Torts of trespass

Question 1

The essential torts of trespass

Answer 1

Expounded by Goff LJ in Collins v Wilcock [1984]:

• Battery
• Assault
• False imprisonment
• Wilkinson v Downton

Question 2

Common characteristics of trespass torts

Answer 2

• They must be committed intentionally (either intentional conduct or intentional consequence)
• They must cause direct and immediate harm
• They are actionable per se (without proof of loss)

They are distinguished from negligence by the intention in the act (Letang v Cooper).

Question 3

Battery

Answer 3

“the actual infliction of unlawful force on another person” (Collins v Wilcock [1984]).
“an unwanted kiss may be a battery although the defendant’s intention may be most amiable” (R v Chief Constable of Devon ex p Central Electricity Generating Board [1982]).

Question 4

Requirements of a successful battery claim

Answer 4

1. The intentional application of unlawful force
2. To be direct and immeidate
3. For which the defendant has no lawful justification or excuse

Question 5

1. Intentional application…

Answer 5

If Mike pushes Lucy into Dave, although he only meant to hurt Lucy, both Lucy and Dave have a claim on Mike (Gibbon v Pepper [1695]).
It requires either
1. Intention i.e. setting out to hurt someone
2. Recklessness i.e. foreseeing the likelihood of hurting someone

Question 6

Livingstone v MoD [1984]

Answer 6

If A intends to hurt B, and hurts C instead, C will have a claim against A (the rule of ‘transferred intent’)

Question 7

Williams v Humphrey [1975]

Answer 7

It established that battery can occur when unlawful touching never crossed their mind. D pushed C into a pool playfully and he broke his ankle in the process. He did not mean to hurt C but he did mean to touch him - so intention was present.

Question 8

Fagan v Metropolitan Police Commissioner [1969]

Answer 8

If the initial touching was accidental, but D has the opportunity to stop it and does not, this will amount to battery. In this case D accidentally rolled over a policeman’s foot but refused to move it off, which amount to battery.

Question 9

1…. of unlawful force

Answer 9

Originally, ‘the least touching of another in anger is battery’ (Cole v Turner).
This set down a test of hostile intent used in Wilson v Pringle where a schoolboy injured another’s hip during ‘horseplay’.
Collins v Wilcock [1984] however (before Wilson) held that battery will be anything that exceeds what is acceptable in ordinary life.
The view of Collins was accepted in Mental Patient: Sterilization [1990] where hostility was dropped as a requirement for battery.

Question 10

2. Direct and immediate force

Answer 10

This has been applied rather loosely.
In Scott v Shephard D threw a firework into a marketplace and was deemed liable for the damage it caused to an individual despite it being thrown on by two other people.
In DPP v K a schoolboy placed acid in an upturned dryer in a school was found liable for battery despite C not finding it until some time after.

Question 11

Assault

Answer 11

‘an act which causes another person to apprehend the infliction of immediate unlawful force on his person’ (Collins v Wilcock [1984]).
Assault thus lies in the anticipation of a battery.
The pointing of a gun at someone is assault, regardless of whether it is loaded or not (R v St George (1840)).

Question 12

Requirements of assault

Answer 12

1. The defendant intend that the claimant apprehend the application of unlawful force
2. The claimant reasonable apprehends the immediate and direct application of unlawful force
3. The defendant has no lawful justification or excuse

Question 13

1. Intention

Answer 13

The same from battery applies - they must intend that C apprehend the application of immediate unlawful force.

Question 14

2. Reasonable apprehension…

Answer 14

It does not matter if the person was overly timid or if they could have successfully defended themselves. In Stephens v Myers (1830) a defendant standing up from his chair in a church meeting and approach the claimant with a clenched fist showing was deemed an assault.

Question 15

2… of immediate and direct application of unlawful force

Answer 15

If the claimant is in no position to carry out a battery, there can be no assault (Stephens v Myers (1830)).
In Thomas v National Union of Miners [1986] assault could not be deemed to the police being present to stop any potential battery (supported in Mbasogo v Logo [2006]).

Question 16

Do you need a physcially intimidating gesture?

Answer 16

Traditionally - yes (R v Meade and Belt (1823)).
However a physically intimidating gesture can be negated to the opposite effect (Tuberville v Savage (1669)).
As of R v Ireland [1998] there is no need for a physically intimidating gesture as words said are words done’.

Question 17

False imprisonment

Answer 17

‘unlawful imposition of constraint on another’s freedom of movement from a particular place’ (Collins v Wilcock [1984]).

Question 18

Requirements for false imprisonment

Answer 18

1. D must intend to completely restrict C’s freedom of movement
2. No lawful justification or excuse

Question 19

1. Intention…

Answer 19

There must be intention (Iqbal [2009]). However if someone locks a door suspecting someone is inside but they do not care, they are committing false imprisonment.

Question 20

R v Governor of Brockhill Prison, ex p Evans (no 2) [2001]

Answer 20

The requirement of intention can be subverted if the action is thought to be lawful. This case involved keeping a prisoner for longer than they were legally obliged.

Question 21

1… of a complete restriction of movement

Answer 21

The restriction must be complete; they cannot move in the other direction (Bird v Jones [1845]). In this case a bench was set up, blocking one way down a path. This is not false imprisonment. If there are reasonable means to escape false imprionsment does not apply.
Emotional pressures to stay in one place are not false imprisonment.

Question 22

Robinson v Balmain New Ferry [1910]

Answer 22

D had to pay 1p to leave through a certain way to exit a wharf after paying 1p to enter. There was a reasonable means of esape therefore no claim in false imrpisonment.

Question 23

Herd v Weardale Steel [1915]

Answer 23

A miner entered the mine at 9am but did not want to work until the end of his shift at 4pm. He thus demanded he be returned to the surface but his employer had him wait 20 minutes before ascending. Because he entered the mine under implied consent to stay till 4p, he was not falsely imprisoned by his employer. The ratio was that omissions cannot count as false imprisonment although this case may be incredibly out of context with modern times.

Question 24

Iqbal v Prison Officers Association [2009]

Answer 24

Due to strikes, an insufficient number of prison guards were present in the prison and Iqbal could not be let out of his cell for his allowed 6 hours a day. He applied for false imprisonment but was rejected because omissions cannot count as false imprisonment, thus affirming the ratio of Herd.

Question 25

Does a prisoner need know?

Answer 25

No - Herring v Boyle (1834).
“… it appears to me that a person could be imprisoned within his knowing it.” (Meering v Grahame-White Aviation).
Confirmed obiter in Murray v MoD [1988].
They will likely receive nominal damages however.

Question 26

R v Bournewood Mental Health Trust (ex p L) [1999]

Answer 26

Established that threat of imprisonment is insufficient for a claim.
In this case a patient was left in an unlocked hospital ward but told that if he left he would be compulsorily detained (which did happen). His appeal for false imprisonment before the detention was dismissed by the HL.
This matter was cleared up by the Mental Health Act 2005 so this case is unlikely to be repeated.

Question 27

Without legal authority

Answer 27

This is the essence of false imprisonment.
It is extremely important because it is codified in Art 5 ECHR.
However, imprisoning someone under the guise of lawful authority or using the excuse that he would have been imprisoned anyway is not valid (R v Deputy Governor of Parkhurst Prison, ex p Hague [1992]).
if a police officer detains a suspect on ‘reasonable suspicion’ then the burden of proof is on the claimant to show that the exercise of discretion is not reasonable (Chief Constable of Thames Vlley Police v Earl Gideon Foster Hepburn [2002]

Question 28

Austin v Commissioner of Police of the Metropolis [2009

Answer 28

C took a claim for false imprisonment as the police cordened off a group of protesters and one could not escape for several hours. The HL deemed it lawful, as did Strasbourg as it was in good faith, proportionate and not enforced longer than necessary.

Question 29

Defences (lawful justification or excuse)

Answer 29

• Consent
• Necessity
• Self defence

Question 30

Consent

Answer 30

Normally occurs in a medical environment.

Consent absolves the defendant of liability.

Question 31

Chatterton v Gerson [1981]

Answer 31

A patient consented to an operation but claimed after losing sensation in her leg she had not consented to that risk. It was held that she understood the general nature of the operation and therefore consented to it, so she could not mount a claim in battery. However it was stated by Bristow J that a boy consenting to having his tonsils removed would not consent to a circumcision in the process.

Question 32

Re T (Adult: Refusal of Treatment) [1993]

Answer 32

An adult who suffers from no mental incapacity can refuse treatment and any application of treatment by a doctor would amount to battery. This is so even if it means to save their life or the life of their unborn child (Re MB (Caesarean Section) [1997]).

Question 33

Re F [1990]

Answer 33

A mentally ill patient, with the capacities of a four year old, was sterilized from the decision of the doctors because she was developing sexual relations with another patient and they believed that she could not handle having a baby. In this case unlawful touching without consent is valid on the basis of necessity, as consent could not be granted due to her incapacity.

Question 34

Mental Capacity Act 2005

Answer 34

It sets a two stage test (as interpreted by Shaun Pattinson) which is that

• The patient must be suffering from an ‘impairment of, or a disturbance in the functioning of, the mind or brain’
• The patient will be considered unable to make a decision if the doctor reasonably believes that he is unable to meet the requirement of s3(1)

Question 35

Necessity

Answer 35

This applies for emergency services only. Where a patient is unconscious but otherwise competent and not known to deny treatment, the doctors will make the decisions (F v West Berkshire HA [1990]).
This applies to those in a coma or mentally ill (Airedale NHS Trust v Bland [1993]).
This is protected in the Mental Capacity Act.

Question 36

Self-Defence

Answer 36

D must have acted honestly and reasonably (Ashley v Chief Constable of West Sussex Police [2008]).
The reaction must be proportionate - in Cockcroft v Smith (1705) biting off a finer was disproporionate to C running their finger along their eye. Similarly D punching C in the eye after C punched him on the shoulder was not proportionate (Lane v Holloway).
In Cross v Kirkby [2000] however a farmer wrestled a bat from a hunt saboteur and hit him with it after the saboteur hit the farmer with it. The self-defence was found to be valid as “the violence doesn’t have to be measured with mathematical precision.”

Question 37

The Protection From Harassment Act 1997

Answer 37

This act was aimed particularly at stalking.

Question 38

Provisions of the PfHA 97

Answer 38

Provides a civil remedy at s3
Criminal offence of harassment at s2
Aim is to protect and not compensate s1

Question 39

Majrowski [2007]

Answer 39

This case a case involving bullying in the work place. C was gay and bullied extensively by his manager. It was held that the behaviour must be at a level which is oppressive and unacceptable, i.e. not merely annoyance or aggravating matter of everyday life

Question 40

James v DPP [2009]

Answer 40

Held that a course of conduct required for the act must be at least two acts of similar type and context.

Question 41

Remit of the act

Answer 41

• Victimizing news articles: Thomas v News group newspapers, Trimingham v Assoc Newspapers [2012]
• Unjustified bills and threats of legal action: Ferguson v British Gas
• Bullying in the workplace: Majrowski, Veakins v Kier Islington Ltd [2009]
• Intimidating public demonstrations (Daiichi UK ltd v Stop Huntington Animal Cruelty [2004])