Chapter 15 Answers to End-of-chapter questions

1. Outline the trespass to the person torts, how do they differ from the tort of negligence?

Trespass compensates the claimant in relation to direct and inten­tional harm (for example, being deliberately hit), while negligence compensates the claimant for unintentional or indirect harm (that is, accidental injury). The three trespass to the person torts are battery, assault and false imprisonment.
Conventionally, the trespass to the person torts are described as having the same characteristics:

• they must be committed intentionally;
• they must cause direct and immediate ‘harm’; and
• they are actionable per se, that is, without proof of loss.

You may find it helpful to note down the key differences and similarities between the torts in tabular form. We’ve covered the basics – see if you can add more detail to the table below.

2. ‘Tort law has, in recent years, come a long way toward removing the barriers which previ­ously stood in the way of complainants seeking redress in the context of harassing conduct’. Assess the accuracy of this statement.

This question requires you to bring together the issues raised in Chapter 15. As with all essay questions it is important that you establish your argument at the beginning of your answer: do you think the tort law has come a long way toward removing the barriers which previ­ously stood in the way of complainants seeking redress in the context of harassing conduct?
In order to support your argument, you should consider the trespass to the person torts. Try not to make your answer too descriptive by directing your comments to the question set by highlighting the strengths and weaknesses of the trespass to the person torts (that is, battery, assault, and false imprisonment) as well as how they operate singularly and together to protect an individual against harassing behaviour. Remember to use case examples.
You should then consider the operation of the Protection from Harassment Act 1997 assessing the Act’s strengths and weaknesses. Strengths include a broader definition of harassment, while its key weakness is usually said to be the ‘course of conduct’ requirement. Strong answers might locate this discussion within a contemporary issue – for example, image-based sexual abuse, including so-called revenge pornography.
Don't forget the tort in Wilkinson v Downton. There is much to be said here in relation to the restrictions placed on it by the House of Lords in Wainwright v Home Office and the recent Supreme Court judgment in Rhodes v OPO [2015].
You may find it helpful to have a read of the annotated version of Wainwright v Home Office [2004], when planning your answer.
Again you may find it helpful to think through your answer in tabular form – see if you can complete the table below.

ADDITIONAL QUESTION

1. To what extent, if any, is there a gendered dimension to the trespass to the person torts and the Protection from Harassment Act 1997?

Although this seems to be a more specific essay question, in fact your answer should cover much of the same ground as Q1 (above). Your argument should focus on the gendered dimension (if any) to the trespass to the person torts and the Protection from Harassment Act. We've referred to this a number of times throughout Chapter 15. See, for example, in the context of assault the woman alone in a lift with a male colleague whispering sweet nothings or Conaghan & Mansell's critique of the 'reasonable harassment' provision in the Protection of Harassment Act. You may also find it helpful to re-read the box on the feminist critiques of the reasonable man in Chapter 8 and to refer to Joanne Conaghan's article in the further reading.
Remember you do not have to argue that there is a gendered dimension to the trespass to the person torts and the 1997 Act – what is important is that you have an argument and that your answer isn't simply 'everything you know about the trespass to the person torts'.