#4660 - Trespass To The Person - GDL Tort Law

• Right of protection from deliberate physical harm, unlawful contact and from unjustified restriction of liberty (Assault, Battery and False Imprisonment) – All actionable per se

Battery

“Direct and intentional application of force by the defendant to the claimant without lawful justification’

• Intentional:

• Must prove either:

1. Intention (to touch, not to hurt); or,

2. Recklessness (foreseeing the likelihood of act causing the application of force)

• More than mere negligence

• Fowler v Lanning: no liability if unintentional (here the claimant was shot unintentionally so no liability)

• Direct (direct foreseeability)

• Reynolds v Clarke: act must cause an ‘immediate wrong’

• Scott v Shepherd: there was sufficient directness where Scott through a lighted squib into a market place

• DPP v K: schoolboy poured sulphuric acid into hand-drier, another student got it on his face – sufficiently direct

• Fagan v Commissioner of Met Police: discussion of what constitutes an ‘act – defendant parked on a policeman’s foot, then refused to move – the mens rea occurred during the actus rea, thus his act couldn’t be regarded as a mere omission

• Application of force

• Any physical contact - no need for actual damage

• Cole v Turner: “the least touching of another”

• R v Cotesworth: spitting in a doctor’s face was a battery

• Element of hostility?

• Act must be unlawful but not necessarily hostile – what is more critical is the matter of consent:

  • Collins v Wilcock: Goff LJ discusses consent – battery must be touching not within category of contact ‘generally accepted in the ordinary conduct of daily life’

• Defence of consent:

  • Medical treatment: Chatterton v Gerson (patient understood the ‘general nature’ of the operation)

  • Sport: Airedale NHS Trust v Bland

  • Outside sport and medicine, it is open to question whether the defence can be used

  • R v Brown: unusual case, in which it was held that one cannot consent to actual bodily harm

Assault

“Act of the defendant which directly and intentionally causes the claimant to apprehend a battery or physical contact”

Conditions:

1. Defendant (D) must intend/be reckless to Claimant (C)’s apprehension

2. Apprehension must be reasonable (R v Beasley)

• Words alone may suffice (R v Wilson); as can silence (R v Ireland); words may also negate (Tuberville v Savage)

3. There must be a threat of immediate / direct force

• Thomas v NUM: the D was in a protected car, so threat was not immediate

• Stephens v Myers: D lunged at C in meeting – this was immediate

Decision is usually based on what a reasonable man would fear in the circumstances

Residuary Trespass: Wilkinson v Downton

• Where the D deliberately acts to cause the C physical harm

• Must prove damage: D told C as a joke that her husband had been injured, resulting in nervous shock

• Khorasandijan v Bush: harassing phone calls (followed decision in Wilkinson)

• Protection from Harassment Act 1997: provided an alternative remedy

• Wainwright v Home Office: criticises Wilkinson – should have to prove psychiatric harm leading to actual psychiatric illness – we now have law governing negligently caused psychiatric harm, so Wilkinson no longer has a ‘leading role’ (Lord Hoffmann)

• But it still remains good law for intentionally causes psychiatric harm

• C’s apprehension must be reasonable (R v Beasley)

  • Words alone may suffice (R v Wilson); as can silence (R v Ireland); words may also negate (Tuberville v Savage)

Defences to Assault/Battery

• Self-Defence: Must use reasonable force (Lane v Holloway)

• Contributory Negligence is NOT available (Co-op v Pritchard)

• Ex Turpi Causa: Usually fails due to disproportionate force used by one person (Lane v Holloway)

• Volenti: Must distinguish between express and implied

• Necessity: Re F (Sterilisation) v E Berkshire H.A.

• Statutory Authority: s3(1) Criminal Law Act 1987: lawful arrest (Percy v Hall)

• Inevitable Accident

False Imprisonment

“Directly and intentionally causing the complete restriction of liberty without lawful justification”

• Imprisonment

• Must be imprisoned in al directions (Bird v Jones)

• C will be classified as imprisoned if the only means of escape would be dangerous

• C does not need to be aware of his plight (Murray v MOD)

• The imprisonment must be as a result of a direct act of the D (Sawyers v Harlow UDC)

• No need for any force; words may be enough (e.g. if you move, I will kill you) – Davidson v CC of N. Wales

• False

• Confinement must be without lawful justification

• There may be justification where C fails to comply with contractual conditions

• Robinson v Balmain New Ferry: C refused to pay and was not allowed to leave – there was no false imprisonment (although there may be a claim in negligence, also note Human Rights Act 1998)

• Lawful arrest: Police and Criminal Evidence Act 1984:

  • C must be informed of the arrest: Christie v Leachinsky

  • C must be taken to the police as quickly as possible: John Lewis v Tims

  • False imprisonment may occur where there is wrongful continuation of lawful imprisonment: Roberts v CC of Cheshire