Trespass to the Person, Continued

Question 1

Defences to trespass of the person

Answer 1

[Lawful Justification]
Consent
Self-defence
Necessity

Question 2

Chatterson v Gerson [1981]

Answer 2

(Consent)

As regards informed consent, the case of Chatterson v Gerson [1981] suggests or says that you only need some information and broad general terms to amount to informed consent for the purposes of battery and assault.

So, the information you need need only be in broad terms to provide consent, as regards battery and assault.

This case is about a surgical procedure designed to alleviate pain that the claimant had following some scarring. It was a surgical procedure, and it was designed to alleviate some pain caused by an old scar. The operation carried with it a risk of some nerve damage which would leave sensitivity. Unfortunately, the claimant suffered that nerve damage. She argued that there was a battery here on the basis that she hadn’t been advised of the risk of sensitivity.

What the court said was that the claimant had been advised in general terms as to the nature of the surgery; so, she knew that there would be a surgery, and she knew roughly what the operation was to do. For battery, that was all that was needed. For battery, informed consent merely requires information in broad terms about what is going to happen.

Now, it does not mean that you are without a claim. But, if your argument is that there is insufficient information about risk the claim should be brought in negligence, not battery.

So, any claim about lack of information in terms of risk – so if you are saying that you should have been told about that risk – it is probably a case that you would bring in negligence.

Question 3

Re T [1993]

Answer 3

(Consent)

Treatment of the competent patient without consent is a battery.

Question 4

Condon v Basi [1985]

Answer 4

(Consent)

Condon v Basi [1985] was a football case involving quite a dangerous tackle. What the Court said, as regards consent, was that when you play sport then you consent to contact which is inherent port plate at that level. So, you give implied consent by participating.

They said it was consent inherent in the sport of the level it is played.

Now, the rules will not necessarily govern exactly what you consent to. So, clearly, occasionally there are tackles that are technically a foul in football, but they are done spirit of the game; your player was genuinely exerting effort to get the ball, for example. So, just because something is a foul, doesn’t necessarily take it outside the scope of consent. It is the spirit of the game which is important.

But also the level that the game is played at is important. More contact would be consented to at professional level, for example, than at schoolboy level.
The confines of consent, or the defence of consent, also applies to informal games. I was always thought to be the case, but there wasn’t actually a litigated case until 2004.

Question 5

Blake v Galloway [2004]

Answer 5

(Consent)

This involves some teenage boys who were throwing bark chipping’s around – little bits of wood that you sometimes find on foot paths. They were just using them as missiles and throwing them around. Unfortunately, one bit of bark landed in one of the boy’s eyes and seriously damaged it. The court said that the boys were engaged in informal play; they were larking around, and within the context of what they were doing consensually, this was an obvious risk to which consent apply. They were effectively throwing these chip things at each other, so the risk of it going in someone’s eye was covered by the scope of consent.

“Horseplay” was the phrase used by the court. So, informal play was referred to as horseplay.

Question 6

Self-defence Defences

Answer 6

In order to rely on this the defendant needs to firstly prove that he or she had an honest and reasonable belief that they, another party, or their property, was about to be attacked.

The second point to prove for this defence is what the defendant does must be proportionate to the threat.

Question 7

Ashley v CC of West Sussex [2008]

Answer 7

(Self-Defence)

In order to rely on this the defendant needs to firstly prove that he or she had an honest and reasonable belief that they, another party, or their property, was about to be attacked.

That was confirmed in the case of Ashley v CC of West Sussex [2008]. This case is important because it shows how tort can be relevant where, for some reason, it is not possible to bring a criminal prosecution. It can sometimes be used where there is a reason why a claim in criminal law.

This concerned a police drug raid – during the night the police raided a man’s home. He was in bed and had no close on. They obviously startled him when they entered his bedroom. The man stood very quickly up out of bed stark naked, and the police officer who was in the bedroom immediately thought the man had a weapon and shot and killed the man. The man was in fact no armed.

For the purposes of a criminal prosecution, either for murder or manslaughter as against that police officer, there was a problem, because in crime self-defence requires only an honest but mistaken belief. It is a subjective test.

In criminal law self defence is viewed subjectively, requiring an honest, even if mistaken, belief.

The police officer who shot the man was able to show that it was an honest, instinctive, but mistaken belief he was armed.

But what the court said in this case was that for a claim in tort for assault and battery, to rely on self-defence you needed to prove an “honest and reasonable belief”.

So, this was to be viewed objectively.

On the facts, although the belief was honest that the man was armed, it was not reasonable. The officer fired without shouting any warning, without trying to establish the facts. Therefore, the officer’s belief was honest but was not reasonable.

Question 8

Cockcroft v Smith (1705)

Answer 8

(Self-Defence)

In this case the claimant and the defendant were involved in an altercation. The claimant made a poking gesture with their index and middle fingers towards the defendant’s eyes, as if to poke them out. In response to that the defendant bit off one of the fingers at the top joint. So, rather than just push the man’s hand away, he decided to bite off his finger. The court said that that was not proportionate to the threat and fell outside the scope of self-defence.

Question 9

Lane v Holloway [1968]

Answer 9

(Self-Defence)

Again, this case was about an altercation involving the claimant, who was a retired man in his 60s, and a 23 year old defendant, who was a very physically strong person. What the defendant didd in the context of this altercation…there were a sort of fisticuffs of both sides, but the defendant severely beat the claimant up. The claimant had to have over 100 stitches on his head and face. Again, the court said that the retaliation was not proportionate to the threat. The severe beating was disproportionate. Also, the ages of the two parties was relevant; this had to be looked at in the circumstances of the case.

Question 10

Cross v Kirby [2000]

Answer 10

It is what is proportionate in the circumstances as perceived at the time.

The claimant here was a hunt saboteur who had gone on to the defendant’s land with a very large baseball bat to disrupt a hunt, which was a horse and hounds type-hunt. In a scuffle, the baseball bat was dropped. The defendant, who was the landowner, picked it up and whacked the claimant very hard over the head with it. So, the claimant was hit with his own weapon. The Court (Lord Justice Beldam) said that this was “honest and instinctive”– effectively, it was in the agony of the moment. “The victim could not be expected to measure their response with mathematical precision.”

So, this was honest and instinctive, and therefore proportionate in the circumstances. The victim was not expected to measure their actions with mathematical precision.

This is just a fancy way of saying that you make allowances for the agony of the moment by assessing the moment the defendant acts. You may hit a bit hard; you might use a stick were a hand/fist would have done, but you are not penalized for acting in the agony of the moment.

Question 11

F v West Berks HA [1990]

Answer 11

(Necessity)

Necessity at common law, its scope is covered by the case of F v West Berks HA [1990]. We don’t really to know this case; it was an important case in its day but it has been overtaken by statute which we will talk about momentarily.

Just to give you a couple of examples by way of context:
Emergency Situation — this classically… You come across a car accident; there is someone still in the car; you think the car is about to explode; so, you pull that person clear, but in so doing you dislocate their shoulder. So, you touch them and you cause an injury. At common law you would be able to say that your actions were reasonable in the circumstances in response to the danger posed to the life of that person in their emergency.
In common law, it also covered State of Affairs. For example, someone who has suffered a stroke and who is no longer able to communicate and who needs help with daily tasks. So, according to F v West Berks HA [1990] …of necessity, you would also help those people which might involve the sickle touching. That would fall within the defensive necessity.

Question 12

Cooperative Group v Pritchard [2011]

Answer 12

(Not Defences)

The other defence that we have spent some time looking at which doesn’t operate in Trespass is Contributory Negligence.

It involved a manager at a workplace who forcibly ejected a worker with whom he had been having an argument. He said that the woman had been contributory negligent because she had been part of this altercation. The court said no, and that for trespass contributory negligence does not operate as a defence.

It was a workplace argument involving a manager and a worker. They had been arguing, and he then forcibly ejected her. The argument was: what she contributory negligent? The court said that you cannot use that defence in this context.

Question 13

Defences - NOT DEFENCES

Answer 13

• Duress
• Provocation
• Contributory Negligence

Question 14

Barnett v Chelsea & Kensington Hospital [1968]

Answer 14

If there is tangible harm, in order to get compensation for that harm you need firstly to show that factual link. It is the normal “but for” test — Barnett v Chelsea & Kensington Hospital [1968]. “But for” the defendant’s tort, with the laws have been suffered?

Question 15

Re Polemis [1921]

Answer 15

(Causation of Damage)

For trespassers of the defendant is liable only for the direct consequences.

If you think about it, I have said that novus actus is bound up with this, because actually if there is a novus actus and the consequences are indirect. So, effectively they are all part of this one test. If there is a novus actus, it is just another way of saying that the harm is indirectly caused or not directly caused.

Now, the “Direct Consequences” Test comes from Re Polemis [1921]. The case involved a ship, and in the course of loading the ship some large planks of wood were dropped into the hold. It was a metal ship. The wood somehow managed the cause a spark. There were some fuel vapours in the hold; there was then an explosion and the ship was damaged and later sunk. That was the scenario.

Using a foreseeability test, the defendant would not have been liable because the explosion was not a reasonably foreseeable.

What the court confirmed, however, is that the Direct Consequences test makes you liable for anything directly caused, even if unforeseeable.

So, in one sense, this is more onerous than the Wagon Mound Test.

You are liable for all direct consequences, even if unforeseeable.

Here arguably the explosion was unforeseeable, but it didn’t matter. It was still directly caused.

So, for legal causation, the man’s actions were either a novus actus or the loss was indirect, and so too remote under Re Polemis [1921]. It was one or the other. Either way, the false imprisonment was not, for trespass, the legal cause of the injury.

Question 16

Hicks v Young [2015]

Answer 16

(Causation of damage)

Hicks v Young [2015] was a false imprisonment case. It is also in this context reasonably unusual. It involved a young couple who got into a cab, and they were having a conversation and laughing around in the back. The cabdriver could overhear this, and he thought that they were going to leave without paying. So, effectively this couple were in the cab, and the cabbie/driver thought that they were going to leave the cab and run off without paying.

The cabbie pulled over, the girl got out, but then the driver drove off at 30 mp/h; the door closed and the young man was left in cab. So, there is your false imprisonment. The young man was left in the cab and prevented from leaving because the driver pulled away. The driver wasn’t going very fast – he was driving between 20 and 30 mph.

What then happened was the young man decided to take matters into his own hands. While the vehicle was moving he managed to open the door, he jumped out, and he suffered quite nasty injuries.

For the purposes of false imprisonment, what the Court said, and they sort of hedged their bets, was that either the young man’s actions were so silly that they amounted to a novus actus, or the injury was not directly caused by false imprisonment.

The two really are just saying the same thing.

So, for legal causation, the man’s actions were either a novus actus or the loss was indirect, and so too remote under Re Polemis [1921]. It was one or the other. Either way, the false imprisonment was not, for trespass, the legal cause of the injury.

As an aside, the judge in this case was quite unhappy with the result. He found bound to find it because the law on remoteness is quite clear. So, what he said instead was “okay, there is no loss claimable and false imprisonment”…but the judge said he found driving off at 30 mph with a passenger, who you might expect to try to escape, amounted anyway to negligence.

So, the judge found an alternative claim in negligence for which the defendant was liable.

Question 17

Austin v UK [2012]

Answer 17

(Overlap with HRA 1998)

You will read a little bit about this for the second tutorial. This was a case involving a police tactic, which is known as ‘kettling’. The facts are that involved an anticapitalist demonstration in London, and the police expected that there would be trouble at this demonstration. That effectively was intelligence that the police had – there would be some violence at this demonstration. So, what the police did was form a cordon around the main group of protesters. The problem was that as well as the protesters, and Lois Austin was one of the protesters, some innocent bystanders got caught up in this ‘kettling’ cordon as well. There is one lady who got caught up who was literally just trying to cross the street from one side of Trafalgar Square to the other. There was another guy who was out on his lunch break, etc. There were a variety of people caught up.

Austin, on the behalf of the protesters, together with a selection of these innocent bystanders brought a case. It went all the way through the domestic courts, and the argument was that this was false imprisonment, but also a breach of Article 5 – the right to liberty. Now, this is the European citation of the case. As I say, there was a domestic set of proceedings as well. You will find that noted in your reading for the tutorial.

But the combination of the domestic case and the European case was as follows. What the Supreme Court and the European Court of Human Rights said was effectively to deprive the liberty of a few, and certainly this was short-term and a matter of a few hours, was justifiable in the greater public interest. As I said, the police thought there would be violence at this demonstration. Because of that there could have been an escalation involving a risk to other people’s lives and their property. So, depriving the liberty of a view for a reasonably short period of time – a few hours – was justifiable in the greater public interest.

Now, translating that into law – for false imprisonment, that fell within the defence of “necessity”.

Four Article 5 this fell within one of the permitted derogations, which was public protection. So, some of the human rights within the ECHR have some exceptions. This fell within one of the exceptions.

So, with this case you can see the parity both of “false imprisonment” and Article 5 – neither claim was successful. So, human rights here adds a little in this particular case.

Question 18

HL v UK [2004]

Answer 18

(Overlap with HRA 1998)

The Bournewood NHS Trust case. It was about an autistic young man who on a trip to a day centre ended up banging his head against the wall; he was then shepherded to a local mental health institution where he was a voluntarily taken into care. So, it was voluntary – he was complicit and compliant; use voluntarily taken into the care of the mental health hospital.

The point from the case was the hospital said “okay, well he is there voluntarily, but if he ever tried to leave they would stop him from doing so”. So, he was there voluntarily, but if he ever tried to leave he would be stopped.

What this case shows is that there isn’t automatically parity between domestic law and human rights.

For false imprisonment, a future threat of the tension was not sufficient to satisfy the tort. So, for false imprisonment, a future threat of something was not sufficiently direct to satisfy the tort of false imprisonment. The false imprisonment case failed.

But the European Court said the future threat meant that there was a de facto current loss of liberty. So, although there was no false imprisonment domestically, the future threat meant that there was de facto loss of liberty, and therefore there was a breach of Article 5, which gave broader protection.

Question 19

ZH v Commissioner for the Metropolis [2013]

Answer 19

(Overlap of HRA 1998)

It involved another man with autism and also epilepsy. He was just over 16 when he and friends were taken on a trip to a local swimming pool. So, the kid was autistic with severe learning difficulties and epileptic. He, with others, were taken on a trip to a swimming pool. Now, it wasn’t to swim; they were there to acclimatize themselves to the building. They were looking around the building with a view to a future visit. But, in that context, this young man became fixated with the water. He got away from his group and he went and stood alongside the pool. He became fixated with the water. That was one symptom of his autism.

So, the purpose of the trip was to acclimatize the group to the building. He got away, and he became fixated with the water. Now, you can read the facts in full in the tutorial, but the long and short of it is that his carers were not consulted. The pool manager called the police. They thought he was going to jump in. The police came along, and ignoring the advice of the carers they tapped him on the shoulder; the boy didn’t like being touched. He therefore jumped in the pool. They dragged him out.

Five police officers restrained him on the poolside. He lost control of his bowels. He was then dragged and put in a police van where he was cuffed – both hands and ankles. Remember, this was with someone who had autism and he was fixated with the water and didn’t like being touched. It was an incredibly denigrating and humiliating experience for him.
The key thing was, his carers were not consulted. The police just went in and acted.

Now, what the case shows is… These two can often provide the same remedy. So, on the facts, the Courts were happy that there were clear assaults, batteries, and false imprisonment. They also found that there were breaches of Articles 3, 5, and 8.

Now, cross-reference back to earlier – the police had argued, because this man had lacked capacity – he had learning difficulties… The police had argued that they had acted in his best interests under the Mental Capacity Act 2005. That was the argument – that all of this was defendable because the police said they had acted in his best interests.

The court disagreed with this because objectively the police had not once asked for advice as to how deal with this boy.

The police had said that they had acted in the boy’s best interest, and the court said that there was no reasonable belief here objectively viewed because they did not ever take advice as to how to deal with this boy.

Question 20

Majorowski [2007]

Answer 20

(PROTECTION FROM HARASSMENT ACT 1997)

Section 7 goes on to further explain the meaning of “harassment”.

It has got to be something that includes alarming or causing distress (Section 7(2)).

It has to be conduct that is repeated at least on two occasions (Section 7(3)). A one-off event will not come within this period.

So, it has got to involve conduct on more than two occasions.

According to case law, the behaviour has to be oppressive and unacceptable. (CA in Majorowski [2007]). So, this is not from the statute, but is what the case law added to the meaning of “harassment”.

So, it can’t be something that is trivial – it has to be something that is oppressive and unacceptable. For example, if someone parked outside your house every night for 10 minutes to check your home would satisfy the spirit.

The statute has been used a lot by celebrities, but also by non-celebrities too. It covers bullying in the workplace, which is from the Majorowski [2007] case.

Question 21

Wilkinson v Downton [1897]

Answer 21

(RULE IN WILKINSON V DOWNTON)

A landlady was the subject of a really malevolent practical joke by one of her customers. The customer told her that her husband had been very seriously injured in an accident. It was completely untrue; he was enjoying a day at the horse races. But this customer, malevolently, told the woman that her husband had been very seriously injured. Now, what happened was the woman immediately vomited through shock. She wrenched her back through the extreme vomiting and shock. The case report says that her hair turned grey overnight. And, over the next few weeks and months she suffered severe psychological consequences, which according to the case report, threatened her reason.

And that’s the problem with our mind and psyche. Even though she knew fairly quickly that her husband was fine, that the shock of thinking that he was dying caused this psychological trauma – this vomiting and psychological trauma.

The courts refer to that as “nervous shock”. We called it psychiatric damage last semester, but it is often called nervous shock.

Now, this wasn’t a battery or an assault because no touching was involved. There was no threats to her. But it was an intentional horrible practical joke. So, the court allowed her a remedy.

Question 22

Janvier v Sweeney [1919]

Answer 22

(RULE IN WILKINSON V DOWNTON)

Note the date – this was in the context of World War I. Two men, pretending to be police officers, sought to extract information from the claimant by saying that if she didn’t cooperate then her fiancé would be arrested as a German spy. Now, her fiancé happened to be German. She again suffered psychological trauma, which is probably now called post traumatic stress disorder.

Again, she was allowed a remedy.

Question 23

Wong v Parkside Health NHS Trust [2001]

Answer 23

(RULE IN WILKINSON V DOWNTON)

The court confirmed that this tort was not actionable per se. You can only rely on it if you suffered tangible harm in the form of a injury or an illness.

this case involved a man and a son who went on a prison visit and on entry they were forced to strip so officers could perform a visual strip search. So, they had to take their clothes off. They were then forced to bend over, stand with her legs apart, so officers could take a look at every orifice. It was horrible, but they were never touched; they were watched, but they were never touched. They removed their own clothes.

So, there was no scope for a claim in either assault or battery. There was no threat of touching, and there was no physical contact.

The litigants argued Wilkinson v Downton and also infringement of privacy, and aspect I will leave.

What the court said was there was no intention to cause injury; there is no intention to cause psychological harm here. Yes, the prison officers had not been very sensitive, but it was not enough merely to be distressed by what had happened. There was no intention to cause injury.

But, orbiter, the House of Lords doubted that Wilkinson v Downton remain valid as a tort in any event.

Interestingly, however, the House of Lords did not overrule it, but they doubted that it remained of any modern relevance.

But, since Wainwright there have been a couple of other cases.

There was a child abuse case involving a man who stared at a boy’s genitals. C v D [2006]. The judge said Wilkinson might be “…down but not out”– that there did remain a role for.

That then brings us right up to date – 2015 – where the House of Lords again has actually confirmed that Wilkinson v Downton [1987] does have a life as a tort, and they finally established what the points of proof are for the store. So, it has taken over 100 years, but it remains a valid tort and we now know what we need to prove in order to rely on it.

Question 24

Rhodes v OPO [2015].

Answer 24

(RULE IN WILKINSON V DOWNTON)

1) Words or conduct directed at the claimant for which there is no justification or lawful excuse. Conduct element.
2) The defendant must intend to cause physical harm or severe mental distress. Mental element.
3) The claimant must suffer tangible harm as a consequence. Consequence element.

James Rhodes is a conductor renown. He proposed a few years back to write an autobiography detailing his life. It was about himself. In it he was going to reveal details of how he had been abused as a child, and also his problems with drug and alcohol addiction. So, it was a tell it all autobiography.

Now, his ex-wife, acting on behalf of their son who has Aspergers, try to stop publication. Her argument was that the son would not understand the details of the book and that it would cause him upset and distress, and potentially psychologically damage the son. She argued on the basis of Wilkinson v Downton.

What the House of Lords/Supreme Court said was this tort is in fact a tort; it does exist. However, to rely on it you need to show three things:

1) Words or conduct directed at the claimant for which there is no justification or lawful excuse. Conduct element.

Here, however, the man was writing a book about himself which was directed at everyone, including his son. So, the audience was the public. But the court said he did have a lawful excuse. What allows us to publish things about ourselves – what do we enjoy in this country? Freedom of expression. So, the lawful excuse was freedom of expression. So, this case failed at that first hurdle.

The man was entitled to write about himself through freedom of expression. It was the first element and point to prove.

2) The defendant must intend to cause physical harm or severe mental distress. Mental element.

ames Rhodes did not intend to cause his son mental distress. That might have been a byproduct, but it was not his intention.

3) The claimant must suffer tangible harm as a consequence. Consequence element.

The point from the Wong v Parkside Health NHS Trust [2001] case.

This tort is not actionable per se. You must suffer some tangible harm. The court did not go on to consider that in Rhodes because, unfortunately, the claim had already stumbled on the first two points.

Question 25

Lawson v Glaves Smith [2006]

Answer 25

It involved a woman who went on what she thought was a job interview only to find that the person interviewing her was intent on effectively raping her. He trapped her in a room. He didn’t rape her on several occasions before she was eventually released. She reported him to the police, but before he could be prosecuted and the police were taking this up, he died in a road traffic accident. In crime, without a defendant there is no case. But in tort, if a defendant dies you can sue their estate.