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Tort Law MG
Tort Against the Person
| Question | Answer |
|---|---|
| reasons why the law has retained both as criminal offences and as torts | The State does not always choose to prosecute/criminal prosecution may fail as a result of the very heavy burden of proof/worth attempting a private action against the defendant in order to obtain “justice”/defendant should compensate him for his act |
| ASSAULT/Definition | The claimant must establish that the conduct of the defendant created a reasonable apprehension of an imminent battery. So A must create in B a reasonable belief or fear that he is about to be attacked. |
| Reasonable apprehension/Tuberville v Savage (1669) | the words spoken qualified the threatening action of pulling the sword and resulted in no tort of assault. |
| Immediate application of force | Any successful action for assault requires the claimant to fear the direct and immediate application of force to his or her person. |
| Thomas v NUM (1985) | Scott J. held that striking miners had not committed an assault against miners who continued to work by picketing the roads into the coal mines and shouting abuse at them. |
| Smith v Chief superintendent, Woking Police Station [1983] | a criminal case, an intruder who looked through the victim’s closed window was found guilty of an assault, because it was perfectly reasonable that the elderly victim may have feared the application of immediate force to her. |
| R v Ireland, R v Burstow (1997) | ‘I would reject the proposition that an assault can never be committed by words’/the maker of silent telephone calls could constitute a criminal assault. |
| BATTERY/Definition | Battery requires the unlawful touching of another. |
| R v Cotesworth (1704) | It was long ago held to be a battery to throw water over a person or spit in his face |
| Hooper v Reeve | overturn a chair on which he is sitting |
| Collins v Renison (1754) | ladder on which he is standing |
| Haystead v Chief Constable of Derbyshire [2000] | held to be a battery when a man punched a woman who as a result dropped a child which she was holding. |
| Differentiating between accidental touching and battery | Hostility was once required for battery and created the distinction between touching in anger and accidental touching. |
| Cole v Turner (1704) | the court said that ‘the least touching of another in anger is a battery’. |
| Wilson v Pringle (1987) | Lord Justice Croom-Johnson re-iterated the concept of hostility/However this view cannot apply to all situations since giving someone an unwanted kiss or touching a sleeping person may be a battery despite the absence of hostility from the touching. |
| R v Chief Constable of Devon and Cornwall, ex parte CEGB (1982) | Lord Denning MR relied on old authority in holding that ‘an unwanted kiss may be a battery’ . |
| Collins v Wilcock (1984) | Robert Goff LJ explained the notion of implied consent: |
| F v West Berkshire Health Authority (1990) | Lord Goff disapproved of the hostility requirement/also rejected the idea of implied consent as too artificial/if an act was "acceptable in the ordinary conduct of daily life” it would not constitute a battery. |
| Wilkinson v Downton (1897)/Definition | should not be confused with liability for psychiatric injury in negligence/based on the defendant intending to cause some harm (even if minimal), and the claimant suffering harm, usually greater than had been intended/ |
| rarely been applied as psychiatric injury can now be recovered in the tort of negligence | |
| Intention to cause some harm | /In the late nineteenth century negligence did not recognize injury caused by psychiatric means as compensable. However if the claimant could show that the defendant intended to cause her emotional distress the courts would allow the action. |
| Wilkinson v Downton [1897] | held defendant had done an act calculated to cause physical injury/intention to do harm could be inferred from the facts/an intentional act is required plus the act must be calculated to cause the claimant harm/liable for the full loss to the claimant. |
| Janvier v Sweeney (1919) | The principle in Wikinson was approved/accused of being a German spy during wartime was a very serious matter/plaintiff succeeded in her action |
| Wainwright v Home Office [2003] | the rule was pleaded unsuccessfully/failed because prison officers had not intended to cause him harm. |
| FALSE IMPRISONMENT/Definition/R v Bournewood Community and Mental Health NHS Trust, ex parte L [1998] | Lord Goff stated, ‘for the tort of false imprisonment to be committed there must be in fact a complete deprivation of, or restraint upon the plaintiff’s liberty. It is well settled that the deprivation of liberty must be actual, rather than potential.’ |
| R v Governor of Brockhill Prison, ex parte Evans | Lord Steyn said It is common ground that the tort of false imprisonment involves the infliction of bodily restraint which is not expressly or impliedly authorized by the law. |
| Complete restraint/R v Francis (1998) | The Court of Appeal rejected the defence argument that because the victim had not been confined to a particular place, there was no false imprisonment. |
| Bird v Jones (1845) | If there is an unobstructed exit but the plaintiff is prevented from going forward there is no false imprisonment/held that no tort had been committed. |
| Knowledge/Murray v Ministry of Defence (1988) | a man can be falsely imprisoned even though he is ignorant of the fact that he is falsely imprisoned. |
| Herring v Boyle (1834) | knowledge of the imprisonment was necessary to bring an action |
| Time/Christie v Leachinsky [1947] | Lord Simonds was of the opinion that if the detention had only been for a minute, it would have been ‘de minimis’ and no action would lie. |
| Bird v Jones (1845) | Paterson J. (with whom Coleridge J. agreed) that false imprisonment is ‘a total restraint on the liberty of the subject for however short a time’. |
| Frewin v Metropolitan Police Commissioner (1990) | Popplewell J. ruled because the police had not told the plaintiff the reason why he had been apprehended plaintiff had been falsely imprisoned in the 20 minutes for which the jury awarded £1000 in damages. |
| D strictly liable | In any action for false imprisonment it is for the claimant to prove, on the balance of probabilities, that the act complained of as constituting the tort actually occurred/then D is liable whether he intended to restrain C or not |
| R v Governor of Brockhill Prison, ex parte Evans (number 2) (2000) | Lord Steyn said, The plaintiff does not have to prove fault on the part of the defendant. It is a tort of strict liability.’ |
| Lawful detention | If d is detaining the C lawfully, no false imprisonment/police officers is subject to the rules of arrest in the Police and Criminal Evidence Act 1984/Citizens must hand C over to the police as soon as possible Lewis v Tims [1952] |
| L v Bournewood NHS Trust [1998] | ruled that an autistic patient, who was in hospital, was not detained when it was the case that he was not physically prevented from leaving, although had he attempted to leave he would have been prevented. |
| HL v UK (2005) | there was in fact a detention, that the operation of the doctrine of necessity was too unpredictable and there was therefore no proper legal control over the clinical judgement of the doctors, thus the detention was unlawful. |
| two remedies for false imprisonment | The first is a writ of ‘habeas corpus’ to secure the release of somebody who is being unlawfully detained/In addition, such a person can seek to recover damages in an action for trespass. |
| Defences to intentional torts | Consent/Self-defence/Provocation/Necessity/Lawful authority |
| Consent | Can be a defence to assault or battery/can be express (eg before surgery) or implied/In sports cases, C consents to battery which is within the rules of the game. |
| Self-defence | includes both self-defence and acting to prevent a crime/normally defence to assault and battery/but could be defence to false imprisonment |
| Beckford v The Queen [1988] | entitled to use reasonable force to protect himself, others for whom he is responsible and his property / |
| section (3) (1) of the Criminal Law Act 1967 | Not only is there a common law right to use reasonable force to defend oneself or others but there is a statutory right |
| Reed v Wastie (1972) | Lane J. commented that ‘one does not use jewellers’ scales to measure reasonable force’. |
| Ashley v Chief Constable of Sussex [2006] | an example of the general proposition that in civil matters, it is for the defendant to show that what was done could be justified lawfully, when otherwise the conduct would be tortious. |
| Provocation | Other defences relevant to assault and battery include provocation see Lane v Holloway (1967) 3 ALL ER 129 but reasonableness is relevant here/ will reduce the amount of damages to be paid by the plaintiff but it may also be a full defence. |
| Necessity | may also operate as a defence. |
| Austin & Saxby v Metropolitan Police Commissioner [2005] | claimants were among a large number of people detained in Oxford Circus/detention lawful because police were intending to arrest those present/in any event the defence of necessity applied/need to ensure the demonstration was managed effectively |
| Lawful authority | For false imprisonment the usual defence is that the imprisonment was authorized by law. |
| Human Rights/Art 5 ECHR | everyone has the right to liberty and security of the person/the Human Rights Act 1998/subject to the State’s (and citizens’) rights to detain individuals/However, deprivation must be according to law, under judicial control and for a specified purpose |
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