Chapter 11 Outline answers to essay questions

Intentional torts

‘The role of intention in the torts of trespass to the person is a complex one.’

Discuss.

This answer requires consideration of the role of intention in battery, assault, false imprisonment, and Wilkinson v Downton.

The first three occur directly and are actionable per se. The tort in Wilkinson occurs indirectly and requires proof of damage. The trespass torts are the oldest torts and have a characteristic overlap with the criminal law. Letang v Cooper establishes that there can be no action for ‘unintentional trespass’.

As regards battery, it is the application of force to the claimant which must be intentional. The outcome, or injury need not be intended (Williams v Humphrey). ‘Transferred intent’ means if the defendant intended to apply force to A but misses and hits B, he will be liable for battery to B. In Fagan v Met Police Commr, D unintentionally rolled onto D’s foot but became liable for battery when he refused to move.

In the tort of assault, D must intend that C apprehend the immediate use of force against him, or be reckless as to this outcome (Bici v MoD).

False imprisonment requires an intentional arrest of C or an act (or omission) which restricts his liberty. If D wrongly believes that he had the right to do so, he will still be liable for false imprisonment as the focus is on the wrong suffered by C (see R v Gov Brockhill Prison, ex p Evans). Slamming a door, which unknown to D then locked, would not constitute sufficient intention for liability.

Unlike the three examples above, as regards the tort in Wilkinson, it is necessary that physical or psychiatric harm be intended, and that some harm has been sustained by C.

Conclude strongly, with a view on the complexity of this. Good answers will include a comparison between trespass and negligence in terms of underlying justifications.