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
Bobs 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.
ii.
iii.
iv.

WILKINSON V DOWNTON.
The content of battery.
The requisite intent.
The content of assault.
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v.
vi.
vii.
viii.
ix.

Thursday, 09 July 2015

The doctrine of transferred intent.

False imprisonment and awareness of the fact of
detection.
Omissions.
Defence of necessity.
Self Defence.
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 Christines 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 defendants 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

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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
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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 Christines
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
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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 anothers 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 persons 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 Alans
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 officers foot (without the driver being aware of this)
put the car into neutral, applied the handbrake, got out and
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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 officers 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 plaintiffs 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 Meerings 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 Appeals
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, Alans unconsciousness does not
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prevent an action being brought. Also Pauls 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 Pauls 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 plaintiffs injuries were the direct result of his act
of throwing the fireworks, and the stallholders 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 Alans 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]).

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