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Flashcards in Intentional Interferences with the Person Deck (45)
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1

Collins v Wilcock (1984)

"An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person. Both assault and battery are forms of trespass to the person. Another form of trespass to the person is false imprisonment, which is the unlawful imposition of constraint on another's freedom of movement from a particular place" (Goff LJ, at p. 377-8).

"The fundamental principle, plan and incontestable, is that every person's body is inviolate...The effect is that everybody is protected not only against physical injury but against any form of physical molestation" (p. 378). In other words, any touching - regardless of consent - amounts to battery. However, in principle consent amounts to a defence against battery - and most of the 'ordinary' physical touching required in day-to-day life will not suffice. There is thus a development of a 'broad principle', subject to 'general exceptions' (p. 378).

2

Wilson v Pringle (1986)

The act, not the injury, must be intentional to establish TAP; "it is the mere trespass by itself which is the offence" (p. 249). i.e. All that is required to be shown is deliberate conduct (there is no need to establish an intention to commit the tort).

It was believed that 'hostility' was required to establish TAP (battery), but this has now been overruled in F v West Berkshire (1990) as being difficult to reconcile with the broad principle that any touching amounts in principle to battery (Lord Goff at [73]).

3

Letang v Cooper (1965)

This case concerns intention and committing battery. If the injury is inflicted unintentionally, but negligently, the action lies in negligence rather than trespass (Lord Denning).

4

Livingstone v MOD (1984)

This case concerns intention and committing battery. A soldier deliberately fires A, but misses him and hits B instead. It was held that intent can be 'transferred' (Hutton J at p. 361).

5

Bici v MOD (2004)

Livingstone endorsed. Recklessness is defined as the indifference as to the result of your actions.

In principle this would suffice as intention; but, it must be 'subjective recklessness' (appreciating risks of potential harm to C but being indifferent to it) (Elias J at [67]).

6

Blake v Galloway (2004) [also seen in the Breach of Duty deck]

Participating in a game equates to implied consent for battery. The question of implied consent must be judged on the circumstances (Dyson LJ at [24]).

7

Fagan v Metropolitan Police Commissioner (1969)

(Don't mention any criminal cases unless the lecturers have mentioned them to you)

It was accepted that D did not mean to drive on to C's foot, but D took time to move the car…

Intention thus not needed at the exact time of the force; can come later once you are informed - there was a 'coincidence' of intention.

8

Scott v Sheperd (1773)

This case concerns the application of direct and immediate force.

A difficult case as D threw it in a crowd, where people instinctively redirected the squib until it injured C.

Court still maintain that the 'mischief' was originally intended, and a natural, instinctive reaction does not change that. "Whatever mischief therefore follows, he is the author of it" (De Grey CJ at p. 528).

9

Tuberville v Savage (1669)

This case illustrates the necessity for immediacy in assault claims.

"If it were not assize time [i.e. the judges were in town], I would not take such language from you"

However, it *was* 'assize time', so there was no immediacy. Therefore, no assault.

10

R v Ireland (1997)

This case establishes that in principle, words alone can constitute assault - and even silence (as in this case, silence over the phone implied that D knew C was at home; however, this invariably depends on the facts) (Lord Steyn at p. 162).

11

R v Governor of Brockhill Prison, ex parte Evans (No. 2) (2001)

A prisoner held in prison 59 days longer than she should have been, based upon the governor's miscalculation. She sued for false imprisonment.

Governor was held liable, as false imprisonment = a tort of *strict liability*; D does not have to act in bad faith or intend to imprison falsely (i.e. unlawfully). Lord Steyn writes that treating false imprisonment as a tort of strict liability "strikes the right balance between the liberty of the subject and the public interest in the detection and punishment of crime" (p. 27).

12

Prison Officers Association v Iqbal (2009)

(Concerning the intention of false imprisonment)

"I would hold that, if the defendant realises that the likely consequence of his act or omission will be that the claimant is imprisoned and carries on with that act (or omission...) regardless of that likely consequence, that will amount to false imprisonment, provided of course that the other requirements are satisfied" (Smith LJ at [73])

Moreover, Smith LJ writes that in except for exceptional circumstances, the tort of false imprisonment cannot be committed via an omission. In the Brockhill prison case, an exception was provided, as it concerned a right and corresponding duty to be released. Thus, liability for omissions can only arise out of an established right and duty [69]. In his dissent, Sullivan LJ believed that the right prisoners have to not be falsely imprisoned should have taken precedence over the right for prison officers to strike - as the former was of fundamental importance [103].

13

Bird v Jones (1845)

(Defining imprisonment)

"Imprisonment is, as I apprehend, a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience t may bring on him" (Patteson J at p. 752).

14

Murray v MOD (1988)

In obiter, Lord Griffiths writes that one can sue for false imprisonment even if one did not know at the time that one was falsely imprisoned; this reflects the supreme importance of the liberty of the individual. However, one can only expect to recover nominal damages.

15

Hague v Deputy Governor of Parkhurst Prison (1992)

Lord Ackner at p. 166 writes that lawful imprisonments cannot be rendered unlawful simply via a change in detention conditions.

16

Austin v Commissioner of Police of Metropolis (2009)

This case concerned Article 5(1) ECHR (individual liberty and security). During anti-capitalist demonstrations in London on May 1, 2001, the police cordoned in up to three thousand demonstrators in Oxford Circus for up to 7 hours. It was held that the police intended to maintain the cordon for as long as necessary to achieve their purposes, and thus did not constitute a violation of Article 5 (Lord Scott at [39]).

17

Lumba v Secretary of State (2011)

The Supreme Court considered the legality of detaining foreign nationals who had completed prison sentences for criminal offences, pending their deportation. It was concluded that their detention was unlawful: the policy under which they had been detained had not been published and was inconsistent with the published policy. The tort of false imprisonment was satisfied: the appellants had been detained, and their detention had not rested on a lawful decision. The right to liberty is of "fundamental importance" (Lord Dyson at [53]). However, the appellants could have been detained lawfully for this period under the published policy, and, in consequence, were entitled to only nominal damages; they did not suffer any loss or damage as a consequence (Lord Dyson at [95]). A form of 'causation test' regarding false imprisonment was rejected: "[The law does not recognise] any defence of causation so as to render lawful what is in fact an unlawful authority to detain, by reference to how the executive could and would have acted if it had acted lawfully, as opposed to how it did in fact act..." (Lord Dyson at [53]).

All C has to prove is that he was directly/intentionally imprisoned by D; it then falls on the latter party to evidence lawful justifications (Lord Dyson at [65]).

Lord Phillips, Lord Brown and Lord Rodger dissented in part, contending that the tort of false imprisonment was not made out where it was shown that a reasonable decision-maker, applying a lawful policy, would have detained the appellants. There was a further 6:3 split on the awarding of (only) nominal damages (Lord Brown does not see the logic of only awarding nominal damages: [343-4]).

18

Kambadzi v Secretary of State (2011)

A sequel case to Lumba. Lord Hope believes that nominal damages do "not affect the issue of principle", whilst Lord Brown (again, in dissent) argues that this would simply "devalue the whole concept of false imprisonment" [108].

19

Robinson v Balmain Ferry (1910)

This case deals with conditions and terms and false imprisonment.

Robinson (R) paid a penny to cross on a ferry, however, he narrowly missed the ferry and changed his mind about crossing. R attempted to leave through the gate he came through, however, it required another penny to be paid to leave. R refused to pay the penny because he had not crossed on the ferry. Balmain New Ferry Co. (D) forcibly prevented R from leaving until he paid the penny. R raised an action for false imprisonment.

R claimed that he was falsely imprisoned due to the forcible prevention of his leaving the ferry wharf without paying a penny to leave.

Held:
A person can be legitimately prevented from leaving if they had entered an earlier contracted permitting so. When R entered the ferry gate, he agreed to pay a penny on both entering and leaving the ferry. This bound him to a contract and D was entitled to impose a reasonable condition before allowing him to pass through their turnstile from a place to which he had gone of his own free will. This case narrows the law on false imprisonment, following the case of Bird v. Jones [1845] 7 QB 742 in which it was held that false imprisonment is constituted by total (and not partial) obstruction, however in the present case it is held that it even where a person is totally obstructed it will not constitute false imprisonment if there is a reasonable condition to passing.

20

Herd v Weardale Steel Co. (1915)

This case concerned terms and conditions and false imprisonment.

Herd (H) was a miner in a coal mine. H attended work at 9.30 am, and in the ordinary course of work he would be entitled to be raised to the surface from the mine at the end of his shift at 4 pm. When H arrived at work in the mine, he wrongfully refused to be work and requested to be raised to the surface in the lift at 11 am. His employers, Weardale Steel, Coal and Coke Company, the owners of the colliery (D), refused to allow H to be lifted to the surface until 1.30 pm. H was thus detained in the mine until that time. H sued D for damages for false imprisonment.

H claimed that his prevention from using the lift until 1.30pm, which caused him to be imprisoned in the mine as it was the only means of exit, constituted false imprisonment.

Held:
There was no false imprisonment due to the operation in the present case of the common law doctrine of violenti non fit injuria, which means that a person cannot bring an action against another person for tort or delict if they had willingly placed themselves in a position where harm might result, knowing that some degree of harm might result. In this case, the imprisonment constituted the ‘harm.’ Following the case of Robinson v Balmain New Ferry Co. Ltd [1910] AC 295, H was only entitled to the use of the exit on the terms on which he had entered. H had breached his employment contract by refusing to do the work he was ordered to do. This breach of contract justified his detention in the mine until the lift could be used at 1.10 that day (Viscount Haldane LC at p. 72).

21

Ashley v Chief Constable of Sussex (2008)

This case deals with self-defence. If D believes he is under a potentially lethal attack or that such an attack is imminent, he is justified in defending himself/killing his assailant (Lord Rodger at [51]).

The issue here was that the assailant acted in a mistaken self-belief that he was in imminent danger of being attacked. Does this belief also have to be honestly and reasonably held? (Lord Scott at [15]). The result is that the criminal and civil law employ different tests when it comes to self-defence: in tort, you require the belief to be both honestly and reasonably held. Lord Scott believed that it was not right if D's unreasonable, mistaken belief would be able to set aside C's right not to be subjugated to physical violence [18].

Two points were left open by the judges:
1) What happens where D's reasonable belief is based upon third-party information rather than the victim's actions?
2) Should self-defence be available to a claim for battery only where D was actually attacked or in imminent danger of an attack?

22

Revill v Newbery (1996)

Self-defence must be proportionate; excessive force = actionable wrong (Millett LJ at p. 580).

23

Chief Constable of Merseyside Police v McCarthy (2016)

(regarding excessive force and self-defence)

In the early hours of 29 September 2012, the claimant was involved in a violent incident in Liverpool. In the course of subduing him, a Merseyside officer kicked the claimant once, placed a knee in his back and Tasered him twice.

At the liability trial in Manchester County Court, the recorder held the first Taser application discharge was lawful and dismissed the claims based on the kick and knee in the back, but held that the second Taser discharge was unlawful, as was a 2½ minute delay in providing aftercare to the claimant.

The negligent delay was not challenged, but the chief constable appealed against the finding that the second Taser discharge was unlawful.


The CoA held:
- The recorder had set the bar too high in deciding the officer’s use of force was unreasonable.
- In holding the chief constable liable in trespass (battery) rather than negligence (not pleaded), the recorder was wrong in law.
- In finding that the whole of the 11 seconds of the second Taser discharge was unlawful, the recorder was again wrong in law.

24

Chatterton v Gerson (1980)

Whether consent can be found depends on the circumstances of each case. Must be a 'greater' failure of communication between doctor and patient than that involved in a breach of duty (if the claim lies in negligence) to vitiate consent (Bristow J at p. 442-3).

In sum, Bristow J held that C's consent was valid because she had consented to the *broad nature* of the procedure. A case in which physicians may be sued for battery is when the procedure consented to was completely different from the procedure carried out to the claimant, the example given by the court was a case when a child in Salford checked into the hospital for a tonsillectomy but was given a circumcision instead.

25

St. George's Healthcare NHS Trust v S (1998)

S, who was 36 weeks pregnant, was diagnosed with severe pre-eclampsia, a life-threatening condition of pregnancy characterized by high blood pressure, and with moderate depression. She was advised that her health and her life, and that of her baby, were in real danger and that she needed to be admitted immediately to the hospital for an induced delivery. S fully understood the potential risks but rejected the advice on the grounds that she wanted her baby to be born naturally.

On the application of C, a social worker approved under Canada’s Mental Health Act (“Act”), S was admitted to a mental hospital against her will for assessment under section 2 of the Act as it was feared that her mental state was compromising her ability to make decisions. S was immediately transferred again against her will to St. George’s Hospital, which then applied ex parte for a declaration dispensing with her consent to treatment. Inadvertently misled into thinking that S had been in labor for 24 hours, a High Court judge granted the declaration, and S’s baby was born by Cesarean section. S returned to the mental hospital, discharging herself two days later.

S appealed against the High Court judge’s order and sought judicial review of C’s decision to admit and detain her under the Act.

The Court held that S had the right to refuse medical treatment even if it would endanger the life of her or her fetus. The Court reasoned that an adult of sound mind is entitled to refuse medical treatment because each individual has the right to autonomy and self-determination. The Court state that while pregnancy increases the personal responsibilities of a woman, it does not diminish her entitlement to decide whether or not to undergo medical treatment. Nor is her right reduced or diminished merely because her decision to exercise it may appear morally repugnant (Judge LJ at p. 50).

The Court further held that the removal of S’s baby from within her body under physical compulsion constituted an infringement of her autonomy which was not justified by the perceived needs of the fetus. The Cesarean section performed on her, and accompanying medical procedures, also amounted to trespass.

26

Criminal Law Act 1967

s.3: Use of force in making arrest, etc. -
(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

(2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.

(referring to utilising lawful arrest/prevention of crime as a defence to TAP)

What are 'reasonable circumstances'?

27

Davidson v Chief Constable of North Wales (1993)

No liability even if withheld due to false information.

When you are merely passing on information, even if wrong, detention is not false (you are simply relaying information to an established authority) - this is different from being an active instigator of the action that follows (Lord Bingham at p. 602).

28

Ali v Heart of England NHS Foundation Trust and G4S (2018)

Davidson is enforced in this case here. No false imprisonment despite 'misunderstanding'.

We don't want tort to hinder an incentive to report to police.

Different from deliberately tricking the police into imprisoning someone.
[27]; [36]

29

Albert v Lavin (1982)

'The most British case ever' - concerning the disruption of a bus queue.

Every citizen has the right to take reasonable steps to prevent a breach of the peace - this includes detaining someone against their will. So not just the police! (Lord Diplock at p. 565 (obiter))

30

Prison Act 1952

Concerning interference based upon the public interest

s.12: Place of confinement of prisoners -
(1) A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison.