Trespass To The Person (assault, battery & trespass to the person) Flashcards
The torts that form Trespass To The Person are…
Actionable per se (without proof of damage)
What is the definition of battery?
The intentional application of unlawful force, which is direct and immediate and for which the defendant has no lawful justification or excuse.
What are the intention requirements for the tort of battery?
The intention must be more than an intentional act - the contact must be either: intentional or reckless as to whether, or not, contact was made.
What is transferred intent?
The intention to make contact with one person but inadvertently makes contact with another - case: Livingstone v Ministry of Defence [1984]
Which court confirmed that trespass requires intention?
COA confirmed, ‘when the injury is not inflicted intentionally but negligently… the only cause of action is in negligence not trespass’ - Letang v Cooper [1965]
What contact can constitute battery?
Touching someone inappropriately while conducting a search - Wainwright v Home Office [2003] UKHL 53
Restraining someone who was not being arrested - Collins v Wilcox [1984] 1 WLR 1172
Some type of physical touching - R v Ireland [1998] AC 147
What is the definition of Assault?
An over act indicating an immediate intent to commit a battery, the capacity to carry out that act, apprehension (by someone) of infliction of force
What Is an overt act?
A word or deed by the defendant - D must have the intention to inflict immediate force: Hepburn v CC Thames Valley Police [2002] EWCA Civ 841
If no immediate threat, no assault: Tuberville v Savage [1669] 1 Mod 3, 86 ER 654
Does transferred malice apply in assault?
NO - it is the claimant who is threatened (C1) who has standing (to sue) not anyone else.
No basis for assumption that D intended to put another (C2) in fear of imminent violence. - Bici v MoD [2004] EWHC 786
Defendant must be capable of carrying out the threat…
If anticipation is not reasonable (e.g out of range) then no assault - Corbett v Gray [1849] 4 Ex 729
No means to carry out threat, no assault (e.g held back by police) - Thomas v NUM [1986] 1 WLR 20
However, an exception where some capacity to carry out threat (real possibility of violence) - R v Ireland [1998] AC 147
Definition of false imprisonment
Unlawful deprivation of liberty, by imposing a constraint on C’s freedom of movement from a particular place.
What are the 3 elements of false imprisonment?
- C’s freedom of movement has been constrained
- D possessed the requisite intent
- D’s act caused C’s constraint
Lumba v Sec of State for Home Dept [2011] UKSC 12
What was said in the case of VS v Home Office [2014] EWHC 2483?
’ The court’s role is to guard liberty with jealous care ‘
Constraint may be physical or non-physical…
Not necessary that all must constitute a battery: Bird v Jones [1845] 115 ER 668
Boundaries may be physical (a room in a flat): AT v Dulghieru [2009] EWHC 225
Boundaries may be because C believes he cannot leave
Fear of leaving a captor is false imprisonment: Lawson v Dawes [2006] EWHC 2865
What was decided in Pate; v Sec State for Home Dept [2014] EWHC 501
Restraint must be total (restriction of movement in one direction will not suffice)
What was decided in Murray v MOD [1988] 1 WLR 692?
C may be unaware of the restriction on movement (unconscious/incapacitated/asleep) but is nevertheless unable to leave freely.
There must still be intent to restrict movement and confinement.
Confinement by Omission…
General rule is that a positive act is needed: Herd v Weardale Steel [1913] 3KB 771
Prison officers under no positive obligation to let prisoner out of cell (omission): Prisoner Officers Assoc v Iqbal [2009] EWCA Civ 1312
Unless there is a public law error (exceeding detention period): R v Governor of Brockhill Prison, ex p Evans [2001] 2 AC 19
Causation
D’s act must be the direct cause of the constraint (actionable per se)
What was decided in Davidson v CC for North Wales [1994] 2 All ER 587
Witnesses who provide wrong information that leads to arrest is not enough to meet direct cause requirement.
Defences
Necessity - to avert risk/avoid danger
Common law ‘best interests’ test: Airedale NHS Trust v Bland [1992] UKHL 5
Consent - implied in the ‘ordinary conduct of everyday life’: F v West Berks HA [1990] 2 AC 1
The ‘best interests’ test under Mental Capacity Act 2005
Consent in contact sports and implied in children’s games provided consent not exceeded: Blake v Galloway [2004] EWCA Civ 814
Medical treatment - an adult of sound mind has the right to do decide to accept or refuse treatment: Re T (Consent to Medical Treatment) [1992] EWCA Civ 18
Self Defence
D must have an honest and reasonable belief of imminent attack
Force must be reasonable, necessary and proportionate: Lane v Holloway [1968] 1 QB 379 & Cross v Kirby [2000] EWCA Civ 426
Tort in Wilkinson v Downton [1897]
D wilfully does an act calculated to cause physical harm to the claimant (infringes right to personal safety) where there is no justification for the act.
What are the 3 elements in W v D tort?
Conduct - works or actions directed at C for which there is no excuse
Mental - intentional act
Consequence - Physical or psychiatric harm (severe distress might be actionable) - Rhodes v OPD (by his litigation friend BHM) and another [2015] UKSC 32
Protection from Harassment Act 1997
The act introduces a civil remedy for harassment, (s.3), as well as a criminal offence (s.2).
Injunction alongside damages and criminal sanctions for failure to comply.
Key provision (s.1) is that it requires ‘a course of conduct’
