soaked clothing’ – on what basis could taking her clothes off and replacing them with clean clothes not be a battery?

Question 13

Bird v Jones

false imprisonment - total deprivation of liberty

Answer 13

No false imprisonment
This Case is Authority For…
To establish detention or imprisonment, the claimant must show that they were completely obstructed. If the claimant is merely prevented from going in one direction but is free to go in another, they are not imprisoned
There must not be a reaosonable way to escape

The defendant unlawfully enclosed part of the highway. He was charging a fee to admit spectators to view a boat race. The claimant tried to enter the enclosure without paying, and was repelled by the defendant and two police officers. At all times the claimant was unrestrained and free to return the way he came. He sued the defendant in the tort of false imprisonment.

Question 14

Walker v Commissioner of Police of the Metropolis

false imprisonment

Answer 14

A brief period of detention, when the claimant was effectively ‘held’ in a doorway without being touched, amounted to false imprisonment.

Question 15

Murray v Ministry of Defence [1988] 1 WLR 692

false imprisonment - awareness of the harm

Answer 15

=> a claim can be brought even if the claimant is unaware of the restraint.

Lord Griffiths, 703: ‘If a person is unaware that he has been falsely imprisoned and has suffered no harm, he can normally expect to recover no more than nominal damages … 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’.
NB: but if you have suffered no harm, no more than nominal damages

The claimant was suspected of collecting money for the IRA. An army corporal was instructed to go to the claimant’s house with a number of armed soldiers and bring her to an army screening centre. At 7 a.m. the army entered the claimant’s house and, following procedure, assembled the other occupants of the house into one room while the claimant got dressed. The claimant was not told that she was under arrest until 7.30 a.m. She was then taken to a screening centre where she was pat-searched and an attempt to interview her was made. The defendants released her at 9.45 a.m. The claimant brought a claim in false imprisonment against the Ministry of Defence.

Question 16

Iqbal v Prisoner Officers Association [2009] EWCA Civ 1312

Sullivan LJ dissenting see below:

• the right not to be falsely imprisoned takes precedence on the right to strike.
• The strike directly caused the confinement
• negates the qualification of the omission ⇒ going on strike was a positive act: act of defiance or desobedience

Answer 16

Held:

1. No positive action: As a general principle, a defendant was not to be held liable for the results of his inaction or omission, in the absence of a specific duty to act, (where such duty would normally arise out of the particular relationship between the claimant and the defendant). The mere failure of the prison officers to work at the prison on the day in question had involved no positive action on their part towards the claimant, notwithstanding a possible breach of their contracts of employment,
   Herd v Weardale Steel, Coal and Coke Co Ltd [1913] 3 KB 771, CA applied.
2. Lack of causal link: had not been a direct cause of the claimants confinement in his cell. Indeed in the instant case, there was a causal link between the prison officers’ decision to go on strike and the prisoners’ confinement in their cells. However, the direct and immediate cause of R’s confinement was the governor’s order (to let the prisoners in their cells as the officers were on strike and not the prison officers’ decision to strike.
3. Lack of intention: No intention on their part that the prisoners generally should be so confined;

NB: this tort requires Intention to imprison, not the act that results of the imprisonment although recklessness may suffice

Facts:

• Prison guards unlawfully went on a strike organised by the Prison Officers Association (D), which led to Iqbal (C), a prisoner, being confined to his cell all day when he would otherwise be allowed out of his cell for a few hours in a day. C sued D for the tort of false imprisonment.

Question 17

Herd v Weardale Steel Coal & Coke Co Ltd (1915)

false imprisonment

Answer 17

Held: The court held for the defendant because the claimant had voluntarily chosen to go into the mine knowing there was normally no way out until 4 pm. As such, he could not argue that the defendant’s failure to provide him a way out earlier was false imprisonment.

NB: The Lords alternated between treating the principles in this case as an application of the defence of[volenti non fit injuria], and treating them as meaning that false imprisonment was not established to begin with.

Facts: A miner went down into a coal mine at 9:30 A.M. to work for his employers. His shift was supposed to end at 4 P.M., and he would normally be brought back to the surface at that time. After arriving, he was asked to do a certain task, which he refused. At 11 A.M., he asked to be taken back up using the lift, the only way out of the mine. His employers refused to let him use the lift until 1:30 P.M., even though it was ready by 1:10 P.M. As a result, he was kept in the mine for an extra 20 minutes and sued his employers for false imprisonment.

Question 18

Robinson v Balmain New Ferry (2010) - PC case

false imprisonment

reasonable means to escape is a Q of fact – compare Jalloh with Robinson v Balmain New Ferry (2010)

Answer 18

The claimant contracted with the defendant to enter the defendant’s wharf and get on a boat. In front of the entry turnstile was a notice stating: ‘Notice. A fare of one penny must be paid on entering or leaving the wharf. No exception will be made to this rule, whether the passenger has travelled by the ferry or not.’
Once inside the wharf, the claimant changed their mind and demanded to be let out. The defendant told him that he had to pay a toll to exit. The toll gate was guarded an officer to prevent people leaving without paying the toll. The claimant tried to barge past the officer, who stopped him leaving. He eventually managed to evade the officer and escaped into the street. The claimant sued the defendant for false imprisonment.

Question 19

R (Jalloh) v SSHD

reasonable means to escape - false imprisonment

Answer 19

In a unanimous judgment, given by the outgoing President, Lady Hale, the Supreme Court held that “[t]he essence of imprisonment is being made to stay in a particular place by another person. The methods which might be used to keep a person there are many and various” and could include “threats, whether of force or of legal process”.

The Supreme Court agreed that this was a case of forced not voluntary compliance.
The Home Office argument that the concept of imprisonment should be aligned with the concept of deprivation of liberty under article 5 of the European Convention on Human Rights was roundly rejected. Lady Hale held that such a move would be a “retrograde step.”

When Mr Jalloh was released from immigration detention in 2013, the Home Office imposed a curfew condition requiring him to remain at home every night. The condition was backed by an electronic tag and the threat of criminal prosecution. After Mr Jalloh successfully challenged the curfew in 2016 on the basis that the Home Office had no power to impose it, he brought a claim for false imprisonment. He had been subject to an unlawful curfew for two and a half years. Mr Justice Lewis found that the restriction imposed on Mr Jalloh, amounted to imprisonment.[1] He awarded Mr Jalloh £4,000 in damages.[2] The Court of Appeal upheld that ruling and likened the curfew condition to house arrest.[3]

The Home Office appealed again, and invited the Supreme Court to give guidance as to what imprisonment means.

Question 20

Davidson v CCNW

directness - false imprisonment

NB: Note that the issue in these cases is the liability of the provider of info, not of the 3rd party who is the immediate cause of arrest (who may or may not be also liable with the provider of info)

Answer 20

Held: D not liable had only provided info and the constables had exercised their free judgement whether or not to arrest C – D had not procured the arrest

store detective provided info to police related to C shoplifting – constable arrested C.

Question 21

R (Lumba & Mighty) v Secretary of State for the Home Department
[2011] UKSC 12

false imprisonment - directness - third parties

Answer 21

held that all foreign nationals released from prison and detained under immigration powers between April 2006 and September 2008 were falsely imprisoned under an undisclosed policy that contradicted the Government’s published policy but awarded only nominal damages for the tort.
=> in these circumstances there was an action for false imprisonment – did not change the fact of imprisonment, or provide a defence, that D could have been lawfully arrested.

Question 22

TTM v Hackney London Borough Council [2011] 1 WLR 2873

false imprisonment - directness - third parties

Answer 22

A local authority was liable to pay compensation to an individual who had been unlawfully admitted to hospital under the Mental Health Act 1983 s.3, as the individual’s brother had objected to the admission under s.11(4)(a), so the detention had been contrary both to the Act and to the European Convention on Human Rights 1950 art.5, and the local authority could not escape liability simply because the NHS trust which ran the hospital had acted lawfully in detaining the individual by virtue of s.6(3) of the Act.

= The mere fact that the 3rd party’s act is lawful does not affect the liability of the supplier of the information (which depends upon whether it amounts to procuring the arrest)

Question 23

Blake v Galloway

defenses to trespass against the person-consent recreational activities

Answer 23

Held, appeal allowed that although the horseplay in which the youths were engaged was neither a regulated sport or game subject to rules nor formally organised, it was analogous to those situations. Like participants in sports and games, the youths did owe a duty of care to each other and whether there had been a breach depended on the circumstances. In the context of ‘horseplay’ there is a breach of the duty of care only where the defendant’s conduct amounts to “recklessness or a very high degree of carelessness”; not merely an error of judgment, oversight or lapse of attention . The defendant had consented to the risk of injury occurring within the conventions and understanding of the game.

Dyson LJ

> “If the defendant in the present case had departed from the tacit understandings or conventions of the play and, for example, had thrown a stone at the claimant, or deliberately aimed the piece of bark at the claimant’s head, then there might have been a breach of the duty of care. But what happened here was, at its highest, “an error of judgment or lapse of skill” (to quote from Diplock LJ), and that is not sufficient to amount to a failure to take reasonable care in the circumstances of horseplay such as that in which these youths were engaged. In my view, the defendant’s conduct came nowhere near recklessness or a very high degree of carelessness.”

Facts: The appellant (G) appealed against an order for damages based on a finding that the injuries of the respondent (B) had been caused by G’s negligence and battery. G and B, teenagers, had been engaged in a game which involved throwing bark chippings at each other. One chipping, thrown by G at B, hit B in the eye causing significant injury. The judge rejected G’s defence of volenti non fit injuria but reduced the agreed damages by 50 per cent by reason of B’s contributory negligence. On appeal, G argued that the claim in negligence should have been dismissed as there had been no lack of reasonable care on G’s part and if there had been, the judge was wrong to reject the defence of volenti.

Question 24

Chatterton v Gerson

consent - medical context - defences

In this case, Bristow J suggested that consent to touching might be vitiated by fraud if the defendant withheld relevant information in bad faith. In such circumstances, the defendant might still be liable for battery.

Answer 24

For the purposes of the tort of battery, consent is valid if the claimant has been informed of the broad nature of defendant’s acts. There is no need for the claimant to be informed as to every risk associated with the act.

This case is no longer good authority for the standard of care owed by doctors who have a duty to warn. This is a result of the decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11.

The claimant suffered from severe pain due to a post-surgical scar. She was referred to the defendant, a doctor who specialised in pain treatment. The defendant told the claimant that he advised surgery which would block the sensory nerves around the scar. He also told her that there was a risk this would cause numbness and temporary muscle weakness.

The claimant agreed to undergo the surgery. It only gave her temporary relief, and caused some numbness in her right leg. For this reason, the claimant underwent the surgery a second time. On the second occasion, the defendant failed to warn the claimant that she might experience numbness or muscle weakness. The second surgery caused the claimant to completely lose the sensation in her right leg and made her pain even worse. The claimant sued the defendant for negligence and battery.

Question 25

Montgomery v Lanarkshire Health Board [2015] UKSC 11

consent - medical context - defences to intentional trespass torts

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 25

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).

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.

Question 26

. St George’s Healthcare NHS Trust v S [1999] Fam 26

defences - capacity to consent

Answer 26

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.

=>

Question 27

ZH v Commissioner of Police for the Metropolis.

capacity to consent - Mental Capacity Act 2005

Answer 27

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.

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.

Question 28

Cross v Kirby

defences to trespass torts - self defence

Answer 28

Held:

Appeal allowed. The trial judge was wrong to reject both defences

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.

Question 29

Ashley v Chief Constable of Sussex Police

defences to trespass torts - self-defence

• Where the defendant relies on self-defence in tort, is it enough that the defendant honestly believed they were under attack, or must that belief also be reasonable?
• Given that negligence had been admitted, was there any point in the battery claim proceeding to trial?

Answer 29

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

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.

Question 30

Hague v Deputy v Governor of Parkhurst Prison , Weldon v Home office

lawful authority - defences to trespass torts

Answer 30

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.

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.

Question 31

Wilkinson v Downton

WvD tort

Answer 31

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.

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.

Question 32

Wainright v Home Office

WvD tort

Issue: Whether English common law recognises a cause of action for invasion of privacy and/or for intentional infliction of emotional harm.

Answer 32

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.

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.

Question 33

O (a child) v Rhodes

WvD tort

• The conduct element required words or conduct directed towards the claimant for which there was no justification or reasonable excuse. The Court of Appeal treated the publication of the book as conduct directed towards O and considered that the question of justification had therefore to be judged vis-a-vis him. That was wrong. The book was for a wide audience and the question of justification had to be considered accordingly, not in relation to O in isolation.There was every justification for the publication. Of course vulnerable children had to be protected as far as reasonably practicable from exposure to material which would harm them, but the right way of doing so was not to expandWilkinson v Downtonto ban the publication of a work of general interest.

⇒ It was difficult to envisage any circumstances in which speech which was not deceptive, threatening or possibly abusive could give rise to liability in tort for wilful infringement of another’s right to personal safety. The right to report the truth was justification in itself. As to the mental element, there was a critical difference between imputing the existence of an intention as a matter of law and inferring the existence of an intention as a matter of fact. The former was a vestige of a previous age and had no proper role in the modern law of tort. Two important questions about the mental element of the tort:

• The first was whether, where a recognised psychiatric illness was the product of severe mental or emotional distress, it was necessary that the defendant should have intended to cause illness or whether it was sufficient that he intended to cause severe distress which in fact resulted in recognisable illness.
• The second was whether recklessness was sufficient. The answer to the first question was to choose the second option. Recklessness should not be included in the definition of the mental element. To hold that the necessary mental element was intention to cause physical harm or severe mental or emotional distress struck a just balance. It meant that a person who actually intended to cause another to suffer severe mental or emotional distress bore the risk of legal liability if the deliberately inflicted severe distress caused the other to suffer a recognised psychiatric illness. The instant court was inclined to the view, which was necessarily obiter, that the tort was sufficiently contained by the combination of:(a) the conduct element requiring words or conduct directed at the claimant for which there was no justification or excuse,(b) the mental element requiring an intention to cause at least severe mental or emotional distress, and(c) the consequence element requiring physical harm or recognised psychiatric illness.

Answer 33

Held: Appeal allowed. InWilkinson 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.

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 underWilkinson v Downton [1897] 2 Q.B. 57, [1897] 5 WLUK 14that 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.

Question 34

Majrowski v Guy’s and St Thomas’s NHS Trust

Protection From Harassment Act 1997

Answer 34

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.

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.