The Law of Tort: Trespass to the Person - Case Study Example

The Law of Tort: Trespass To The Person Introduction The Tort of Trespass to the person originates out of criminal law and involves a number of actionable wrongs. These wrongs are primarily concerned with the direct and often intentional invasion of a person and/or his property.1 The criminal law origins of the Tort of Trespass are evident in its deterrent rather than compensatory nature. For instance a claimant can sustain an action in trespass and not in negligence notwithstanding that he or she has not incurred damages.2 Bridgit Dimond explains that: "Unlike an action for negligence, an action for trespass is actionable without proof of harm being suffered."3 Trespass to the Person is often founded on assault, battery and false imprisonment. Ancillary claims are founded on accusations of intentional infliction of emotional distress.4 The discussion that follows examines the development of the Tort of Trespass and the available defences to such claims. Assault Assault is any conduct which puts an individual in fear of immediate unlawful harm or force upon his or her person.5 In other words, physical contact is not a necessary element in the Tort of assault. Intention to cause harm is not a necessary element in the Tort of Trespass to the person founded on a claim of assault. Lord Denning stated early on in the case of Letang v Cooper [1965] QB 232 that: "'when the injury is not inflicted intentionally, but negligently, I would say the only cause of action is negligence and not trespass."6 Reasonable apprehension of injury or even mere contact is sufficient to substantiate a trespass to the person claim in assault. It matters not whether the intended victim is afraid or is capable of thwarting any assault. The test is an objective one and will depend on the reasonable apprehension of the reasonable man, rather than the particular and unique characteristics of the intended victim. In Stephens v Myers (1830) 4 C & P 349 the defendant was ordered to leave a parish meeting. In retaliation he launched for the chairman but the church warden quickly interceded and therefore no contact was made. After finding the defendant liable for the Tort of assault, Lord Tindal, CJ said that: "'though he was not near enough at the time to have struck him, yet if he was advancing with the intent, I think it amounts to an assault in law."7 However, if there is no reason to believe that the defendant can physically carry out his or her threat, the Tort of assault will not be substantiated. As Lord Tindal said: "'it is not every threat, when there is no actual physical violence, that constitutes an assault, there must, in all cases, be the means of carrying the threat into effect."8 For example in Thomas v Num [1986] Ch. 20 pickets making threats of violence accompanied by threatening gestures were held back by police and those to whom the threats were directed gained entry to the premises under protest via vehicles. There was no assault since the defendants could not have carried out their threatened conduct. In the circumstances of the case the reasonable man, having regard to the restraint placed upon the defendants by police presence could not have reasonably apprehended harm.9 At one time words alone could not constitute an assault. The case relied upon was R v Meade and Belt (1823) 1 Lew CC 184 in which it was held that: "'no words or singing are equivalent to an assault".10 However, in the case of R v Ireland [1998] AC 147 the House of Lords departed from this rule. Although the case itself was concerned with the criminal offence of assault it stands to reason that the same logic applies to the Tort of Trespass to the person with respect to assault. It was held that: "'the means by which persons of evil disposition may intentionally or carelessly cause another to fear immediate and unlawful violence vary according to circumstances".11 Lord went on to add that: "The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing apprehension of immediate personal violence ' take now the case of the silent caller. He intends by his silence to cause fear and he is so understood ' as a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstances and in particular on the impact of the caller's potentially menacing ' on the victim."12 An ancient case however, demonstrates how words that might otherwise amount to an assault can be explained away by the accompanying conduct and circumstances which might defeat the claim of an assault. In Tuberville v Savage (1669) 1 Mod Rep 3 the defendant while poised with his hand upon his sword said: "'if it were not assize-time, I would not take such language from you."13 These words in the circumstances and conduct of the defendant were said not to amount to an assault. The words used were phrased in such a way as to negate any expectation of physical contact. Battery Battery, unlike assault requires physical contact of some sort. Winifred and Jolowicz define the Tort of battery in the following terms: "'the intentional and direct application of force [personal contact is unnecessary] to another person (without lawful justification)'"14 With this definition as a guide it is easy to appreciate the different elements necessary for substantiating a claim in battery for the Tort of Trespass against the person. In the early case of Cole v Turner (1704) 87 ER 907 Holt CJ submitted that any touching, however slight, done in anger will constitute battery.15 From this submission by Holt CJ it is clear that the tort of battery requires at least two elements to begin with and they are the act of touching together with an intention. The authorities suggest that the meaning of an intention to act can arise in two distinct ways. In one scenario the defendant intended to act in the manner in which he did act. In another scenario the defendant not only intended to act in the manner in which he did act but he also intended to cause contact with the plaintiff. An example of the second scenario would be a case in which a defendant aims to punch the plaintiff and does in fact punch the plaintiff. There can be little doubt that the defendant intended to punch and that he also intended to punch the plaintiff. In the first scenario the plaintiff aims at A intending to punch him but misses and punches B instead. In any event, it is not necessary for the plaintiff to prove that the defendant intended to cause harm. Battery is an actionable Tort, per se and it is not necessary to prove damages. According to the ruling in Collins v Wilcock [1984] 3 All ER 374, it is only necessary to establish that the defendant's conduct resulting in physical contact exceeded what is: "'generally acceptable in the ordinary conduct of everyday life'"16 In Wilson v Pringle [1987] QB 237 the Court of Appeal was of the opinion that the physical contact was required to be hostile in nature.17 There has been some departure from this element of intention to act following the Wilson decision. In F v West Berkshire Health Authority [1989] 2 All ER 545 Lord Goff stated that he doubted that the word hostile was necessary to establish the defendant's state of mind in a claim founded on the tort of battery.18 Lord Goff went on to say that any deliberate physical contact with the person of another which goes further than what is generally considered everyday conduct without any lawful excuse for the same would be sufficient to substantiate a claim in the tort of battery.19 Another essential element in the tort of battery is the absence of consent. It is now settled law that the plaintiff must prove that he or she did not give his or her consent to the resulting battery. In Freeman v Home Office (No 2) [1983] 3 All ER 589, a prisoner claimed that he had been injected with various mind-altering drugs by a doctor against his will. The court held that the onus was on the claimant to prove that he had not given his consent.20 The issue of consent however, is more properly dealt with under defences to the tort of trespass against the person. In establishing a claim in battery the defendant's act becomes significant in that there must be an act per se. The simple fact is that some contact is required and there are some notable exceptions. In the first place, merely standing in a entry way to obstruct the passage of another will not rise to the level of battery.21However, if it becomes clear that the person obstructing the entry way intends to use force to block the passage a case founded on assault can be substantiated.22 Moreover, in a scenario where the defendant has no control over the situation given rise to physical contact he is not liable for battery.23 The courts will generally adapt an approach which protects the public from unauthorized contact and will not entertain claims which amount to nothing more than what can be expected in everyday life. For instance as Lord Goff said: "'if two or more meet in a narrow passage and without any violence or design of harm, the one touches the other gently, it is no battery."24 However the taking of fingerprints,25spitting on the person of another26 and cutting another's hair27 without his or her consent are all actionable batteries. In all claims arising out of the tort of trespass to the person the issue of directness applies and battery is no exception. It is insufficient to show that contact resulted from the act. The contact must be directly connected to the act of the defendant.28 The contact can also be a result of a continuation of the defendant's act. For instance in Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890 29the defendant struck a woman with the result that she dropped the baby that she was carrying. The act of the baby falling was also a battery as it was a continuation of the act of punching the woman. False Imprisonment The tort of false imprisonment like all other torts of trespass against the person, functions to protect fundamental civil liberties. The tort of false imprisonment is founded on a two-tier principle enunciated in the case of Bird v Jones [1845] 7 QB 742. This two-tier principle holds that false imprisonment does not guarantee an absolute choice to freedom of movement but must involve restraint. Coleridge J pointed out that: "Some confusion seems to me to arise from confounding imprisonment of the body with mere loss of freedom: it is one part of the definition of freedom to be able to go whither-soever one pleases; but imprisonment is something more than the mere loss of this power; it includes the notion of restraint within some limits defined by a will or power exterior to our own'"30 Restraint becomes a question of fact in each case and the restraint does not necessarily have to physical in nature. It is merely enough for it to be unreasonable for the plaintiff to leave. For example, should his clothes be withheld from him and he remains naked it would be unreasonable in the circumstances to expect that he should leave. This kind of restraint, in the absence or physical contact could amount to the tort of false imprisonment. False imprisonment requires confinement of the plaintiff to a limited area made possible by the direct act of the defendant. This conduct can be intentional and quite possibly negligent.31 False imprisonment is primarily concerned with freedom from confinement and lost of one's liberty.32 Malice is not a necessary a element in the tort of false imprisonment. In fact a defendant acting in good faith can be found liable for false imprisonment. For instance in R v Governor Of Brockhill Prison, ex p Evans (No ) [2001] 2 AC 19 a prison governor who, relying on the provisions of the law as it was then understood at the time of the prisoner's conviction was found liable when the prisoner according to the actual law was released 59 days later than she ought to have been released.33While acknowledging that the decision would likely cause the governor hardship, the court went on to say that any hardship accruing to the governor was outweighed by the resulting hardship to the prisoner should she be denied her claim.34 In all cases upon which a claim for false imprisonment is based the restraint is required to be total as opposed to partial.35 It therefore stands to reason that a person confined has a means of escape he is not totally restrained. However, if the means by which he can escape poses a risk of personal injury or it is not reasonable in the circumstances to expect the plaintiff to escape he remains totally restrained. Therefore in the case of Harnett v Bond [1925] AC 669 where a Commissioner in Lunacy abused his authority for the purpose of preventing the plaintiff leaving him leaving the office the Commissioner was liable for false imprisonment.36 Threat of force alone provided it functions to confine a person will amount to false imprisonment. This is particularly so in cases where police officers acting without lawful authority effect an arrest or detention without actually touching the plaintiff.37 However, once a person is lawfully arrested and detained under the Prison Act 1952 he is under the control of the prison the latter retains the right to control and confine his movements. As such he has no right to claim false imprisonment.38 It has also been held that a prisoner held on remand beyond the regulated period is not at liberty to sue for false imprisonment.39 In general the tort of false imprisonment requires some positive act on the part of the defendant. An interesting question arose in Herd v Weardale Steel, Coal and Coke Co [1913] 3 KB 771. That question was whether or not a failure to act or omission resulting in confinement could substantiate a claim for false imprisonment. In the Herd case the plaintiff, a miner was employed by the defendants and by virtue of his contract of employment was required to remain down a mine shaft until the conclusion of his shift. On one occasion the miner requested a lift so as to exit his shaft before the end of his shift. The court held that there was no contractual duty to transport the defendant prior to the end of his shift and it therefore followed that there would be no claim for false imprisonment.40 It is also now settled law that the plaintiff need not have knowledge of his detention. Previously the law had been blurred in this essential element of false imprisonment. For instance in the case of Herring v Boyle (1834) 1 Cr M & R 377 a student who had been detained at school during the holidays because his school fees had not been paid could not substantiate his claim for false imprisonment since he was not aware that he had been detained.41 However in Meering v Grahame-White Aviation Co (1919) 122 LT 44 the court arrived at an entirely different conclusion in essentially similar circumstances.42 In Murray v Ministry of Defence [1988] 2 All ER 521 the House of Lords ruled that knowledge of detention is not a necessary element of the tort of false imprisonment. Proof of total restraint was all that was necessary. Moreover: "The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage."43 Determining the correct defendant in a false imprisonment claim in respect of an unlawful arrest can be an onerous task. A good starting point is determining who was "active in promoting and causing"44 the restraint. An informant is not generally liable for false imprisonment when a police officer in the exercise of his own discretion and judgment makes an unlawful arrest in response to the information provided by the informant. In Davidson v Chief Constable of North Wales [1994] 2 All ER 597 a store detective was liable for false imprisonment when she provided a police officer with incorrect information leading to the arrest of the plaintiff.45 It is necessary to show that the defendant's conduct was actually responsible for the plaintiff's confinement. For instance in Austin v Dowling (1870) LR 5 CP 534 the police officer refused to take the plaintiff into custody until such time as the defendant endorsed the charge sheet. As a result the defendant had truly caused the detention and was therefore liable for false imprisonment.46 In a plaintiff is falsely arrested a claim in false imprisonment will end upon the delivery of the plaintiff to the magistrate. Liability for damages will not be measured beyond this point since liability ceases once there is judicial intervention. Any claim beyond this point will properly be founded upon the tort of malicious prosecution.47 Intentional Infliction of Harm The intentional infliction of harm, while not a trespass to the person is an analogous tort and is often referred to as the rule in Wilkinson v Downton. In Wilkinson v Downton [1897] 2 QB 57 the defendant deliberately told the plaintiff falsely, that her husband had been gravely injured. As a result of the information the plaintiff suffered nervous shock and physical injury. Lord Wright held that the plaintiff had a cause of action and the defendant was liable on the grounds that he had: "'willfully done an act calculated to cause physical harm to the plaintiff . . . which in fact caused physical harm to her".48 While it was not altogether clear that the defendant had intended to cause the plaintiff harm, Lord Wright explained that the intention to cause harm would be necessarily imputed. In later authorities it would be determined that all that needed to be proven to substantiate liability would be negligence. For instance in an Australian case, Carrier v Bonham [2001] QCA 234 McPherson J noted that: "'the expression calculated . . . is one of those weasel words that is capable of meaning either subjectively contemplated and intended or, objectively likely to happen'"49 The House of Lords did make an effort to separate claims similar to the one in Wilkinson from trespass to the person. Such claims will properly rest in negligence rather than trespass to the person and will largely depend upon proof of actual harm. In Wainwright v Home Office [2004] 2 AC 406 Lord Hoffman said: "'the claimants can build nothing on Wilkinson v Downton. It does not provide a remedy for distress which does not amount to recognised psychiatric injury and so far as there may be a tort of intention under which such damage is recoverable, the necessary intention was not established. I am also in complete agreement with Buxton LJ [in the Court of Appeal in this case] that Wilkinson v Downton has nothing to do with trespass to the person."50 Defences Consent Consent will generally nullify any claim in respect of a tort of trespass to the person. Consent can be given either expressly or impliedly.51 As previously noted consent is implied in all reasonable degrees of contact during the normal course of everyday social activity.52 In sporting events, participants are deemed to have consented to the risk of harm that naturally results from physical contact within the rules of the particular sport. This includes the risk of harm unintentionally caused. However, consent will not be imputed in the cause of deliberate acts of violence.53 The doctrine of informed consent has been by and large rejected by the courts in England particularly in respect of medical procedures. The doctrine of informed consent presupposes that unless a person is aware of all the dangers and risks of harm in certain activities they cannot be said to have given their consent. It was held in Chatterton v Gerson [1981] 1 All ER 257 that a claimant may not bring an action for negligence on the grounds that they were not informed of the potentially harmful consequences.54 The doctrine of informed consent was rejected altogether in the case of Sidaway v Governors of the Bethlehem Royal Hospital [1985] 1 All ER 643.55 Double issues arise out of the question of informed consent. One is the issue of trespass and will turn on the question of whether or not the patient consented to the risk. The other is negligence and will turn on the question of whether or not the patient was informed of the risk of harm. While all adults are at liberty to refuse to accept medical treatment notwithstanding that such refusal might result in death or grave injury, there are circumstances where the patient is incapacitated and cannot give consent. In such circumstances the attending physician is required to use his or her clinical discretion and the issue of informed consent is dispensed with.56 Lawful Arrest In an allegation of false imprisonment where an arrest is claimed to be unlawful the defendant is at liberty to counter this claim by asserting that the arrest was in fact lawful. The Police and Criminal Evidence Act 1984 makes provision for citizen's arrest and arrest by constables provided there are reasonable grounds to suspect that the plaintiff has committed an indictable offence or is about to commit an indictable offence.57 Lord Diplock explained in Albert v Lavin [1981] 3 All ER 878 that: "' 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 '"58 An arrest is required to comply with the provisions of Section 28 of the Police and Criminal Evidence Act 1984 in order for it to be lawful.59 No more force than is necessary can be used to affect an arrest. Moreover, the arrested person is required to be informed of the reason for his arrest, that he is indeed being arrested and the grounds for which is arrested as soon as it is reasonable practicable to do so.60 In the case of a citizen's arrest the detainee must be placed in police custody as soon as it is reasonable to do so.61 Self Defence It is settled law that any person is at liberty to use such force as is reasonable in defence of his person, property or a third party. Reasonable force will be judged by reference to the facts of each particular case. In the event a person is honestly mistaken as to the right to defend himself, his property or a third party evidence of his mistaken belief will be admitted as a defence to trespass against the person.62 Necessity Necessity generally arises in cases of medical emergencies and can be analogous to the consent defence. Lord Goff explained the doctrine of necessity in Re F (Mental Patient: Sterilisation) [1989] 2 All ER 545 as follows: "There is, however, a third group of cases, which is also properly described as founded upon the principle of necessity and which is more pertinent to the resolution of the problem in the present case. These cases are concerned with action taken as a matter of necessity to assist another person without his consent. To give a simple example, a man who seizes another and forcibly drags him from the path of an oncoming vehicle, thereby saving him from injury or even death, commits no wrong. But there are many emanations of this principle, to be found scattered through the books".63 As Lord Goff explained the question of necessity arose in a situation where certain action was necessary to save the life or further harm to the individual who was not able to give his consent. The general requirements in such circumstances are as follows: "'not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all circumstances take, acting in the best interests of the assisted person".64 Conclusion The damages recoverable in trespass to the person claims are indicative of its vindicatory goal as a tort. While a claimant can recover actual damages he is also entitled to exemplary damages and as noted previously a plaintiff does not have to claim special or actual damages in order to pursue a tort involving trespass to the person. Exemplary damages are exceptional and will not generally amount to anything more than is necessary to penalize the offending party for the trespass. As such the Tort of trespass to the person is no more an extension of the protection of civil liberties. Works Cited Aitken v Bedwell (1827) Mood & M 68 Albert v Lavin [1981] 3 All ER 878 Austin v Dowling (1870) LR 5 CP 534 Beckford v R [1988] AC 130 Bird v Jones [1845] 7 QB 742 Carrier v Bonham [2001] QCA 234 Chatterton v Gerson [1981] 1 All ER 257 Collins v Wilcock [1984] 3 All ER 374 Conn v David Spencer Ltd [1930] 1 DLR 805. Dimond, Bridgit. (1999) "Trespass to the Person." British Journal of Midwifery Vol 7, Is. 12 p. 738 Dumbell v Roberts [1944] 1 All ER 326 Forde v Skinner (1830) 4 C & P 239. F v West Berkshire Health Authority [1989] 2 All ER 545 Harnett v Bond [1925] AC 669 Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890 Hepburn v Chief Constable of Thames Valley Police [2002] EWCA Civ 1841. Herd v Weardale Steel, Coal and Coke Co [1913] 3 KB 771 Herring v Boyle (1834) 1 Cr M & R 377 Holmes v Mather (1875) LR 10 Exch 261. Innes v Wylie (1844) 1 Car & Kir 257 Leame v Bray (1803) 3 East 593 Letang v Cooper [1965] QB 232 Lock v Ashton (1848) 12 QB 871 Meering v Grahame-White Aviation Co (1919) 122 LT 44 Murray v Ministry of Defence [1988] 2 All ER 521 Olotu v Home Office [1997] 1 WLR 328 Police and Criminal Evidence Act 1984 Rogers, W.V.H. (2002) Winfield and Jolowicz on Tort. London: Sweet and Maxwell R v Billinghurst [1978] Crim LR 553 R v Cotesworth (1704) 6 Mod Rep 172. R v Deputy Governor of Parkhurst Prison, ex p Hague [1992] 1 AC 58. Re F (Mental Patient: Sterilisation) [1989] 2 All ER 545 R v Governor Of Brockhill Prison, ex p Evans (No ) [2001] 2 AC 19 R v Ireland [1998] AC 147 R v Meade and Belt (1823) 1 Lew CC 184 Re T [1992] 4 All ER 649 Sidaway v Governors of the Bethlehem Royal Hospital [1985] 1 All ER 643 Stephens v Myers (1830) 4 C & P 349 Thomas v Num [1986] Ch. 20 Tuberville v Savage (1669) 1 Mod Rep 3 Wainwright v Home Office [2004] 2 AC 406 Wilkinson v Downton. In Wilkinson v Downton [1897] 2 QB 57 Wilson v Pringle [1987] QB 237 Read More