Law of Tort Assignment 1

LAW OF TORT Thursday, 09 July 2015

LAW OF TORT – ASSIGNMENT ONE (1)

Alan was invited to a party by Bob. Christine one of the guests dressed up as a ghost and jumped out at Alan who was of a nervous disposition. Alan passed out and was carried into a spare bedroom by David, another guest. Sometime later, Bob saw that the bedroom was open and without looking inside locked the door as the room contained his priceless collection of jewels. David and Christine later went to see if Alan was alright but found the door locked. They asked Bob for the key but he refused and he was busy turning on his banjo. One hour later he opened the door.

Alan was still unconscious, but as Paul poured cold water over him he swung his fist in a reflex action and knocked some of Bob’s teeth out.

What torts, if any have been committed and which defences do you consider being relevant?

Comments

This question centres on the constituent elements of intentional torts relating to trespass to the person: assault; battery and false imprisonment. However, it also requires an explanation of the principle in WILKINSON V DOWNTON. This principle has recently undergone a major examination in WONG V PARKSIDE HEALTH NHS TRUST and more importantly by the House of Lords in WAINWRIGHT V HOME OFFICE which has placed the tort firmly within the family of intentional infliction of harm, although not a trespass. The question also calls for some comment on the principles underpinning the various torts. More particularly, it requires an examination of:

i. WILKINSON V DOWNTON.ii. The content of battery.

iii. The requisite intent.iv. The content of assault.v. The doctrine of transferred intent.

vi. False imprisonment and awareness of the fact of detection.vii. Omissions.

viii. Defence of necessity.ix. Self Defence.

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SUGGESTED ANSWER

Trespass to the person can be identified into three distinct torts (battery, assault, and false imprisonment) which have certain characteristics in common. The torts require acts rather than omissions (‘not doing is no trespass’: CASE OF THE SIX CARPENTERS [1610]), they are probably now capable of being committed only intentionally (see Lord Denning in LETANG V COOPER [1965], by direct means and are complete without the need for proof of actual harm (actionable per se). The latter point makes the torts very effective as a means of controlling invasions of liberty (especially by those in authority). The principle in WILKINSON V DOWNTON [1987] requires an intention to cause harm but differs from trespass in that the harm will arise indirectly.

Is Christine’s jumping an actionable tort (actionable without the need for proof of actual harm?)

Battery may be defined simply as the intentional application of direct force to the person which is undesired by the claimant. According to the House of Lords in R V IRELAND a touching is still required for battery to have occurred and the House condemned the attempt in the Court of Appeal in that case to class as a battery a psychiatric injury caused by a series of silent telephone calls. As Goff LJ showed in COLLINS V WILCOCK, the simple, intentional touching of one person by another may be a battery and the extent of the force used is irrelevant to whether or not a battery is has occurred. The general principle is that for the defendant’s conduct to amount to battery it must have been a direct and intentional act of act of touching (LETANG V COOPER, approved in WILSON V PRINGLE [1986]), Professor Rogers has expressed the view that the net result of these cases has been the disappearance of actions for unintentional trespass.

As there was no initial contact with Alan no battery has been committed by Christine at that stage. On the other hand, there was some physical contact between them when Christine picked him up and, later when she shook him, Alan may have an action for battery then. In COLE V TURNER [1704], Holt CJ said that ‘the least touching of another is a battery’. The Court of Appeal in WILSON V PRINGLE held that for an action in battery to succeed, ‘the touching must be proved to be hostile touching’. The requirement of hostility, and more particularly its meaning, has generated controversy. This view is



inconsistent with the earlier comments of Lord Goff in F V WEST BERKSHIRE HEALTH AUTHORITY [1989]. These were that there was a general principle that all touching no matter how slight were capable of amounting to battery but that this was subject to the general exception in respect of all touching acceptable as part and parcel of everyday life. The view of Lord Goff is preferable given the lack of clarity as to what is meant by hostility and that the only explanation of this in WILSON V PRINGLE was largely circuitous. Lord Goff questioned whether there is any requirement that the physical contact must be hostile and he stated that a prank that gets out of hand, or an over-friendly slap on the back could amount to battery even though they are not hostile acts, Similarly, a person who pushes another into a swimming pool by way of a joke would also be liable for battery (WILLAM V HUMPHREY [1975]). On this basis, Christine could be liable unless she is able to show that picking Alan up as a consequence of the prank was ‘generally acceptable in the ordinary conduct of daily life’ (COLLINS V WILCOCK). Similarly, when Christine shook Alan, the gentleness of the shake is not the key point. It is whether the shake could be described as contact generally acceptable in everyday life.

Undoubtedly the touching of Alan by Christine when she picked him up amounts on the face of it to a battery but was it justifiable? The only defence which seems to be relevant is that of necessity. This was explored in F V WEST BERKSHIRE HEALTH AUTHORITY and it was held in the case of the mentally deficient adult that the principle of necessity could operate to justify sterilisation even though neither she nor anyone else was able to give or withhold consent to this treatment. The guiding principle was what was in the best interests of the patient judged according to the principle in BOLAM V FRIERN HOSPITAL. On this basis the behaviour of Christine may be justified.

But, the question remains whether an action will lie for assault in respect of the prank. Assault has been defined as an act which causes another to apprehend the infliction of Immediate, unlawful force on his person (COLINS V WILCOCK) so the question here is whether or not Alan was placed in such a fear. If he was then he may succeed in assault.

It may also be possible to establish that in respect of Christine’s prank an action may lie under the rule in WILKINSON V DOWNTON even though more harm resulted than was intended. Thus, in JANVIER V SWEENEY [1919], some harm had been intended but greater harm resulted. In WAINWRIGHT V HOME OFFICE [2003], the House of Lords has now held that liability under this rule is dependent upon an actual intention to cause harm and it may well be the case that Christine was merely engaging in well intentioned horseplay so as to



contribute to the party atmosphere. The problem with the law at the time of WILKINSON V DOWNTON was that psychiatric injury was not recoverable under the law of negligence. The court therefore had to adopt the convoluted terminology of conduct ‘calculated to cause harm’ to ensure that recovery was permissible. These problems were no longer the case at the time of JANVIER V SWEENEY, but that was a case where some harm through terror was intended. The principle remains useful in so far as indirect intended harm is concerned, and a case such as WILKINSON V DOWNTON itself might be decided the same way, although the negligence route would be as useful. To recover under the principle it would have to be shown that Christine had actually intended to cause harm to Alan even though this might have occurred indirectly. But here the problem may be whether or not the faint would be sufficient harm for these purposes. The House of Lords in Wainwright confirmed that anything less than actual physical damage or psychiatric damage was unlikely to be recoverable under the principle in WILKINSON V DOWNTON and neither Lord Hoffman nor Lord Scott were keen to see the tort extended.

False imprisonment has been defined as the unlawful imposition of constraint on another’s freedom of movement from a particular place so that he is not at liberty to go where he pleases (COLLINS V WILCOCK; MEERING V GRAHAME-WHITE AVIATION CO. LTD. [1920]. The House of Lords in R V BOURNEWOOD COMMUNITY AND MENTAL HEALTH NHS TRUST EX PARTE L [1998] has confirmed that there must be circumstances amounting to a factual detention of the claimant, although there were significant differences between the majority and minority on the fact of that case which concerned a voluntary mental health in-patient who would have restrained had he attempted to leave a hospital. This was held not to be false imprisonment. Any restriction, in the absence of consent, on a person’s right to leave a place will amount to false imprisonment. The restraint must be complete so that if there is a reasonable means of egress there is no imprisonment (BIRD V JONES [1845])

It is a vexed question whether the tort requires an intention to imprison or simply an intention to do the act which causes the imprisonment in fact. Thus turning a key in a lock without checking if anyone is inside a room may or may not be an intentional imprisonment. The better view would be that the tort requires knowledge that someone is being imprisoned. When Bob locks the door he appears to be unaware of Alan’s presence in the room and so false imprisonment is not committed at that time.



However, upon being informed of the situation by Christine, does his refusal to unlock the door amount to the false imprisonment of Alan? Her liberty is restrained within an area delimited by Bob.

But all trespasses involve acts not omissions and Bob does nothing. The question of when something is an act and when it is an omission may be clouded, e.g. in FAGAN V METROPOLITAN POLICE COMMISIONER where the defendant drove his car onto a police officer’s foot (without the driver being aware of this) put the car into neutral, applied the handbrake, got out and was then told by the police officer that the car was on his foot. He was charged with assaulting a constable in the execution of his duty. He was convicted because the court formed the view that the whole process amounted to an act and knowledge that the car was on the police officer’s foot was present at the latter stage even though not at the start. There was a vigorous dissent when the judge said that the defendant had done nothing when told that the car was on the foot, and doing nothing is not trespass. The point may also be seen in HERD V WEARDALE, where, on the facts, there was no false imprisonment of a miner who for 30 minutes was refused permission to enter a lift and reach the surface during the course of his shift. He was eventually allowed to use the lift but the House of Lords held that he had not been falsely imprisoned because he had agreed to go down the pit for the duration of his shift. The House of Lords did not consider what would have been the position had there been a contractual obligation to allow him to use the lift and whether or not the breach of that duty would have been sufficient to amount to a positive act of trespass.

There is no requirement that Alan should be aware of his detention so that if he in fact slept through it, an action will nevertheless lie. In MEERING V GRAHAM-WHITE AVIATION CO. LTD, Atkin LJ stated that a plaintiff’s ignorance of his false imprisonment was irrelevant, so a person could be falsely imprisoned while unconscious or insane or otherwise unaware of his position. A claimant who is ignorant that she has been falsely imprisoned may receive only nominal damages since no harm would have been suffered (MURRAY V MINISTRY OF DEFENCE [1988]. The problem with Meering’s case was that it failed to take into account the binding authority of HERRING V BOYLE which had concluded the opposite. Both views are sustainable as a matter of principle, and the principle in Herring not only forms the basis of the Restatement of Torts in the United States but was accepted by the Court of Appeal in Northern Ireland in MURRAY V MINISTRY OF DEFENCE. The House of Lords in that case then reversed the Court of Appeal’s decision and preferred the view that the tort was designed to protect the liberty of the citizen and as



such required that it should be complete without proof that the claimant was aware of the fact of detention. Thus, Alan’s unconsciousness does not prevent an action being brought. Also Paul’s pouring of water on Alan amounts to battery because contact was made when the water touched Alan. As already established in COLLINS V WILCOCK, battery occurs when there is a direct and intentional contact of a person by another without their consent. This applies to Paul’s action.

Finally Bob was struck by Alan in a reflex action knocking some of Bobs teeth out, was this battery? Whether or not this is an intentional act which caused direct damage is clearly a material issue. In SCOTT V SHEPHERD [1773], the defendant threw a lighted firework into a crowded market house. It landed on a stall and the stallholder instinctively picked it and up and threw it further which resulted in it exploding in front of the plaintiff. It was held that the defendant was liable for trespass on the basis that the plaintiff’s injuries were the direct result of his act of throwing the fireworks, and the stallholder’s instinctive act of throwing it on did not break the chain of causation. The analogy her lies with the criminal law doctrine of transferred intent which has, in fact, been applied in civil proceedings (JAMES V CAMPNELL [1982]; LIVINGSTONE V MINISTRY OF DEFENCE [1984], It would therefore seem that Alan’s act does amount to battery. The defence of self-defence may be available to Alan if she can show that her mistaken belief of being attacked was based on reasonable grounds and her reaction was proportionate (ALBERT V LAVIN [1981]; LANE V HOLLOWAY [1968], and CROSS V KIRBY [2000]).


Law of Tort Assignment 1

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Transcript of Law of Tort Assignment 1