Trespass of a person

Question 1

3 categories of trespass:

Answer 1

1. Trespass to The Person
2. Trespass to Goods
3. Trespass to Land

Question 2

3 types of trespass to the person

Answer 2

1. assault
2. battery
3. false imprisonment

Question 3

Stephens v Myers [1830]

Answer 3

• Claimant and Defendant at Parish Council meeting

- Churchwarden intervenes but defendant still held liable for Assault

Question 4

Wilson v Pringle [1987]:

Answer 4

• defendant and claimant were schoolboys, defendant jumped at claimant to pull his schoolbag off his shoulder, making claimant fall and break his leg
• Defendant argued that he was playing about (‘horseplay’)
• Court of Appeal believed there must be an element of hostility to amount to battery

Question 5

Scott v Shepherd [1773]:

Answer 5

• Defendant threw a lighted squib [small bomb] made of gunpowder, into a market. It landed near Y who threw it across the marketplace.
• It landed next to R who picked it up and threw it to another part of the marketplace.
• The bomb then struck S in the face causing loss of use of his eye.
• Shepherd was fully liable as there was no break in the chain of causation or novus actus interveniens [new intervening act]
• De Gray CJ: “I do not consider the intermediaries as free agents in the present case but acting under a compulsive necessity for their own safety and self-preservation.”

Question 6

Austin & Other v Metropolitan Police Commissioner [2005]

‘Kettling’ case

Answer 6

• complaint by a demonstrator and some passers-by that they were not allowed to exit a police cordon for almost seven hours during a protest against globalisation in London
• House of Lords: False imprisonment not accepted, held police actions in good faith, proportionate and necessary
• the avoidance of personal injuries and damage to property and the dispersal as quickly as possible of a crowd bent on violence and impeding the police.
Heavy criticism.

Question 7

Wilkinson v Downton [1897]

Answer 7

• Claimant falsely told husband seriously injured in an accident
• Defendant claimed it was a practical joke
• Claimant suffered physical and psychological reaction
• Conditions for a tort where a person who acts intentionally with the result that injury is indirectly caused are that it should be proven that:
• the defendant intended to infringe the claimant’s ‘right to personal safety’ (Wilkinson) or his/her ‘interest in his freedom from harm’, and
• actual injury, physical or recognisable psychiatric injury, occurred as a result
• Not actionable per se.

Question 8

Wainright v Home Office [2003]

Answer 8

• Claimant and Son strip-searched in violation of Prison Rules 1964 when visiting family member in prison
• Relied on Wilkinson v Downton to ground claim for anxiety and stress
• Court unanimously rejected claim saying deviation was sloppiness not intentional or reckless
• Battery charge allowed to proceed
• Claimants also argued Art. 8 ECHR (respect for private and family life)
• Rejected by House of Lords
• Upheld by ECtHR in Wainwright v UK [2007].

Question 9

The Protection from Harassment Act 1997

Answer 9

Protection from Harassment Act introduces:
o a civil remedy for harassment
o Injunction, damages and criminal sanctions for non-compliance
Section 1(1)
o ‘A person must not pursue a course of conduct (a) which amounts to harassment of another, and (b) which he knows, or ought to know, amounts to harassment of another.’

Question 10

Tuberville v Savage [1669]:

Answer 10

• Words can negate assault

- “if it were not assize time, I would not take such language from you”

Question 11

R v Ireland [1998] HL

Answer 11

Campaign of silent phone calls in the night

Question 12

Smith LJ in Iqbal v Prison Officer’s Association [2009]:

defendant must intend to restrict freedom

Answer 12

‘If a security guard in an office block locks the door to the claimant’s room believing 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 may well be guilty of negligence because he did not check whether the room was empty, but he would not be guilty of the intentional tort of false imprisonment.’
• Locking the door is not enough, must intend to confine C in the room BUT subjective recklessness = liability.

Question 13

false imprisonment definition

Answer 13

Collins v Wilcock [1984]:

‘Unlawful imposition of constraint on another’s freedom of movement from a particular place’

Question 14

Actionable False Imprisonment

Answer 14

Defendant must intend to restrict the claimant’s freedom of movement:
• No need to show force or resistance
• No need to show damage: Murray v Ministry of Defence [1988]
Any action that completely deprives freedom and has no lawful excuse

Question 15

Consent

Answer 15

• No battery if claimant consents to application of force
• No false imprisonment if claimant consents to restriction on freedom of movement.
• Often an issue of medical treatment
o No battery if patient gives valid consent to treatment

Question 16

Chatterton v Gerson [1981]

Answer 16

Mrs Chatterton suffered intractable pain as a result of a trapped nerve following a hernia operation. Dr Gerson, a pain specialist, performed an operation to relieve the pain, but this resulted in permanent immobility of her right leg. Mrs. Chatterton said that she should have been informed of this risk and claimed in battery.

It was held that she had been informed in broad terms of the nature of the procedure ie. she had been informed and consented to an operation to her right leg. The fact that she may not have been informed of the risks of paralysis to her leg could not amount to battery but any claim would have to be made in negligence.

Question 17

Defences:
Lawful Justification for Trespass

Answer 17

• Common element to trespass torts: defendant must not have a lawful justification or excuse for their actions.
• Trespass is often justifiable
• Defendant must justify or excuse their actions
• Lawful/Statutory Authority
• Consent
• Necessity
• Self Defence

Question 18

F v Berkshire HA [1990]

Answer 18

The case concerned a 36 year old woman who however had the mental age of a minor. The woman in question lived permanently at a mental hospital under medical care. Her mother sought a declaration from the court to the effect that it would be lawful to sterilize her daughter even though she is unable to consent to the operation due to her mental age. The need for the application was grounded in the fact that hospital staff (as well as the mother) suspected that the daughter may become pregnant as she had entered into a relationship with a patient in the hospital where she was staying. It was feared that going through pregnancy and the birth would have serious negative consequences for the daughter.

The court held that the operation was lawful as it was in the best interests of the daughter. It was held that this could be determined by reference to what is accepted at the time of the operation as the appropriate treatment, by a reasonable body of medical opinion skilled in the proposed treatment. Further, the court held that it is not necessary for a doctor to seek a declaration of legality before carrying out a sterilization in similar circumstances, but that a doctor should in practice seek such a declaration.

Question 19

Airedale NHS Trust v Bland [1993]

Answer 19

Bland was injured in the Hillsborough disaster when he was seventeen and a half years old and was left in a persistent vegetative state. He remained in this state for over two years with no sign of improvement, whilst being kept alive by life support machines. Bland could breathe by himself but required feeding via a tube and received full care. The doctors that were treating Bland were granted approval to remove of the tube that was feeding him. This decision was then appealed to the House of Lords by the Solicitor acting on Bland’s behalf.

Doctors have a duty to act in the best interests of their patients but this does not necessarily require them to prolong life. On the basis that there was no potential for improvement, the treatment Bland was receiving was deemed not to be in his best interests. It is not lawful to cause or accelerate death. However, in this instance, it was lawful to withhold life-extending treatment which in this instance was the food that Bland was being fed through a tube. Appeal dismissed.

Question 20

Ashley v Chief Constable of West Sussex Police [2008]

Answer 20

the claimants were the son and father of the deceased. Furthermore, the deceased was shot by a police officer during an armed raid on his home. Consequently, C sued the police Commissioner (s) in a number of torts. These included false imprisonment (during the raid); negligence in the planning and execution of the raid; misfeasance in a public office for conduct after the event; assault and battery in respect of the shooting.

In conclusion, the assailant’s mistaken belief in an attack had to be not only honestly but also reasonably held. Furthermore, the balance had to be struck between two rights:

right not to be subjected to physical harm by the intentional actions of another person;
And, the right to protect yourself by using reasonable force to repel an attack.
In a civil case like this, a mistaken and unreasonably held belief by the defendant that he was about to be attacked by the deceased, would have been unacceptable striking of the balance.

Finally, their lordships went on to argue that although the principal aim of an award of compensatory damages was to compensate the claimant for loss suffered, there was no reason in principle why an award of compensatory damages should not also fulfil a vindicatory purpose.