Trespass To Person

Question 1

Collins v Wilcock

Answer 1

1. Assault
   > An ‘act which intentionally causes another person to apprehend the infliction of immediate unlawful force on his person’.
2. Battery
   > The actual infliction of unlawful force on another person.
   > Force
   » Lord Goff: For conduct to become unlawful, the touching has to exceed what is regarded as ‘physical contact which is generally acceptable in the ordinary conduct of daily life’.
   > Relevance of hostility
   » Lord Goff suggested an alternative approach: He suggested that hostility was not necessary to prove a battery. He referred instead to contact that was not ‘generally acceptable in the ordinary conduct of daily life’.

Question 2

R v St George

Answer 2

There must be an intention to frighten the claimant but there need be no inetntion or even power to use the threatened violence.

Pointing a gun at someone in a threatening manner was an assault even though the defendant knew it was not loaded.

Question 3

Letang v Cooper

Answer 3

The action must be intentional, not negligent (careless).

Question 4

R v Meade and Belt

Answer 4

Words alone could not amount to an assault.

Judgement: no words or singing are equivalent to an assault.

Question 5

Read v Coker

Answer 5

Threatening words have to be accompanied by a gesture to amount to a battery.

The court agree there is an assault as although the established principle was that words without a threatening gesture could be an assault, here there was something more than a threat of violence.

Byles Serjit: to constitute an assault, there must be something more than a threat of violence… there must be some act done denoting a present ability and an intention to assault.

Question 6

R v Ireland

Answer 6

Silence could make the claimant fear immediate harm.

The defendant was guilty as in the circumsatnces, the victim reasonably believed that the silent calls would cause fear of immediate harm.

Question 7

Tuberville v Savage

Answer 7

Words can negate an assault. It is much more authoritative that words will not constitute an assault if they are phrased in such a way that negates any threat that the defendant is making.

As it was assize time, he was sating that he did not intend to hit the claimant.

Question 8

Stephens v Myers

Answer 8

The threat of violence must be capable of being carried out at the time it was made.

As the claimant and the defendant were close enough to each other, the threat was said to be enough to put the claimant in reasonable fear of an immediate battery.

The judgement held: ‘It is not every threat, when there is no actual violence, that constitutes assault; there must, in all cases, be the means of carrying that threat into effect.’

Question 9

Thomas v National Union of Mineworkers

Answer 9

Scott J: actions of the miners did not meet the requirements of immediacy or directness because the working miners are in vehicles and the pickets are hld back from the vehicles. He do not understand how even the most violent of threats or gestures could be said to constitute an assault.

Action failed.

Question 10

Iqbal v Prison Officers Association

Answer 10

Smith LJ: it is well established that all forms of trespass require an intentional act. An act of negligence will not suffice.

Question 11

Fagan v Metropolitan Police Commissioner

Answer 11

The tort of battery may be committed even if the original action was unintentional, if the defendant ata some point intended to apply force to the claimant.

Question 12

Livingstone v Ministry of Defence

Answer 12

The defendant was successfully sued by the claimant for battery, after the claimant was hit by a bullet that was aimed at someone else.

Question 13

Williams v Humphrey

Answer 13

The defendant argued that he did not intend to hurt the claimant, but this did not matter as he had intended to touch the claimant.

Question 14

Scott v Shepherd

Answer 14

The defendant’s act must cause direct damage.

Defendant was liable for battery despite two stallholders had caught the firework and had thrown it away to protect themselves before it exploded in the claimant’s face.

Question 15

Cole v Turner

Answer 15

1. ‘The least touching of another in anger’ was sfficient force.
2. Anger was interpreted to mean hostility.

Question 16

R v Chief Constable of Devon and Cornwall

Answer 16

An unwanted kiss may be battery.

Question 17

Wilson v Pringle

Answer 17

The Court of Appeal held that for the defendant’s action to be unlawful, there had to be a ‘hostile intent’.

Croom-Johnson LJ: in battery, there must be an intentional touching or contact in one form or another of the plaintiff by the defendant. That touching must be proved to be a hostile touching.

It was held that the kicking was intentional and it was no defence that consequential injury was not.

Question 18

Re F (Mental Patient: Sterilisation)

Answer 18

Lord Goff continued to adopt his approach.

He said: ‘It is more common nowadays to treat everyday jostling as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.’

Question 19

R v Brown

Answer 19

Lord Jauncey: if the defendant’s actions were unlawful, they were also hostile.

Hostile is taken to mean unlawful.

Most academics agree with this thinking, as they believe that if there is a hostile action, this is evidence of a lack of consent by the claimant.

Question 20

F v West Berkshire Health Authority

Answer 20

1. Lord Goff expressed his disapproval of the idea of a requirement of hostility.
2. If a patient is unconscious and cannot give consent, the medical practitioner will be able to give treatment on the basis of necessity.
   > Lord Brandon argued that an operation or treatment would be in a person’s best interests if it was performed to save the patient’s life, ensure improvement in health or prevent physical or mental deterioration.

Question 21

O’Brien v Cunard

Answer 21

Holding out an arm so that the medical practitioner could carry out an injection was interpreted as the claimant impliedly consenting to being vaccinated.

Question 22

Nash v Sheen

Answer 22

Defence of consent will only be successful if the claimant consents to the specific act that occurred.

Held to be a battery as the claimant had not consented to her hair being dyed. Defence of consent failed.

Question 23

R v Billinghurst

Answer 23

A punch thrown at an opponent will not be within the rules of the game of rugby, so a battery will be committed.

Question 24

Condon v Basi

Answer 24

The claim failed but the court said that the players should act in accordance with the spirit of the game.

Question 25

Schloendorff v Society of New York Hospitals

Answer 25

If a doctor or nurse is acting in an emergency situation, any contact will not generally be considered a battery, but a person can still bring an action.

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; a surgeon who performs an operation without the patient’s consent commits an assault.

Question 26

Chatterton v Gerson

Answer 26

A person may bring an action, in trespass or negligence, on the ground that they had not been informed of the potential consequences.

Claimant sued in battery as she alleged that he had not explained the risks of the operation so she had not given full (real) consent.

The claim failed, as the defendant had explained the nature of the operation in broad terms.

Question 27

Birch v University College London Hospital NHS Foundation Trust

Answer 27

It was held that at the very least, the duty to inform a patient of significant risks extended to making the patient aware that fewer or no risks were associated with an alternative treatment.

The claimant succeeded because there were alternative procedures available and she should have been made aware of these.

Question 28

Ms B v An NHS Hospital Trust

Answer 28

The court considered what full capacity means.

Lady Butler Sloss: when a person is making a decision to refuse consent to treatment, their mental competence has to be commensurate with the gravity of the decision.

Question 29

Airedale NHS Trust v Bland

Answer 29

If a patient is in a persistent vegetative state, it will not be in the patient’s best interests that they continue to receive medication or nourishment that is not beneficial in any way. It is lawful to discontinue medical treatment or nourishment for such a patient, even though death is the inevitable outcome.

The court held that an adult had an absolute right to refuse treatment, even if the consequence was that they would die. In this case, the doctor had a duty of care to Bland, but as he had no hope of recovery, it would not have been in his best interests to continue feeding him.

Question 30

Re T (An adult)
Re MB (Medical treatment)

Answer 30

A patient’s next of kin has no legal right to consent or refuse consent in the case of an adult patient.

The decision in this case does not mean that an adult suffering from some mental disability cannot refuse consent.

The question in Ms B v An NHS Hospital Trust will be considered - does the patient have the capacity to understand and retain the information given, believe it and make a choice?

Re MB: The court itself did not have the capacity to take into account the interests of the unborn child.
> Despite this, the court found that at the critical point, the patient’s needle phobia put the patient in such a state of panic that she was incapable of making a decision.

Question 31

Attorney General’s Reference (No.6 of 1980)

Answer 31

Lord Lane CJ: it is not in the public interest that people should try to cause, or should cause, each other bodily harm for no good reason.

Question 32

Pretty v UK

Answer 32

limits to the consent given by the claimant’s approach has been adopted in relation to terminally ill patients.

Question 33

Cockroft v Smith

Answer 33

Basic principle is that force must be reasonable and in proportion to the unwanted contact.

Holt CJ: hitting a man a little blow with a little stick on the shoulder is not a reason for him to draw a sword and cut and hew each other.

Question 34

Revill v Newbery

Answer 34

The defendant was found liable, as he had used greater force than was necessary.

However, the damages were reduced by two-thirds for contributory negligence.

Question 35

R v Williams (Gladstone)

Answer 35

A person may make mistake as to their right to self-defence.

The criminal law allows a defendant to be judged on the facts as he honestly believed them to be.

The trial judge directed the jury that his mistake would only be a defence if it was both honest and reasonable.

The Court of Appeal quashed the conviction and held that the defendant’s mistaken but honest belief that he was using reasonable force to prevent the commission of an offence, was sufficient to afford him a defence.

Question 36

Sayers v Harlow Urban District Council

Answer 36

Intention was an essential element.

The claim for false imprisonment failed, as the council had not intentionally restricted her movement but had been merely negligent.

Question 37

R v Governor of Her Majesty’s Prison Brockhill

Answer 37

Intention in not needed.

The House of Lords held that although the governor had used the correct method of calculation, there was liability because the tort of false imprisonment was a strict liability tort.

Question 38

Bird v Jones

Answer 38

For there to be false imprisonment, the person must be confined within a boundary that can be either a physical boundary or a verbal threat.

It was held that there was an alternative route, and partial closure is not the same as total obstruction.

Question 39

Herring v Boyle

Answer 39

As the boy was unaware of being detained, there was no false imprisonment and the claim failed.

Question 40

Meering v Grahame White Aviation

Answer 40

There was false imprisonment because the court held that the knowledge of being detained was not an essential element of the tort.

It was held that an act which fulfils the requirement for a false imprisonment, even if the claimant is unaware at the time, still counts.

Question 41

Murray v Ministry of Defence

Answer 41

1. Approved Meering v Grahame White Aviation.
   > In this instance, it was reasonable for the defendant to delay the formal words of arrest, and so the arrest was not unlawful. There was no false imprisonment.
   > Ratio: in a claim for false imprisonment, it was not necessary for a person unlawfully detained to prove that they knew that they were being detained or were harmed by the detention. The court pointed out that where someone was unaware of being detained and suffered no or little harm, only nominal damages would be awarded.
2. The claimant must be told of the arrest in clear terms and this requirement may be flexibly applied.

Question 42

Treadaway v Chief Constable of West Midlands

Answer 42

The arrest must be carried out with reasonable force only.

The claimant suffered serious injuries on arrest and during detention.

Question 43

Christie v Leachinsky

Answer 43

It was held that there was no false imprisonment, as the claimant knew why he was being detained.

Question 44

John Lewis v Tims

Answer 44

Both the police and a citizen must take the suspect to the police station or court as soon as reasonably possible.

When there is a citizen’s arrest, the citizen is allowed a reasonable period of time in which to decide how to proceed. In the circumstances, one hour was reasonable.

Question 45

White v WP Brown

Answer 45

Here, 15 minutes’ detention following a citizen’s arrest was regarded as unreasonable.

Question 46

Herd v Weardale Steel, Coal & Coke Co.

Answer 46

An omission to release a person cannot constitute false imprisonment. According to the House of Lords, at least where a person has consented to some degree of constraint on their movement.

Defence of volenti applied because all miners had by implication, consented to stay underground until the end of the shift.

Question 47

PACE 1984

Answer 47

1. Gives police and ordinary citizens the right to arrest a person.
   > For this defence to be successful, the arrest and detention must comply with the Act and any relevant Codes of Practice.
2. S28: an arrested person must be told, as soon as is practicable, that he is under arrest and the grounds for the arrest.