#17345 - Intentional Torts - GDL Tort Law

Also known as trespass to the person

Oldest tort. Steele: ‘during the medieval period, trespass was the law of (what we now call) “tort”’.

Trespass vs Negligence – Rough guide:

• If an injury is inflicted deliberately (e.g. setting a trap) it will be trespass to the person

• If an injury results from carelessness (e.g. accidentally letting someone fall down a manhole) it will be negligence.

  • Letang v Cooper [1965] – D ran over P while she was sunbathing on a piece of grass where the cars were parked. Plaintiff filed a claim in trespass to the person, because the claim in negligence was time-barred. Rejected.

• Iqbal v Prison Officers Association [2009] – officer omitted to unlock prison cell during strike action. Iqbal was normally allowed out for 6hrs a day. Tried to claim this was false imprisonment. Held there can be no false imprisonment by omission.

  • Claimant had no legal right to be released from his cell each day – no legal duty to ensure that Claimant was released each day.

  • But damages awarded for lack of freedom (2 hours)

• Some kind of intention/recklessness is therefore required as the intention for these torts.

Assault

• Causing someone to think that they are about to be the victim of immediate unlawful force.

• NB different from criminal

  • In criminal law the victim merely has to think they are about to be battered – in tort law they have to reasonably think they are about to be battered.

• Can have assault without battery

  • Stephens v Myers [1830] The defendant advanced with raised fists. Was prevented from actually hitting the claimant. There was assault but no battery.

• D’s conduct must cause C to reasonably apprehend an imminent battery.

• Words and silence can amount to assault.

  • R v Ireland [1998] Criminal case – silent phone calls amounted to an assault.

Battery

• This is the unlawful touching of the claimant.

• Does not require violence, but does require intention and some element of hostility

  • Wilson v Pringle [1987] - As a schoolboy prank, the defendant pulled another 13-year old pupils’ bag, causing the claimant to fall over and suffer hip injuries. The court held that hostility was a necessary element of an actionable battery.

  • Some touching, even when there is no consent, may be necessary in the course of daily life – this is not battery. E.g. riding the tube in rush hour.

• J. Murphy: ‘there can be no battery unless there is an act by the defendant’.

  • Innes v Wylie [1844] A police officer was blocking a doorway. The claimant ran into him and bounced off, suffering personal injury

    • In the battery claim, there was no intent, nor an act; the act was of the claimant

  • Note in criminal law you can commit battery by omission Santa Bermudez (police officer syringe case)

False Imprisonment

• Needs complete restraint of movement

  • Bird v Jones [1845] - The claimant opposed the construction of a grandstand so entered at one side. He was prevented from leaving the grandstand at the other side. Held no false imprisonment

    • There was still an opportunity to escape by going back to the other side of the grandstand

  • R (Jollah) v Secretary of State for the Home Department [2018] – Jollah was an asylum seeker who was ordered to stay home after dark. Home Office thought they had the power to order this. Held the restraint was unlawful, there was a threat attached and therefore the was a restrain within some limits defined by a will or power external to the claimants own.

Intentional Infliction of Physical or Emotional Harm

• Comes from Wilkinson v Downton [1897] – parton of Mr W’s pub informed Mrs W that Mr W had suffered severe injury. Mrs Wilkinson suffered severe mental injury as a result of this news. Recovery for intentionally inflicted injury was allowed.

  • Three conditions must be satisfied:

    • 1) There must be extreme conduct

    • 2) The must be an intent to cause psychological harm

    • 3) Mental injury must result from the conduct

  • Wright J: arises “when the defendant…wilfully [does] an act calculated to cause physical harm…and thereby has in fact caused physical harm.

• Khorasandjian v Bush [1993] - Defendant stalking claimant, made calls to her home, scratched family car etc. Harassment Act not in law at the time.

• Wainwright v Home Office [2003] The claimants were strip-searched for drugs on a prison visit. One of the visitors suffered mental injury as a result of this incident

  • Held that the claimant must prove that the defendant intended to cause physical harm and/or severe or emotional or mental distress. There was no intention, nor a relevant tort of privacy

• Rhodes v OPA [2015] – Claimant was 11 years old, psychologically vulnerable. Had regular contact with his father James Rhodes who was writing a memoir. This memoir wass an account of the physical and sexual abuse he suffered as a young boy and his subsequent battles with drink, drugs and his own mental health. Ex-wife sought an injunction forbidding him from publishing it.

  • Rhodes won, and book was published.

  • Supreme Court held that the tort under Wilkinson v Downton consists of three elements:

    • 1) A conduct element: “words or conduct directed towards the claimant for which there is no justification or reasonable excuse, and the burden of proof is on the claimant.”

      • Court placed great emphasis on freedom of speech and held that “freedom to report the truth is a basic right to which the law gives a very high level of protection.”

    • 2) A mental element that requires an “intention to cause physical harm or severe mental or emotional distress.”

      • Mere recklessness doesn’t suffice.

      • Rhodes did not intend to cause psychiatric harm or severe mental or emotional distress to his son.

    • 3) A consequence element

      • The consequence element requires evidence of physical harm or recognised psychiatric illness but was not relevant in this case.

  • Following this approach the claim in Wilkinson would probably now fail.

• Wilkinson v Downton still relevant?

  • Yes - Is still a tort but the way it has been defined means it will have a very narrow application

Following Protection from Harassment Act 1997 there are few cases that rely on this.

• Act was passed in response to cases like R v Ireland, and Khorasandjian v Bush.

• Largely to do with stalking. One of its failures is to clearly define what is meant by harassment.

• S. (1)A person must not pursue a course of conduct—

  • (a)which amounts to harassment of another, and

  • (b)which he knows or ought to know amounts to harassment of the other.

• Majrowski v Guy's and St Thomas's NHS Trust [2007] – Majrowski was a gay man who worked as a clinical auditor co-ordinator. Claimed manager had bullied and harassed him, and employer was vicariously liable.

  • House of Lords, overruling trial Judge, held that there was a new statutory tort for harassment in the Protection from Harassment Act 1997, and it made employers vicariously liable.

  • Not just unreasonable conduct required, but it must be “oppressive and unacceptable”

• Ferguson v British Gas Trading Ltd [2009] F used to be a customer of British Gas. BG was not aware that she was no longer a customer and continued to send her bills, then threats to cut of supply. Harassment

  • Seems to imply a lower threshold: things merely had to be ‘fairly severe’

• Veakins v Kier Islington [2009] The claimant alleged that her manager at work had harassed her. First instance had found that none of the acts complained of were sufficiently serious to amount to criminal conduct, and had rejected the claim.

  • Held: The claimant’s appeal succeeded. Since Majrowski, courts have been asked to consider whether the conduct complained of is ‘oppressive and unacceptable’

  • Thus return to stricter test (contra Ferguson)

• Roberts v Bank of Scotland Plc [2013] Defendant had overdrawn by modest amounts. Bank tried to get in touch but the claimant ignored these calls. She made this clear to the bank, but the bank kept calling the claimant. This...