The Question of Trespass to the Person - Research Paper Example

Tort Problem Question: Trespass Against the Person Introduction Issues of liability arise out of the question of trespass to the person including harassment, false imprisonment, assault and battery under the law of tort. On the facts of the case for discussion it appears that Mick has a viable claim against Paul for harassment, false imprisonment, assault and battery while Stella may have a valid claim in damages against Mick for harassment, assault and battery. Similarly, Paul may have a valid claim against Mick for harassment and based on the facts he likely has a good defence to Mick’s claim for false imprisonment, harassment, assault and battery. It is also likely that the question of transferred malice might arise in Stella’s case since the assault was initially aimed at the doctor and inadvertently struck Stella. The issue of consent also arises as it appears the Mick did not consent to the doctor’s treatment and whether or not the absence of consent will render the doctor’s medical treatment a battery. Each of these issues are discussed in detail below. I. Assault and Battery a. Assault Assault arises out of conduct that puts the victim in fear of immediate or instant harm or force to his person (Rogers 2002). In order to substantiate a claim of assault it is not necessary to prove that actual physical contact was made. Similarly, intention to cause harm is not a necessary element of the tort of assault. All that is necessary is a reasonable apprehension of harm is sufficient to substantiate the tort of trespass to the person on a claim of assault. Whether or not the victim is afraid or capable of truncating or thwarting an assault is immaterial. This is because the test is an objective test and largely depend on what a reasonable man would reasonably perceive (Stephens v Myers (1830) 4 C & P 349 ). In Stephens v Myers (1830) a man was asked to leave a meeting and in response he launched toward the chairman but was quickly interrupted by the warden, preventing any contact. Even so, the court found that the conduct amounted to the tort of assault and ruled 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 (Stephens v Myers (1830) 4 C & P 349). Be that as it may, not every threatening gesture will amount to an assault. In Thomas v Num [1986] Ch 20, picketing protesters made threats of violence in circumstances where police were able to hold them back. It was held that no assault was made because in the circumstances the defendants were not in a position to carry out their threats regardless of how determined they may have seemed (Thomas v Num [1986] ). Applying the reasoning in Thomas and Stephens, it is entirely unlikely that Mick would be successful in a claim against Paul for assault. Although Paul’s conduct was such that it could have reasonably put Mick in fear of harm, considering the fact that Paul was drinking vodka and may have very likely been intoxicated, the high volume of traffic would have provided Mick with sufficient insurance that Paul could not have carried out actually made physical contact with him. The fact that Mick shouted at Paul from the across the street is further evidence that he was not in fear of any retaliation and was equally confident that the volume of traffic and the distance from Paul provided sufficient security against any kind of altercation. In other words the fear or apprehension of harm could not have been immediate in the circumstances of the case. Therefore Mick’s claim of assault against Paul would not likely succeed. Since words alone can substantiate a claim of assault, Paul arguably has a claim against Mick for the comments he made with respect to Paul being a waste of space. . The House of Lords ruled in R v Ireland [1998] AC 147 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 (R v Ireland [1998] AC 147). Although R v Ireland was a criminal case, since the tort of assault emanates from the criminal offence of assault, the same logic would apply in the tort of trespass to the person founded on a claim of assault. However, any claim that Paul might have will suffer from the same weaknesses that Mick’s claim might have. Not only were the parties separated by a busy street and moving traffic, Paul showed no signs of fear and intimidation. Given that Mick returned with a toy gun twenty minutes later, Paul will have a valid claim in trespass to the person founded on assault. Although the gun was only a toy Mick did not know this. Whether or not Mick’s intoxication might have blurred his ability to tell the difference is irrelevant because of the thin-skull doctrine in the law of tort. The doctrine dictates that tortfeasors take their victims as they find them (Smith v Leech Brain & Co. Ltd. [1962] 2 QB 405) . Even so, the test as previously stated is an objective one. In the circumstances of the case, where Paul was at a distance from Mick, yet Mick shouted at Paul that people like him were a waste of space and ought to be shot, returns with a “gun”, a reasonable man might in the circumstances have reasonable grounds to fear that he was in immediate danger of injury. In this regard, Paul likely has a good case against Mick for assault with respect to the toy gun. In order to succeed in assault or any claim in trespass the plaintiff need not prove damages (Rogers 2002). Therefore Paul will not be required to prove damages in order to substantiate his claim for assault. II. Battery The early case of Cole v Turner (1704) 87 ER 907 established that any touching, however slight, done in anger will amount to a battery (Cole v Turner (1704)). In other words battery is comprised of two essential elements; contact and intention. Intention however, is not necessarily an intention to cause specific harm, just the intention to cause contact which is not expected in the ordinary occurrences of daily life (Collins v Wilcock [1984] 3 All ER 374). In F v West Berkshire Health Authority [1989] 2 All ER 545 Lord Goff explained however, that any deliberate physical contact with another that exceeds everyday nuances without any lawful excuse was enough to substantiate a claim in the tort of battery. There is no doubt that Paul hitting Mick with the vodka exceeds the typical contact that one might expect to experience in everyday conduct. The question is however, whether or not the Paul had a lawful excuse. Only if there is no lawful excuse can Mick substantiate a claim against Paul for battery. It is a firmly established tenet of law that any individual in fear of immediate harm may use such force as is reasonable for defending his person, property or in defence of another. Whether or not the force used in the circumstances is reasonable force will be weighed against the specific facts of the case. Given the exchange between Paul and Mick 20 minutes earlier, the fact that Paul was drinking, it is entirely possible that Paul made an honest mistake about the weapon in Mick’s possession. Even if Paul was honestly mistaken as to the degree of danger he was in, evidence of his mistaken belief will be admitted as a defence to trespass against the person (Beckford v R [1988] AC 130). When Mick aimed at the Dr. George and hit Stella instead, Stella may substantiate a claim in battery on the basis of transferred intent. While transferred intent is firmly established n the crime of battery it is not so firmly established in the tort or battery although there is authority for it in tort (Murphy and Street 236). In Scott v Shepherd (17730 96 ER 525 the defendant threw a lit firecracker into a market place where it was thrown away by another person hitting the plaintiff. The court essentially held that criminal law a man typically intends the natural consequences of his conduct, and although criminal intent should not be applied to civil cases, in trespass “there is an analogy” so that “everyone who dos an unlawful act is considered as the doer of all that follows” (Scott v Shepherd (17730 96 ER 525). Street on Torts (2007) maintains that there is a tendency among the judiciary to apply the criminal doctrine of transferred malice in cases of the tort of battery, although it is not a firmly established rule of law in tort (237). In this regard, Stella may take the chance and since she does not have to prove damages since the tort of battery is actionable per se, she has nothing to lose (Street 236). She would therefore be advised to pursue a claim against Mick for battery. It is likely that Mick might argue to counter her claim that he was not using unlawful force since he was defending himself against battery. However, it is entirely unlikely that his defence will succeed since refusing consent to medical treatment does not necessitate the use of force. He only needed to register his disapproval by mere communication of refusal to consent. Mick might also like to argue that he did not consent to the medical treatment and may argue that the doctor’s injection and subsequent suturing amounted to a battery. While all adults are at liberty to refuse medical treatment (Re T [1992] 4 All ER 649), it is not entirely clear whether or not Mick was refusing medical treatment. He was brought into the hospital by the police and suddenly became aggressive. He did not indicate beforehand that he was refusing medical attention. It was entirely reasonable for the doctor to assume that he was responding to his head injury and therefore though it was necessary to administer a tranquilizing drug via an injection. It therefore follows that should Mick claim battery on the part of the doctor, the doctor in turn may counter that claim by raising the issue of necessity. In Re F (Mental Patient: Sterilisation) [1989] 2 All ER 545 it was held that the defence of necessity will succeed where it is shown that there is: a necessity to act when it is not practicable to communicate with the assisted person, but also, the action taken must be such as a reasonable person would in all circumstances take, acting in the best interests of the assisted person (Re F (Mental Patient: Sterilisation) [1989] 2 All ER 545). It was obviously impossible or at the very least to communicate with Mick at the hospital since he started out aggressively and took a swing at the doctor. Mick was obviously out of control to such an extent that he had to be restrained by several security officers. Moreover, he was obviously bleeding and had lost consciousness previously. In the all the circumstances it would appear that his head wound needed immediate attention and since Mick was out of control it was entirely impractical for the doctor to engage him in conversation. III. False Imprisonment The act of locking Mick in the garden shed can constitute a claim against Paul in false imprisonment. False imprisonment is the confinement of the plaintiff to a limited space with the confinement facilitated by the defendant’s conduct. Steele describes the tort of false imprisonment as “the unlawful interference with the right to liberty” (66). The fact that Mick is unconscious at the time of the imprisonment is of no consequence. It was held by the House of Lords in Murray v Ministry of Defence [1988]2 All ER 521 that an action in false imprisonment will stand even if the plaintiff is not aware that there is a restraint on his freedom and even if there is no harm emanating from the imprisonment. (Murray v Ministry of Defence [1988]2 All ER 521) In other words, false imprisonment is actionable per se. Paul’s conduct is perhaps the clearest case of false imprisonment in that the entrapment it physical. He locks Mick in a shed. In any event the primary focus of the tort of false imprisonment is not the defendant’s conduct, although it is relevant, is the plaintiff’s right to freedom of movement (Cane 5). Cane argues that one of the main elements of the tort of false imprisonment is the: legally protected scope of personal liberty, not the quality of the conduct that constitutes the deprivation of liberty (Cane 5). In this regard, malice is not a requirement element in assigning blame. In fact a defendant acting in good faith can nevertheless be liable for damages in false imprisonment (R v Governor of Brockhill Prison, ex p. Evans (No 1) [2001] 2 AC 19). Even so, it is up to Paul to argue that he actually made a lawful arrest if he is successful he will escape liability for false imprisonment. In Albert v Lavin [1981] 3 All ER 878 Lord Diplock explained that all citizens who witness a “breach of the peace is being, or reasonably appears to be about to be committed” is at liberty to “take reasonable steps “ to prevent the breach of the peace and detaining the person responsible for the breach of the peace against his or her will is reasonable (Albert v Lavin [1981] 3 All ER 878). Paul believed that Mick was carrying a real gun and based on his previous statement to Paul about people like Paul deserving to be shot, Paul had reasonable grounds to suspect that Mick might breach the peace by shooting him. It is therefore conceivable that Paul’s defence of a lawful arrest will succeed. It is also possible however, that Paul’s conduct might be interpreted against him since Mick was already unconscious by the time the carried him to the shed and locked him in it. If Paul had turned Mick over to the authorities after locking him in the shed, there would be no doubt about the lawfulness of the arrest. The fact that Paul locked up an unconscious Mick and did nothing further will likely function to defeat a defence of lawful arrest. IV. Harassment Mick’s unwanted telephone calls to Stella and waiting for at work amounts to stalking under the Protection from Harassment Act 1997 and the Telecommunications Act 1984. Section 1(1) of the Protection from Harassment Act 1997 forbids the pursuit of another in such a way that it amounts to harassment in circumstances where the pursuer either knows or ought to know that his or her conduct “amounts to harassment” (Protection from Harassment Act 1997 Section 1(1)). Similarly by virtue of Section 43 of the Telecommunications Act 1984 persistent telephone calls to a person calculated to cause the recipient distress also amounts to stalking (Telecommunications Act 1984 Section 43). The persistent telephone calls and showing up at Stella’s job, while criminal offences are not automatically actionable torts since there must be some form of harm in order for it to be actionable as torts. Stella claims to be distressed by the persistent telephone calls and visits to the hospital. The House of Lords explained in Wainwright v Home Office [2004] 2 AC 406 that under English law an action for distress is not only permissible if the distress is such that it amounts to a “recognized psychiatric injury” (Wainwright v Home Office [2004] 2 AC 406). So unless Stella can prove that the distress is somehow a psychiatric injury she is best advised to obtain a restraining order against Mick. Bibliography Albert v Lavin [1981] 3 All ER 878. Beckford v R [1988] AC 130. Cane, P. (2001) “The Temporal Element in Law.” Law Quarterly Review, Vol. 117: 5-10. Cole v Turner (1704) 87 ER 907. Collins v Wilcock [1984] 3 All ER 374. F v West Berkshire Health Authority [1989] 2 All ER 545. Murphy, J. and Street, H.(2007) Street on Torts. Oxford University Press. Murray v Ministry of Defence [1988]2 All ER 521. Protection from Harassment Act 1997. Rogers, W.V.H. (2002) Winfield and Jolowicz on Tort. London: Sweet and Maxwell. R v Governor of Brockhill Prison, ex p. Evans (No 1) [2001] 2 AC 19. R v Ireland [1998] AC 147. Re T [1992] 4 All ER 649. Scott v Shepherd (17730 96 ER 525. Steele, J. (2007) Tort Law: Text, Cases, and Materials. Oxford University Press. Stephens v Myers (1830) 4 C & P 349. Telecommunications Act 1984. Thomas v Num [1986] Ch 20. Wainwright v Home Office [2004] 2 AC 406. Read More