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Henry, Mark, Mary, and Anne are sitting in the students' union bar discussing their outfits for the forthcoming 'Law Society Spring Ball'.
You are asked to advise the parties as to whether they have any claims in any of the trespass to the person torts. The best way to answer this question is to work through it chronologically by party/incident. In many cases, the parties will be claimants in relation to some potential claims and defendants in others. You need to make clear who is claiming against whom. Use headings. Remember you are not expected to give the parties tactical advice (for example, about how to avoid legal action) or to present an account of what a lawyer would actually say to their client (it may well be that very few of the potential claims in this question would, in reality, be worth bringing). Instead, your answer should offer a reasoned application of the relevant law to the facts as given. To do this you need to state the arguments that are likely to be made and to carry weight before the court if the case were litigated, bearing in mind the interests of the parties in the situation. And, where there is more than one possible argument that could be adopted, you are expected to suggest the best bet, based on an assessment of their relative chances of success.
Thomas and Henry
Thomas, Mary’s ex-boyfriend, walks by and says quietly to Henry, 'I'll get you! No one steals my girl and gets away with it'.
Could Thomas's whispered comment to Henry be an assault? The facts are not clear - so it is arguable either way. Do not be tempted to make up new facts. Rather state the legal issue – that is, that an assault is 'an act which causes another person to apprehend the infliction of immediate, unlawful force on his person' Collins v Wilcock [1984] – and consider which way this is likely to go on the facts you have been given. This involves stating the relevant ingredients of the tort of assault. In order for there to be an actionable assault:
- Thomas must have intended or, possibly, be negligent as to whether Henry apprehended the application of unlawful force;
- Henry must reasonably apprehend immediate unlawful force being applied to him; and
- The threat must be of the application of immediate and direct force.
The first requirement is easily established. Thomas's statement 'I'll get you' is clearly intended to make Henry think that Thomas intends to hurt him physically. In relation to the second requirement, the test of reasonable apprehension is an objective one. It is irrelevant whether Henry was actually in fear (or could have defended himself successfully). You will need to address this point by making reference to the fact that you are told 'Henry is not particularly upset by [Thomas's comment] …'. This makes no difference to the outcome (see further Stephen v Myers (1830)). Finally, it is not clear on the facts whether Thomas's threat is of 'immediate and direct force', that is whether Thomas intends to 'get Henry' there and then. Do not assume this one way or the other. Rather, simply state that if Henry can see that Thomas is not in a position to apply immediate and direct force (and that this is not clear on the facts) then he has nothing to fear and Thomas will not be liable for assault.
Stronger answers will go on to (briefly) consider, and dismiss, the traditional requirement that threatening words needed to be accompanied by a physically intimidating gesture in order to be sufficiently direct to distinguish a 'mere insult' from a threatening and intimidating gesture. Thus, Thomas's threat would have needed to be accompanied by a shaken fist (or similar). However, since the House of Lords' decision in R v Ireland [1998] it is clear that words alone can amount to an assault.
Assuming a battery can be established, the question then arises as to whether Thomas can raise a defence. This is unlikely. Provocation (that is, that Henry has 'stolen' his girl) is not a defence here (Lane v Holloway [1968]). Consent, necessity, or self-defence are not applicable either.
Although Henry is not particularly upset by this, he decides to teach Thomas a lesson. When no one is looking, he deliberately trips Thomas. Thomas falls over but is not hurt.
The issue here is whether Henry's actions amount to a battery. As above, you need to work through the requirements for the tort. A battery requires:
- the application of force (the touching or contact) must be intentional or, possibly, negligent (you are told that Henry 'deliberately' trips Thomas up);
- the force must be direct and immediate (this is also established); and
- the contact must be unlawful but need not be 'hostile' – that is not 'physical contact which is generally acceptable in the ordinary conduct of everyday life' (Lord Goff in Re F [1990]) (that is, it is not generally acceptable to trip people up).
It is important to note that the trespass torts – including battery – are actionable per se. It does not matter, therefore, that Thomas is not hurt by Henry's actions.
Again, it is unlikely that Henry will be able to raise an effective defence. He will not be able to argue that Thomas provoked him. He may be to argue that he acted in self-defence. However, unlike the defendant in criminal proceedings who simply needs an honest belief (even if that belief is unreasonable) that they were about to be attacked, the tort defendant's belief must be not only honest but also reasonable (Ashley v Chief Constable of West Sussex Police [2008]). Moreover, it has long been established that the defendant's actions must be proportionate to the force (to be) exerted against them. This will depend on the facts of the case (which are you not told). Do not make up facts. Rather state the law, as above, and consider which way it is likely to go. Henry's actions are more likely to be seen as self-defence if he, for example, tripped up Thomas as he is running towards him and he honestly and reasonably believed he was about to be attacked. On the facts, it seems more likely that he trips Thomas up some time after he made his threat, making the success of the defence of self-defence highly unlikely.
A stronger answer will also consider whether Henry's actions could also amount to an assault. This will depend on whether Thomas was aware of what Henry was about to do before he fell over.
[Thomas] quickly jumps up and runs after Henry. Thomas hits Henry and pushes him away and Henry falls awkwardly and hits his head.
The relevant actions here are battery (Thomas pushing and hitting Henry) and assault (running after Henry, assuming that Henry is aware of this). If you have already outlined what needs to be established above refer back to this. There is no need to restate the relevant law. You should simply state whether, and why, there is or isn't, a potential claim for battery and assault here. The point to emphasise here is the one raised in Williams v Humphrey [1975] - that is that Thomas will be liable for the full extent of Henry's injuries (even if he did not intend to hurt him to this extent).
There is no need to go into detail in relation to the possible defences here. Simply refer back to your discussion of provocation and self-defence above – noting whether development in the facts will make any difference to your previous conclusion(s). Nor will Henry or Thomas will be able to claim that the other is 'contributory negligent' in order to defend their actions. In Co-operative Group (CWS) v Pritchard [2011] Atkins LJ held that the defence of contributory negligence does not apply to the torts of assault and battery.
Thomas and Mary (1)
As Mary rushes to get a doctor, Thomas corners her and whispers, 'I miss you, let's try again'. She pushes him away.
Could Thomas's comment be an assault? Again, there's no need to restate the criteria if you have already outlined it above (simply refer back to it). Remember, Mary needs only to apprehend the infliction of immediate, unlawful force on her person. This force need not be hostile – it may be that Mary fears Thomas, having cornered her and said that he wishes that could get back together, will kiss her, which would, of course, amount to a battery. But is Mary's fear of immediately unlawful force objectively 'reasonable'? You are unable to say either way – it is something for the court to decide. However, strong answers would note that here the objective test of reasonable apprehension is likely to work against Mary (unlike Henry above), thus highlighting the gendered dimension to the tort. It is irrelevant whether Mary was actually in fear (or could have defended herself) if her fear is not objectively reasonable. Do not labour this point. State it. And move on.
Moreover, Mary's actions (unless they can be seen as 'self-defence', which is only possible if Thomas has committed an assault, which is unlikely) will amount to a battery. Again there is no need to detail the law here. But you should state why, on the facts given, this will be the case.
Mark, Anne, and Thomas
Meanwhile Mark and Anne have sneaked into the bar's store room for some time alone. On seeing this, Thomas locks the store room door. It remains locked until Rafe, the bar man, comes on duty some time later and unlocks it.
Here you need to consider the elements of the tort of false imprisonment and refer to the most recent case law – notably Iqbal v Prison Officers Association [2009] and R (on the application of Jalloh (formerly Jollah)) v Secretary of State for the Home Department [2020]. In order for there to be an actionable claim for false imprisonment:
- Thomas must intend or, possibly, be negligent as to the restriction of Mark and Anne's freedom of movement.
You are told that Thomas locks the store room door 'on seeing' Mark and Anne go in there, so you don't need to go into detail about what amounts to intention. Identify the relevant law, discuss it and then move on. Just as being dogmatic in asserting the law is X when it is arguably Y is wrong, it is equally so to assert the position is debatable when in fact the law is clear.
- There must be a complete restriction of Mark and Anne's freedom of movement; the conditions for the tort are not satisfied if they are able to move in another direction or if there are reasonable means of escape.
The facts here are unclear. You are not told, for example, if there was a window in the store room providing a reasonable means of escape. Simply state the law, which way it is likely to go and move on.
- Mark and Anne must be unlawfully imprisoned – that is, Thomas must not have lawful authorization to imprison them.
He does not. So this element is easily satisfied.
On the facts, it seems that Mark and Anne are 'unaware' of their imprisonment. You should consider the implications of this. The tort of false imprisonment, like the other trespass torts, is actionable per se. This means that the tort has been committed even if the claimant is unaware of their imprisonment – that is even if no 'harm' is suffered. 'It appears to me that a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious, and while he is a lunatic … Of course the damages might be diminished and would be affected by the question whether he was conscious of it or not' (Atkin LJ in Meering v Grahame-White Aviation [1920], confirmed obiter by the House of Lords in Murray v Ministry of Defence [1988] p 369).
Thomas and Catherine
Later that evening, Thomas calls Catherine, Henry’s pregnant ex-girlfriend, who lives some distance away, and tells her Henry has been badly hurt. She takes the news very badly.
Be careful here - the facts are not the same as Wilkinson v Downton [1897] - there the defendant was lying whereas here Thomas is telling the truth. Do not assume that because the facts of a problem resemble a well known case the problem must be resolved in the same way. Very often, the facts of the problem are tweaked so that it is different from the leading case. As always you should first analyse the law and then assess how it would be applied to the different facts of the problem. In fact, the leading case may not even be relevant at all. Different legal issues can arise on the same facts, and you need to work out what the relevant issue is.
The issue for you to consider here is whether the fact that Thomas is telling the truth does (should) make a difference to the application of this rule. You should consider the existence/purpose of this tort in Wilkinson v Downton following Wainwright v Home Office [2004] where Lord Hoffmann held that it should have 'no leading role' in the modern law of tort. Following Wainwright, if there is to be scope for an independent tort dealing with the infliction of psychiatric harms (as opposed to mere distress) then it must be reserved for cases where the harm is inflicted intentionally (or, perhaps, recklessly). As such, the only ground which the rule in Wilkinson v Downton appears to cover, which is not also covered by some other tort, is where a recognized psychiatric illness has been inflicted intentionally.
As a result, it is unlikely that Catherine will have an actionable claim. Although it seems that Thomas intended to (or at least was reckless as to whether his actions would) cause Catherine harm (although this is arguably either way), you are only told that Catherine 'takes the news badly'. There is no mention of physical harm which there would need to be (unlike trespass torts rule in Wilkinson v Downton is not actionable per se) in order for there to be an actionable claim. Stronger answers will also consider the impact of the Supreme Court’s judgment in Rhodes v OPO [2015].
Stronger answers may also consider (in passing) whether there could be a claim in negligence (communication of shocking news) although this would only be the case if Catherine goes on to suffer some form of psychiatric illness (see chapter 5).
WARNING: your tutor/examiner may only want you to explore specific torts (to ensure that you have sufficient words/time to complete the answer) so make sure you read the instructions carefully – if you disregard these instructions you risk the person marking your answer thinking that you don’t know the difference between the various torts.
Thomas and Mary (2)
Thomas then calls Mary’s mobile; as she is still at the hospital with Henry she does not answer it. By the time she checks her phone she has 12 missed calls.
Here you need to discuss whether Thomas's actions amount to harassment under the Protection from Harassment Act [1997]. His actions do not amount to an assault as the requirement of immediacy is not satisfied. In order for there to be a claim under the Act there must be 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' (s1(1)).
A course of conduct is defined in section 7 as involving conduct on 'at least two occasions'. On the facts, Thomas has called 12 times (although this is all in one day and Mary receives them all at once). A course of conduct may however be established if his earlier actions (cornering Mary, discussed above) are also taken into account. Moreover, if Mary fears that the harassing conduct may in the future become a course of conduct, she may be able to rely on section 3(1) which provides a remedy for the 'apprehension' of a breach of section 1.
There is no definition of harassment in the Protection From Harassment Act, the conduct may include 'alarming the person or causing [them] distress' (s7(2)). Moreover, it seems likely that Thomas's actions will amount to harassment as 'a reasonable person in the possession of the same information' would think the course of conduct amounted to harassment of the other (s1(2)).
If Mary is able to establish a claim under the Act, her primary remedy will be an injunction, although damages are also available (s3(2)).
Conclusion
Avoid lengthy conclusions: a crisp summary of the outcome of your analysis is sufficient.