Chapter 11 Guidance on answering the questions in the book

Question 1

Mayuri was shopping in Arnott music centre when she noticed a number of items on display at greatly reduced prices. She decided to buy a CD player which contained a price label showing £25. As she was leaving the store the security guard at the exit accused Mayuri of switching the labels and claimed that she had replaced the original £50 price label on the CD with the label showing £25 taken from another item on the display. Arnott’s manager phoned the police and Mayuri was detained in his office until the police arrived 30 minutes later. The manager’s office was unlocked and Mayuri was unaware that the security guard remained outside as they waited for the police to arrive. Mayuri was prosecuted for theft in the magistrates’ court but found not guilty of the offence and she now wishes to sue Arnott music centre for false imprisonment.

Advise Mayuri.

Points to note

• False imprisonment, the unlawful constraint on the freedom of movement of another, is an element of the tort of trespass to the person. False imprisonment does not require incarceration or the use of force: the term ‘false’ means wrongful and ‘imprisonment’ signifies that the claimant has been deprived of their right to go where they will.
• Trespass is actionable per se which means that a claimant does not need to prove damage to bring an action in trespass. The tort protects civil rights and even where an infringement of these rights does not cause physical damage, it may lead to a loss of dignity.
• The unlawful constraint must be total and if there was any reasonable means for Mayuri to escape from the manager’s office there is no false imprisonment Bird v Jones (1845)
• A restriction on movement which is subject to a reasonable condition does not amount to false imprisonment Robinson v Balmain Ferry Co Ltd (1910); Herd v Weardale Steel, Coal and Coke Co (1915)
• Knowledge of the restraint at the time is not necessary to succeed in an action for false imprisonment Meering v Grahame-White Aviation Co Ltd (1919) but in Meering the court failed to consider an earlier decision, Herring v Boyle (1834) which held that, since the boy was unaware of the detention, there was no false imprisonment. The conflict of authority in these cases was resolved in Murray v Ministry of Defence (1988), where the House of Lords disapproved of Herring and approved Meering and ruled that knowledge of the restraint of freedom of movement was not necessary to establish false imprisonment.
• Although it is not necessary to have been aware of the imprisonment, Mayuri’s lack of knowledge of the detention might be relevant to the assessment of damages. The assessment of damages would take account of the breach of the fundamental right which resulted in Mayuri’s false imprisonment and the deterrent effect of the award.

Question 2

Explain the possible defences to a claim that direct application of force has been administered without the person’s consent.

Points to note

• All forms of trespass impose liability for any intentional, direct and immediate interference with the person of the claimant. The act of the defendant must not be justifiable.
• Self defence will be a justification to an action in battery if the force used is reasonable and is proportionate to the threat Cockroft v Smith (1705). In Ashley v Chief Constable of Sussex Police (2008) the House of Lordships confirmed that in a civil law action for battery the burden is on the defendant to prove, not only an honest belief that he had been under threat of imminent attack, but also the reasonableness of that belief. In criminal law, even if the mistake was an unreasonable one, a defendant who reasonable believes himself to be under threat of imminent attack is entitled to rely on self defence.
• In Barnes v Nayer (1986) the Court of Appeal held that contributory negligence, volenti and ex turpi causa could each be a defence to trespass to the person but the defences did not apply in Barnes because of the disparity between the deceased’s conduct and the defendant’s deadly attack.
• Consent: express consent: physical contact which might otherwise be a battery will be lawful because the claimant expressly consented to the contact, such an invasive medical procedure which normally requires express consent to authorize the treatment. Participants who voluntarily involve themselves in fights are taken to have consented to the battery Lane v Holloway (1968); implied consent: participants in sporting activities are implied to consent to the physical contact that occurs within the ordinary conduct of a game or sport but not conduct which goes beyond the rules of the game R v Billinghurst (1978). Implied consent is to non-negligent conduct and force of a kind which could reasonably be expected to happen during a game Condon v Basi (1985).
• Lack of mental capacity to consent: every mentally competent adult patient has the absolute right to refuse consent to treatment. In circumstances where an adult permanently lacks the mental capacity to give a valid consent to medical treatment, the defence of necessity, provided it is in the best interests of the patient, will protect a doctor West Berkshire Health Authority (1990). The Mental Capacity Act 2005 sets out current guidelines for sanctioning treatment in the best interests of persons over 16. The ‘best interests’ principle is an essential feature of the Act which builds on the common law and aims to offer further guidance.
• A number of statutes authorize conduct that would, under different conditions, amount to trespass to the person: the Police and Criminal Evidence Act 1984; the Mental Health Act 1983 makes provision for the compulsory admission to hospital and treatment in relation to mental health; the Children and Young Persons Act 1933 enables parents to justify an assault and battery by way of chastisement of their children. Disciplinary powers also remain for the captain of a ship Hook v Cunard Steamship Co (1953).