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TRESPASS ASSAULT AND BATTERY - private law do not use criminal cases -…
TRESPASS ASSAULT AND BATTERY - private law do not use criminal cases
BATTERY
The actual infliction of unlawful force on another person
Protects our bodily integrity
Collins v Wilcock [1984] - police officer had not arrested but still held arm – amounted to battery – Lord Goff ‘the fundamental principle, plain and incontestable is that every person’s body is inviolate.’
Implied consent vs expressed consent – implied everyday that there is consent of normal kinds of touching that will happen in that environment
Hostility is not reasonable to judge – do not require it Lord Goff F [1990]
Ashley v Sussex [2008] - accepted liability for negligence and false imprisonment but not battery – family would not have received any more money if find liable for battery
Lord Rodger ‘you do not need proof of injury to claim for battery’ - nominal damages recognises the breach but also that there has been no suffering
REQUIREMENTS:
Application of direct and immediate force
Intention on the part of the defendant
The application must be unlawful
Scott v Shepherd [1773] ‘mischief was originally intended, whatever mischief therefore follows, he is the author of it’
Breslin v Mckenna [2009] - if there is an intention it does not matter if it takes time for it to happen ‘as long as the mental element is established’
Letang v Cooper [1965] - ‘if the intention is not inflicted intentionally, but negligently, then only cause of action is negligence not trespass – if it were trespass it would be actionable without proof of damage’ Lord Denning
Livingstone v Defence [1984] - transferred intention – if meant to hit one person but instead hits another, the intention is still there – not binding on English court as was a Northern Ireland case
Bici v Defence [2004] - transferred intent now binding on courts - Beever disagrees - Elias J states that recklessness will suffice as intention for battery as long as it is subjective
ASSAULT
An act which causes another person to apprehend the infliction of immediate, unlawful force on his person
Protects the right not to be put in fear of unlawful invasion of our integrity
No lawful justification
THE THREAT:
Stephens v Myers [1839] - ‘it is not every threat, where there is no actual personal violence, that constitutes an assault, there must in all cases, be the means of carrying the threat into effect’
Claimant's reasonable apprehension of the application of direct and immediate:
Thomas [1986] - a threat alone is not enough to be assault, needs to be with direct and immediate force and D has to intend to carry this out immediately
Tuberville v Savage [1669] - if there is a condition e.g., threat in a different circumstance then there is no assault = conditional threat
Intention that claimant apprehends the application of unlawful force:
R v Ireland [1998] - is words alone enough for assault? Lord Steyn ‘a thing said is also a thing done’ - needs to be a reasonable apprehension to an immediate act of force – silence can also amount to assault as intended to create fear which has a possible immediate personal violent threat
FALSE IMPRISONMENT
The unlawful imposition of constraint on another’s freedom of movement from a particular place
Complete restriction – Bird v Jones [1845] - movement was only restricted by one movement ‘imprisonment is a total restraint of the liberty of a person and not a partial obstruction of his will.’ ‘for however short a time’
Prison officers v Iqbal – officers failed to act rather than a positive act – could not be committed under omissions - no liability
Herring v Boyle [1834] - claimant unaware until after – for it to be against your will you would have to know about it so if you do not know about it then a tort has not occurred
Meering [1919] - can be imprisoned without the knowledge of it – was in a room and bodyguards were to stop him if he tried to leave
Murray [1988] - was held in a room for 30 mins before being arrested – had not been held unlawfully
INTENTION:
R v Brockhill Prison [2000] - D does not need to intend unlawful restriction of movement, does not need to intend the false imprisonment only have to intend the imprisonment itself – held 59 days longer than should have, was not intentional – was seen as a tort of strict liability even if you had not meant to
CAUSATION TEST:
Should it be a requirement? - two cases says it should not be
Someone has been detained with the intent of unlawfulness but there was a lawful reason to detain them
– the D has not used the lawful reason but the unlawful one
Lumba [2001] - had a secret policy so was detained unlawfully but would have been imprisoned on the public policy anyway – but false imprisonment was still committed – has the victim suffered any loss which should be compensated in more than nominal damages
= Lord Brown advocates for a causation test - without it have risk of a ‘yoyo effect’ from being lawful to unlawfully detained
Kambadzi [2011] - not correctly reviewed his detainment – but if it was, he would have still been detained – claimant suffered no loss so will only be compensated nominal damages for the short period of false imprisonment
DEFENCES - only need one
Imprisonment – Hague v Pankhurst [1992] - just because you do not like the condition of the prison or have been separated in prison is not false imprisonment in tort
SELF-DEFENCE:
Ashley - ‘if a person is actually under a potentially lethal attack or such an attack is imminent, the law recognises that he is entitled or permitted to defend himself and if need be to kill his assailant. The killing is justified’ - is an honest mistake enough for self-defence – HoL states no and needs to prove that a reasonable person would do the same
= ‘Every person has the right in principle not to be subjected to physical harm but every person has the right to protect himself’ - Lord Scott
Revill v Newberry [1996] - slept with a gun in his shed and fired it through the hole and injured a burglar – reasonable force is permitted to protect property as well as yourself – held that it was not reasonable for him to fire as he only thought he was going to burgle but had not started that action yet – not proportionate action to take 34
Requirements
Actual or imminent attack
Reasonable and honest belief in an attack
Proportionate force used
CONSENT AND NECESSITY
Volenti non fit injuria – in Latin no actionable injury can happen to one who is willing
Is apparent consent real consent – Chatterton v Gerson [1981] - more pain after treatment than what she was told so stated her consent was not real consent – difference between trespass claims and negligence
Terms and conditions
Robinson v Balmain [1910] - held no liability as he knew the terms and conditions before entering so was not falsely imprisoned
Herd v Weardale Steel [1915]
Pile v Merseyside police [2020] - no liability as there was assumed consent ‘as long as reasonable considerations of safety and the preservation of dignity have been taken into account’. - was left in her underwear after vomiting on her clothes
Did they have the capacity to consent
St george’s healthcare v S [1999] - disagreed with the caesarean – sectioned her under mental health 1983 act and forced the treatment – is not enough for the doctors to ignore the patients decision
B [2002] - refusal of treatment – just because the doctors disagree with the patient does not mean they do not have the capacity to consent or not
Mental capacity act 2005 ‘a person is not to be treated as unable to make a decision merely because he makes an unwise decision, decisions made for them must always be in their best interests’
R v Collins Brady [2000] - force feeding from hunger strike but court held it was not unreasonable to do this as he clearly lacked the capacity
R v Bournewood NHS [1999] - as he was not locked in then it is not false imprisonment, but also his treatment in the hospital was seen as a necessity
LAWFUL ARREST
Criminal law act 1967 s3 ‘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’
Roberts v Chief constable [2008] - drunk driving – force was reasonable in the situation he was defending or preventing crime
Police and criminal evidence act 1984 – arrest without warrant
Alvert v Lavin [1982] - punched an off-duty police officer – Lord Diplock said it was irrelevant if he thought it was a police officer or not - “every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will.”
Austin v police [2009] - ‘it seems to me unrealistic to contend that article 5 can come into play at all, provided, and it is a very important proviso, that the actions of the police are proportionate and reasonable’ - Lord Neuberger
Raissi [2008] - reasonable suspicion
Armstrong [2008] - the police genuinely thought it was the person to arrest – the test is not whether the arrested person believes it is unreasonable but instead is what the objective person would belief
Force and suspicion need to be reasonable – normally involves police
Offence needs to have been committed
REASONABLE PUNISHMENT
Children and young persons Act 1933 – no one having the lawful control or charge of a child or young person to administer punishment to him.
Children Act 2004 - 58 Reasonable punishment – borrowing from criminal law – the extent to the harm
(3) Battery of a child causing actual bodily harm to the child cannot be justified in any civil proceedings on the ground that it constituted reasonable punishment.
(4) For the purposes of subsection
(3) “actual bodily harm” has the same meaning as it has for the purposes of section 47 of the Offences against the Person Act 1861.
R v Chan-Fook [1994] -
ILLEGALITY
You cannot bring a claim if you were doing something illegal when that harm occurred
Revill v Newberry [1996] - claimant was injured whilst carrying out an illegal activity – burglar – not enough connection between an illegal act and harm – the burglary had not started yet
Lane v Holloway [1968] - no action could arise as was an unlawful fight
Murphy v Culhane – plotted to beat Culhane up - can have alternative defences available
INTENTIONAL TORTS - deliberate conduct
Wilkinson v Downton – intentional, indirect infliction of harm – nervous shock which lasted a few weeks – D acted intentionally but did not touch her ‘D has willfully done an act calculated to cause physical harm to the plaintiff, and has in fact thereby cause physical harm’
Need both intention and the act to cause the harm
What level of harm? - Wong v NHS - ‘there has to be actual damage of physical harm or recognised psychiatric illness, D must have intended this.’ - ‘the harm needs to be sufficiently likely to result so the D cannot say he did not mean to do so.’
Wilson v Pringle [1987] - you only need intention of doing the act not of the harm
C v D – sexual abuse from headmaster at primary school – must be shown that it has cause psychiatric Injury – held that the teacher did not intend to cause harm but was reckless with the results
Breslin v Mckenna - ‘where personal injury is inflicted indirectly, the tort of intentional infliction of harm may be established where it is obvious that personal injury will result even though the D may not foresee it.’
O v A –
conduct element = words or conduct directed towards the claimant for which there is no reasonable excuse
Mental element = subjective intent may be imputed as a matter of fact if defendant intends to cause severe distress and this results in
Consequence element = physical injury or recognised psychiatric illness
Protection from harassment Act 1997 – initially to prevent physical harassment but recently not so much
Acts.3 = civil remedies
grants a private law remedy
Statutory action – not strictly a tort as not a common law wrong
Requirements
Course of conduct s7
Pursued under a rule of law
Conduct was reasonable
Amounting to harassment
Conn v Sunderland council – needs to be 2 or more events of harassing behavior before a course of conduct – behavior will be harassing if it satisfies s1 of becoming a criminal offence - needs to be ‘oppressive and unacceptable’ in the context – there was only 1 in this case so could not amount
Ferguson v British gas – what is the appropriate level of gravity for conduct constitutes harassment - ‘there is not privilege of incorporation over a natural person.’ - even though s7 says a company cannot be a claimant this case states that it can be a defendant
Roberts v Bank of Scotland [2013] - owed money, called once a day for 18 months – 547 calls - ‘there was no possible justification for continuing to ring the claimant up’ - moved from unreasonable to unacceptable
Veakins v Kier – the cause of depression on employee is not acceptable
No defence available under s1(3)
Preventing or detecting crime
Hayes v Willoughby – employee believed his boss was committing a crime and created a campaign against him – court held that detecting a crime could be used here to was not liable for harassment – court of appeal reversed this decision as the only intention of the conduct must be to prevent or detect crime – Supreme court disagreed but thought the D was unreasonable with a lack of evidence to carry out the conduct
foreseeability
Jones v Ruth ‘foreseeability of the injury or loss sustained by the claimant in a case of harassment is not an essential element in the cause of action’ - only need the 1997 Act s1 and s3
Levi v Bates - ‘there is nothing in the statutory language to import an additional requirement of foreseeabiity’
S2 states s1 is a criminal offence
S3 states s1 also gives rise of a claim in civil proceedings where damages may be awarded for any anxiety caused by the harassment and any financial loss resulting from the harassment
Just because more than one tort may have been breached the compensation may not necessarily be affected – can only recover loss once – concurrent liability