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Torts Law Semester 2 (yr 1) > Trespass > Flashcards

Trespass Flashcards

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1
Q

trespass to the person

A

concerns intentional and immediate interference with the person, making them beleive they are proximate to immediate danger

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2
Q

trespass to land

A

unlawful and unjustifiable interference with another person’s land

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3
Q

trespass to goods

A

unlawful interference with another person’s property

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4
Q

what does intentionality mean in trespass?

A
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5
Q

Lord Denning on the key aspects of trespass in Letang v Cooper (1965)

A

“if one man intentionally applies force directly to another, the plaintiff has a cause of action in assault and battery, or if you please to describe it in trespass to the person… If he does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of aciton today in trespass”

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6
Q

Bici v Ministry of defence (2004)

A
  • UK soldiers shot at car and killed 2 people and injured others
  • soldiers alledged they were holdng a gun and they feared for their lives
  • forensic evidence held this was unlikely
  • judge considered whether to add a claim in battery
  • trespass decision was the intentional infliction of immediate force and the intentional shooting of the victims
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7
Q

what is battery?

A

the intentional infliction of unlawful force

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8
Q

key characteristics of trespass?

A
  • intentionality

- direct conduct

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9
Q

Can a harm be caused indirectly in trespass?

A

-if the harm is caused indirectly it cannot be the basis of a claim in trespass

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10
Q

Trespass torts are actionable ‘per se’, what does that mean?

A
  • actionable without proof of damage

- if there is no damage the compensation for C could be negligible/nothing

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11
Q

Vindication of rights

A
  • official judicial recognition that D committed a trespass against you
  • it is vindicatory of your rights that have been violated
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12
Q

Ashely v Chief constable of sussex (2008)

A
  • police conducted/planned early morning raid
  • police immediately shot him dead
  • police officer acquitted in criminal court
  • family of victim brought claim in civil court for police authority who were vicariously liable for their employee
  • police paid victim’s family compensaton
  • family brought claims for assault and battery for the actual shooting and wanted public admission that C was unlawfully killed
  • lords chose not to consider vindicatory damages
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13
Q

When are vindicatory damages awarded according to Lumba v Secretary of state (2011)?

A

“such an award could only be justified where the declaration that a claimant’s right has been infringed provides insufficiently emphatic recognition of the seriousness of the defendant’s default”

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14
Q

three types of trespass

A

assault, battery and false imprisonment

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15
Q

two additional causes of action in trespass

A
  • wilkinson v downton

- harassment

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16
Q

what is assault?

A

“an act which causes the claimant to apprehend the infliction of immediate and unlawful force on his person” (collins v wilcock)

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17
Q

can threatening statements qualify for assault?

A
  • according to R v Ireland (1998)
  • Ds making silent phone calls to victims causing them to hear for their personal safety was assault because a “thing said is a thing done”
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18
Q

what is a further qualification for assault according to stephen v myers (1830)?

A
  • the act must give rise to reasonable apprehension for liability
  • only threats that the means of carrying the assault are real can be assault (where there is no actual personal violence
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19
Q

Thomas v National union of miners (1986)

A
  • miners crossing picket to go to work
  • C were on bus
  • striking miners were shouting aggresively and making threats to miners going to work
  • threats did not amount to assault
  • no real threat of immediate personal violence
  • clear distance and the harm wasn;t immediate because the other miners could see Cs at any time and threaten them
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20
Q

Do conditional threats amount to assault according to Read v Coker (1853)?

A
  • C was told to leave his business premises and refused
  • D told C they would break his neck if he didn’t leave
  • C left and brought claim for assault
  • CA could escape the violent act by leaving but the threat of violence showed an intention to commit the violent act
  • Ds had the ability to do the violence
  • the conditonal threat doesn’t negate the apprehension of unlawful violence
  • it’s the fear of violence that causes C to leave the premises
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21
Q

Do negating words amount to assault according to Tuberville v Savage (1669)

A
  • altercation between C and D
  • D said ‘if it were not assize time I would not take such language from you’ and put his hand on his sword
  • assize time was when judges were in town for court session
  • it was clear there was no trespass
  • the statement negated any threat in D’s conduct
  • he clearly did not intend to inflict harm at that time
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22
Q

What is battery?

A

“the actual infliction of unlawful force on another person” (collins v wilcock)

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23
Q

Collins v Wilcock (1984)

A
  • police officers acting on policy to deter women from being sex workers
  • allowed to make enquiries at red light district
  • W and colleagues stopped women and one complied but C didnt
  • C walked away and insulted them
  • W took hold of C by the arm and C shouted and scratched W
  • was W acting in lawful execution of duty or did she exceed scope by grabbing C’s arm
  • court held yes and her harm was battery
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24
Q

exceptions to battery

A
  • self defense
  • lawful authority (reasonable force in arrest)
  • “exigencies of everyday life” (some forms of touching are just part of ordinary life that we have to deal with)
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25
Q

Does battery have to be intentional?

A

-yes, if you accidentally touch someone it is not battery

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26
Q

McCarthy v Chief constable merseyside police (2016)

A
  • fight between two men and police were called
  • to prevent C from causing further harm police officer tased him
  • tased for 6 seconds more than he was meant to
  • did it consitute unlawful force/battery?
  • CA held officer had not meant to tase C for that long but it was a volatile situation and D was distracted
  • extra six seconds were unintentional so there was no battery
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27
Q

Haystead v Chief constable of derbyshire police (2000)

A
  • D punched gf in face
  • baby she was holding fell and hurt head
  • D accepted he committed battery agsinst girlfriend but appealed for battery on baby for lack of intent
  • appeal dismissed
  • forseeable this would be consequence of his conduct as gf was holding baby when she was punched
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28
Q

Can recklessness consitute battery according to Breslin v Mckevitt (2011)?

A
  • 2 people killed 29 people from bombigns
  • can D be liable in batttery to people he did not intend to injure but was reckeless as to whether death/injury would ensue from his conduct
  • CA concluded it was reckless infliction of injury
  • held you don’t have to have bad motives for touching
  • important thing is they intended to touch
  • held liable in battery
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29
Q

Transferred intent in James v Campbell (1832)

A
  • D/C at dinner, fight occured
  • D intended to hit another person but missed and hit C
  • Was D liable for trespass against C?
  • highly forseeable other peiple could get hit or injured as there were may fighting in that area
  • D actd intentionally so it doesn’t matter if their intended target was someone else
  • C’s bodily integrity was still harmed by D’s intentional and unlawful conduct
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30
Q

what is false imprisonment?

A

“unlawful or false imprisonment consists of confinement or detention without sufficient authority”

31
Q

is ill motive required in battery?

A

yes

32
Q

is ill motive required in false imprisonment?

A

no

33
Q

What are the requirements for complete restriction in false imprisonment?

A

there can be no reasonable means for escape to the restriction is not complete

34
Q

General rule for false imprisonment

A

-it requires complete restriction and if there’s a reasonable way out there is no false imprisonment

35
Q

Bird v Jones (1845)

A
  • C tried to cross public road which was closed off due to boat race taking plce
  • C needed to get to other side of closed off section of the road and D tried to stop him and failed
  • officers told him he could get out of the enclosed area by going to correct way but he refised and tried to get out how he wanted
  • C brought claim for false imprisonment
  • didnt work as there was a reasonable way to escape and he just wanted to leave in a particular way that wasn’t availble to the public
36
Q

Majority opinion in Bird v Jones (J Patterson)

A

“I cannot bring to mind the conclusion that if one man merely obstructs the passage of another in a particular direction, whether by threat of personal violence or otherwise, leaving him at liberty to stay where he is or to go in any other direction be pleases he can’t be said to thereby imprison him

37
Q

When is someone falsely imprisoned according to Bournewood Mental health trust v R?

A

“a person is detained… if those who have control over the premises inn which he is have the intention that he shall not be permitted to leave those premises and have the ability to prevent him from leaving”

  • if patient tried to leave he would have been prevented from doing so
  • it doesn’t matter that he didn’t try to leave as he was still completely restrained
38
Q

Why is the threshold for false imprisonment so low?

A

commonn law values individual liberty so the slightest/most temporary infringement without lawful reason is false imprisonment

39
Q

Are damages usually given in false imprisonment?

A

-where there is no damage or imprisonment is temporary the judgement is usually sufficient as a vindication of rights

40
Q

What are conceptual restraints and can they constitute FI?

A

restraints caused by things said/what C has been lead to believe
-It can constitute complete restriction

41
Q

Jalloh v Secretary of state for the home department (2020)

A
  • C is uunder electronically monitored curfew
  • foreign national who was granted asylum but was convicted several times and tracking device was implemented
  • if he broke his curfew he would go to prison/pay fine
  • there was false imprisonment
  • “he was warned in the clearest of terms that breaking the curfew could lead to a 5,000 pound fine or imprisonment for up to 6 months or both. He was well aware that it could lead to his being detained… the idea thatt he claimant was a free agent, able to come and go as he pleased is completely unreal”
  • breaking the law and risking punishment not a reasonable means of egress
42
Q

4 factors when assessing reasonableness of means of egress

A
  • threat or danger to self
  • threat or damage to property
  • distance and time
  • legality
43
Q

McFadzean v Construction Forestry mining (2007)

A
  • group of protestors engaged in a forest protest
  • respondents imposed picket making it impossible for them to leave with the most direct route
  • they could leave through the forest
  • CA in victoria held protestors were not imprisoned because they had reasonable means of egress, through the forest
44
Q

Reasonable conditions for escape in Robinson v Balmain new ferry company (1906)

A
  • C intended to cross Sydney harbour by using D’s ferry
  • paid 1 penny to enter and notice board said 1 penny paid when entering/leaving even if you didnt use the ferry
  • C discovered 20 min wait for ferry and decided to leave and refused to pay penny
  • forcibly prevented from leaving for 20 mins then C finds a way to escape
  • courts held there was no FI
  • C could have just waited for next ferry or paid 1 penny
  • demand that C performed his part of the contract was a reasonable condition
45
Q

Does the claimant need to know they were imprisoned according to old case law like Herring v Boyle (1834)

A
  • suggests that knowledge of C of their imprisonment was relevant to whether or not they were falsely imprisoned
  • mom tries to remove him from school but D doesn’t allow her unless she pays fees
  • FI claim rejected
  • child did not know what was going on so he was not held against his will
  • courts did not consider whether he would be allowed to leave like they did later in Bournewood
46
Q

Lord Atkin’s opinion on whether C need to know they were imprisoned in Meering v Grahame-White aviation (1919)

A

“It appears to me that a person could be imprisond without his knowing it. I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious and while he is a lunatic”

-lack of knowledge does not alter the fact that C’s rights have been violated

47
Q

Lumba v Secretary of state (2012)

A
  • foreign national convicted of criminal offence in UK
  • after he completed sentece H.S detained him under 1971 immigration act and made deportation order against him
  • C knew he was held in pre-deportation detention
  • he knew of secret policy that deported all foreign nationals after serving
  • the detention was pursuant of this secret policy which made it unlawful
  • C did not know it was unlawful
  • confirmed Atkin’s approach that knowledge of unlawful imprisonment is not necessary
48
Q

Will pure omission be enough for the defendant to satisfy FI according to Iqbal v Prison officers association?

A
  • prison officers association go on strike that doesn’t meet required union laws
  • officers don’t turn up for work and so inmate could not b released
  • prison officer issued order that all prisoners had to remain in their cells for the day
  • prison officers had contractual obligaton to the governor of the prison to turn up and perform
  • the breach of duty has nothing to do with third parties who may be affected by non-performance
  • prison officers’ conduct was a failure to act which motivated governor to make the order that caused the complete restriction
  • the order was lawful so the restraint was lawful=no FI
49
Q

Is deliberate conduct in itself sufficient for FI?

A

No, there must be intention/recklessness to deprive the claimant of their liberty

50
Q

LJ Sullivan on deliberate conduct in Iqbal

A

“if a security guard in an office block locks the door to the claimant’s room believing that the claimant has gone home for the night and not realizing that he is in fact still inside the room, he has committed a deliberate act. However, he did not intend to confine the claimant… he would not be guilty of the intentional tort of false imprisonment”

51
Q

Two denials for trespass

A

consent and lawful authority

52
Q

What are defences proper?

A

arguments offered by a defendant that if accepted would permit D to escape liability even if all the other elements of the tort are present

53
Q

Examples of defences proper

A
  • self defence
  • necessity
  • provocation
  • the defendant is saying yes I did commit the tort but…
54
Q

Mitigation of remedy

A
  • after all possible denials have been unsuccessful and there’s no valid defense
  • doesn’t try to avoid liability but to limit remedies C is entitled to
55
Q

Express content

A

when someone expressly/explicitly consents in some way or another

56
Q

Implied consent

A
  • presenting your hand to shake hands with someone

- your consent to allowing touch is implicit in your conduct

57
Q

Qualifications for consent defence

A
  • consent can be revoked (if it is D must be given reasonable time to change behaviour)
  • objectively assessed
  • consent must be given freely (not because of threat/authority)
  • burden of proof is on C
  • consent must not be procured by fraud
  • has D’s conduct fallen outside scope of C’s consent
58
Q

Implied consent in sport

A

-generally accepted that sporting activities have implied consent through volunatry participation to the risks and harms of the sport

59
Q

R v Barnes (2005)

A
  • D footballer in amateur match attempted to make slide tackle and seriously injured another player
  • any touching within scope of sport is consented to
  • where a player breaks rules through condiuct it still isn’t an offence
  • reasonable occurence that happens while playing the game
  • but something like punching in football would be outside scope
60
Q

Consent in medical treatment according to west berkshire health authority

A

“at common law a doctor cannot lawfully operate on adult patients of sound mind or give them any other treatment involving the application of physical force however small without their consent. If a doctor were to operate on such patients… without their consent, he would commit the actionable tort of trespass to the person”

61
Q

How much information does C need to give valid consent to medical treatment according to Montgomery v lanarkshire health board (2015)

A

doctors have DoC to take reasonable care to ensure patients are aware of any reasonable material risks involved in recommended treatments and any reasonable alternatives

62
Q

Statutory basis for lawful authority for false imprisonment (police officers)

A
  • Police and criminal evidence act 1984
  • section 24, arrest without warrant if you have ‘reasonable grounds’
  • as long as officers act within scope of section 24 complete restriction wouldn’t constitute FI
63
Q

statutory basis for false imprisonment (non-police officers)

A
  • police and criminal evidence act 1984
  • section 24 A, arrest without warrant if you have reasonable grounds someone is about to commit a serious criminal offence
64
Q

Breach of the peace according to R v Howelll (1982)

A
  • common law powers available to prevent this
  • “whenever harm is actually done or is likely to be done to a person or in his presence or to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without a warrant”
65
Q

authority for self defense as defense proper in Ashley v Chief constable of sussex police”

A

“every person has the right to protect himself by using reasonable force to repel an attack or to prevent an imminent attack”

66
Q

2 elements of self defense

A
  • must be necessary to repel immediate danger to D’s person

- force used must be proportionate

67
Q

Imminence of threat in self defense

A
  • according to Flint v Tittensor (2015) if yu have enough time to call the police you must take those measures instead of using force
  • once threat posed by aggressor has abated the use of force is no longer permitted according to Gilchrist v chief constable of greater manchester police (2019)
68
Q

necessity defence in medical treatment

A
  • medical emergency professionals may find themselves in a position where the patient is unable to give consent
  • to safeguard professionals from liability we used necessity defense
69
Q

necessity defense in medical treatment for the mentally ill (F v West Berkshire)

A

“in the case of a mentally disordered person, there is no point in waiting to obtain the patient’s consent. The need to care for him is obvious; and the doctor must then act in the best interests of his patient… were this not so, much useful treatment could, in theory, be dnied to the unfortunate’

70
Q

defence of provocation

A

D tries to argue the legally blameworthy conduct of C excuses/justifies their own tortious act
(used more as a mitigation of remedy)

71
Q

Defence of illegality

A

-trespass is committed to the claimant while they’re in the course of commiting some form of illegal act

72
Q

Holman v Johnson (1775) on the defence of illegality

A

“no court will lend its aid to a man who founds his cause of action upon an illegal or immoral act’

73
Q

Considerations for illegality defence (Patel v Mirza, 2016)

A

“To consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by a denial of claim”

“To consider any relevant public policy on which the denial of the claim may have an impacy”

“To consider whether denial of the claim would be a proportionate response to the illegality”

Torts Law Semester 2 (yr 1) (8 decks)

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