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