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 leave 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 pass torts are unjust per se (there is no need to prove damage). A trespass to the person may well also be a CRIME and criminal truth 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 person A. ASSAULT B. BATTERY C. FALSE IMPRISONMENT PLEASE NOTE THE DIFFERENCE BETWEEN TRESPASS AND NEGLIGENCE Trespass is DIRECT and INTENTIONAL. Negligence is validating and UNINTENTIONAL. Letang v Cooper 1965 1 QB 232Wilson v Pringle 1986 2 ALL ER 440 A. ASSAULT An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, twitch 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 wad 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 Wi lson 1955 1 WLR R v Ireland 1997 3 WLR 534 B. BATTERY 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, 20003 All ER 890DPP v Smith 2006 EWHC 94 (Admin) What constitutes a battery and must the force used be HOSTILE? kale 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 Another form of trespass to the person is false imprisonment, which is the unlawful deception of constraint upon anothers freedom of movement from a particular place. Robert Goff LJ in Collins v Wilcock 1984 1 WLR 1172, at 1177 This tort relates to our freedom to move around unhindered.For an pick definition see St reet on Torts (below) The trespass rather inadequately kat oncen 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 man 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 conventions 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 Ministr y of Defence 1988 2 All ER 251. R v Bournewood 1998 3 All ER 289 detect 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 wellness (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, fifth 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 movement 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 physiologic harm to the claimant, i. e. , to infringe her legal right to personal safety, and had thereby caused physical harm. Since the defendants act was obviously intended to produce some entrap 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 anticipated. 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 Kh orasandjian 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 I amin complete organisation 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)