Mooting for Barry vs Graham - Case Study Example

I. Mooting for Barry Vs. Graham My Lord I here with submit that: For Barry v Graham two important points are to be d. They are: That Barry should be allowed to appeal because he was falsely imprisoned. False imprisonment is intentionally holding back restraining another person from moving without having any legal right to do so. It is not a must that physical force has to be used. Actually either threat or a show of clear authority is sufficient. False imprisonment is a misdemeanour and a tort, if the doer holds the victim for a considerable period of time. In the case on hand Barry was falsely held by Graham while he(Graham) was away making a phone call to his head office. False imprisonment, is in reality, one first trespass made out by the Common law1. My Lord I would like to draw your attention on the fact that freedom of movement was deprived to Barry as he was confined on the scaffolding, since the door where the mechanism to raise the ladder is operated was locked by Graham. When Barry asked Graham to unlock the door Graham refused and said that he would be released only after Barry finished cleaning the windows. This resulted in confinement of Barry for a considerable period of time2. My Lord false imprisonment is committed when an employee is deliberately and lawlessly held against his or her will not allowing him or her to leave the room. This could be done either by locking the person in a room or closing all the path through ------------------------------------. 1Bracton's Note Book II, p.( 314 1229, pl. 465). 2Burton v Davies [1953] St R Qd 26. which he or she could go out. The most common way of retaining an employee by an employer is, when he refuses to allow the person to leave the room. The employer may do this by locking him or her in a room, or by putting someone at the door to the room to avoid the person from leaving. Nevertheless, movement of the person so imprisoned, must be entirely restricted so that the employer's action qualifies as false imprisonment. Thus in the case on hand Barry was locked on the scaffolding thereby completely restricting his movements. Degree of Confinement Degree of confinement can be through either of the following two means: (1) Physical means. (2) Non-physical means. Physical restriction To be completely confined physically, the plaintiff must not be able to move from the place of confinement. A plaintiff, thus cannot be said to be totally confined, if a means of breaking out is available to the restricted person. Nevertheless, such means of escape must be fair and reasonable4. It was, for instance, a fair way of escape in (Wright v Wright) 5 where the escape required a nominal encroachment on the land of a third party. Thus for Barry v. Graham, Barry was physically restricted from moving out of the place.. ---------------------------------------- 4Burton v Davies [1953] St R Qd 26. 5Wright v Wright (1699) 1 Ld Raym 739. False imprisonment requires the captivity of another person or the control of their movement. To set up false imprisonment a plaintiff has to institute at least 3 elements, and perhaps a fourth also as is discussed below: (1) The plaintiff is restrained (that is he is, sort of imprisoned). (2) The defendant restrained the plaintiff and held captive. (3) The plaintiff has the suitable mental state, which is deliberate, almost certainly carelessness and maybe negligence. (4) Even though arguable, but extremely litigious contentious is the fourth element, and that is that the plaintiff must know of the imprisonment. If the supra mentioned elements are fulfilled then it is false imprisonment. Nevertheless sometimes it may so happen that the imprisonment which does not fulfil all these requirements may still be unjust in one of the two following ways: (1) It may be unjust in negligence6 (This case is for unintentional imprisonment). (2) It may be unjust due to an action as in the case (Williams v Hursey and Wright v Wilson)7, both the cases were for partial imprisonment. In case of (De Freville v Dill)8 imprisonment was induced carelessly. -------------------------------------- 6Sayers v Harlow Urban District Council [1958] 1 WLR 623 7 Williams v Hursey (1959) 103 CLR 30 at 78 and Wright v Wilson (1699) 1 Ld Raym 739. 8 De Freville v Dill (1927) 96 LJKB 1056 My Lord we will also have to consider the nature of the place of confinement and here Barry was confined within a house. The rule says that: A person might be restricted anywhere9. For instance, the plaintiff may be restricted in the street, down a mine10, in a medium11, in a house12, or in a jail13. Basing on this Barry was confined, by Graham, on the scaffolding of the house when he was cleaning the windows. So it means that he was purposely imprisoned and thus my client should be given a chance for repealing. Now my Lord let us study the case with reference to cause for confinement: It is the central part of the tort that the defendant induces causing the detention of the plaintiff. There are two facets to induce confinement: (1) The candour of the causation. (2) The substance of causation. Candour of Causation In case of false imprisonment the defendant must induce the confinement directly and not indirectly14. ----------------------- 9 Blackstone, Commentaries on the Laws of England (1765-1769 III at 127) 10 Herd v Weardale Steel, Coal and Coke Co [1913] 3 KB 771 (CA), confirmed [1915] AC 67 (HL)) 11Burton v Davies [1953] St R Qd 26. 12 Warner v Riddiford (1858) 4 CB (NS) 180 13 Cobbett v Grey (1850) 4 Exch 729 14 Bird v Holbrook (1828) 4 Bing 628, De Freville v Dill (1927) 96 LJKB 1056 Therefore, it is not false imprisonment to induce the detention of a person in a mental home by making a false complaint to the authorities15 or to dug up a cavity, in which the plaintiff falls. Conversely, the option between inducing imprisonment directly and indirectly is not easy to infer. This happens, for instance, when a person is delayed and accused but the arrest is unwarranted. Thus Barry was falsely imprisoned by his employer. He should be allowed to appeal against Graham. -------------------------------- 15 De Freville v Dill (1927) 96 LJKB 1056 II. The counsel for the opposition may apply the following to defend the case: My first argument is that Barry was actually not falsely imprisoned. In fact he had consented to the contract with Graham. He had agreed to clean the windows from the scaffolding. He had in fact agreed to remain on the scaffold till the agreement of the contract was completed. The defendant had actually caused omission and not false imprisonment. Herd v Weardale is a case which is reported in the appeal cases law report for 1915 at page 67 and in which Lord Viscount Haldane had suggested that the miner had willingly entered the mine. He was fully conscious of the circumstances attached to the agreement among the plaintiff and defendant; therefore it did not result in false imprisonment. It actually amounted to Volenti fit injuria. The common example is that of the sensible man on the train. His getting into the train is his approval to confine his freedom when the train is on the move. He cannot just like that leave the train and request for an instant halt to defend his liberties. Thus in the supra mentioned case, it does not amount to false imprisonment. Reference 1. The Federation Press, 2002 Enright, Legal Technique eWorkbook Working with Textbooks - False Imprisonment. 2. Title Popular Law Library Vol4 Torts, Damages, Domestic Relations Author Albert H. Putney Publisher Cree Publishing Company Year1908 Cases referred 1. Bird v Jones (1845)7 QB 742 2. Herd v Weardale (1915) AC 67 3. Hening v Boyle (1834) 149 ER 1126 4. Meering v Graeme-White Aviation (1920) 122 LT 44 5. Murray v Ministry of Defence (1988):1 WLR 692 6. Robinson v Balmain New Ferry Co Ltd (1910)AC 295 7. Sunbolf v Alford(1838)150 ER 1135 Read More