False Imprisonment (Torts) Flashcards
Understand the Tort of False Imprisonment (23 cards)
Introduction (1)
*The P is intentionally detained or imprisoned by D without lawful justification
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*P has onus of proof to show that there has been imprisonment/detention and that it was done intentionally
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*D has defence – that it was lawful. But onus on D to show lawful justification
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*FI: A powerful tool to restrain police conduct
LEGAL TEST:
TWO ELEMENTS
Plaintiff has to prove that there were intentionally detained or imprisoned
And without lawful justification
D has onus of proof
Have defence if lawful.
Powerful tool to restrain police conduct.\
Has to understand requirements to arrest someone very well. → police.
Element 1:
Detention or imprisonment (1)
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*An intentional tort – the deprivation of liberty must be intentionally imposed
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*P must prove an “imprisonment” or “detention”
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*A total restraint or boundary
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*A positive act or failing to release on time
*Reasonable means of escape = no imprisonment
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*Physical injury, violence, force or physical contact not required - a “per se” tort
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*P can be unaware of restraint (awareness/injury goes to increase quantum of damages)
If plaintiff is unconscious can still be liable → we do not care about mindset of the plaintiff.
Plaintiff has to prove imprisonment or detention
If you have a reasonable means of escape → then no imprisonment
Cage →
Omission to act → police should have let me go but they didn’t
Physical injury violence or force → IS NOT REQUIRED.
Don’t need harm
Plaintiff can be unaware of restraint.
Element 1:
Detention or imprisonment (2)
*Detention must be “lawful”
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*Defence of consent: Free and voluntary consent vs. assertion of authority that induces the P to submit to the will of another.
*No general defence of reasonableness, carefulness or good faith on D’s behalf.
Detention needs to be lawful
Difference between free and voluntary intent → compared to for example → suspect of shoplifting you come with us → but can say you are a person of authority and i didnt think i had any other option → in this it is still unreasonable imprisonment.
Does not matter → if they say i handcuffed her but was being really careful → but i thought I could detain her for shoplifting → it is the intent to do the act → restraint.
Bird v Jones
*Facts
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*Issue
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*Held:
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*Reasoning:
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*The imprisonment must be total
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*Was no imprisonment here as he could go another way
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*Dissent’s concerns could be met by another tort (nuisance – obstruction of public highway)
FACTS:
Public highway sectiond off for bird race
Defendant jumped over to get inside
Argued → falsely imprisoned because he could not go where he wanted to
But if you have a reasonable escape → you are not falsely imprisoned.
HELD → prison must have a boundary → must be prevented from passing
Loss of power → notion of restraint.
Reasonable means of escape in this case.
Dissent → but did not hold.
Dissent → said other torts, nuisance, obstruction of public highway.
UNREASONABLE:
For example → when open door there is tiny shards of glass outside → there is no reasonable means of escape → and that is detention
Someone takes your clothes while skinny dipping → that is detention.
Perisco
*Facts:
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*False imprisonment for 5 minutes in store manager’s office
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*Issue:
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*Holding: She was awarded $1500 in damages
*Reasoning
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*Clear that she was not physically detained there
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*But felt compelled to remain
PERSICO V WOOLWORTHS:
1980 →
Debra → shopping at woolworths → tried on and decided to try on and buy some slacks
Said she had to go back to work because break was nearly done
Checkout line was long → Decides not to purchase pants and puts them on the counter
She was under observation → in the shop → having left the shop she went back at a fast pace
The manager told her to stop →
And told them to check her handbag
Was told by manager that still required to go back to managers office
She felt under compulsion and returned back
She was upset and frightened → deeply frightened
She was held for 5 minutes
Returned to work and went home early because she was so upset.
Was she falsely imprisoned?
Woolworths argued → that she consented → she didnt have to.
ELEMENTS → complete deprivation for anytime, without lawful excuse
Held that it was false imprisonment → 5 minutes, and minor nature.
The prisoner may be confined → or their movements may be simply constrained by the will of another → does not have to be put in a physical cage → movement was constrained by someone with authority.
Enough that plaintiff is in a manner that deprives movement → can even be mental deprivation.
Impression created in the victims mind → quite clearly felt imprisoned, could have asked to make check in the street instead of office
Awarded $1500.
Chaytor
*Facts:
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*Here is an example of false imprisonment due to moral and psychological pressure
*Not physical force
*But desiring to avoid embarrassment
*And because you feel compelled to do what police tell you
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*Issue
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*Holding
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*Reasoning:
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*Different from free and voluntary consent
*Assertion of authority that induces the P to submit to the will of another (cf Fogg v McKnight)
CHAYTOR:
FACTS:
Competitor going to other store and having a look at their pricing
Normal commercial practice of keeping aware of competitors pricing
Manager called them spies
Arrested them and called them suspicious characters.
Detained in the police station for 15 minutes before being allowed to leave.
ISSUE:
WHETHER THERE IS FALSE IMPRISONMENT BECAUSE OF MORAL OR PSYCHOLOGICAL PRESSURE
Were not placed under arrest → compelled to do what police wanted to do.
Most people say yes to police
Psychologial and moral compulsion
Was there false imprisonment → or did the plaintiff consent?
COURT → difference between free and voluntary consent →
JUDGEMENT:
Said come with us (police) → should waited for senior constable to see if their is a charge →
Evidence is → refused telephone call
Highly desired to avoid embarrassment → to them and their firm → they went with police officer
Psychological type of imprisonment → went voluntarily because they felt they couldnt do otherwise → Obvious that there can be restraint without physicality.
There was false imprisonment.
Did not feel they had any other option.
Murray v Mod
*Facts
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*Issue: Does the P need to know that they are imprisoned?
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*Holding: No!
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*Reasoning:
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*The tort is actionable per se without injury to the P needing to be proven
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*If unaware and no injury, get nominal damages
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*But recognizing the supreme importance of the individual – don’t need to know (cf US view)
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*Also see earlier case: Herring v Boyle!
MURRAY:
Northern Ireland → Corporal D was told that plaintiff was suspected of involvement with the IRA.
Was told to bring them back to facility.
Entering every room and putting all occupants in one room
Plaintiff comes down dressed
Arrested → pat searched.
Taken to interview room → refuses to answer questions
Released
Claims she had been falsely imprisoned between 7 am till 7 30 → ive been falsely imprisoned because they didnt put me under arrest immediately → was putting clothes on while they were searching the house.
ISSUE:
Was it unjustifiably a long period of time to do that?
Can have a justifiable passage of time → because there was a reasonable delay → before they were leaving the house.
Cannot agree that it is an essential element → Delay.
HERRING V BOYLE:
Mother fetches son from school.
Principla says cant leave because tuition is not payed.
Judgement:
A locks a child in vault of bank →
A abducts child → unaware of confinement but aware that somehting is wrong, later found by police, not knowing. → should be liable.
If he or she is unaware → the law attaches supreme importance to freedom of movement → even without proof of harm → there should be special damage.
Element Two:
Lawful Justification
“Power of arrest”
*No common law power of arrest or to detain w/o arrest for questioning
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*Statutory authority to arrest required
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*Strict compliance with conditions of statutory authority to arrest essential for justification
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*No general defence of “reasonable care” or “honest belief“
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*See R v Governor of Brockhill Prison
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*Restraint must be intentional, although intention to restrain unlawfully not needed
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*See the Crimes Act (Next slide …)
LECTURE 2:
Second element for False Imprisonment → is there lawful justification?
First element → Total restraint → many ways there can be total restraint.
If there is no lawful justification → then you have a successful CAUSE OF ACTION.
IN NZ → if police wants to question you → they cant unless they issue an arrest → have to comply to the C.A → freedom of movement and liberty are important
Situations where you don’t need warrant. → but strict compliance to statute is essential
Brockhill → miscalculated days prisoner needs to stay in → mistaken belief for longer period → Court said we dont care → dont care what they believe → So prisoner was falsely imprisoned.
Intention to restrain unlawfully isn’t needed. →
BROCKHILL CASE:
Pg 83 → additional 59 days in prison → that was not lawful → incorrect calculation of how long. → the Court said it did not matter that the prison guard thought they were supposed to be in prison → MISTAKEN BELIEF DOES NOT MATTER.
Elements of strict liability.
Crimes Act:
Section 316
316 Duty of persons arresting
(1) It is the duty of everyone arresting any other person to inform the person he is arresting, at the time of the arrest, of the act or omission for which the person is being arrested, unless it is impracticable to do so, or unless the reason for the arrest is obvious in the circumstances. The act or omission need not be stated in technical or precise language, and may be stated in any words sufficient to give that person notice of the true reason for his arrest …
(5) Every person who is arrested on a charge of any offence shall be brought before a Court, as soon as possible, to be dealt with according to law.
If a police officer makes an arrest → needs to inform them they are under arrest and the reasons for it.
If it is impractical to inform them etc. → and need to restrain them → then you can do it after → or for ex. → if someone is waving a gun → it would be impractical in that moment. → arrest them first then do it.
Everyone should be brought before a Court as soon as possible. → can it be false imprisonment → Fact and degree.
Crimes Act:
Section 32
32 Arrest by constable of person believed to have committed offence
Where under any enactment any constable has power to arrest without warrant any person who has committed an offence, the constable is justified in arresting without warrant any person whom he believes, on reasonable and probable grounds, to have committed that offence, whether or not the offence has in fact been committed, and whether or not the arrested person committed it.
Objective test → reasonable and probable grounds → having the information that they had in their shoes → would they think they had the power to arrest.
Regardless of whether they have committed it.
Duffy v A-G
*Facts: Arrested, placed in van and then taking to police station
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*Issues:
*Was the arrest lawful according to s 32 Crimes Act?
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*And, was she entitled to be taken to the police station forthwith?
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*Held:
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*Not reasonable to be processed at police station immediately upon arrest but there were not reasonable and probable grounds for thinking she was drunk
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*Awarded huge amount in damages!
*Reasoning:
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*Have to balance between civil liberties and maintaining law and order
DUFFY:
FACTS:
Plaintiff went out to social event → when going out → crosses street and there is a police van
When she is walking she has a gait that looks unsteady
Police stop her (she has a shaved head), she slurs her words → think she is drunk
So decide to arrest her → she was almost hit by a car → said it was excessive speed of vehicle
The real reason → is because she is on medication which makes her appear to be (chemo therapy) drunk → and she has a medical bracelet on → her mouth is full of ulcers → (she has had two drinks though)
The police dont believe her → and put her in the paddy waggon.
Another person gets put in paddy waggon with her → slaps belt, and urinates inside, and shouts obscenities at her
Another person vomits inside the van
It takes 2.5 hours to get back to police station
CLAIM:
First cause of action → there is no reasonable and probable grounds → to arrest her without a warrant → because clearly saying she was a cancer patient
Second cause of action → she was unlawfully imprisoned for 2.5 hours. → in any event was unlawfully imprisoned because carried around for 2.5 hours → was not brought back to police station in due time.
Court → Second issue → if she was lawfully arrested → then there was no unreasonable delay → because normally they get as many people as possible.
$60,300 awarded because there was no probable cause → objective reasonable police officer would not have arrested her → therefore was unlawfully imprisoned → because no authority to arrest her.
Whithair v A-G
*Facts
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*Issue
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*Holding
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*Reasoning:
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*A lawful imprisonment may become unlawful and thus the tort of false imprisonment
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*In this case due to the delay in a prisoner being brought to court as soon as possible
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*Indeed, imprisonment may be lawful - then unlawful - then lawful again
WHITHAIR V AG:
Pre trial negotiation → no decision.
Procedural application → hear affidavit evidence
Interlocutory → to determine whether the cause of action is worthy of being taken to Court.
Can be taken to court → if lawfully arrested → then taken immediately to Court to determine.
Facts:
Male assaults female
Brought to police station
Although no regular sitting on that day → the District Court did sit → and only a 30 minute drive to Court
The Court → situation where lawfully arrested → but could become false imprisonment → because wasn’t taken when he was told → Friday to saturday → lawful → could have been brought on Saturday → but was not told → so therefore false imprisonment.
Is it excessive given the nature of the facts. → for ex. Three hours away.
Hayward v O’Keefe
*Clear how important the right not to be falsely imprisoned is
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*Right up there with habeas corpus
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*Especially when the defendant is police officer
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*Reason for belief that P has committed offence must rest on reasonable and probable grounds
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*Facts: Unlawful delay in taking him to flea market
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*Issue:
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*Held:
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*Handcuffs was imprisonment
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*And then leaving him in the cell for an hour was unjustified
HAYWARD:
FACTS:
Butcher alleged to be stealing a trolley by police
Butcher questioned at Business premises (his) claim by supermarket that trolley was using their trolleys.
Questioning happened in Butcher’s office
He maintained he always had 9 trolleys (owned) → and he didnt care whose they were.
Plaintiff refused to go and look around with police → was placed in handcuffs.
Was escorted in front of others to where the trolleys were. → backtracks and starts agreeing with police
Police could have taken him directly to police station → but took him in front of crowd → tried to embarrass the butcher →
ISSUE:
Was the defendant unlawfully detained → taken to trolley and police station
Was there a reason for the delay?
Justice Thomas → said no.
Grabbing of arm and handcuff. → potential battery.
DECISION:
Said the walking around, and embarrassing him, and left in Otara police station → which could have processed him → He could have been dealt with quickly.
No reason for delay, and going to flee market. → reasonable suspicion must be met.
A-G v Niania (1)
*Facts:
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*She was kept by police for about 6 hours
*Issue: Here was lawful arrest made?
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*Held: No lawful arrest (F.I.)
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*Reasoning:
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*No need for arrest to be forceful
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*Can be done by assertion of authority (by police)
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*When the P submits in circumstances where he/she reasonably thinks no choice but to submit
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*She was not told she was arrested (and didn’t comply with s 316)
NIANIA:
FACTS:
Ms Niania → had to go for questioning → but held her for many hours → the police were supposed to arrest her → detained her for 4-5 hours → Voluntarily came → but psychologically detained.
Drug house → want to search her house, for drugs, and robbing equipment. → the premises were searched → multiple people in the house.
HC → held that she was falsely imprisoned → police officer needed to say she was under arrest and the reasons why.
Amount of damages low → because she could have been arrested if she followed procedure. → this means the amount amended from $10k to $5k
Justice Tipping → regardless of whether it is psychological → it is still imprisonment → unless there is reasonable grounds. → and procedure must be followed. → there were reasonable grounds → but procedure was not followed. → thus the damages of $5000 awarded as opposed to $10,000.
Decision:
A-G v Niania (2)
*False imprisonment may be made out even if arrest would have been lawful if statute complied with
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*But damages reduced by half because there were grounds to arrest her in this case!
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*The interference with her liberty less than could otherwise have been?
Crimes Act
Sections 35, 219 & 223
35 Arrest of persons found committing certain crimes
Every one is justified in arresting without warrant—
(a) any person whom he finds committing any offence against this Act for which the maximum punishment is not less than 3 years’ imprisonment:
219 Theft or stealing
(1) Theft or stealing is the act of,—(a) dishonestly and without claim of right , taking any property with intent to deprive any owner permanently of that property or of any interest in that property;
223 Punishment of theft
Every one who commits theft is liable as follows:
(b) if the value of the property stolen exceeds $1,000, to imprisonment for a term not exceeding 7 years; or
(c) if the value of the property stolen exceeds $500 but does not exceed $1,000, to imprisonment for a term not exceeding 1 year; or
(d) if the value of the property stolen does not exceed $500, to imprisonment for a term not exceeding 3 months.
CITIZENS ARREST:
- Justified without warrant → if → the crime has a punishment above 3 years imprisonment
Unless it is night time.
Theft → if try to steal something over $1000 → then citizens arrest is viable → but for ex. → a lip gloss does not go above $500.
Crimes Act
Section 39
39 Force used in executing process or in arrest
Where any person is justified, or protected from criminal responsibility, in executing or assisting to execute any sentence, warrant, or process, or in making or assisting to make any arrest, that justification or protection shall extend and apply to the use by him or her of such force as may be necessary to overcome any force used in resisting such execution or arrest, unless the sentence, warrant, or process can be executed or the arrest made by reasonable means in a less violent manner:
FORCE USED FOR ARREST:
Can use force necessary to overcome force used in resisting the arrest.
Unless a less violent way can be found.
Remedies for False Imprisonment
Chief executive Department of corrections v Gardiner
*Facts
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*Issue:
*CA Holding
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*Reasoning
HOW DOES COURT DECIDE COMPENSATION:
GARDENER:
Held in custody (prison) for 30 days longer → and granted $10,000.
COURT:
Was this enough? →
If the person was in prison for 10 years → compared to 10 days in excess →
When examining non-pecuniary loss → emotional harm or injury to feelings. → some people may suffer more
Lost of liberty → place high value on liberty.
For ex. A person who places low value on autonomy → for ex. Person who offends in prison → then the reward will be altered.
DECISION:
Court says $10,000 is reasonable → not less than 8k, not more than 12k.
Upheld.
ACC & False Imprisonment Willis v A-G
*Facts
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*Issue: Are compensatory damages for false imprisonment barred by the ACA?
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*Held: No
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*Reasoning:
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*Not a personal injury
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*Damages are for loss of autonomy - freedom of movement etc.
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*Clearer now under current legislation
REFERRED TO IN ROPER → CAN HAVE A BAR IF THE INJURY IS SUBSTANTIALLY A MATERIAL CONSEQUENCE OF BEING PERSONAL INJURY BY ACCIDENT:
ROPER:
Thrown into cage by airforce superior, and sexually assaulted
Argued → that can sue Mr Roper → because injuries from false imprisonment not coverd → But Court said they were.
So she was barred for seeking damages → because Act covered for compensatory damages → exemplary is different.
NZBORA
Sections 21 & 22
NZBORA
Section 21 Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search or seizure, whether of person, property or correspondence or otherwise.
Section 22 – Liberty of the person —
Everyone had the right not to be arbitrarily arrested or detained.
NZBORA → unreasonable search or seizure → different from tortious.
NZBORA
Section 23(1)
NZBORA
23 Rights of persons arrested or detained
(1)Everyone who is arrested or who is detained under any enactment—
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(a) Shall be informed at the time of the arrest or detention of the reason for it; and
(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and
(c) Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.
(2) Everyone who is arrested for an offence has the right to be charged promptly or to be released.
(3) Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.
NZBORA
Section 23(2)
NZBORA
23 Rights of persons arrested or detained
(4) Everyone who is—
(a) arrested; or
(b) detained under any enactment—
for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.
(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
Baigent’s Case
*Facts:
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*Police got search warrant for wrong house
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*Decided to search it anyway
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*Were sued under s 21 of the NZBORA
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*Issue
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*Held: Allowed for damages for breach of NZBORA despite no statutory authority to grant this
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*Reasoning:
*(General remedy is for inappropriately obtained evidence to not be admitted – not applicable here)
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*It’s a civil claim for public law compensation
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*NZBORA compensation will be taken into account when assessing compensation for torts
BAIGENT:
Facts:
Police officers decide to search Ms Baigents house without her permission
Have inquiry that person selling cannabis
Receive warrant for another house
Police arrived to execute warrant → Son told the police that this isn’t the right house
Police said we often get it wrong but will look anyway.
Ms Baigent said it was breach under NZBORA.
COURT:
Can you get compensation under NZBORA?
_ - NZBORA does not allow compensation through statute
Read in through common law
Baigent → will assess compensation for torts → preference is that the BOR remedy is supplementary
Tort damage first → BORA is supplementary
THIS HAS BEEN OVERTURNED.
Dunlea v A-G
*Facts:
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*Issue: What happens when claiming damages for tort (false imprisonment) and for NZBORA damages (s 21)? What is the approach to damages?
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*Held:
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*Strong indication by majority that the approach to both should be the same in order to fix amount of damages
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*Reasoning
DUNLEA:
Public law → compensate different wrongs compared to torts
Should be analysed separately.
Purpose of public law → vindication of rights that have constitutional status → EXTRA DIMENSION.
Torts → breach of important rights
Held —> not going to base one of the other. → purpose of compensation different.
