Trespass

TRESPASS TO THE PERSON Aims of Lectures: * OVERVIEW OF THE TORTS COVERING TRESPASS TO THE PERSON * DEFENCES TO TRESPASS TO THE PERSON * ALTHOUGH NOT A PART OF TRESPASS TO THE PERSON WE WILL ALSO ASSESS THE RULE IN WILKINSON V DOWNTON 1. OVERVIEW The aim/s of these torts: Protection from personal interference / protects your bodily integrity and your liberty. The trespass torts are actionable per se (there is no need to prove damage). A trespass to the person may well also be a CRIME and criminal law cases can be helpful but please note that a CIVIL action is designed to achieve a different objective i. . to vindicate your right / claim damages or to prove a point (Halford v Brookes [1991] 1 WLR 428). For a recent case against the police see: ZH v Commissioner of Police [2012] EWHC 604 involving a 16 year old autistic teenager at a swimming pool: http://www. judiciary. gov. uk/Resources/JCO/Documents/Judgments/zh-v-commissioner-of-police. pdf There are three forms of trespass to the p erson: A. ASSAULT B. BATTERY C. FALSE IMPRISONMENT PLEASE NOTE THE DIFFERENCE BETWEEN TRESPASS AND NEGLIGENCE: Trespass is DIRECT and INTENTIONAL. Negligence is INDIRECT and UNINTENTIONAL. Letang v Cooper [1965] 1 QB 232Wilson v Pringle [1986] 2 ALL ER 440 A. ASSAULT â€Å"An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person. † Robert Goff LJ in Collins v Wilcock [1984] 1 WLR 1172, at 1177 PLEASE NOTE: DIRECTNESS IS ALSO IMPORTANT In everyday language people use the term assault to also describe battery (see below). We will observe the strict legal distinction. Case Law Examples: Hopper v Reeve (1817) 7 Taunt 69 Purcell v Horn (1838) 8 A and E 602 Osborne v Veitch (1858) 1 F and F 317 Tuberville v Savage (1669) 1 Mod 3 Stephens v Myers (1830) 4 C and P 349Thomas v NUM [1985] 2 All ER 1 Darwish v EgyptAir [2006] EWHC 1399 (QB) DPP v Smith [2006] EWHC 94 (Admin) CAN WORDS OR EVEN SILENCE CONSTITUTE AN ASSAULT? R v Meade (1823) 1 Lew CC 184 R v Wilson [1955] 1 WLR R v Ireland [1997] 3 WLR 534 B. BATTERY â€Å"A battery is the actual infliction of unlawful force on another person. † Robert Goff LJ in Collins v Wilcock [1984] 1 WLR 1172, at 1177 PLEASE NOTE (AGAIN): DIRECTNESS IS IMPORTANT IN BATTERY Case Law Examples: Nash v Sheen [1953] CLY 3726 Dodwell v Burford (1670) 1 Mod 24 Haystead v DPP The Times, 2 June 2000, [2000]3 All ER 890DPP v Smith [2006] EWHC 94 (Admin) What constitutes a battery and must the force used be HOSTILE? Cole v Turner (1704) 6 Mod 149 Collins v Wilcock [1984] 1 WLR 1172 Wilson v Pringle [1987] QB 237 F v West Berkshire HA [1989] 2 All ER 545 Wainwright and other v Home Office [2003] UKHL 53 C. FALSE IMPRISONMENT â€Å"Another form of trespass to the person is false imprisonment, which is the unlawful imposition of constraint upon another's freedom of movement from a particular place. † Robert Goff LJ in Collins v Wilcock [1984] 1 WLR 1172, at 1177 T his tort relates to our freedom to move around unhindered.For an alternative definition see Street on Torts (below): â€Å"The trespass rather inadequately known as false imprisonment may be defined as an act of the defendant which directly and intentionally or negligently causes the confinement of the plaintiff within an area delimited by the defendant. † Please note the Human Rights Interface re’ Article 5 of the ECHR (incorporated into UK law by virtue of the Human Rights Act 1998): Austin v Commissioner of Police for the Metropolis [2009] 1 AC 564 Case law and principles on False Imprisonment – Liability is strict and the false imprisonment can result from a mistake (i. . be negligent): R v Governor of Brockhill Prison, ex p Evans (No. 2) [2001] 2 AC 19, HL – The restraint MUST be TOTAL i. e. COMPLETE Bird v Jones (1845) 7 Q. B. 742. – It is unnecessary to show the claimant knew of the imprisonment. It is a question of fact as to whether there is total restraint imposed: Meering v Grahame-White Aviation Co. Ltd (1920) 122 LT 44 Herring v Boyle (1834) 1 Cr M and R 377. Murray v Ministry of Defence [1988] 2 All ER 251. R v Bournewood [1998] 3 All ER 289 See further Williams (1991) 54 MLR 408,411 2. DEFENCES (a) ConsentSidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643 Chester v Afshar [2002] 3 All ER 552 Gillick v West Norfolk and Wisbech AHA [1986] AC 112 R (on the application of Sue Axon (Claimant) v Secretary of State for Health (Defendant) [2006] EWHC 372 (Admin). Re R [1991] 4 All ER 177 Re W [1992] 4 All ER 627 Re B [1981] 1 WLR 1421 Re M (Child Refusal of Treatment) [1999] 2 FCR 577 (b) Necessity F v West Berkshire HA [1989] 2 All ER 545 Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam. 147. (c) Self defence Revill v Newbury [1996] 1 All ER 291 Cross v Kirby (2000) The Times, 5th April, CA 1) James Ashley (Junior) (2) James Ashley (Senior) v Chief Constable of Sussex [2006] EWCA Civ 1085, [2008] UKHL 25 (d) Contributory negligence Revill v Newbury [1996] 1 All ER 291 (e) Ex turpi causa Revill v Newbury [1996] 1 All ER 291 (g) Statutory authority PACE 1984 as amended 3. The rule in WILKINSON V DOWNTON [1897] 2 QB 57 The principle is quite well established and helps fill a gap where the harm is caused INTENTIONALLY but INDIRECTLY. The Case Facts The defendant told the claimant that her husband had been seriously injured in an accident. This was untrue, but was intended as a ‘joke’. The laimant suffered nervous shock. Wright J. held the defendant liable because he had wilfully done an act calculated to cause physical harm to the claimant, i. e. , to infringe her legal right to personal safety, and had thereby caused physical harm. Since the defendant’s act was obviously intended to produce some effect of the kind that it did cause, an intention to produce the harm was imputed to the defendant, and it was no answer to say more harm was done than anti cipated. The problem with treating this as either an assault or a battery is that the harm is indirect and there is no application, or threat, of force.Janvier v Sweeney [1919] 2 KB 316 Khorasandjian v Bush [1993] 3 WLR 476 Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721 W v Home Office [2001] EWCA Civ 2081 Wainwright and Others v Home Office [2003] UKHL 53 The Wainwright case in the House of Lords is now the leading case on Wilkinson v Downton. The case involved prison strip searching of visitors. Per Lord Hoffmann: â€Å"I am†¦in complete agreement with Buxton LJ at [2002] QB 1334, 1355-1356, paras 67-72, that Wilkinson v Downton has nothing to do with trespass to the person. † 4. REMEDIES FOR TRESPASS TO PERSON Damages Injunction Habeas Corpus (for false imprisonment)