Matthew WilliamS

&
KALI LYLE

LAW
UNIT 2
TABLE OF
CONTENTS
• Law of Tort

• Law of Contract

• Real Property
 WHAT IS A TORT?

and amounts to a
that gives rise to
An act or omission civil wrong for
injury or harm to
which courts impose
another
liability/remedy
 UNDERSTANDING THE DIFFERENCES

Constitutional Law Criminal Law

The body of law that relates to crime. It proscribes
Concerns a body of fundamental conduct perceived as threatening, harmful, or
principles or established precedents otherwise endangering to the property, health,
according to which a state or other safety, and moral welfare of people. Most criminal
law is established by statute, which is to say that
organization is acknowledged to be
the laws are enacted by a legislature
governed.

Tort Law Contract Law

Concerns an act or omission that A written or spoken agreement,
gives rise to injury or harm to especially one concerning
another and amounts to a civil employment, sales, or tenancy, that
wrong for which courts impose is intended to be enforceable by law
liability
NEGLIGENCE
 OUTLINE OF
NEGLIGENCE
To satisfy Negligence you must show

• There was a duty

• There was a breach of that duty

• The breach caused damage

Negligence is 'the omission to do something which a reasonable man,

guided upon those considerations which ordinarily regulate human
affairs, would do, or doing something which a prudent and
reasonable man would not do'

-Blythe v Birmingham Waterworks (1856) 11 Exch 781

 NOTE
Not all acts of carelessness or negligence will satisfy the requirements for the tort of
negligence. If even one of the three elements is missing, then NEGLIGENCE IS NOT
PROVED.

"…in strict legal analysis, ‘negligence’ means more than heedless or careless conduct,
whether in omission or commission; it properly connotes the complex concept of duty,
breach and damage thereby suffered by the person to whom the duty was owing"

-Lord Wright in Lochgelly Iron and Coal Co Ltd v McMullan [1934] AC 1

NEGLIGENCE
Part I: Establishing a Duty of Care
 DUTY OF CARE

Donoghue v Stevenson [1932] AC 562

Good Neighbour Principle

"The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour; and
the lawyer’s question, ‘Who is my neighbour?’ receives a restricted reply. You must take reasonable care
to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
Who, then, in law is my neighbour?

The answer seems to be—persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question.
 DUTY OF CARE

Donoghue v Stevenson

Good Neighbour Principle = Foreseeability Test

 DUTY OF CARE

Anns v Merton LBC [1977] 2 All ER 492

Public Policy Principle

"In order to establish that a duty of care arises in a particular situation, the question
has to be approached in two stages.

First, one has to ask whether, as between the

alleged wrongdoer and the person who has suffered damage, there is a sufficient
relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his
part may be likely to cause damage to the latter, in which case a prima facie duty of care arises.

Secondly, if the question is answered affirmatively, it is necessary to consider whether there are any considerations which
ought to negative, or to reduce or limit, the scope of the duty or the class of person to whom it is owed, or the damages to
which a breach of it may give rise
 DUTY OF CARE

Anns v Merton LBC

Good Neighbour Principle = Public Policy Test

BAD LAW
 OVERRULED

Tindall v Chief Constable of Thames Valley Police

[2020] EWHC 837

"The existence of a duty of care does not under current understanding of the
law, depend on notions of public policy"
 DUTY OF CARE

Caparo Industries v Dickman [1990] 2 A.C. 605

Tripartite Principle
What emerges is that, in addition to the foreseeability of damage, necessary ingredients in
any situation giving rise to a duty of care are that there should exist between the party
owing the duty and the party to whom it is owed a relationship characterised by the law as
one of "proximity" or "neighbourhood" and that the situation should be one in which the
court considers it fair, just and reasonable that the law should impose a duty of a given
scope upon the one party for the benefit of the other.
 DUTY OF CARE

Caparo Industries v Dickman

Good Neighbour Principle = Foreseeability, Proximity and
whether it is fair, just and reasonable to impose such a duty

Good Law
 NOTE
There is no one test to determine the duty of care that exists. Lord Bridge noted that the
courts are unable to provide a single general principle which can be applied to every
situation. What the courts have said is that one should stick to defined notions of an
existing duty as per the relevant category.

"It is preferable, in my view, that the law should develop novel categories of negligence
incrementally and by analogy with established categories, rather than by a massive extension
of a prima facie duty of care restrained only by indefinable 'considerations which ought to
negative, or to reduce or limit the scope of the duty or the class of person to whom it is
owed.'"
-Brennan J in Sutherland Shire Council v. Heyman (1985) 60 A.L.R
NEGLIGENCE
Part II: Establishing a Breach of Duty
 DEFINITION OF NEGLIGENCE

Negligence is 'the omission to do something which a reasonable man, guided

upon those considerations which ordinarily regulate human affairs, would do,
or doing something which a prudent and reasonable man would not do'

-Blythe v Birmingham Waterworks (1856) 11 Exch 781

 BREACH OF DUTY OF CARE

Blythe v Birmingham Waterworks = Reasonable Man

Standard
 IMPORTANCE OF THE
LIKELIHOOD OF HARM DEFENDANT'S CONDUCT
ESTABLISHING
BREACH OF DUTY 01 The greater the likelihood that the defendant’s
conduct will cause harm, the greater the
amount of caution required of him
03 The seriousness of the risk created by the
defendant’s activity must be weighed against
the importance or utility of such activity, and,

USING THE where the defendant’s conduct has great social

value, he may be justified in exposing others to

'REASONABLE risks which would not otherwise be justifiable

MAN' STANDARD
02
SERIOUSNESS OF INJURY
THAT IS RISKED 04 COST AND PRACTICABILITY
OF MEASURES TO AVOID
HARM

The gravity of the consequences if an How costly and practicable it would have
accident were to occur must also be taken been for the defendant to have taken
into account precautions to eliminate or minimise the
risk
 Likelihood of
Harm
Northwestern Utilities Ltd v London Guarantee and
Accident Co Ltd [1936] AC 108
"The degree of care which the duty involves must be proportioned to the degree
of risk involved if the duty of care should not be fulfilled."

Bolton v Stone [1951] AC 850

"The existence of some risk is an ordinary incident of life, even when all due
care has been, as it must be, taken."
Hilder v Associated Portland Cement Manufacturers Ltd [1961] 1
WLR 1434

Facts
The plaintiff, whilst riding his motorcycle along a road, crashed and sustained
injuries after being struck by a football kicked from the defendant’s adjacent land
where children were in the habit of playing.

Issue
Whether the injury caused to the plaintiff was a likely result of the activities of the
children on the field

Held
The defendant was held negligent in having failed to take precautions to prevent
footballs from being kicked onto the road since, in the circumstances, the
likelihood of injury to passers-by was considerable
 Seriousness of
Injury Risked
Haley v London Electricity Board[1965] AC 778

"In view of the large number of blind persons who fall into the category of
abnormal and are users of the road it cannot be said that the risk of causing them
injury is so small as to be minimal and therefore to be excluded from the realm of
foreseeability.

Paris v Stepney BC [1951] AC 367

"The duty of an employer towards his servant is to take reasonable care for the servant's
safety in all the circumstances of the case. The fact that the servant has only one eye if
that fact is known to the employer, and that if he loses it he will be blind, is one of the
circumstances which must be considered by the employer in determining what
precautions if any shall be taken for the servant's safety."
Miller v Jackson[1977] QB 966.

Facts
The defendants had played cricket on a particular area of land for around 70 years. The neighbouring land was then sold for
development and houses built on it. The plaintiffs bought one of the houses and then complained of negligence and nuisance from
cricket balls landing on the property. The plaintiffs suffered damage to property and also complained that the activities of the
cricketers prevented the enjoyment of their land and caused nervous damage. The first instance judge granted the injunction sought.

Issue
Whether the defendants were guilty of negligence and/or nuisance

Held
the defendants, so long as they played cricket on that ground, were guilty of negligence every time
a ball came over the fence and caused damage, for the risk of injury to person and property was
continuous and no reasonable method of eliminating that risk had been produced; they were also
guilty of nuisance since their use of their land involved an unreasonable interference with their
neighbours' use and enjoyment of their house and garden; and the neighbours were under no duty
to mitigate that risk.
 Importance of
The Defendant's Conduct
Daborn v Bath Tramways Ltd [1946] 2 All ER 333
"In determining whether a party is negligent, the standard of reasonable care is that which is
reasonably demanded in the circumstances. A relevant circumstance to be taken into account may
be the importance of the end to be served by behaving in this way or that. As has often been
pointed out, if all the trains in this country were restricted to a speed of five miles an hour, there
would be fewer accidents, but our national life would be intolerably slowed down. The purpose to
be served, if sufficiently important, justifies the assumption of abnormal risk."

Watt v Hertfordshire CC [1954] 2 All ER 368

"It is well settled that, in measuring due care, one must balance the risk against the
measures necessary to eliminate the risk. To that proposition there ought to be added this:
one must balance the risk against the end to be achieved.
Byfield v AG (1980) Supreme Court, Jamaica, No CL B-344 of
1977 (unreported)

Facts
Two constables were chasing an armed man who was wanted for various offences, including robbery and possession of firearms.
The man ran into the yard of the plaintiff’s house, from where he fired a shot at the pursuing constables. The constables returned
fire but accidentally shot the plaintiff, who was also in the yard but had not been noticed by the constables.

Issue
Whether the constables were liable in negligence

Held
The constables were not liable in negligence, since they were acting in the execution of their duty
in ‘hot pursuit’ of a gunman. They were entitled to defend themselves and were under no duty to
retreat. Gordon J (AG) indicated that given the personal risk undertaken by the police in the
apprehension of this gunman, the resulting consequences could not be said to outweigh the actions
of the officers. Therefore, there was no negligence.
Remember.
If the purpose to be served is sufficiently
important, the risk undertaken, though abnormal,
will be justified.
Cost and Practicability
of Measures to avoid Harm
Latimer v AEC Ltd [1952] 2 QB 701
"In every case of foreseeable risk, it is a matter of balancing the risk against the
measures necessary to eliminate it.

Davies v De Havilland Aircraft Co Ltd [1951] 1 KB 50

"It would be impracticable so to maintain passages, roads and pathways that there was
never a slippery place where, especially after rain, a workman might slip. Slipping is quite
a common incident of life, and mostly no harm is done by it, although unfortunately this
plaintiff did suffer serious injury."
Latimer v AEC Ltd [1952] 2 QB 701

Facts
During an unusually heavy rainstorm the floors of a factory were flooded and an oily cooling mixture, which normally was
contained in a channel in the floor, along which it was pumped to machinery, rose and mixed with the flood waters. Consequently,
when the flood subsided, the floors were slippery. As far as supplies permitted, sawdust was spread on the floor, but some areas
were left untreated. A workman, working in a gangway which had not been treated with sawdust was attempting to load a heavy
barrel on to a trolley when he slipped and injured his ankle.

Issue
Whether the employers were liable in negligence

Held
the employers had not been negligent for they had done all that a reasonable employer could be
expected to do, bearing in mind the degree of risk involved due to the slippery floor.
Remember.
Even if injury occurs, the question the court will
have to decide is whether it would be practical for
the accused to have taken steps to reduce or
eliminate the possibility of injury
 The Reasonable Man

01 Intelligence
In determining whether the defendant’s actions satisfied the
standard of a reasonable man, the court will measure those
actions against the conduct expected of a person of normal
intelligence, and the defendant will not be excused for having
02 Knowledge
A person is expected to have that degree of
common sense or knowledge of everyday things
which a normal adult would possess. Where he
acted ‘to the best of his own judgment’ if his ‘best’ is below occupies a particular position however, he will be
that to be expected of a man of ordinary intelligence.
held to the standard of a typical person in that
position

03 Skill
A person who holds himself out as having a particular skill,
either in relation to the public generally (for example, a car
driver) or in relation to a person for whom he is performing a
service (for example, a doctor), will be expected to show the
average amount of competence normally possessed by persons
doing that kind of work
 NOTE
When we speak of a duty of care and the breach of said duty, it is to be noted that the
specific circumstances must be assessed. You must establish that the person actually owes
some form of duty whether by proximity, statute or otherwise. THERE IS NO GENERAL
DUTY TO ACT OR TO BE A GOOD SAMARITAN

Where a person who is not under a duty to act does nothing but fails to act, he cannot incur liability.
Even if he undertakes a task which he is not obliged to perform, he owes no duty to take care in its
performance as long as he does not thereby add to the damage which would have been caused had he
done nothing"

-Patterson J in Campbell v Clarendon PC (1982) 19 JLR 13, Supreme Court, Jamaica

NEGLIGENCE
Part III: Establishing Damage
 OUTLINE OF
NEGLIGENCE
To satisfy Negligence you must show

• There was a duty

• There was a breach of that duty

• The breach caused damage

Negligence is 'the omission to do something which a reasonable man,

guided upon those considerations which ordinarily regulate human
affairs, would do, or doing something which a prudent and
reasonable man would not do'

-Blythe v Birmingham Waterworks (1856) 11 Exch 781

 Required

Causation

Required

DAMAGE
Remoteness of Damage
'But For' Test

Foreseeability
Test/Egg-Shell Skull
Principle
What is Causation?
WHAT IS
CAUSATION?
Causation speaks to the presence of a breach of duty that
resulted in the damage complained of. Essentially, the
Court embarks on an exercise to determine whether the
resulting injury was directly related to the actions of the
person who had a duty and breached said duty.
WHAT IS THE 'BUT
FOR' TEST?
CORK V KIRBY MACLEAN
LTD [1952] 2 ALL ER 402
"If the damage would not have happened but for a
particular fault, then that fault is the cause of the damage;
if it would have happened just the same, fault or no fault,
the fault is not the cause of the damage."
- Lord Denning
Let's look at some
cases!
 BARNETT V CHELSEA AND KENSINGTON
MANAGEMENT COMMITTEE [1956] AC 613

Facts
The claimant presented himself at a hospital emergency department whilst suffering from
stomach pain and vomiting. He was seen by a nurse, who spoke to a doctor, who told her to
send the claimant home and for him to call his GP in the morning. Five hours later the claimant
died from arsenic poisoning. It was established that had the claimant been seen by a doctor he
still would have died from the poisoning
 BARNETT V CHELSEA AND KENSINGTON
MANAGEMENT COMMITTEE [1956] AC 613

Held
There was nothing that the defendant could have done to save him.
Thus, applying the but for test, the courts established that there was no factual causation - the
injury to the claimant would have occurred regardless of the defendant’s conduct.
 CORK V KIRBY MACLEAN LTD [1952] 2 ALL ER 402

Facts
The claimant was painting the inside roof of a factory. The claimant was working on a narrow
platform 23 feet above the ground, with no guard-rails or toe-boards. The claimant had
epilepsy, and was aware of this fact; his employers were not. Whilst working, the claimant had
an epileptic fit and was killed when he fell from his platform.
When the case came to court, the defendants argued that the cause of death was the claimant’s
epilepsy, which it could not be held responsible for. Conversely, the claimant’s estate argued
that the cause was a lack of appropriate guard-rails on the platform.
 CORK V KIRBY MACLEAN LTD [1952] 2 ALL ER 402

Held
The Court took the view that guardrails would have likely prevented the fall, Therefore, there
was a causal link between the lack of guardrails and the injury to the claimant.
What does 'Remoteness' mean?
WHAT DOES
REMOTENESS MEAN?
The basic rule is that a defendant will be liable only for
those consequences of his negligent act which are not too
remote in law, even though such act may be said, on an
application of the ‘but for’ test, to have caused the
damage complained of.
OVERSEAS TANKSHIP (UK) LTD V MORTS DOCK AND ENGINEERING CO
LTD (THE WAGON MOUND (NO 1)) [1961] AC 388

Facts
The defendants negligently discharged oil from their ship into Sydney Harbour, where the
plaintiffs were carrying out welding operations at their wharf. Molten metal from the welding
operations set fire to some cotton waste floating on the oil beneath the wharf. The waste, in
turn, set fire to the oil and, in the ensuing conflagration, the wharf was severely damaged. The
oil also found its way onto the plaintiffs’ slipways adjoining the wharf and interfered with the
plaintiffs’ use of them.
OVERSEAS TANKSHIP (UK) LTD V MORTS DOCK AND ENGINEERING CO
LTD (THE WAGON MOUND (NO 1)) [1961] AC 388

Held
On the evidence, the defendants neither knew nor ought to have known that the oil was capable
of catching fire when spread on water, they could not reasonably have foreseen that their act of
discharging the oil would have resulted in the plaintiffs’ wharf being damaged. The damage
was thus too remote and they were not liable for it. But they were liable for the fouling of the
slipways, since that was a foreseeable consequence of the discharge of the oil
EGG-SHELL SKULL PRINCIPLE
IN REMOTENESS

"If a man is negligently run over or otherwise negligently injured in

his body, it is no answer to the sufferer’s claim for damages that he
would have suffered less injury, or no injury at all, if he had not had
an unusually thin skull or an unusually weak heart."

-Kennedy J in Dulieu v White and Sons [1901] 2 KB 669

WAGON It is simple. The full test requires the

MOUND & establishment of foreseeability and if this is

satisfied, the defendant is liable for any and
DULIEU all consequences, including those brought
about by some peculiarity

Essentially, what is the link between the

foreseeability test and the egg-shell skull principle?
 NEGLIGENT
MISSTATEMENT
"Damages can be recovered in tort for economic loss caused by
careless misstatements"

-Hedley Byrne and Co Ltd v Heller and Partners Ltd [1963] 2 All ER
575

"Where a misstatement is fraudulent, ie, made without belief in its

truth or made recklessly as to whether it is true or false, the
representor may be liable for the tort of deceit"

-Derry v Peek (1889) 14 App Cas 337

 LIMITING Where, subsequently to the defendant’s breach of

FACTORS IN
duty, an independent event occurs that causes
damage to the plaintiff, the question arises as to

NEGLIGENCE
whether the defendant is to be held liable for the
damage, or whether the intervening event is to be
treated as a novus actus interveniens which ‘snaps
the chain of causation and thus relieves the defendant
A claim in negligence normally results in the award from liability.
of damages. The typical defence raised by
respondents is that of novus actus interveniens. An intervening Act can be the actions of the
claimant, acts of God or acts of a third party

Clay v Tui UK Ltd [2018] EWCA Civ 1177

"Determining whether there has been a novus actus

interveniens requires a judgment to be made as to whether, on
the particular facts, the sole effective cause of the loss,
damage or injury suffered is the novus actus interveniens
rather than the prior wrongdoing"
DEFAMATION
WHAT IS
DEFAMATION?
"The criterion by which words are to be considered capable of being defamatory has generally been regarded as settled by
authority of long standing. The definition generally laid down is that the words expose the plaintiff to hatred, ridicule and
contempt. The definition is here thought by Lord Atkin to be probably too narrow. In the present case he proposes the test:
would the words tend to lower the plaintiff in the estimation of right thinking members of society generally? This, of course, is
not a test of universal application, because one has to consider the person or class of persons whose reaction to the publication
is the test of the wrongful character of the words used. This qualification, however, would only seem to require that there
should be substituted for “right-thinking member of society generally,” the person or class of persons whose reaction to the
publication forms the test of the defamatory character of the words."

-Sim v Stretch [1936] 2 All ER 1237

 Libel concerns a defamatory statement in permanent
01
form such as written words in a newspaper, book,
pamphlet, printed notice or letter. It also includes
defamatory paintings, cartoons, photographs, effigies,
films and computer-derived exposure, such as e-mail
messages, bulletin boards, newsgroups and the world

PLEASE wide web. LIBEL IS ALWAYS ACTIONABLE PER

SE.

NOTE!!!!
02 Slander is a defamatory statement in a
transient form, principally by means of spoken
words or gestures. SLANDER IS NOT
In Jamaica, there is no distinction between libel ACTIONABLE PER SE, EXCEPT IN
and slander as per Section 6 of the Defamation DEFINED INSTANCES.
Act. Further Section 9 states that defamation is
actionable without proof of special damage. This
means that there does not have to be a direct
assertion of guilt.

The law surrounding Libel and Slander is still

useful however.
TRESPASS TO
THE PERSON
TRESPASS TO
THE PERSON
Trespass to the person generally encompasses three torts:

a. Assault
b. Battery
c. False imprisonment

All are actionable per se, that is without proof of damage.

TRESPASS TO
THE PERSON
PART I : ASSAULT & BATTERY
 An assault is a direct threat made by the defendant to

DISTINGUISHING
01
the plaintiff, the effect of which is to put the plaintiff
in reasonable fear or apprehension of immediate

ASSAULT AND physical contact with his person.

BATTERY
Battery is the intentional application of force to
another person. Assault is the intentional putting
of another person in fear of an imminent battery. 02 A battery has been defined as a direct act of the
defendant which has the effect of causing
contact with the body of the plaintiff without
the latter’s consent. Battery connotes an
intentional act on the defendant’s part.
 ASSAULT

In order to constitute an assault, the act must have been such that a reasonable man might fear that violence was about to be
meted out to him, thereby establishing an objective test. Exceptional bravery will not remove the presence of an assault and in
the alternative, extreme cowardice will not result in a finding of assault. The test is based on that of the ordinary man.

"It is not every threat, when there is no actual personal violence, that constitutes an assault, there must, in all cases, be the
means of carrying the threat into effect."

-Tindal CJ in Stephens v Myers (1830) 172 ER 735

STEPHENS V MYERS (1830) 172 ER 735

Facts
A was advancing in a threatening attitude, with an intention to strike B, so that his blow would
have almost immediately reached B, if he had not been stopped

Held
An assault; though, at the particular moment when A was stopped, he was not near enough for
his blow to take effect
HULL V ELLIS [1966] COURT OF APPEAL, JAMAICA

Facts
The defendant was holding a revolver in her hand, when she accosted the plaintiff as he was
riding his donkey along a public road and asked him where he had got the piece of wood he
was carrying.

Held
The defendant was held liable for assault.
 R V ST GEORGE (1840) 173 ER 921

Facts
The Defendant (St. George) got into an argument with the victim, a Mr Durant. During the course of this
argument, the Defendant took out a gun and pointed it at Mr Durant. The gun was, in fact, not loaded. He was in
any event prevented from taking further action by a third party. The Defendant was prosecuted for assault.

Held
It was held by the court that in the circumstances the Defendant was guilty of an assault. Threatening someone with a
gun, regardless of whether the gun was loaded, would amount to a threat as long as the victim thought that the gun was
in fact loaded. On the other hand, where the victim was aware that the gun was not loaded, but was still afraid, that fear
would be unreasonable and therefore there would be no assault in those circumstances. The test applied is subjective,
but there must be at least a subjective possibility that the threat against the victim can be carried out.
 VIEW 1: NO IT IS NOT

01
IS IT ASSAULT TO It is not possible for the person to carry out the
POINT AN act of shooting. (See Stephens v Myers)

UNLOADED GUN
AT SOMEONE?

02 VIEW 2: YES IT IS
If it places the person under reasonable apprehension of fear,
then it is an assault and that is exactly what happens when a
firearm is pointed by an aggressor (See R v St. George).
 R V MEADE AND BELT

CAN WORDS ALONE 01 (1823) 1 LAW CC 184.

CONSTITUTE "No words, or singing are equivalent to an

assault"
ASSAULT?

02
TUBERVILLE V SAVAGE (1669) 1 MOD
REP 3
During a quarrel between the plaintiff and the defendant, the latter put his
hand on his sword and said, If it were not assize time, I would not take such
language from you’, there was no assault because the words had negatived
the apprehension of immediate contact caused by the placing of the
defendant’s hand on his sword
 NOTE
Please note that where a conditional threat is made, coupled with the capability of immediate
violence, the possibility of an assault arises. So long as the statement causes reasonable
apprehension of immediate violence.

"To constitute an assault there must be something more than a threat of violence. An assault is thus defined in
Buller's Nisi Prius: "An assault is an attempt or offer, by force or violence, to do a corporal hurt to another,
as, by pointing a pitchfork at him, when standing within reach; presenting a gun at him; drawing a sword and
waving it in a menacing manner. But no words can amount to an assault."

So an assault is said to be "an attempt to offer or beat another without touching him; as if one lifts up his
cane or his fist in a threatening manner at another; or strikes at him but misses him; this is an assault, which
Finch describes to be 'an unlawful setting upon one's person'"
-Byles Serjt in Read v Coker (1853) 13 CB 850
 BATTERY

In order to constitute battery, there must be an intentional act that results in contact with the body of the plaintiff without his
consent. It is not necessary for there to be physical contact between the plaintiff and the defendant. If the defendant uses some
material object in the act, it will suffice. It must also be made clear that battery can be committed in the absence of hostility.
Therefore, battery can be present where the defendant throws stones, spits in the face of a person, kisses a woman against her
will, knocks over a chair or releases a dog upon a person.

Note as well that contact that amounts to naturl conduct, such as jostling in a line will not constitute battery.

"When the injury to a plaintiff is caused by the defendant's intended act, the cause of action is trespass to the person; when the
act is not intended, a plaintiff's only cause of action is negligence"

-Lord Denning in Letang v Cooper [1965] 1 QB 232

 COLLINS V WILCOCK [1984] 3 ALL ER 374

Facts
Two police officers on duty in a police car observed two women in the street who appeared to be soliciting for the
purpose of prostitution. One of the women was known to the police as a prostitute but the other, the appellant, was
not a known prostitute. When the police officers requested the appellant to get into the car for questioning she refused
to do so and instead walked away from the car. One of the officers, a policewoman, got out of the car and followed
the appellant in order to question her regarding her identity and conduct and to caution her, if she was suspected of
being a prostitute, in accordance with the approved police procedure for administering cautions for suspicious
behaviour before charging a woman with being a prostitute, contrary to s 1a of the Street Offences Act 1959. The
appellant refused to speak to the policewoman and walked away, whereupon the policewoman took hold of the
appellant's arm to detain her. The appellant then swore at the policewoman and scratched the officer's arm with her
fingernails. The appellant was convicted of assaulting a police officer in the execution of her duty, contrary to s
51(1)b of the Police Act 1964. She appealed against the conviction.
 COLLINS V WILCOCK [1984] 3 ALL ER 374

Held
Except when lawfully exercising his power of arrest or some other statutory power a police officer
had no greater rights than an ordinary citizen to restrain another. Accordingly, whether a police
officer's conduct was lawful when detaining a person to question him in circumstances where the
officer was not exercising his power of arrest or other statutory power depended on whether the
physical contact the officer used to detain the person was no more than generally acceptable physical
contact between two citizens for the purpose of one of them engaging the attention of the other and as
such was lawful physical contact as between two ordinary citizens. If the conduct used by the officer
went beyond such generally acceptable conduct, eg if the officer gripped a person's arm or shoulder
rather than merely laying a hand on his sleeve or tapping his shoulder, the officer's conduct would
constitute the infliction of unlawful force and thus constitute a battery.
TRESPASS TO
THE PERSON
PART II : FALSE IMPRISONMENT
 False Imprisonment

Don't think of false imprisonment in the sense that the imprisonment

was untrue. Think of it in the sense that the person was unlawfully
locked in jail or otherwise restrained. Partial restraint will not satisfy
this particular tort.

"Every restraint of the liberty of a free man is an imprisonment,

although he be not within the walls of any common prison"

-Coke J quoted in Bird Vs. Jones, (1845) 7 Q.C. 742

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 Partial Restraint Sufficient?

Bird v Jones [1845] 7 QB 742

Facts

The plaintiff was attempting to pass in a particular direction. The

defendant obstructed and prevented him from going in any direction
but one, the direction which he did not endeavour to pass. The
question was whether there was a false or illegal imprisonment.

Held

The English Court held that the restraint should be total for there to be
false or illegal imprisonment. In the instant case, the plaintiff was not
prevented from going in the direction that he did not endeavour to
pass. Accordingly, there was no imprisonment.

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Total Restraint Upon Agreed Terms?

Herd v Weardale Coal Co (1915) AC 67

Facts

A miner descended a coal mine at 9.30 A.M. for the purpose of

working therein for his employers, the owners of the colliery. In the
ordinary course he would be entitled to be raised to the surface at the
conclusion of his shift, which expired at 4 P.M. On arriving at the
bottom of the mine the miner was ordered to do certain work which he
wrongfully refused to do, and at 11 A.M. he requested to be taken to
the surface in a lift, which was the only means of egress from the mine.
His employers refused to permit him to use the lift until 1.30 P.M.
although it had been available for the carriage of men to the surface
from 1.10 P.M., and in consequence he was detained in the mine
against his will for twenty minutes. In respect of this detention the
miner sued his employers for damages for false imprisonment

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Total Restraint Upon Agreed
Terms?

Herd v Weardale Coal Co (1915) AC 67

Held
on the principle of volenti non fit injuria*, that the action could not be
maintained

*Please note that violenti non fit injura means that where a person
knowingly and voluntarily risks danger, he cannot claim in tort.

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Total Restraint For Breach of Contract?

Robinson v Balmain Ferry Co. Ltd (1910) A.C

Facts

In an action for damages for assault and false imprisonment it appeared

that the plaintiff had contracted with the defendants to enter their wharf
and stay there till the boat should start and then be taken by the boat to
the other side. No breach of the defendants' undertaking was alleged,
but the plaintiff after entry changed his mind and desired to effect an
exit from their wharf without payment of the prescribed toll for exit,
and was for a time forcibly prevented from leaving

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Total Restraint For Breach of Contract?

Robinson v Balmain Ferry Co. Ltd (1910) A.C

Held

The toll imposed was reasonable and the defendants were entitled to
resist a forcible evasion of it.

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Total Restraint For Breach of Contract?

Sunbolf v Alford (1838) 150 ER 1135

Facts

An innkeeper rented a portion of his premises to the plaintiff and demanded

his rent. The plaintiff refused and was barred from leaving until he paid the
sums due. The defendant also removed the coat of the plaintiff as a security
deposit and thereafter allowed the plaintiff to leave.

Held

The English Court held that an innkeeper’s lien for the amount of his charges
extended only to those goods of which he could have the possession at the
time of exercising his right. That right was simply one of detainer. It did not
authorise the innkeeper to imprison his guest, nor take forcible possession of
the guest’s wearing apparel in current use, or of any goods then in the custody
of the guest himself. Either of those acts constituted a trespass, for which the
innkeeper was liable.

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The Test therefore in restraining someone in light of
a breach of contract is whether the manner of
restraint was reasonable

2
Lawful/Unlawful Total Restraint?

Williams v Home Office No 2 (1981) 1 All ER 1211

Facts

The plaintiff prisoner had been transferred from ordinary prison to a special control unit
which had been established at the prison as a means of containing and controlling
prisoners who were considered to be troublemakers and inducing them to realise that it
was in their own interest to improve their behaviour. He complained that he had not had
a fair opportunity to challenge the decision to transfer him.
Held

The Court held that the imprisonment was justified as it had been imposed by the Court.
Further the conditions of the detention did not affect the lawfulness.

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Physical Force in Total Restraint?

Clarke v. Davis (1964) 8 J.L.R. 504

Facts

C drew his pay and was immediately accosted by a unformed constable and accused of
having drawn pay without working. He was then invited to show the police where he had
done the work and later to go with them to the police barracks. The issue was whether
C's liberty had been restrained.

Held

The police were liable for false imprisonment.

per Lewis J.A .: "In my view, in [the circumstances, C could have done nothing other
than to go with the police and he went with them ... was his agreement to go to the
barracks a true consent or was it merely a submission to circumstances of authority
against which he could not resist? I am clearly of the opinion that... C was under restraint
and bound to submit to the wishes of the police officers."

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Presence of Awareness in Total Restraint?

Meering v Graham White Aviation Co (1919) 122LT 44

Facts

The claimant was asked to go to a room with two work policemen from the Aviation
company. He asked why and stated he would leave if not told. When told it was on
suspicion of theft he agreed to stay, and the works police stood outside until the
metropolitan police arrived. Unknown to him they were asked to prevent him from
leaving.

Held

It was held that an act which fulfils the requirement for a false imprisonment, even if the
claimant is unaware at the time, still counts. Meering was entitled to damages.

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TRESPASS TO
THE PERSON
PART III : MALICIOUS PROSECUTION
WHAT IS MALICIOUS
PROSECUTION?
The tort of malicious prosecution is committed where the Defendant
maliciously and without reasonable and probable cause initiates against
the plaintiff a criminal prosecution that terminates in the plaintiff’s
favour, and which results in damage to the plaintiff’s reputation, person
or property
TEST FOR MALICIOUS
PROSECUTION
The Plaintiff must prove:

That the law was set in motion against him on a charge

of a criminal offence

That he was acquitted of the charge or that otherwise it

was determined in his favour

That the prosecutor set the law in motion without

reasonable and probable cause

That, in so setting the law in motion, the prosecutor was

actuated by malice
WHAT DOES
MALICE MEAN?
"Malice, in its widest and vaguest sense, has been said to mean any wrong or
indirect motive; and malice can be proved either by showing what the motive
was and that it was wrong or by showing that the circumstances were such that
the prosecution can only be accounted for by imputing some wrong or indirect
motive to the prosecutor."

-Cave J in Brown v Hawkes [1891] 2 QB 718