TRESPASS TO THE PERSON Flashcards
PLACE OF TRESPASS IN MODERN LAW OF TORT?
- Assault, battery and false imprisonment are also crimes.
- Rarely brought as civil action due to police/state, the cost, domination of tort of negligence, co-exists with the criminal injuries compensation scheme.
- Important for protection of individual rights; bodily integrity; freedom of movement.
Assault & Battery definition found in…
Goff LJ in Collins v Wilcock definition:
“an assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person; a battery is the infliction of unlawful force on another person”.
Assault key points and cases.
- Act by the D which is intended to and does cause the claimant to reasonably apprehend the direct and immediate application of force.
- D must intend that the claimant apprehend the application of direct and immediate force.
- Claimant must reasonably apprehend the direct and immediate application of force
It is not necessary to establish ‘fear’ of that claimant was scared; as this would depend on how brave they are - the claimant must have reasonable belief that the D had the ability to carry out the battery. This was considered in:
STEPHEN V MYERS=
meeting at a council, fists clenched/sleeves rolled up ‘rather physically remove the claimant’ - judge formed belief D did reasonably apprehend direct and immediate application of force.
contrasts with:
THOMAS V NUM=
Court held no assault due to circumstances; particularly the police presence.
What threats constitute an assault?
- Meads and Belts case ‘no words or singing are equivalent to an assault’
- R v Ireland; HOL held silent telephone calls may constitute an assault.
- Words accompanying a menacing gesture negative the inference [no assault occurs] - Tuberville v Savage
- Conditional threat can constitute an assault where it is accompanied by a threatening gesture - Read v Coker (D’s workmen threatened to break neck/roll sleeves/clench fists - was an assault; ability to carry it out
Battery key points and cases:
The intentional and direct application of force to another person.
Application of force =
- Force: Pursell v Horn (D committed battery when he poured boiling water over cl; spitting also - not personal contact but still sufficient)
- Any physical contact
- Does not require physical harm
- Does not require personal contact
DIRECT = Scott v Shepherd
Fireworks thrown into marketplace, from stall to stall, finally hit claimant - Court held D had committed direct application of force, court said direct is not limited to D touching claimant - can occur through other means e.g unbroken series of continuing consequences in this case.
INTENTION =
Intention is required as to contact, not to harm (Wilson v Pringle)
Are all touchings battery?
- wide definition
- distinguish battery from legally unobjectionable conduct
- courts attempted to exclude from scope of tort touching which occurs in everyday situations.
COLLINS V WILCOCK =
D convicted of assaulting police officer - prostitute - officer grabbed arm, D scratched officer - on appeal, question whether battery occurred when officer grabbed arm?
Principle = every person’s body is inviolate, the touching of another, however slight, may amount to a battery
EXCEPTIONS =
- reasonable punishment of children
- lawful exercise of the power of arrest
- reasonable force used in self defence
- implied consent (e.g going to doctors)/physical contact which is generally acceptable in the ordinary conduct of daily life.
False imprisonment key facts + cases
Intentional infliction of bodily restraint which is not expressly or impliedly authorised by law. ‘False’ meaning wrongful.
Defendant must intend the act.
Complete restraint within defined bounds: Bird v Jones/Hicks v Young
^ must do an act that restrains the claimant’s freedom of movement (must intend).
Claimant need not know of restraint at the time.
Restraint not complete if there are reasonable ways to escape.
Lawful imprisonment?
- a complete defence to false imprisonment is provided by a lawful sentence of imprisonment passed by a court - R v Deputy Governor of Parkhurst Prison.
- Prisoners have claimed damages for being falsely imprisoned - where detained for longer period than what was given (case of r v deputy)
Assault, battery AND false imprisonment case
Commissioner of police for the met v ZH 2013:
Claimant was autistic, taken to swimming baths, fixated by water, police came and approached claimant, touched him, claimant jumped into pool and was removed by police and life guards, then restrained in handcuffs, leg restraints and held in police van for 25 minutes - courts said yes liable - statutory defence under mental capacity act 2005 s5 failed.
Intentional infliction of physical harm or distress
Harm inflicted by indirect means - this remedy for psychiatric harm; the court is cautious.
key case: Wainwright and another v Home office 2003:
suffered PTSD after being strip searched wrongfully in front of an open window.
- if psychiatric harm suffered, no need to argue intentionally rather than negligently inflicted.
- No reason in principle why, if D intends to cause distress by wrongful act and cause distress, should not have to compensate but need to be careful about definition of intention.
JAMES RHODES V OPO AND ANOTHER=
Three elements in order to succeed:
1) conduct - words or conduct, directed to the claimant for which there is no justification or reasonable excuse
2) mental - D intended to cause physical harm or serve distress which in fact results in physical harm/recognised psychiatric illness
3) consequences - physical harm or recognised psychiatric illness.
In case of…
ABC v WH and william Whillock =
Claimant argued D has committed tort of infliction harm by indriect means through - teacher sent texts of a sexual content and encouraged her to send him indecent images
^ the tort of infliction of harm by indirect means in its reformulation as 3 elements:
1) conduct - D sending texts
2) mental - consequences were obvious - intended
3) consequence - claimant suffered from an adjustment disorder when abuse became public
Protection from Harassment Act 1997
- The act was a response to increasing public concern about harassment and in particular stalking.
- s3 provides civil remedies creating a statutory tort of harassment.
- Committed when D enters into a ‘court of conduct which amounts to harassment which D knows or ought to know amounts to harassment’ - s 1 (1) on at least 2 occasions s7 (3)(a)
- OBJECTIVE TEST:
i. e s1(2) - D ought to know amounts to harassment if a reasonable person in D’s position would think the course of conduct amounted to harassment.
ROBERTS V BANK OF SCOTLAND =
Damages were rewarded to customer whose bank made 500 phone calls over a year even though she made it clear she doesnt want to discuss debts over the telephone.
LEVIS V BATES =
D carried out campaign of harassment against claimants husband, acted hostile towards their home - wife suffered distress.
^This case tells us in order to commit the tort of harassment contrary to the act, the conduct in which the D engages must be targeted at somebody, but need not be targeted at the claimant.
Been used against protestors: Huntington life services v Stop Huntington animal cruelty and others
Against harassment at work: Majrowski v Guys and st thomas’s NHS trust
DEFENCES
Lawful Arrest -
- A defence to false imprisonment
- person using reasonable force in lawful arrest = not battery
- Person who uses force in effecting an unlawful arrest may be liable for battery
- Person who uses reasonable force in resisting an unlawful arrest will not be liable for battery.
- Thus, the lawfulness of the arrest can be of importance in determining whether ‘an act amounts to false imprisonment or battery’ as in Collins v Wilcock.
Self Defence -
- Use of reasonable force in the defence of self and of others (Ashley v Chief Constable of West sussex police)
- the use of force must be necessary in the circumstance
- amount of force used must be reasonable
^ CROSS V KIRKBY=
D was being attacked by another, D tried to walk away, was followed, D grabbed baseball bat and hit the claimant - D had tried to walk away and was under the threat of being seriously injured, acted in heat of the moment in the same way he was being attacked - so it WAS reasonable.
Consent -
- contact within rules of sport
- medical examination/surgery - no tort if consent given
- To be valid must be freely given - Re T (jehovah witness refused treatment) - was not freely given as she was influenced by religious mother and she was not able to think clearly for herself.
- It must be real consent in broad terms of the nature of the procedure (Chatterton v Gerson - here she broadly understood the nature of the operation)
- competent adults can refuse consent even if they will die as a consequence (Airdale NHS trust v Bland)
