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Trespass to the Person, Fagan v Metropolitan Police Commissioner (1969): …

- - - - Defences
        
        Consent
        
        If a claimant agrees to what the defendant does, = no liability for trespass
        
        Consent expressed/implied is the basis of defence to battery
        
        Express - Patient signs consent form agreeing for operation
        
        Implied - By behavior, implied consent for hairdresser to touch you whilst cutting your hair
        
        Nash v Sheen (1953)
        
        Facts: C went to hairdressing salon where D used a tone-rinse without getting C's consent. C developed skin complications due to adverse reaction to tone-rinse. Issue: Did C consent to the treatment?
        
        Held: Consent given by C did not include the tone-rinse and its consequence. Battery = established
        
        Necessity
        
        This defence is used as argument for treating a patient unable to articulate consent
        
        Re F (Mental Patient: Sterilisation) (1990)
        
        Self-defence
        
        This defence can be used if he had a "reasonable apprehension" of immediate harm and that his actions are proportionate to the threat
        
        Lane v Holloway (1968):
        
        Facts: C had been drinking, got into an argument with D's wife, calling C a "monkey-faced tart lmaoo". Hearing this, D came out and said he wanted to see C alone. Believing C was going to hit him, D punched C in the eye causing a would that needed 19 stiches
        
        Held: Court accepted that D had reasonable grounds to believe he needed to defend himself. But said that his blow was out of proportion to the danger. So he's not covered by self-defence
      - 1. Mental element (Intent)
        
        Can the intent be transferred?:
        
        "Doctrine of transferred malice"
        
        Claimant not the intended victim
        
        Livingstone v Ministry of Defence (1984):
        
        Facts: A soldier in Northern Ireland fired a baton round targeting a rioter. He missed and hit C instead.
        
        Held: There was intention to hit someone. The fact that the actual person hit was not the intended target is irrelevant. The soldier intentionally applied force to C
        
        Was the act of battery done with intention or negligence?
        
        Fowler v Lanning (1959):
        
        Facts: C brought claim under trespass to person and said simply that "the D shot me". No particulars of intention/negligence was set out. D argued: Statement of claim disclosed no cause of action. C must prove intent/negligence in the claim because it is an element of the claim
        
        Held per Lord Diplock: Burden is on the C to show that the shooting was either intentional/negligent. Since the statement of claim showed no cause of action = claim failed
        
        Intention or negligence?:
        
        In an action of unintentional trespass to the person, the claimant has the burden of proving negligence
        
        Interference is negligent as opposed to intentional, proper cause of action is negligence and NOT trespass
        
        Letang v Cooper (1965):
        
        Facts: C alleged that she was sunbathing in the ground of a Cornish hotel when D drove his car over her legs, causing personal injury. She brought an action of trespass to the person instead of negligence for the reason that she ran out of time to bring the negligence action. Issue was whether D's act of running over her leg intentional?
        
        Held per Lord Denning: If he does not inflict injury intentionally, he has no cause of action in trespass, where his only action is negligence. You then prove DOC
        
        Abd Malek Bin Hussin v Borhan bin HJ Daud (2008):
        
        Facts: C arrested without a warrant of arrest by a group of special branch officers. He was never told of his reason of arrest. C physically abused in detention
        
        The act of detaining someone and applying physical force to extract info amounts to torture. When the act is committed in a group intention will be evident
      - 2. Direct application (wide interpretation)
        
        How does the court treat the concept of "direct":
        
        Did the defendant intend to cause harm?
        
        Was the defendant act a direct foreseeable cause of the consequence?
        
        Haystead v CC Derbyshire (2000):
        
        Facts: D hit a woman who was holding a baby. D then punched the woman twice in the face and as a direct result of the punches the child fell and hit his head of the floor. D knew that the woman was holding the child and he could have foreseen the child being injured too due to force used on the woman.
        
        Held: D is convicted of the offense of battery against the child because the movement of the woman where she lost hold of the child was a direct and immediate result of D's action of punching her.
      - 3. Force (the nature of the contact)
        
        There MUST be physical contract between parties, this violation of 'personal space' is the essence of the tort
        
        Per Lord Goff in Collins v Wilcock: "every man's person being sacred and no other having the right to meddle with it in any slightest manner".
        
        a) any contact that is not impliedly consented to as "generally acceptable in the ordinary conduct of 'daily life' - per Lord Goff in Collins v Wilcock
        
        b) that the contact need to be "hostile" - per Lord Croom-Johnson in Wilson v Pringle (1987)
        
        c) Intentional infliction of psychological harm through words. Treated as a special rule of liability that did not fit within assault and battery - per Lord Hoffman in Wilkinson v Downton (1897)
        
        Wilkinson v Downton (1897):
        
        Facts: C was told by D, who knew it to be untrue, that her husband had been seriously injured in an accident. Believing this she suffered nervous shock. Infliction of psychological harm through words
        
        Held: Doubt this principle serves any purpose, given the developments in negligence for psychiatric injury
        
        Wainright v Home Office (2003)
        
        Facts: Case where mother and son had to strip to check for drugs during prison visit. Mother was not touched but son's private parts were. Mother complained that in forcing her to undergo the search, D had willfully caused her to do something that infringed her right to privacy, and exacerbated her existing depression. Issue was whether there was a trespass against the mother.
        
        Held: Whether liability can be imposed on the rule by Wilkinson v Downton. Lord Hoffman said that C can build something on Wilkinson's Rule.
        
        Shalini Shanmugam & Anor vs Marni Bte Anyim (2007):
        
        Deliberate verbal and physical abuse as well as conduct giving rise to moral degradation = both assault and battery
- - - - Apprehension of harm
        
        Per Tindal CJ in Stephen v Myers (1830):
        
        "it is not every threat, when there is no actual physical violence that constitute and assault, there must be in all cases that means of carrying the threat into effect".
        
        Words alone may suffice as assault:
        
        If the requirement of reasonable apprehension of harm of battery is satisfied
        
        Read v Coker (1853)
        
        Facts: C was threatened by a group of workmen who said that they would break his neck if he did not leave the premises
        
        Held: Assault was established as they had the means of carrying out the threat
        
        Words can qualify as physical gestures:
        
        While words alone can constitute an assault, they can be a negative threatening nature of a gesture that will otherwise be an assault
        
        Tuberville v Savage (1669):
        
        Facts: The assailant put his hand on his sword and said "If it were not for assize-time, I would not take such a language from you
        
        Held: These words negatived the element on the defendant's part to injure to claimant and assault was not established
        
        Silence phone calls can amount to assault
        
        R v Ireland (1998):
        
        Facts: D made a series of phone calls consisting of silence to victim
        
        Held: Court held assault can be committed by malicious silent telephone calls
        Per Lord Steyn: "Victim was assailed by uncertainty of D's intentions. Fear can dominate her emotions and the caller's arrival at the door may be the reason. She may fear the possibility of immediate personal violence.
        
        Future threat/present threat that D could not manifestly carry out:
        
        Future/present threats that cannot be manifestly carried out creates no reasonable apprehension of harm
        
        Thomas v National Union of Mineworkers (1985)
        
        Facts: Case arose during the 1984's miners strike. C was a miner but he refused to participate in the strike. He was brought to the mine by bus and had to pass other miners on strike who stood on the picket line. As the bus drove by the strikers made violent gestures to him. Issue: is there assault?
        
        Held: C was safe inside the bus, he had no reasonable reason to believe that immediate physical force could be used against him. Those actions by strikers cannot amount to assault
        
        Malaysian cases on Assault
        
        Abd Malek Bin Hussin v Borhan Bin Hj Daud (2007)
        
        Shalini Shanmugam v Marni Bte Anyim (2007)
- - - - R v Governor of Brockhill Prison (2000):
        
        Facts: C (Ms Evans) was sentenced to 2 years imprisonment but had spent some time in custody prior to sentence. This time entitled to a reduction of the actual time spent in prison. The Government of Brockhill Prison counted her release date. But doubt was cast on the ruling and C applied for Judicial Review of the order of the release. Judicial review found that the guidelines were wrong and that she should have been released earlier.
        
        Held: Prison Governor is liable for damages of false imprisonment. Detention for the additional days = unlawful even though Governor was not aware of the new guidelines at that time
  - - - Bird v Jones (1845):
        
        Facts: A part of Hammersmith Bridge usually used as a public way allowed to be used to view a regatta. C insisted on using that way where he climbed over the fence and was restrained from proceeding further. He was requested to used an alternative route. C remained for 30 minutes and then forced his way by assaulting D. He was then taken into custody where he filed an action for false imprisonment against D. Issue: whether there is false imprisonment
        
        Held: D did not committed false imprisonment because there is an alternative route that is reasonable with no false imprisonment
        
        Per Patterson J: "i cannot bring my mind to the conclusion that if a man merely obstructs the passage of another direction whether by threat of personal violence or leaving him with the liberty can amount to false imprisonment
      - Knowledge of Detention by Claimant
        
        Restraint is actionable even if claimant was entirely unaware of detention at the material time
        
        Meering v Graham - White Aviation Co Ltd (1919):
        
        Facts: C was suspected of stealing from D. D asked 2 police officers to accompany C to the company's office where he agreed. On arrival he was taken to the waiting room and the 2 policemen waited outside. C brought action against false imprisonment. Issue: was C falsely imprisoned? C had no knowledge of detention
        
        Held: D is liable for false imprisonment because the moment he came under the influence of police, he is no longer a freeman. A person can be imprisoned without him knowing it
      - Ignorance of Detention by Claimant
        
        Law attaches great importance in the liberty of the individual. So if he suffers wrongful interference with that liberty it will remain actionable even without proof of special damage
        
        Murray v Ministry of Defence (1988)
      - Conditions of entry
        
        When claimant enters property with certain conditions, a refusal to let the claimant leave will not lead to false imprisonment
        
        Robinson v Balmain Ferry Co (1910):
        
        Facts: D operated a ferry from Sydney to Balmain. A person from B to S (on entry) paid on S side and a person from B to S also paid on S side (on exit). C entered S side and then wanted to leave. He was asked to pay to exit. He refused and then was prevented to leave until he paid. Is this false imprisonment?
        
        Held er Lord Loreburn:
        
        C was merely asked to leave the jetty accordance to the rules. False imprisonment is not established
        
        Herd v Weardale Steele, Coal and Coke Co (1915):
        
        Facts: A miner in breach of contract on employment with D refused to do certain work assigned to him and demanded he be taken to the surface by lift before his shift expired. He was not allowed to leave for 20 minutes
        
        Held: There's no false imprisonment because he can be brought up after his time shift in agreement between parties. Defence of volenti non fit injuria (assumption of risk is accepted)
        
        Per Viscount Haldane LC: "No man can be restrained of his liberty without authority in law. But if a man decides to go to a dangerous place like a mine where there is natural circumstances he cannot escape, a defendant won't be liable for it".
  - - - Police who arrest under warrant of arrest lawfully commits no trespass (Austin v Metropolitan Police Commissioner 2008)
        
        Restraining a section of a crowd of protestors that will otherwise be false imprisonment if police has reasonable belief necessary to protect public safety ("kettling")
      - Malaysian law
        
        Article 5(1) of the Federal Constitution provides:
        
        no person may be deprived of his personal liberty save in accordance with the law
        
        Article 5(3) provides:
        
        where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and be allowed to consult and be defended by a legal practitioner of his choice
        
        Contravention of Art 5(3): Abd Malek bin Husin v Borhan bin Hj Daud (2008):
        
        Claimant arrested without a warrant of arrest by a group of special branch officers. He was never told reason for arrest. Claimant physically abused while in detention. Never told reasons for arrest and detained for 57 days
        
        Held: Detention unlawful and amounted to false imprisonment