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Act Law Imprison

Tort Assignment

If we consider the facts that Grant had no intention to stamp on Phil’s foot but mistakenly Phil did thought it was intentional, Phil would have to prove that Grant had committed an unlawful act and that act caused damage to Phil which he had suffered. Several torts require intention on the position of the defendant. The most noticeable examples are the torts of assault and battery. In these terms it requires the intention to be deliberate in the defendant’s actions. We can assume that Grant negligently stamped on Phil’s foot and as the state of mind negligence can be committed with carelessness.

If Phil can prove Grant was negligent we can then concentrate the harm suffered to Phil and the amount of compensation will normally depend on the degree of harm. As Diplock J stated in the case of Fowler v Lanning¹ that the burden of proof in a trespass case was on the claimant who has a duty to show that the defendant acted either intentionally or negligently.

A further case which was debated over the state of mind of the defendant it was that trespass could only be committed intentionally was the case of Letang v Cooper² here the Court of Appeal held that the injury was through negligence not battery. As lord Denning understands that where damage was caused intentionally, the cause of action was trespass, where harm imposed by carelessly, the action was negligence. The scrutiny of Lord Denning was supported in the case of Wilson v Pringle³.As a result I would say that Grant cannot be put at fault because it seems that trespass to the person cannot be committed negligently.

Subsequent to Phil’s unpleasant words to Grant according to the ruling in Tuberville v Savage⁴ the defendant said, “If it were not assize time I would not take such language from you.” It was held that there was no assault in this case. Phil’s words towards Grant would not constitute to an assault. The words “If it wasn’t for the fact that there are security guards around, you’d be sorry you did that!” This makes it clear that Phil was not actually going to inflict immediate physical force on Grant. Although a claimant’s fear of violence must be reasonable there can be no claim for assault where the claimant knows that the risk of violence is not going to occur.

To `imprison' someone is to deprive him of his liberty, in a very general sense. It does not require iron bars or stone walls: you can be imprisoned in the street. False imprisonment is a tort that is perpetrated when the defendant deprives the claimant of his liberty without lawful justification⁵.

The imprisonment has to be unlawful so that a person lawfully detained in a prison cannot claim false imprisonment. If however, the prisoner is detained longer than the prior of law then action of false imprisonment is established such as the case on

R v Governor of Brockhill Prison, ex parte Evans (no.2)⁶. Frank who would not let Peggy pass until she kissed him and also having an alternative route of returning to the bar then the tort is not committed where she has a reasonable alternative route. This is illustrated in the case Bird v Jones⁷ we see that in this case the claimant had an alternative route available and it was held that there was no false imprisonment.

However, if Peggy’s alternative route was dangerous then it would be established as false imprisonment. On the other hand it is not necessary to show that Frank knew that he was being detained. A similar case on this was Meering v Graham White Aviation Co Ltd⁸ here the Court Of Appeal held that the tort could be committed even if the claimant was not conscious that he was detained.

Also the case in Robinson v Balmain Ferry Co⁹ it was emphasised that no false imprisonment was held. As it stands it is not necessarily false imprisonment to impose a reasonable condition to Peggy before Frank allows her to leave.

The actions of Frank, calling Peggy at her home every evening causing Peggy considerable fear and anxiety it can be considered as a potential harassment act.

We must consider first is what constitutes harassment. The Tort of harassment was recognized by the courts with in the case

Khorasandijian v Bush. ¹⁰

Harassment is now a statutory tort created by the Protection from Harassment Act 1997.The Act created both civil remedies and a criminal offence in behaviour which amounts to harassment. The Act is to prevent persons from going about their lawful business.

If we consider the case of Pratt v DPP ¹¹ the case states that the husband had accused his wife to harassment. He first threw a cup of water at his wife. Second offence was that he chased his wife in the house shouting and swearing. He was found and convicted for harassment. The Court of Appeal upheld the conviction and stated it was a close to the borderline as there were two incidents of harassment.

The cases of R v Hills¹² and Lau v DPP¹³ were considered, however this case could be distinguished from Hills in that the conduct took place over a shorter period of time and the relationship had deteriorated. It was distinguished from Lau in that the two incidents were connected in terms of type and the context in which they took place.

Looking at the case of Thomas v News Group Newspapers Ltd ¹⁴ here the court stated one needs to balance freedom of expression with the right not to be harassed.

Defence to assault and battery, the defence to battery is consent, it is probably safe to say that the law does not permit citizens to consent to being killed. Even here, however, certain qualifications need to be made.¹⁰

A)

My answer would differ if having accidentally stepped on Phil’s foot, Grant refused to remove his foot from Phil’s foot.

“This tortious liability arises from the breach of a duty primarily fixed by law. Such duty is towards persons generally and its breach is redressable by an action for unliquidated damages.”¹⁵

Quite considerably it is certain that if Grant’s action he is refusing to remove his foot from Phil’s foot, this would then or be it called battery. A battery is the direct and intentional application of force to another person without consent. The torts of assault and battery are usually dealt with together because it is unusual, though possible, for them not to be committed jointly.

Where there exists the apparent present ability to carry out the act if not prevented¹⁶.Battery is application of direct physical force to the claimant even the merest touching is enough to amount to battery. As Grant would not remove his foot and physical contact is made this would amount to battery. The original force may be unintentional but a failure to rectify the situation may render it a battery as in the case of Fagan v Metropolitan Police Commissioner¹⁷ both mens rea and actus reus were present, an assault had been committed.

For battery to be established we must consider the defendants mental state of mind. It is often difficult for the courts to distinguish between contact and which is part of everyday life and contact which ought to be considered battery as the case on Wilson v Pringle¹⁸ the case went to the Court of Appeal to determine precisely what it was that the claimant had to prove. Systematically the claimant had to prove first that intentional touching or contact in one form or another of the claimant by defendant and second that the touching or contact was hostile. The intention of the court was to remove the need to shown implied consent in cases where the view was taken that the contact did not amount to battery. As straight a touching or contact which is hostile cannot be consented to.

The problem arises when is a contact hostile? The obvious intentions evident in acts are like stabbing, shooting and punching amounts to a definite hostile contact the case on F v West Berkshire Health Authority¹⁹.In this was doubted whether a touching had to be hostile in order to constitute battery. It is clear to consider the intention of Grant’s action was intention to battery. It is often necessary to prove that the defendant had a particular state of mind ranging from intention to negligence, even if the defendant intended to injure someone other than the claimant, this could still amount to battery.

B)

Peggy having an alternative route involved walking past overhanging live electricity cables my answer would be different because the alternative route now is obviously far more dangerous. This would not let Peggy to have any other way to go where she wills. As to say any restrictions which prevents a person leaving a place amounts to false imprisonment. As for that Peggy does have the right to claim for false imprisonment whether or not she knows that she has been restrained in order to succeed her claim,

Meering v Graham White Aviation Co Ltd²⁰ it was held that a person can be falsely imprisoned even if unconscious.

For restraint to be required there is no fixed period and even if it was for a short period of confinement will amount to false imprisonment.

Another example for false imprisonment is Hsu v Comr of Police for the Metropolis²¹

A complaint to the Police Complaints Authority was declined, so Mr Hsu sued and was awarded damages, reduced on appeal to £50,000

We should be aware that because false imprisonment is a tort of strict liability a defendant who is not aware that he is committing the tort may be liable. Again the case in R v Governor of Brockhill Prison, ex parte Evans (no.2)²² the governor was guilty of false imprisonment even though he had not been to blame for a miscalculating a prisoners date for release.

It is quite simple to see objectively that Peggy was in these circumstances via live electric wires which constitutes to false imprisonment.

C)

My answer would not be different to the harassment Frank is causing to Peggy if it was silent calls. silent phone calls could be prosecuted under S.43 which states that (1) (a) A person who sends, by means of a public telecommunication system, a message or other matter that is grossly offensive or of an indecent, obscene or menacing character or (b) sends by those means, for the purpose of causing annoyance, inconvenience or needless anxiety to another, a message that he knows to be false or persistently makes use for that purpose of a public telecommunication system.²³ use of a public telecommunication system for the purpose of causing annoyance, inconvenience or needless anxiety clearly covers situations where someone repeatedly calls the same number, for example in order to jam the phone line. No obscene words etc need to be said - the offence is constituted by the repeated phone calls themselves²⁴.

The offence is complete if your intention is to cause such anxiety just as what Frank is committing. We can see from the case of R v Ireland: R v Burstow²⁵ of the silent calls rise to assault also, the House of Lords held that the silent caller may cause the victim to “apprehend immediate and unlawful violence.” There is no statutory defence that your offence was reasonable, a defence which is available, for example, under the Malicious Communications Act 1988 or under Section 5 of the Public Order Act 1986. As with all legislation, the court has to interpret this law consistently with your human rights and must therefore have regard to your freedom of expression when deciding whether or not you have committed an offence. Unlike under Section 43, the prosecution do not have to show that you intended to cause harassment or fear of violence they need only show that a reasonable person would think that the offence amounted to harassment or fear of violence.²⁶

¹[1959] 1 QB 436

²[1965] 1QB 232

³[1987] QB 237

⁴[1669] 1 mod 3

⁵http://www.kevinboone.com/lawglos_FalseImprisonment.html accessed 16/11/2007

⁶[2001] 2 AC 19

⁷ [2001] 1 FCR 569

⁸[1919] A.C. 295

⁹[1910] AC 259

¹⁰[1993] QB 727

¹¹[2001] EWHC Admin a83

¹²[2001] 1 FCR 569

¹³[2000] All ER (D) 224

¹⁴[2001] EWCA Civ 1233

¹⁵ Winfield, Province of the law of Tort (1931) p.92

¹⁶http://www.expertlaw.com/library/personal_injury/assault_battery.html accessed 17/11/2007

¹⁷[1969] 1QB 439

¹⁸[1987] QB 237

¹⁹[1990] 2AC 1

²⁰[1919] A.C. 295

²¹[1997] 3 WLR 402

²²[200] 3 WLR 843

²³http://www.freebeagles.org/articles/malicious_calls.html

²⁴ Ibid.

²⁵[1998] AC 147

²⁶http://www.freebeagles.org/articles/malicious_calls.html

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