Trespass to the Person (pervasive topic)

Question 1

Definition of tort of battery?

Answer 1

The direct and intentional application of force without lawful justification.

Question 2

Battery must be committed intentionally. Negligence will not be sufficient.

Answer 2

Fowler v Lanning

Question 3

An illustration of where there was no trespass to the person as the defendant’s act was not intentional.

Answer 3

Letang v Cooper

Question 4

Facts of Letang v Cooper?

Answer 4

Claimant sunbathing in a car park. Defendant drove over the claimant’s legs with his car.

Question 5

Battery must be committed intentionally. Negligence will not be sufficient.

Answer 5

Fowler v Lanning

Question 6

An illustration of where there was no trespass to the person as the defendant’s act was not intentional. Followed Fowler v Lanning.

Answer 6

Letang v Cooper

Question 7

Facts of Letang v Cooper?

Answer 7

Claimant sunbathing in a car park. Defendant drove over the claimant’s legs with his car.

Question 8

Facts of Letang v Cooper?

Answer 8

Claimant sunbathing in a car park. Defendant drove over the claimant’s legs with his car.

Question 9

How has ‘direct’ been interpreted? Give case.

Answer 9

It has been interpreted to mean ‘an immediate wrong’. Reynolds v Clarke. (‘If a man throws a log on the highway, and in that act it hits me, I may maintain a trespass because it is an immediate wrong.’)

Question 10

Illustration of court’s relaxed attitude towards the directness requirement.

Answer 10

Scott v Shepherd

Question 11

Facts of Scott v Shepherd?

Answer 11

D found to have committed a battery against the victim by throwing a lighted firework onto another person’s market stall. The firework was actually thrown from stall to stall before eventually landing on the stall of the unfortunate victim. (I assume the D was the initial thrower?)

Question 12

Facts of Scott v Shepherd?

Answer 12

D found to have committed a battery against the victim by throwing a lighted firework onto another person’s market stall. The firework was actually thrown from stall to stall before eventually landing on the stall of the unfortunate victim. (I assume the D was the initial thrower?)

Question 13

Battery could be inflicted through the medium of a weapon (i.e. this counts as direct).

Answer 13

Fagan v MPC

Question 14

Although an original act may have been unintentional, the act can become tortious from the moment of the formation of the necessary intention to inflict unlawful force.

Answer 14

Fagan v MPC

Question 15

Facts of Fagan v MPC?

Answer 15

Criminal case. PC Morris, who was standing at the side of a road, indicated to the D, Mr Fagan, to pull his car in towards the kerb. In doing so, Fagan unintentionally drove his car onto PC Morris’s foot. When asked to move, Fagan initially refused, and turned off his engine. After being requested to move several times, he reluctantly acquiesced.

Question 16

Facts of Fagan v MPC?

Answer 16

Criminal case. PC Morris, who was standing at the side of a road, indicated to the D, Mr Fagan, to pull his car in towards the kerb. In doing so, Fagan unintentionally drove his car onto PC Morris’s foot. When asked to move, Fagan initially refused, and turned off his engine. After being requested to move several times, he reluctantly acquiesced.

Question 17

Application of force: what constitutes force? Give case.

Answer 17

‘The least touching of another in anger is battery’ - Cole v Turner.

Question 18

Spitting in a doctor’s face was held to be an application of force.

Answer 18

R v Cotesworth

Question 19

Not every touching will be a battery - what are the two lines of argument for this?

Answer 19

1) Many acts will be expressly or impliedly consented to.

2) There might be an extra requirement of hostility?

Question 20

What is the case for the potential extra requirement of hostility?

Answer 20

Wilson v Pringle (‘That touching must be proved to be a hostile touching.’)

Question 21

Facts of Wilson v Pringle?

Answer 21

Two 13-year-old schoolboys. Plaintiff had a fall which caused an injury to his left hip. Two contrasting stories from each side: Statement of claim - D jumped on plaintiff; Defendant’s version - D pulled bag off plaintiff’s shoulder (in act of horseplay).

Question 22

Facts of Wilson v Pringle?

Answer 22

Two 13-year-old schoolboys. Plaintiff had a fall which caused an injury to his left hip. Two contrasting stories from each side: Statement of claim - D jumped on plaintiff; Defendant’s version - D pulled bag off plaintiff’s shoulder (in act of horseplay).

Question 23

When considering ‘without lawful justification’ part, what should you look at?

Answer 23

Whether there is the defence of consent available.

Question 24

An application of a “tone-rinse” to the plaintiff’s hair without her consent by the D (a hairdresser to whom she went for a permanent wave) was a trespass. The dye in the rinse having caused the plaintiff a painful rash, she was entitled to £450 damages.

Answer 24

Nash v Sheen

Question 25

A sterilisation operation on a woman who lacked mental capacity would not be unlawful by reason of the lack of consent. Whether such an operation would be lawful would depend upon the best interests of the patient and the public interest.

Answer 25

Re F

Question 26

In the field of medical treatment, once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real (in terms of battery).

Answer 26

Chatterton v Gerson

Question 27

Facts of Chatterton v Gerson?

Answer 27

The claimant was treated by the D performing a pain relieving operation. She had two operations… After the second, she lost the sensation in her leg, and her original pain had not been cured. She alleged that the risks had not been fully explained to her and that this vitiated her consent, so that the treatment she received was a battery. This was held not to be the case. She had understood the general nature of the operations and it was this that she had consented to.

Question 28

Facts of Chatterton v Gerson?

Answer 28

The claimant was treated by the D performing a pain relieving operation. She had two operations… After the second, she lost the sensation in her leg, and her original pain had not been cured. She alleged that the risks had not been fully explained to her and that this vitiated her consent, so that the treatment she received was a battery. This was held not to be the case. She had understood the general nature of the operations and it was this that she had consented to.

Question 29

‘Any treatment given by a doctor to a patient which is invasive… is unlawful unless done with the consent of the patient.’

Answer 29

Airedale NHS Trust v Bland

Question 30

‘Any treatment given by a doctor to a patient which is invasive… is unlawful unless done with the consent of the patient.’ In this way, consent may negative a battery in the field of medical treatment.

Answer 30

Airedale NHS Trust v Bland

Question 31

‘Any treatment given by a doctor to a patient which is invasive… is unlawful unless done with the consent of the patient.’ In this way, consent may negative a battery in the field of medical treatment.

Answer 31

Airedale NHS Trust v Bland

Question 32

Tricky case, but which says that if ABH suffered then immaterial that there was consent.

Answer 32

R v Brown

Question 33

Tricky/unusual case, but which says that if ABH suffered then immaterial that there was consent.

Answer 33

R v Brown

Question 34

Case where consent was immaterial due to aggressive element?

Answer 34

R v Donovan

Question 35

Facts of R v Donovan?

Answer 35

The appellant, in private, beat a girl of 17 years of age for the purposes of sexual gratification, with her consent. (The act had about it an aggressive element. Consent was therefore held to be immaterial.)

Question 36

N.B. This case, which distinguished R v Brown… (State case and facts.)

Answer 36

R v Wilson - husband branding wife’s buttocks. Court likened this to the lawful activity of tattooing in an attempt to distinguish it from Brown. ‘Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution.’ The court said the facts of Brown were ‘truly extreme’.

Question 37

Definition of assault? Give case.

Answer 37

R v Beasley: “any act by which D, intentionally or recklessly, causes P to apprehend immediate and unlawful personal violence”.

Question 38

Can words amount to an assault? Give case example.

Answer 38

Yes, possibly: R v Wilson. The court found that the words in themselves were sufficient to constitute an assault.

Question 39

Facts of R v Wilson?

Answer 39

Gamekeeper threatened by a poacher shouting to his fellow poachers, “Get out the knives!”

Question 40

Can silence amount to an assault? Give case example.

Answer 40

Yes, possibly: R v Ireland. Silent telephone calls could amount to assault where these caused the victim to fear immediate and unlawful violence. (So it depends on the facts.)

Question 41

Can silence amount to an assault? Give case example.

Answer 41

Yes, possibly: R v Ireland. Silent telephone calls could amount to assault where these caused the victim to fear immediate and unlawful violence. (So it depends on the facts.)

Question 42

Which case illustrates that the personal violence must be immediate, otherwise there will be no assault?

Answer 42

Thomas v NUM

Question 43

Facts of Thomas v NUM?

Answer 43

Claimant transported to work during miner’s strike and subjected to taunts/threats as he passed picket line. He was in an adequately protected vehicle and therefore the threats did not constitute assault.

Question 44

Which two cases provide a contrast to Thomas v NUM by demonstrating where assault could be claimed because the threat was immediate?

Answer 44

Stephens v Myers; Treadaway v Chief Constable of the West Midlands

Question 45

Facts of Stephens v Myers?

Answer 45

D lunged at C in a meeting and was forcibly restrained by those close to C.

Question 46

Facts of Treadaway?

Answer 46

Threat of suffocation by police officers trying to force confession with bags over head.

Question 47

Should the test for ‘causing the claimant to apprehend…’ be objective or subjective?

Answer 47

Objective test is preferable: i.e. the effect on the reasonable claimant.

Question 48

Should the test for ‘causing the claimant to apprehend…’ be objective or subjective?

Answer 48

Objective test is preferable: i.e. the effect on the reasonable claimant.

Question 49

What is the rule in Wilkinson v Downton?

Answer 49

If somebody says or does something with intention to cause physical harm to another (‘that is to say, to infringe her legal right to personal safety’), and that person suffers harm, the tort of residuary trespass will have been committed.

Question 50

Facts of Wilkinson v Downton?

Answer 50

D told the C, as a joke, that her husband had been badly injured in an accident. C suffered nervous shock.

Question 51

Which two cases followed Wilkinson v Downton?

Answer 51

Janvier v Sweeney; Khorasandjian v Bush

Question 52

Facts of Janvier v Sweeney?

Answer 52

Spies falsely telling maid that she was wanted for questioning re German spy. She had actually been corresponding with German boyfriend. Very frightened and suffered illness.

Question 53

Facts of Khorasandjian?

Answer 53

Unwanted and harassing phone calls: Oral harassment not amounting to threats may be actionable if it may, or does, cause physical/psychiatric illness to recipient.

Question 54

What are the two key things you need to remember for the Rule in Wilkinson v Downton?

Answer 54

1) There is a requirement of damage (unlike other forms of trespass to the person).
2) D must intend to cause/be reckless as to causing harm.

Question 55

Which case emphasises that D must intend to cause/be reckless as to causing harm?

Answer 55

Wainwright v Home Office

Question 56

Facts of Wainwright v Home Office?

Answer 56

Mother and son had been strip searched while visiting mother’s other son in prison because they were suspected of smuggling in drugs. Both claimants suffered emotional distress. But it was not enough because there was no intention to cause harm.

Question 57

Facts of Wainwright v Home Office?

Answer 57

Mother and son had been strip searched while visiting mother’s other son in prison because they were suspected of smuggling in drugs. Both claimants suffered emotional distress. But it was not enough because there was no intention to cause harm.

Question 58

Which two defences are not available for battery/assault?

Answer 58

Contributory negligence; reasonable chastisement/parental authority.

Question 59

Which case says that the defence of contributory negligence is not available for battery/assault?

Answer 59

Cooperative Group (CWS) Ltd v Pritchard

Question 60

Which two statutory sections eliminate the defence of reasonable chastisement/parental authority?

Answer 60

1) s548 Children Act 2004: banned reasonable punishment by parents in ABH cases.
2) s548 Education Act 1996: banned any physical punishment in schools.

Question 61

What is it necessary to show in order to use the defence of self-defence?

Answer 61

The D used reasonable force in self-protection or to protect another person/property.

Question 62

Case that illustrates where reasonable force was not used? Give facts.

Answer 62

Lane v Holloway: D threw hospitalising punch after being struck himself. This reaction was ruled to be out of proportion to the attack.

Question 63

What is the defence of ex turpi causa?

Answer 63

No action may be founded on an illegal act.

Question 64

A police officer took hold of the arm of a suspected prostitute so that she could talk to her. Which case has these facts?

Answer 64

Collins v Wilcock

Question 65

What principle arises from Collins v Wilcock?

Answer 65

Where a police officer, without exercising his power of arrest, seeks to stop and detain a person with the actual or threatened use of force, the act of detention is unlawful. (Is this supposed to mean that implied consent does not go this far?)

Question 66

What principle arises from Collins v Wilcock?

Answer 66

Where a police officer, without exercising his power of arrest, seeks to stop and detain a person with the actual or threatened use of force, the act of detention is unlawful. (Is this supposed to mean that implied consent does not go this far?)

Question 67

What is the battery case for the defence of necessity?

Answer 67

Re F

Question 68

What are the facts of Re F?

Answer 68

Sterilisation operation on woman lacking mental capacity. Not battery because done in best interests of patient and public interest.

Question 69

Which case provides an example of where action under statutory authority was not rendered tortious when that authority was declared void for uncertainty?

Answer 69

Percy v Hall

Question 70

Facts of Percy v Hall?

Answer 70

Arrests made under byelaws. The fact that the bylaws were later declared void for uncertainty did not render tortious the actions of the police officers.

Question 71

When does the defence of inevitable accident operate?

Answer 71

When D had no control over events and exercised all care and skill.

Question 72

When does the defence of inevitable accident operate?

Answer 72

When D had no control over events and exercised all care and skill.

Question 73

Definition of false imprisonment?

Answer 73

An act of the D that directly and intentionally causes the complete restriction of the claimant’s liberty without lawful justification.

Question 74

Which case tells us that the D must intend through his act to confine the claimant?

Answer 74

Iqbal v Prison Officers Association

Question 75

Which case illustrates that it is necessary to show that the claimant’s liberty has been restricted in all directions?

Answer 75

Bird v Jones

Question 76

Facts of Bird v Jones?

Answer 76

C prevented from walking on part of bridge. Not false imprisonment because there was an alternative route.

Question 77

Facts of Bird v Jones?

Answer 77

C prevented from walking on part of bridge. Not false imprisonment because there was an alternative route.

Question 78

How far does ‘alternative route’ go?

Answer 78

Not expected to take dangerous or unusual methods of exit.

Question 79

Can you confine using words alone?

Answer 79

Yes.

Question 80

Which case gives an example of where it might have been possible for words to be enough for false imprisonment?

Answer 80

Davidson v Chief Constable of North Wales.

Question 81

Facts of Davidson v Chief Constable of North Wales?

Answer 81

The issue was whether the store detective had merely given the police info for them to act on or not as they saw fit, or whether he had in fact acted as promoter or active inciter of arrest and imprisonment. Held that he was not an inciter/promoter.

Question 82

Facts of Davidson v Chief Constable of North Wales?

Answer 82

The issue was whether the store detective had merely given the police info for them to act on or not as they saw fit, or whether he had in fact acted as promoter or active inciter of arrest and imprisonment. Held that he was not an inciter/promoter.

Question 83

Does the claimant need to be aware of their plight? Give case.

Answer 83

No: Meering v Grahame-White Aviation.

Question 84

Facts of Meering v Grahame-White Aviation?

Answer 84

Claimant was asked to go to boss’s office, which he did. Waited there happily unaware that colleagues outside had been instructed not to let him out (because he was suspected of theft).