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Intentional Interference with the Person

 

Intentional interference with the person is one of the oldest causes of action in common law. By 1250 the main requirements were that the Defendant acted with force and arms and against the King's peace. The old form of trespass to the person was classified into three categories which still survive: assault, battery and false imprisonment. While the old writ could be used for both intentional and unintentional inflictions of harm, nowadays an unintentional infliction would fall under the law of negligence. Thus, while the term 'trespass' includes negligent trespass, only intentional trespass falls under the laws examined in this tutorial.

 

Intentional and Unintentional

In Fowler v Lanning [1959] the pleadings claimed for damages for trespass to the person stating that "the defendant shot the plaintiff". The Defendant argued that this statement disclosed no case against him as it did not mention whether it was intentional or negligent and thus didn't identify whether the cause of action whether negligence or trespass to the person; if negligence is alleged it is necessary under the CPR (and at the time under the RSC) to state the 'particulars of negligence' i.e. how was the Defendant negligent. The injuries were sustained at a shooting party and there was no suggestion that they were intentional. In holding that the statement disclosed no cause of action, Diplock J stated that it was necessary to state the details about what was being alleged: was it negligence or intention. While this case is essentially about procedure it shows that intentional and unintentional trespass are different causes.

In Letang v Cooper [1965] the Claimant was sunbathing in a car park of a hotel when she was run over by the Defendant's car. As the limitation period for negligence had expired she brought the claim in trespass. The limitation for personal injury in negligence is three years whereas for any other type of negligence or tort generally it is six years. The question for the court was whether the limitation for trespass to the person was three or six as it fell into the "non-negligence" torts of six years but involved personal injury and thus, upon interpretation of the statute, might fall within the three year rule. The Court of Appeal held that she could not bring a claim. They said that the cases were divided according to whether the injury was caused intentionally or unintentionally, the latter being negligence. A negligent injury cannot be brought in trespass and as the car accident in this case was not intentional it can only be brought in negligence. The court also emphasised that damage is necessary for a cause in negligence but not for trespass which is actionable per se . As such a distinction was necessary.

However, it is interesting to note that the doer of an intentional act may be negligent as to the consequences which arise. This is not likely to be the case where the intention is to inflict physical harm which in fact occurs but perhaps where the harm which results is additional, such as psychiatric harm.

 

The Concept of Intention

Given how important the distinction between intentional and unintentional is, what exactly does intent mean? Obviously at its most basic level the Defendant must have intended to commit the tort, thus intentionally throwing a rock in the air is not the same as intentionally throwing a rock at a person to hurt them. However the situation can get more complicated, as was said in the old case Gibbon v Pepper (1695),

"If I ride a horse, and JS whips the horse, so that he runs away with me and runs over any other person, he who whipped the horse is guilty of the battery, and not me. But if I by spurring was the cause of the accident, then I am guilty. In the same manner, if A takes the hand of B and with it strikes C, A is the trespasser and not B."

A would be liable for hitting the horse not because he necessarily knew that injury to person would result but because it was a natural and probable consequence of causing a horse to bolt. In the hand example it is understandable that B would not be liable as they do not have the intention of hitting C. But what about where B knows that A is using his hand to hit C and allows A to do so. Does B have the intention of hitting C? Arguably, yes, unless perhaps B was too scared of A to resist.

A question of uncertainty is whether reckless behaviour can be considered intentional. It is very clear in criminal law that recklessness is a distinct category but not so clear in the law of trespass to person. The matter has not been resolved judicially probably because the victim of a reckless act can use negligence law rather than trespass to recover damages.

Another question of uncertainty is where A tries to hit B but ends up hitting C by accident. Is there an intention to hit C? In criminal law it would be possible to bring a prosecution for battery under the doctrine of transferred malice. It is very likely that this would be the result in tort law as well: Jones v Campbell (1832) where A was liable for hitting C when they meant to hit B.

 

Assault

Assault is defined in Blackstone's Of Private Wrongs ,

"An attempt to offer or beat another, without touching him: as if lifts up his cane, or his fist, in a threatening manner; or strikes at him, but misses him; this is an assault, insultus, which Finch describes to be an unlawful setting upon one's person. This is also an inchoate violence, amounting considerably higher than bare threats; and therefore, though no actual suffering is proved, yet the party injured may have redress by action of trespass."

Basically, an assault is an attempt or threat to cause harm to the other without any actual contact.

In Stephen v Myers (1830), the Claimant was a chairman at a meeting sat at a table where the Defendant was sat. There were six or seven people between the Claimant and Defendant. The Defendant was disruptive and a motion was passed that he should leave the room. The Defendant said he would rather pull the chairman out of his chair and immediately advanced with his fist clenched towards the Claimant but was stopped by the man sat next to the chairman. It seemed that his intention was to hit the Claimant. The Defendant argued that there was no assault as he had no power to carry out his threat as there were people in between. The court said that not every threat is an assault. There needs to be a means of carrying that threat into effect: it must a realistic threat of personal violence . The judge directed the jury (as juries were still in use at the time) that if the Defendant could have reached the chairman and hit him there was an assault. But if the Defendant did not have the intention of hitting the Claimant, or it was not realistic that he could reach the Claimant, then there is no assault. The jury found for the Claimant.

R v Ireland; R v Burstow [1998], an important House of Lords case, was concerned with the criminal definition of assault. The court considered whether an assault could be committed by silence over the telephone. The court said that an assault can be committed by words without any menacing physical actions. Even though the caller over a telephone cannot present a direct physical threat to the victim (and so it might be said that they cannot realistically carry out their threat) it may be possible that where the caller says "I will be at your door in a minute or two" there will be an assault as this is direct enough. The question is does the act cause the victim to fear the immediate apprehension of force. Where you have a silent caller they intend their silence to cause fear and they are so understood. It may be fear that the caller will be at the door imminently. If so there is an assault. The Defendant was using his silence as a means of conveying the message to the victims and he intended to do so.

•  Intention to cause an assault,

•  Realistic means of carrying out the threat: Stephen v Myers,

•  Fear of an immediate apprehension of force : R v Ireland; R v Burstow .

So how immediate does the apprehension of force need to be? In Thomas v NUM [1986] it was held that striking miners had not committed an assault against miners who continued to work by picketing the roads to the mines and shouting abuse at them as the miners were in vehicles and the picketers were held back.

How about conditional threats? In Read v Coker (1853) the Claimant was told to leave the premises where he conducted his business. He refused and the Defendant collected some workmen who stood near the Claimant with their sleeves rolled up and told him that they would break his neck if he didn't leave. He did leave and later brought a successful claim for assault as there was a threat of violence and the means to carry it out. However, not every conditional threat will be an assault. In Tuberville v Savage (1669), the Defendant put his hand on his sword and said "if it were not assize time I would not take such language from you". The court held that this amounted to a statement that the Claimant would not be attacked and so there was no assault. But it is important to remember that the question is whether an immediate apprehension of force is created; arguably simply saying "if it were not such and such time" is not enough to offset the fact that the Defendant has his hand on a sword.

The question of whether there was an apprehension of force is necessarily linked to how realistic the threat is, but the former cannot be solely governed by the latter. A threat may not be very realistic (i.e. I'm going to rent that car and run you over) but it may still create an apprehension of immediate force. Another example would be where one points an unloaded gun at a Claimant (which the Claimant doesn't know is unloaded); this would be an assault: R v St George (1840). A common sense balance needs to be struck depending on the facts of the case. In Smith v Chief Superintendent, Woking Police Station (1983) it was held that an intruder looking through the closed window at an elderly person had caused an assault as it was reasonable that a vulnerable person would apprehend fear more easily than the average person.

 

Battery

Battery involves the unlawful touching of another. Blackstone's Of Private Wrongs defines it as,

"The least touching of another's person wilfully, or in anger, is a battery; for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it: every man's person being sacred, and no other having a right to meddle with it in the slightest manner."

The most important civil case is Wilson v Pringle [1987]. The Claimant and Defendant were both schoolboys involved in an incident in a school corridor which resulted in the Claimant falling and being injured. The Defendant argued that there was no battery as this involves deliberate touching with hostility and the intent to inflict injury and horseplay did not involve such intent. The Claimant argued that there merely had to be an intentional touching. The court held that battery involved an intentional touching with hostility, but no intent to cause injury. It would be absurd to not require something beyond mere touching as otherwise, on a crowded street or subway, an individual may cause hundreds of batteries a day. So, what does hostility mean in this context? It cannot be equated with ill-will or malevolence. If the contact is made in anger it will be hostile. But anger is too narrow as something like an unwanted kiss could constitute a battery though it clearly would not be done angrily. The court considered whether a better test would be implied consent or a test based on how common the actions are in daily life. These will be useful considerations but ultimately the touching must be 'hostile'.

In Innes v Wylie (1844), the Claimant was a member of a Society which tried to expel him. Under orders from the Defendant a police officer stopped the Claimant entering a room where the Society was having dinner. The question was whether the police officer had been passive i.e. not moving like a wall or a door, or had actively tried to stop the Defendant. The jury held for the Claimant. So it is clear that a positive act is required on the part of the Defendant. In Fagan v Metropolitan Police Commissioner [1969], a criminal case, Fagan was asked by an officer to park his car. He didn't realise that the car had rolled onto the police officers foot at which point he was asked to move the car. He responded with verbal abuse and turned off the engine before complying with the request. The majority of the Court of Appeal held that there was a continuing positive act starting from when he moved the car to when he turned it off and as such there was a battery. Whereas Bridge J dissented saying it was an omission as he parked on the foot accidentally (and thus there was no intent at that stage) and then simply omitted to move the car, and so there was no battery.

The time between the action and the actual contact does not have to be instantaneous but must be very close depending on the facts. Obviously shooting someone is a battery even though there is a gap between pulling the trigger and the contact. It was held in DPP v K [1990] that a 15 year old who placed acid in a hand dryer was guilty of battery when a student later turned the hand dryer on and the acid was blown in his face.

 

False Imprisonment

False imprisonment, as with the other trespass to person torts, is actionable per se. Unlike the other torts, false imprisonment is entitled prima facie to be tried with a jury (the others are fraud, malicious prosecution and defamation). Blackstone's has said there are two points,

"1. The detention of the person; and 2. The unlawfulness of such detention. Every confinement of the person is an imprisonment, whether it be in a common prison, or a house, or in the stocks, or even forcibly detaining someone in a public street. Unlawful, of false, imprisonment consists in such confinement or detention without sufficient authority..."

In Bird v Jones (1845), the Defendant's employer had appropriated part of Hammersmith Bridge to watch a race on the river. The Claimant tried to pass through the appropriated part and managed to enter the enclosure. The Defendant put two police officers to block his path and prevent him from entering further into the enclosure. He was told that he could go back but not forward. After half an hour the Claimant tried to push past whereupon he committed an assault on the Defendant and was arrested. The court said that it is false imprisonment for a person to be forced to stay in a place just as much as locking them in a room. There need not be any touching either. However, it cannot be an false imprisonment to prevent a person from going forward but allowing them to return the way they came, even if it is unlawful to stop them. The person no doubt suffers a wrong but not false imprisonment. Possibly assault or battery if he is threatened or touched as he tries to get past. "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 him."

In R v Bournewood Mental Health Trust [1999], the majority in the House of Lords held that a mentally ill patient who was held in an unlocked ward and did not leave it, but who would have been detained if he had, was not imprisoned. This can be contrasted with Meering (1919) where it was held that a man was falsely imprisoned when put into an unlocked room which had two guards outside, even though he did not try to escape. The important element of these cases is the knowledge of the Claimant as to their own imprisonment. Meering is authority for the proposition that the Claimant need not know that they are imprisoned. Why did the court in Bournewood distinguish Meering? It is difficult to find a point of distinction; if knowledge of one's imprisonment is not required then it is irrelevant that the patient in Bournewood may not have appreciated that they were unable to leave. Perhaps the distinction is that the Claimant must have the capacity to understand that they are imprisoned even though it is not necessary to understand it to bring an action; arguably an unsatisfactory distinction. In any case, it is clear that knowledge is not a necessary ingredient for an action.

The question of intention is not entirely certain. Must a Defendant intend to close the space or intend to imprison the Claimant. If only the former then the Defendant could be liable for locking a room not knowing that there was someone inside. It is more likely that the intention must be as to the actual imprisonment of the individual. It may be true that in some cases recklessness can suffice: MacPherson v Brown (1975). The victim of a negligent imprisonment could not sue in trespass but could in negligence.

 

False Imprisonment and Malicious Prosecution

The cases above are where a Defendant acts directly towards a Claimant, what about where a Defendant acts through an intermediary i.e. A tells B to arrest C. Can A be liable for false imprisonment?

In Davidson v Chief Constable of North Wales [1994], the Claimant's friend bought a cassette from a shop and then joined the Claimant who was waiting by the cassette counter. A store detective watched them and got the impression that the cassette had been stolen and called the police. The detective pointed out the Claimant and his friend and they were arrested. They could not produce a receipt and were detained for two hours until a store clerk said that he had served the friend. The police said that they had exercised their own judgment in arresting the individuals. The judge withdrew the case as the police officers had acted with reasonable grounds and because the officers had acted independently of the store detective. The court held that as with all torts the Defendant's action must directly cause the consequences which amount to the tort. Thus the false imprisonment must result directly from Defendant's actions. One can be liable for a third party but only where that third party acts without exercising independent judgment.

 

Intentional Infliction of Physical or Emotional Harm

The torts considered above require the Defendant to act directly towards the Claimant. How about intentional conduct which causes harm indirectly?

In Wilkinson v Downton [1897], the Defendant was trying to carry out a practical joke. He told the female Claimant that her husband had been smashed up in a car accident and was lying in a pub and she had to go at once in a cab to get him. It was all false. The effect on the Claimant was to start vomiting and suffer nervous shock. There was no evidence of any predisposition to physical illness. The court held that the Defendant had wilfully done an act calculated to cause injury. This principle was upheld in Janvier v Sweeney [1919], though it has rarely been applied in practice as negligence is easier to prove than intention.

The question in these cases is what the harm which occurred is probable or likely. It is not enough for the Claimant to foresee the harm, they have to intend it or at least be reckless as to it. It is not certain whether mere inadvertence (i.e. recklessly not realising that harm may occur) is sufficient, or is actual recklessness as to the consequences required. That either is sufficient is supported by Wong v Parkside. That case is also authority for the proposition that the recklessness must be as to causing physical injury in the form of psychiatric injury. Thus recklessness as to causing emotional distress was not enough.

Khorasandijan v Bush [1993], the Claimant and Defendant broke off their relationship and the Defendant started a campaign of harassment against her including phone calls and aggressive behaviour and scratching her car. The court said that an injunction is available where a person intentionally does an act which is calculated to cause the victim to suffer actual physical harm and does in fact impair that person's health, which was the case.

In 1997 a new piece of legislation came into effect, the Protection from Harassment Act 1997. Sections 1, 3 and 7 provide as follows:

1 Prohibition of harassment

(1) A person must not pursue a course of conduct-

(a) which amounts to harassment of another, and

(b) which he knows or ought to know amounts to harassment of the other.

 

(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

 

(3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows-

(a) that it was pursued for the purpose of preventing or detecting crime,

(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or

(c) that in the particular circumstances the pursuit of the course of conduct was reasonable.

 

3 Civil remedy

(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.

(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.

 

7 Interpretation of this group of sections

(1) This section applies for the interpretation of sections 1 to 5.

(2) References to harassing a person include alarming the person or causing the person distress.

(3) A "course of conduct" must involve conduct on at least two occasions.

(4) "Conduct" includes speech.

 

The definition of harassment provided in s7(2) in not exhaustive. Section 3(2) makes clear that damages can be awarded as well as an injunction. The damages can be for personal injury and, seemingly, for pure economic loss. While the Act is a welcome improvement its major flaw is that it can only be invoked where there is a "course of conduct" i.e. more than one event. Thus the Claimant in Khorasandijan might receive relief but not in Wilkinson and Javier as it was caused by one event.

 

Defences to Intentional Interference

 

There are four defences to an action of intentional interference: lawful arrest, consent, necessity and self-defence. Other defences such as contributory negligence, volenti and illegality might be available as well. In Murphy v Culhane [1977], the Claimant was the widow of a man killed in a criminal affray. She claimed damages under the Fatal Accidents Act 1976. The Defendant alleged that the Claimant's husband and others had come to assault him and that Claimant's death resulted from a criminal activity started by him. Judgment was given against the Defendant and he appealed. The court dismissed the appeal but held that a defence of illegality or volenti may be available in certain situations. One issue which has not been determined is whether provocation can be a defence. In criminal law it is possible for a murder charge to be reduced to a manslaughter charge because the Defendant was provoked into attacking the victim. In Barnes v Naylor the Court of Appeal said that provocation should only be relevant to exemplary damages and not to compensatory damages. It does not affect the actual liability of the Defendant.

 

Lawful Arrest and Detention

The police are not the only ones with powers of arrest, it is possible in certain circumstances to perform a citizen's arrest. Similarly, a prisoner sentenced to jail time (or awaiting trial) can be lawfully committed to a prison. There have been a number of cases where prisoners have argued that the conditions of their detention went beyond what was permitted or that they had suffered batteries. In Toumia v Evans (The Times 1 April 1999), it was held that a prisoner who was deliberately locked in a jail against the orders of the governor would be liable for false imprisonment. Liability may also arise where the prisoner is not released for activities like exercise. A prison officer may be liable for false imprisonment even where they reasonably (but mistakenly) believe that they are entitled to confine the prisoner: R v Governor of Brockhill Prison ex parte Evans [2001]. Where the detaining body is a public authority an argument under Art 5 HRA 1998 (right to liberty) can be made.

 

Consent

Strictly speaking it is for the Claimant to prove that there was no consent though as a practical matter the Defendant will bring evidence to show that there was. Thus consent can be considered a defence.

In Chatterton v Gerson [1981], the Claimant complained that the Defendant surgeon did not advise her as to the possible side effects of the course of treatment he was proposing for her. She claimed in both trespass to the person and negligence and both were dismissed. The court said that consent must be 'real'. The court held that as long as the Claimant is informed in broad terms of the nature of the procedure the consent is real. However, the court said that the proper cause of action for a claim like this was negligence as it was alleged that the Defendant had failed to perform his duty. The nature of the allegation was not of 'hostile' and trespass was an improper cause. Trespass would be suitable in a case where, for example, a patient went in for procedure A but because of an error ended up getting procedure B. The court considered a Canadian decision where it was said that a failure to advise of risks, however serious, was negligence and not trespass unless there was fraud or misrepresentation: Reibl v Hughes (1978) 21 OR (2d) 14.

Consent can be vitiated by things such as duress i.e. threats or by fraud. In R v Williams [1923] consent to sexual intercourse was vitiated when the Defendant told the naive victim that it would improve her singing voice. In R v Tabassum [2000] a man was convicted of battery against women who thought that they were consenting to having their breasts examined by a medical professional for a study; in fact he had no medical qualifications.

There is also the issue of capacity to consent. Children or mentally handicapped individuals may not understand what they are consenting to. In the very important medical law case Gillick v Department of Health [1986], the House of Lords held that a child's understanding would have to go further than merely understanding the basic reasons for the physical contact by the doctor, they would have to understand the wider social and moral implications. The case concerned the use of contraception in a child below the age of sexual consent. It was held that contraception could be prescribed to her if she had the requisite level of appreciation and consent.

Finally, public policy dictates that it is only possible to consent to certain actions. In criminal law it is not possible to consent to serious disabling harm: R v Brown [1994]. Thus, while a boxer can consent to being punched or a footballer to being accidentally kicked, a person cannot consent to injury such as the cutting off of a limb or violent breaking of a leg.

 

Revocation of Consent

In Balman New Ferry Company (1906), the Claimant entered a wharf to catch a ferry. He went through a turnstile which said one penny to go in and to go out. He realised he had missed the ferry and tried to get out whereupon the employees of the Defendant tried to restrain him. He sued for false imprisonment. The Australian High Court held that there was a contract which the Claimant had consented to and he could not, once inside, choose to exit without paying the penny. The court drew an analogy with a passenger on a train who cannot get on and then suddenly start complaining once the train is moving that they want to get off. As such the false imprisonment was not unlawful. The case was appealed to the Privy Council which dismissed the appeal. Arguably this case is correct as, even if not argued on the basis of contract, it can be said that there was no positive act by the Defendant and thus no false imprisonment. Though perhaps the erecting of the turnstile would constitute the act. In any case, the contractual basis of the case seems flawed. Surely there would be an implied term stating that the one penny payment for exit was only for passengers who had disembarked from a boat. It was clear that passengers were supposed to get on the ferry and the Claimant was in an atypical situation in that he had missed the ferry. In such a situation, if an officious bystander asked "is there a term that people who have missed the ferry should not have to pay twice" it seems reasonable that the answer would be yes.

 

Necessity

In another very important medical law case, Re A (Conjoined Twins) [2001] the Court of Appeal held that it was possible to operate on conjoined twins in order to separate them even though this would result in the death of one of them. If they were left joined, one of the twins was slowly 'leeching' on the organs of the other and would eventually result in the death of both. Necessity was a defence.

In F v West Berkshire Health Authority [1990], the House of Lords considered whether it was lawful to perform a sterilisation on a 36 year old mentally ill female patient who was sexually active with another patient. Psychiatric evidence suggested that a pregnancy would have serious negative effect. A sterilisation was permitted.

Necessity in the context of trespass to the person is basically confined to medical cases and the justifications in such cases will need to be very high.

 

Self-Defence

In Cockcroft v Smith (1705) the issue was whether a Claimant running his fingers towards the Defendant's eyes justified the Defendant in biting off part of Claimant's finger. The court held that self-defence must occur:

•  At the time of the incident,

•  Be proportionate to the threat.

Self-defence can be pre-emptory but the Defendant's defence failed as the reaction was completely disproportionate. In Lane v Holloway [1968] the 64 year old Claimant hit the 23 year old defendant on the shoulder. The Defendant then punched the Claimant in the eye which caused him to be in hospital for a month. It was held that the response was completely disproportionate. In the defence of property a warning should usually be given unless force has already been applied to the property: Green v Goddard (1702).

Blackstone's also has a leading criminal textbook for practitioners.