Intentional Torts

Assault

Elements:
1. Claimant's reasonable apprehension of the application of direct & immediate force

2. Intention that claimant apprehends the application of unlawful force

3. Unlawful

Threat
• Physical threat?

• Direct and immediate?:

• Stephen v Myers - Because the D was advancing towards the C quite quickly -
opportunity for him to carry out the threat

• If you can't physically carry out your threat, that can't be an assault

Immediacy

• Thomas v NUM - Claim was brought by the working miners against the striking miners

• Tuberville v Savage - conditional threats (i would do this if it wasn't for this) are not assault -
making it clear that they will not carry out the threat

Words Alone?

• Over threatening act which generally involves physical acts

• R v Ireland (criminal case) - Joint appeal - Lord Steyn - "a thing said is also a thing done"

• Rejection of the notion that assault can never be committed by words

• reasonable apprehension of battery being committed - objectively (reasonable person)

• impact on them should also be considered

 Silence?
• Yes, depending on the facts

• R v Ireland - using silence to give threats - calling the victim incessantly and not saying
anything

• If subjectively, the impact on the victim is that of apprehension + intention, it can still be a
threat

Secondary Victims
• Murray v Mabrouk [2021]
• Female police officer shot and killed Murray was her close friend in 80s protests against
Gaddafi

• No criminal trial ever held - no prosecution bought - issues of national security

• Action in battery bought - could've been an action for assault

• After many years, he had a diagnosis for PTSD - time hadn't run out because diagnosis
was recent

• Secondary victim claim for psychiatric victim based on what happened to his friend

• Claimed £1 in nominal damages - Mabrouk incharge the day of the protests

• Underlying tort is battery and not negligence

• For Assault:

• Battery:

Battery

Requirements
 Application of direct and immediate force

• Scott v Shepherd (1773) - Fireworks in market place

• Breslin v Mckenna - Omagh bombing case - Morgan J - "the detonation of a bomb is... a
direct injury and a delay in detonation makes no difference as long as the mental element
required for the tort is established in either case"

Intention on the part of the defendant

• Higher mental requirement than carelessness

• Letang v Cooper - driver ran over the legs of a sunbathing woman

• statute of limitation ran out in negligence - time had run out - therefore claim in battery

• Need the intention - straightforward in most cases

• Was it an accident or was it on purpose??

Transferred Intent

• Livingstone v MoD - soldiers did a baton round on the rioters when it hit the claimant

• The soldier did not intend to hit the claimant specifically

• Soldier aiming at one person but you've hit someone else - intent transfers to the actual
victim

• Relates to situation where you aim at one person and hit someone instead - nothing to
do with mistaken identity

Recklessness
• Bici v MoD - defences will also tranfer
• Soldier opened fire at a car to "disable it" - another explanation was that they shot at
the specific car

• It was a reasonable possibility that someone would be struck if you shot in the general
direction of people

• Aware of the risk and took the risk - courts found that soldier not reckless

• Recklessness can suffice but it has to be subjective recklessness

Hostility

• Collins v Wilcock (1984) - lady on the street with the police-woman who grabs her arm - no
hostility in this case

• Wilson v Pringle (1986) - horseplay - one of the boys is injured - claim in battery follows -
need for hostility?

• F v West Berkshire AHA (1990) - Reverse to the original position of no hostility required
 The application must be unlawful

• without lawful justification - see defences

False Imprisonment

Elements

Imprisonment

• Complete restriction of C's freedom of movement

• Bird v Jones - C wants to walk down a road that's been closed down and claims in false
imprisonment - does not suffice

• "Imprisonment is...a total restraint of the liberty of the person, for however short a time, and
not a partial obstruction of his will, whatever inconvenience it may bring on him"

Relevance of Claimant's Knowledge

• Herring v Boyle - Headmaster refuses to send the boy home for the holidays because his
family had not paid the fees for boarding school - he wasn't aware that he wasn't allowed
home - Have to know about the restriction otherwise it can't be false imprisonment?

• Meering v Graham White Aviation - C taken into a room to discuss potential stealing from
the employer - Only realised on their way out that there was security at the door and they
wouldn't be able to leave if they wanted to

• Murray v MoD (obiter) - C suspected of involvement in the IRA - Army Corporal assembled
the occupants of the house in a room - C argued that she wasn't arrested for the first half an
hour, she was falsely imprisoned
 D must intend the restriction of C's freedom of movement

• R v Governor of Brockhill Prison - governor of the prison miscalculates release date by

mistake - held in prison for 59 extra days

• Do not have to intend the tort (bad faith) - only have to intentionally imprison

• Prison Officers' Association v Iqbal - Prisoner held - allowed out of his cell for a number of
hours to do work, gym, social time, etc - Not let out of his cell one day - not enough staff

• Not false imprisonment - subjective recklessness will also suffice

• Can't commit false imprisonment by omission - except in particular circumstances

• Circumstances include - right to be released, duty to release

• Satisfied in the Brockhill case - not right to extend it to any other circumstance

"False" - the restriction must be unlawful

• Hague v Deputy Governor of Parkhurst Prison - prisoner complaining about the state of the
cell - condition of the cell make the imprisonment unlawful

• Condition of the detention would not amount to "false" imprisonment

• Austin v Commissioner of Police of the Metropolis - Mayday riots in London - public disorder
- Ketteling (police form an uninterrupted line (cordon) and enclose people into an area and
don't let them leave) - Contained anyone who happened to be in the area and not just the
rioters - C was one of the people caught up in this cordon - lasted 7-8 hours

• As long as the police carry out reasonable and proportionate actions and within reasonable
limits - up to the police?

Defences

Self-Defence

• Ashley v Chief Constable of Sussex - police in the house to do an armed raid - see previous
lecs

• the criminal and civil law adopt different tests for self-defence

• In tort, the defendant's belief must be both honestly and reasonably held
Proportionate?

• Revill v Newberry - Puts a gun in the hole of shed and shoots at one of the burglars

• Action you take must be proportionate to the defence

Requirements

• Actual or imminent attack

• Reasonable and honest belief in an attack

• Proportionate force used

Consent

• Defence to a trespass claim - negates the unlawfulness of D's action

• "Volenti non fit iniruia" - No actionable injury can happen to one who is willing

• Particular problems re: consent to medical treatment!

• Chatterton v Gerson - Lady who had recently had an operation on her leg - quite a lot of pain
- doctor did not disclose certain risks with the procedure beforehand - complications had
materialised after the procedure

• Case not upheld - should be a claim in negligence (refer Chester v Afshar on medical
non-disclosure)

Conditions & Terms

• Robinson v Balmain New Ferry Co - Customer wants to take a trip on a ferry - travel goes
from one pier to another pier - If one gets on the other end of the pier, you don't pay an
entry but rather an exit fee on this end - Customer pays and enters onto the pier and then
changes their mind to not take the ferry - Tries to leave but has to pay exit charge - refusal

• Agreement to conditions of the ticket - no false imprisonment - held to the terms and
conditions that customer had agreed to

• Herd v Weardale Steel Co - Conditions of employment contract include that the miner would
gather at the lift and would be taken down the mine shaft - Partway through his shift, he is
not happy with working conditions and demands to be taken back to the surface - Employer
did not make the lift available straightaway - delay of half an hour but eventually let out

Consent & Capacity

• The right consent is important, but one may, due to some impairment, be unable to consent
or refuse consent to a trespass

• St George's Healthcare NHS Trust v S - Pregnant woman - doctors deemed that she should
go through a C section to prevent harm to both her and her child - Woman refused to give
consent to it - doctors not happy with her decision - deemed to be irrational and therefore
she must lack competence to make the decision - Sectioned and performed a C-section
anyway

• Claim in battery - court upheld the claim

Re B - Adult: Refusal of Medical Treatment

• Woman rendered tetraplegic - burst blood vessel burst in her neck - Required artificial
respiration - ventilator

• Decided that she did not want to continue living like that - asked the doctors to turn the
ventilator off - Doctors refused - application to court on whether she can ask for the
ventilator to be turned off

• Important - Guidance on whether someone has capacity or not at para 100

• Starting point must be that everyone has capacity to make decisions for themselves - Don't
get to say that they don't have capacity because of unhappiness with their decision

"it is most important that those considering the issue should not confuse the question of
mental capacity with the nature of the decision made by the patient, however grave the
consequences. The view of the patient may reflect a difference in values rather than an
 absence of competence and the assessment of capacity should be approached with this firmly
in mind."

Necessity

• Idea that some type of interference with a person, either bodily integrity or the right of
liberty, is necessary for some reason in the circumstances - only applicable in limited
circumstances

• Re F - adult woman - application to sterilise her

Mental Capacity Act 2005

• R v Collins, Ex parter Ian Stewart Brady (Moors Murderer)

• Ian Brady sentenced to incarceration - held in a secure mental health hospital - Decision
to go on hunger strike - doctors wanted to force feed him and he was objecting - Could
be a battery if force fed

• Lacked capacity to make the decision and that the doctors could act in his best interests

• R v Bournewood Community and Mental Health NHS Trust, Ex parte L

• man with severe autism - looked after carers - on a particular day, he becomes very
agitated and distressed -taken to hospital by carers and admitted

• Doctors considering to section him under mental health legislation - won't detain him -
seemed happy to stay in the hospital

• would have been prevented to leave if he tried - Carers not happy that he has been
detained at hospital - claim on his behalf in false imprisonment

• Held - not false imprisonment

• However, consider Lord Steyn (dissent)

• Cheshire West and Chester Council v P and another - three individuals with learning
disabilities kept in a care situation - False imprisonment?

• ZH v Commissioner of the Police for the Metropolis - autistic boy taken to the pool by his
carers - Fully clothed and standing at the edge of the pool while staring at it - carers couldn't
get him to come away - became concerned and called the police to give assistance - Sight of
police resulted in the boy falling into the pool - fished out by the police - 5-7 police officers
pin him down to the floor because of his agitation - Actions of police not justified

Requirements

• Consent - complete defence

• Capacity - decision must be respected

• No capacity - interference only if necessary and in patients best interests

Lawful Arrest & Prevention of Crime

• private citizens may use force in order to prevent crime or to effect an arrest:

• where an offence is being committed

• where an offence has been committed

• Commissioner of Police of the Metropolis v Raissi - arrest of the complainant of someone

who was suspected to be involved in 9/11 - Officer who carried out the arrest was told to go
and do the arrest by a senior officer in the police

• Case makes clear that someone who is carrying out a lawful arrest must have reasonable
suspicion that the person they're arresting is or has just carried out an offence

• Suspicion must be their own - cannot be told by someone else to do this

• Armstrong v CC of West Yorkshire Police - Student on a night out in Leeds - Reported the
rape to police - detailed description of attacker - One of the police officers thought that she
knew who the perpetrator was - arrest the claimant (Armstrong) - who was not involved in
the rape - No reasonable grounds for suspicion

Statutory Basis
1. Criminal Law Act 1967

• Roberts v Chief Constable of Kent

• Roberts was a drunk driver - wants to find some contact details for a friend

• Pulled up to the side of the road - did not realise that he's pulled up to a place where
there have been some burglaries recently

• Approaches Roberts and has a word with him - suspects him of being drunk

• Roberts asked to leave the vehicle to perform a breathalyser test - he agrees, and then
runs away

• Police officer has a dog in the car - shouted a couple of warnings to Roberts but he
keeps running

• sets the dog on him - dog corners him and he agrees to cooperate

• runs away again - dog is set on him again and bites him

• Police officer sprays him with tear gas

2. Police and Criminal Evidence Act 1984

• 24 A - Arrest without warrant: other persons

• Albert v Lavin

• Off-duty police officer in the vicinity of a queue for a bus

• Person in the bus queue trying to jump queues - people were getting upset

• off-duty police officer intervenes - attempt to make a citizen's arrest to prevent public
disorder

• results in altercation

Requirements

• By police or ordinary citizen

• Offence is or has been committed

• reasonable suspicion

• Reasonable force used

Intentional Infliction of Harm - not Trespass

Wilkinson v Downton

• C was landlady and she was in a pub one day - a regular (she knew) came in and told her that
her husband was in an accident

• Told her he'd broken a leg and that she should go to him straight away - landlady suffers a
nervous shock - physical manifestation where she feels unwell for weeks

• Information turned out to be completely false

• Rule in WvD concerns the intentional, indirect infliction of harm

• No claim in battery or assault, dealing with different circumstances

• Intentionally do an act that causes harm - and the harm has resulted

• Wong v Parkside Health NHS Trust - Workplace bullying - No common law or civil wrong for
harassment at the time of this case

• Would mere distress be sufficient?? NO

• Held that the damage must be either physical harm or a recognised psychiatric harm -
Intention? - if D does something that the harm was obviously going to occur, court will
impose an imputed intention

• Wainwright v Home Office - unlawful strip searches of visitors in persons - son diagnosed
with PTSD - mother had only suffered distress

• If there was actual intention - then distress will qualify

• But if there's only imputed intention - then a psychiatric harm will qualify

• C v D - man suffering the long term effects of abuse suffered at primary school of a sexual
nature by head teacher - few incidents that were bought by in the complain was that the
head teacher would record the boys in a communal nature - but also that he was singled out
in abuse - emotional distress? Only if it is recognised psychiatric harm (Field J)

• O v A (Roads) -

• Man who wrote a book which detailed a lot of graphic facts about his childhood relating
to abuse - His estranged wife was worried about the implication of the books - worried
about autistic son - Bought a claim to bring an injunction against the book -

• intention to cause harm imputed to father as consequence = obvious

• SC set aside the injunction - three elements required

• Conduct element - words or conduct directed towards the C for which there is no
reasonable excuse

• Mental element - subjective intent may be imputed as a matter of fact if D intends to cause
severe distress and this results in

• Consequence element - physical injury or recognised psychiatric illness

• MXX v A Secondary School [2022] EWHC

• previous test applied

• 13 girl at school - 17 yo boy who left school and joined the school for work experience

• Grooming and sexual assault - she was diagnosed with PTSD

Protection from Harassment Act 1997

• Act grants a private law remedy - as well as creating offences

Requirements for claim:

1. Course of Conduct

2. Amounting to Harassment

3. No defence available under s1(3)

A criminal offence

• s2(1) - a person who pursues a course of conduct in breach of section 1 is guilty of an offence

A civil action
Course of Conduct

• Two incidents at least in relation to one person

• One incident each at least in relation to multiple persons

Amounting to Harassment?

• Conn v Sunderland City Council - Workers on a work site and a foreman - some workers
leaving the site early and the foreman wants to find out who - Threatening the workers to
find out who it is - Threat to punch a window on one occasion - and a threat to punch
claimant on another occasion - Not qualified for harassment

• "Oppressive and unacceptable" behaviour - Context in which the incidents occurred is

also important
• Ferguson v British Gas Trading Ltd - customer switched from BGT to another provider - they
threatened to report her and called her, emailed her, etc - She tried to respond but nothing -
claim in harassment

• Two Issues:
i. What is the appropriate level of 'gravity' for conduct to constitute harassment?

i. Can companies be liable under the 1997 Act?

• Roberts v Bank of Scotland [2013] - similar to above

• Customer of the Bank kept getting overdrawn and bank trying to recover charges

• Sometimes its her fault and sometimes its the Bank's fault

• Phoned her 100 of times - Bank said it was justified because she owed them money -
Context important
• Veakins v Kier Islington Ltd - workplace case - employee's supervisor bullying her -
employee went off sick from work because of clinical depression

• Malice?? - Don't have to have malice, but if it is present, it will be easier to establish that
there was "oppressive and unacceptable" conduct (Veakins)

• Iqbal v Dean Manson - Look across the whole behaviour and ask whether cumulatively, they
are serious enough to be harassment

• Solicitor who left their firm and left to go work somewhere else and client followed
them - Threatening letters from old firm - Some letters weren't that serious

• Levi v Bates - Harassment doesn't need to be targeted towards the claimant in particular -
Anyone who can be foreseeably affected by the behaviour could be a potential claimant

• C was a wife and husband manager of a football team

• D not happy with the husband - makes a publication in a match about not being happy
with him and makes his residential address public - Implication that people should
target the husband - Wife still affected because she lives there

• Was harm to the claimant foreseeable?

• Worthington v Metropolitan Housing Trust Ltd [2018] EWCA

Harassment by publication

• Hayden v Dickenson [2020]

• Trans-woman who was complaining about online messages she was receiving - she
didn't know them

• References to her previous litigation by this person

• Davis v Carter [2021]

• Contract between two parties - falling out - D starts to target the other parties' wife -
Phones her at work, comments on online post - called into a meeting at work - Claim in
harassment

• Art 10 of ECHR also taken into consideration - freedom of speech

Defences

• s1(3)
a. Preventing or Detecting crime - most prominent
b. Pursued under a rule of law
c. Conduct was reasonable
• Hayes v Willoughby

• man was accusing his boss of embezzlement - became obsessed with it - reported him
to the police, tax authority - kept detailed record of his behaviour - boss bought a claim
in harassment - Defence could not apply because it was not the only reason

• SC - doesn't need to be the sole purpose - There must be a rational basis for action of
preventing/detecting crime

• Chief Const Surrey Police v William Godfrey [2017] - ex-soldier who had a grudge against the
police - accused them of a number of crimes - started following them - he informed the Chief
Const that he'd be doing it - Court happy to apply the case of rationality - found in favour of
Claimant