Intentional Torts
Cause of Action
Trespass to Person
- Requirements:
o Directness (harm that is tort is inflicted directly)
o Intention
- Intention:
o Must have intention to inflict tort as:
D has to intend result that amounts to tort
Where D does not intend, then it may not be actionable (NB: COA
in Iqbal and security guard case)
o Recklessness:
Iqbal v Prison Officers’ Association [2009]
COA said that recklessness was sufficient for intentional
tort
NB: seems wrong to allow recklessness to suffice under
Tort
- Assault
o ‘Immediate battery that is reasonably feared by C’
o 1) Must be fear of immediate battery
Stephen v Myers [1830]
D must be in position that he can carry out tort and there
must be fear of immediate violence on part of C
o 2) Wide range of methods to bring immediate fear
R v Ireland [1998]
Court said that he had done an assault as he had
deliberately exploited uncertainty that C would be feeling
about where he was and would make her feat that he
would take revenge on her for scorning his approaches
- Battery:
o ‘Unlawful, direct and deliberate act of touching C’
o 1) Relevance of Hostility/Aggression
Wilson v Pringle [1987]
COA held that hostility was requirement for battery
F v West Berkshire HA [1990]
HL overruled decision in Wilson
Lord Goff said that there was no need for
hostility/aggression
o 2) Does battery require active application of force?
Innes v Wylie [1844]
Lord Denman said that if D was merely passive (ie
standing in the way) there was no liability for battery
Where D touches/uses force then this would give rise to
battery
o 3) Must be direct causal link between D’s act and contact on C
Infliction of force has to almost immediately follow from D’s act
E.g. dug hole in morning and C fell in at night would not be battery
- False Imprisonment
o ‘Total restraint within limits’
o 1) Restraint must be complete & there must be limits to stop C from going
elsewhere
Bird v Jones [1845]
Court held that there was no FI as C had been free to go
in other directions but just couldn’t walk in one direction
Court said FI did not require physical boundaries and that
it was sufficient to have non-physical boundaries (e.g.
arresting someone)
o 2) FI requires positive act
Iqbal v Prison Officers Association [2009]
COA held no FI as prison authority had not taken any
positive steps to keep prisoners in cell (ie merely failed to
unlock door)
COA recognised that there could be FI for failure to act but
there must be direct duty owed from D to release C
R v Governor of Brockhill Prison [2001]
Court allowed for FI as there was duty to take positive
steps to release prisoner (ie extension of sentence through
miscalculation)
o 3) Must be direct
Davidson v Chief Constable of North Wales [1994]
COA held that C could not sue detective for FI as detective
had not done anything to urge police to make arrest but
had merely informed police what she had seen
COA said police made independent decision to arrest
thereby breaking directness required
Iqbal v Prison Officers Association [2009]
COA said that decision to retain in cell was made by
governor (and not officers) so there was no direct causal
link between strike and C left in cell
NB: dissenting judgment disagreed and said that governor
was left with no other practical choice as a result
Intentional Infliction of Physical or Emotional Harm:
- ‘Deliberately do something to make somebody suffer psych. illness’
- NB: does not require directness between D’s act and C’s suffering
- 1) Basics:
o Wilkinson v Downton [1897]
C was liable as he had wilfully done act that was calculated to
cause physical harm to C
C would be regarded to have intended where it was so obvious of
impact
o Khorasandjian v Bush [1993]
COA held injunction could be granted as C was shown to be at
risk of psych breakdown
- 2) Harassment Act 1997
o when D engages in conduct it requires at least two incidents and when
D ought to know that conduct amounts to harassment is when C can
claim for damages
NB: seemed to take away Wilkinson situations
o Can extend beyond romantic context:
Majrowski – workplace
Ferguson v British Gas – extend to business dealings (ie letters
from British Gas)
- 3) Remaining situations:
o O v Rhodes [2015]
Requirements for Wilkinson remedy:
Conduct:
o Need words/conduct directed towards C for which
there is no justification
Mental:
o D must intend to cause at least severe distress (no
need for intention to cause psych illness or physical
harm)
o Recklessness is not sufficient for liability
Defences
- Lawful Authority
o Lawful act = no liability in tort
o Sunbolf v Alford [1838]
D had no lawful authority to detain person in store
o Prisons Act – allows prisoners to be detained
o Police & Criminal Evidence Act – allows for arrests to be made by police
& public
- Consent (Complete Defence)
o 1) C must have capacity to consent
Re MB [1997]
C has ability to comprehend and retain information & weigh
up information to come to decision whether to comprehend
o 2) Consent has to be real
if consent has been brought by threat of violence, then no real
consent
Lack of information:
Chatterton v Gerson [1981]
o Key thing was whether person understood in broad
terms the nature of what was being done to them
o Requirements of full information of risks and no
misinformation
o 3) Consent must cover touching that has occurred
Salford 100 Court (in Chatterton)
No consent given for circumcision meant no defence of
touching as consent was for tonsils removal
o 4) Showing consent
Blake v Galloway [2004]
Court said doesn’t have to take any particular form (ie no
need for writing)
Court held that consent is rarely expressed and is usually
implied by conduct (such as participation in activity)
NB: difficulty in sports seems to be covered by consent for
contact that can be reasonably expected to occur in course
of game
o 5) People changing minds
D does not necessarily immediately have to set C free on change
of mind (ie C is on plane/ship; no need to change voyage) as
focus is on reasonableness (that D does not have to take
expensive steps to accommodate C)
Robinson v Balmain New Ferry [1910]
PC found no liability:
o C’s unreasonable behaviour
o D were not obliged to provide free exit from wharf
o Payment was condition that was reasonable
- Self Defence
o ‘protecting yourself/others or property in reasonable way that there is
valid defence in respect of wrongs committed’
o Criminal law requires genuine belief in threat; in Tort requires reasonable
belief
o Ashley v Chief Constable of Sussex [2008]
HL said that D must show reasonable belief in threat as tort law
was about liability for compensation and not penalties for actions
- Necessity
o Situation where C might have refused to be touched but there was good
reason to do touching although C had not consented
o 1) C lacked capacity to make decision about being touched and 2) was
in C’s best interest
o Mental Capacity Act 2005
Capacity
S.1 – presumption that people have capacity to make their
own decisions
S.2 – person lacks capacity if they are unable to make
decisions themselves due to impairment of or disturbance
in functioning of mind/brain
S.3 – person lacks capacity to understand information,
retain information, use or weigh information’
Best Interest
S.4 – assessing in best interest = consider all relevant
circumstances
o Must consider whether C is likely to have capacity
in future
o D must work out what C’s wishes would’ve been
Reasonable Belief
S.5 – defence arises provided that D reasonably believed
that C lacked capacity & reasonably believed act was in
best interest
Prior Instructions
C can choose to determine whether to receive particular
treatment in advance
o Common law
Applies where MCA doesn’t cover (outside care/treatment)
F v WBHA [1990]
Goff says pushing someone out of bus whereby C lacked
capacity and was in C’s best interest
