False Imprisonment PDF

FALSE IMPRISONMENT Introduction Definition of False Imprisonment Elements of False Imprisonment Other Considerations Arrest and Restraint by the Authorities Defences Intentional Tort other than Trespass to Persons Conclusion ...

FALSE IMPRISONMENT Introduction Definition of False Imprisonment Elements of False Imprisonment Other Considerations Arrest and Restraint by the Authorities Defences Intentional Tort other than Trespass to Persons Conclusion  FALSE IMPRISONMENT Introduction: False imprisonment consists of depriving the claimant of freedom of movement without lawful justification. There is no need to prove fault. In other words, the unlawful infliction of bodily restraint is the essence of this tort: ‘the unlawful imposition of restraint on another’s freedom from a particular place’. (See the case of Collins v Wilcock 3 All ER 374) As with other forms of trespass to person, it needs to be committed intentionally. Thus, the knowledge of the plaintiff that he has been falsely imprisoned is not essential. For example, a person may suffer harm without being aware of the restraint. Note: The lack of knowledge of the fact of imprisonment where the plaintiff suffers no harm may normally lead to nominal damages only, but the policy of the law on the existence of a cause of action is unambiguous: “the law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage’. (Lord Griffiths in Murray v Ministry of Defence 1 WLR 692)  FALSE IMPRISONMENT Definition of False Imprisonment: It is defined as the restriction of a person’s freedom of movement. The person so restrained is ‘imprisoned’ so long as he cannot move to another place in accordance with his wishes. It is the infliction of bodily restraint which causes the confinement of the plaintiff within an area determined by the defendant, which is not expressly or impliedly authorised by law. The confinement can be accomplished through the use of physical barriers, physical restraint, or threats of physical force. The infliction of a bodily restraint which is not expressly or impliedly authorised by law. False means wrongful and imprison means restraint of man’s liberty of movement. Imprisonment means more than just locking someone in a room or building. It covers any restraint on freedom of movement, even for a short time, and can take place outdoors as well as indoors. Intent to confine another person against their will.  FALSE IMPRISONMENT Definition of False Imprisonment: (Continuation) In the case of Collins v Wilcock 3 All ER 374- the court defined false imprisonment as ‘the unlawful imposition of restraint on another’s freedom of movement. To bring an action under false imprisonment, it must be proven that there was a total restraint of liberty, it does not matter whether the detainee is unaware that he has been deprived of his liberty. In false imprisonment, there must an imprisonment and the imprisonment must be unlawful. See the case of Gurcharan Singh a/l Bachittar Singh v Penguasa, Tempat Tahanan Perlindungan Kamunting, Taiping 4 MLJ 123, where the plaintiff was detained under the ISA for a period of 2 years pursuant to a detention order issued by the Minister of Home Affairs and further extended the plaintiff’s detention for another 2 years. This extension order listed no grounds for the plaintiff’s extended detention. The plaintiff now alleges that he was unlawfully detained by the extension order as this order was invalid since no ground for his detention. The court (James Foong J) held that “where a detention order is issued not in accordance with the law, it is defective and bad. In normal circumstances, the detainee is at liberty to be set free. However, in tort he can claim damages for false imprisonment...”  FALSE IMPRISONMENT Definition of False Imprisonment: (Continuation) All in all, in false imprisonment, the interest that is protected is that of freedom from confinement. Thus, it serves to maintain a person’s liberty to unrestricted movement.  FALSE IMPRISONMENT Elements of False Imprisonment: (a) The mental state of the defendant The defendant must have committed the restraint intentionally. The defendant must intend to do an act which directly results in the confinement of the plaintiff. Although it has been suggested that negligence would suffice, in the case of W Elpinstone v Lee Leng San MLJ 130- the court held that false imprisonment cannot be established through negligence. Intention of the doer is a prerequisite. (b) The restraint must be a direct consequence of the defendant’s act Only the person who directly causes the confinement may be successfully sued for false imprisonment. He may be liable either because he himself confined or imprisoned the plaintiff or that he instigated another person to confine or imprison the plaintiff. See the case of Harnett v Bond AC 669 It is, therefore, not false imprisonment if the confinement or imprisonment arises as a consequence of the act of another. For example, digging a hole into which the plaintiff falls. In this situation, the defendant may have committed a separate tort, either negligence or that of intentionally causing physical harm.  FALSE IMPRISONMENT Elements of False Imprisonment: (Continuation) (c) The restraint must be complete/Total loss of freedom There is no false imprisonment if the plaintiff fails to establish that there was total restraint. In other words, there must be a total restraint or complete. See the case of Bird v Jones (1845)- In this case there was a regatta on the Thames; a footpath on Hammersmith bridge was wrongly fenced off to provide seating for spectators. Plaintiff wished to assert his right to use the footpath and climbed the barrier; he was stopped by the police from so proceeding and remained there for half an hour; all that time he was free to go back or cross using the carriageway. The court held that there was no false imprisonment as there was no total restraint. Probably we need to look into the issue of whether the restraint must be ‘in effect’ for the tort to be established or what would be the situation if the tort is to be effect in future time where the defendant has both the intention and capability to detain at the present time. Would still be there a case of false imprisonment? It is important to note that the principle as it stands is that when there is a reasonable way out, it must be used and the plaintiff cannot, in those circumstances, still claim that his liberty has been restraint. See the case of Grainger v Hill (1838), where it was held that there could be false imprisonment where the claimant was too ill to leave even if he had been allowed to  FALSE IMPRISONMENT Elements of False Imprisonment: (Continuation) (c) The restraint must be complete/Total loss of freedom Furthermore, it is important to note that if a person is partially restrained but can only escape at the risk of injury to himself, then the route of escape cannot constitute a reasonable way out. An action in false imprisonment still lie. Often, what amounts to ‘reasonable’ will depend on the facts and circumstances surrounding the case. See the case of Wright v Wilson (1699)- where the court held that no false imprisonment arose when the plaintiff could have escaped from his confinement, although it meant he would have trespassed on another’s land in order to regain his liberty.  FALSE IMPRISONMENT Other Considerations: (i) Knowledge of the plaintiff The issue here is whether the plaintiff should be aware of the restraint or false imprisonment. In order to address this issue, we need to look into the situation in the past and present. In the past, the requirement of knowledge on the part of the plaintiff was essential (see the case of Herring v Boyle (1834)- where a boy was kept at school during the holidays by the headmaster as a form of security for fees he was seeking to obtain from the boy’s mother; the boy was unaware of the detention. The court held that there was no evidence of imprisonment.  FALSE IMPRISONMENT Other Considerations: (Continuation) (i) Knowledge of the plaintiff Looking at the present situation, the requirement of knowledge from the plaintiff’s part seems not required or not essential. See the case of Meering v Grahame White 122 LT 44- the plaintiff was suspected of stealing and was asked to go to the company office for questioning; he was told his evidence was required but, unknown to him, two employees were posted outside the room; when the police arrived he was arrested for theft; later he was tried and acquitted. The court held that he was entitled to succeed in his action for false imprisonment against his employers, for he would not have been allowed to leave had he attempted to do so. Atkin LJ thought that a man could be imprisoned whilst asleep, drunk or insane even though, when returning to his senses, he was free to go.  FALSE IMPRISONMENT Other Considerations: (Continuation) (i) Knowledge of the plaintiff All in all, it would suffice to note that an action for false imprisonment may arise if the claimant was not aware that he was being detained at the time of the detention. See the case of Murray v Ministry of Defence 2 All ER 521- where the claimant house was searched in her presence and she was arrested 30 minutes later. It was unclear whether she was aware that she was not free to leave during the period prior to her arrest. The House of Lords held that there was no requirement ‘that the victim should be aware of the fact of denial of liberty… [however] if a person is unaware that he has been falsely imprisoned and has suffered no harm, he can normally expect to recover no more than nominal damages’. By contrast, in R v Bournewood 1 AC 458, the claimant had a mental disorder which made him incapable of consent. The court held that there was no imprisonment when he was admitted to an unlocked ward, even though he was heavily sedated and the hospital gave evidence that if he had tried to leave they would have sought to use powers under the Mental Health Act1983 to keep him there. In that situation the imprisonment had not actually happened; the fact that it could have happened if he tried to leave was not enough. See the defence of ‘medical detention’.  FALSE IMPRISONMENT Other Considerations: (Continuation) (ii) Entering premises under a contract It is important to note that entry or exist may be subject to conditions i.e. like in a contract. Thus, cases suggest that if a person enters premises under a contract, he cannot sue for false imprisonment if he subsequently wishes to leave the premises in a manner or at a time, outside the terms of the contract. See the case of Robinson v Balmain Ferry AC 295- In this case there was a pier and by the regulations a penny was to be paid by those who entered and a further penny to be paid on exit. Plaintiff paid his penny to enter with the intention of boarding a ferry for which there would be no further charge; he changed his mind and tried to leave without paying his penny at the exist point. Defendant refused to let him leave until he had paid. The court held that this was not false imprisonment, there was no duty to make exist free to those who had come by definite contract involving their leaving by another way and a charge of a penny was reasonable; notice of the condition was immaterial.  FALSE IMPRISONMENT Arrest and Restraint by the Authorities: The tort of false imprisonment arises when the restraint is unlawful. Hence there are instances where the restriction on person’s freedom from confinement is made in accordance with law and so no false imprisonment arises. Arrest and restraint by the authorities is one such instance. In other words, there is no false imprisonment if a person is arrested pursuant to a valid warrant. See Art 5(1) of the Federal Constitution. Arrest means the seizure or contact with the body of an individual with the intention of restraining him. Thus, uttering words that convey the intention to restrain is not sufficient to amount to an arrest unless the person to which the words are directed to surrenders to the officer that is affecting the arrest. The freedom from confinement is not totally lost merely because the confinement or arrest is effect under the law. Powers to arrest are not absolute. See Article 5(3) and (4) of the Federal Constitution.  FALSE IMPRISONMENT Arrest and Restraint by the Authorities: (Continuation) Arrests may be made either with or without a warrant. Thus, anybody may effect an arrest provided that if he is not a police officer, his name is mentioned in a warrant of arrest. Four categories of persons, however, may arrest without a warrant and they are the police officer, the penghulu, a private citizen and the magistrate or a Justice of the Peace. (a) Arrest by a police officer See sec 23 of the Criminal Procedure Code deals with the circumstances when a police officer may arrest without a warrant. Under sec 23(1)(a), any police officer may, without an order from a magistrate and without a warrant, arrest any person…(see the eleven situations given under the Code) See sec 2 of the Police Act 1967 defines a police officer as any member of the Malaysian Royal Police, which includes a police constable, corporal and an assistant superintendent of police A seizable offence, according to sec 2(1) of the Code is an offence whereby a police officer may arrest without a warrant. As a general rule, seizable offences are all offences where a person may be arrested without a warrant according to the third column of the First Schedule of the Code.  FALSE IMPRISONMENT Arrest and Restraint by the Authorities: (Continuation) (a) Arrest by a police officer Since sec 23 of the Code use phrases such as ‘reasonable complaint’, ‘reasonable suspicion’ etc giving the police officer to arrest without a warrant, it becomes relevant to point out that whether there is a reasonable and probable cause is determined objectively. Thus, in effecting an arrest arising from reasonable suspicion, the police may even fire shots at a suspect if the latter tries to escape It is important to note that if an arrested person is able to establish that the reasons for his detention are not valid, then any further detention beyond that period would be unlawful. See the case of Shaaban & Ors v Chong Fook Kam & Anor 2 MLJ 219- where the plaintiffs were arrested and detained following a suspicion of causing death through reckless driving. They were arrested at 7.00 a.m., and questioned and brought to the police station between 8.05 a.m.- 9.00 a.m. At the station, they were further informed that they would be detained for a longer period as there was a reasonable suspicion that they had committed the crime alleged. Much later, the plaintiffs wished to tender the defence of alibi, but because this defence was unsupported, they continued to be detained. The court held that the second detention was valid. The first detention was unlawful as there was no reasonable suspicion of the alleged offence. The suspicion was in relation to one of the plaintiffs driving the lorry, which must be differentiated from a suspicion of reckless driving causing death. Therefore, false imprisonment was committed until the point when the plaintiffs were detained for the second time.  FALSE IMPRISONMENT Arrest and Restraint by the Authorities: (Continuation) (a)Arrest by a police officer See also the case of Abd Rahman v Tan Jo Koh 1 MLJ 205- where the Federal Court held that since during the arrest the respondent was in possession of offensive weapons (seizable offence) therefore reasonable. See also the case of Ramly & Ors v Jaafar – where a Police arrested the plaintiff based on information from one Zakaria during interrogation. The trial judge held that the information was not reasonable and not credible, but on appeal it was held that the test should be objective test and it was reasonable.  FALSE IMPRISONMENT Arrest and Restraint by the Authorities: (Continuation) (a) Arrest by a police officer See also the case of W Elphinstone v Lee Leng San 1 MLJ 135, where in a suit against an officer of the Police for damages for false imprisonment in that the plaintiff was arrested by two police constables at the entrance of the Court on a charge of driving a lorry with inefficient brakes, the Magistrate found that the arrest was effected through the negligence of the defendant and without reasonable or probable cause and awarded the plaintiff damages & cost. The defendant appealed to the Supreme Court. Aitken J held that “… The result of this appeal depends entirely on the answer to the question “Was the Respondent arrested as the result of any orders or instructions given by the Appellant to the policemen who actually barred his exit from the Court and led him back to the dock, or were the policemen acting on their own volition?” In other words, if the Respondent was arrested as the result of any such orders or directions, then the Appellant has committed the tort of false imprisonment. Having drawn that inference, it seems to me that I must allow this appeal, because, on my view of the English Law of Torts, (i) the tort of false imprisonment cannot be committed negligently, and (ii) all policemen and officers are fellow servants of the State and be responsible for one another’s wrongful acts unless such acts are done by subordinates on orders or instructions of their seniors.  FALSE IMPRISONMENT Arrest and Restraint by the Authorities: (Continuation) (a) Arrest by a police officer See also sec 24 of the Criminal Procedure Code, which allows a police officer to arrest someone without a warrant who, in his presence, commits or is alleged to commit a non-seizable offence and who refuses to surrender his name and address or give false information of them. His arrest is made in order to certify his name and address. (b) Arrest by penghulu A penghulu may also effect arrest in the circumstances laid down in sections 23 & 24 of the Criminal Procedure Code. See sec 25 which specifically applies to arrests made by a penghulu. The sec provides that when a penghulu effects an arrest under sec 23 & sec 24, the person arrested must be handed over to a police officer or to the nearest police station ‘without unnecessary delay’. See sec 28- the police officer will re-arrest & without delay within 24hrs brought to Magistrate to remanded under sec 117 of the CPC  FALSE IMPRISONMENT Arrest and Restraint by the Authorities: (Continuation) (c) Arrest by a private citizen Sec 27 of the Code requires, in cases of arrest by private persons, that person who makes the arrest to hand over the arrested person to the nearest police officer without unnecessary delay, or in his absence, take such person to the nearest police station. If there is reason to believe that such person falls under the provision of sec 23, then the police officer shall re-arrest him. Section 27 allows a private citizen to carry out arrest only regarding non-bailable offence and seizable offence. See the case of PP v Sam Hong Choy 1 CLJ 514- where a private citizen chased and struggled with the accused with the intention of arresting him upon hearing gunfire and someone shouting ‘Tolong! Kejar perompak! Counsel for the accused argued that the private citizen was not a person lawfully empowered to make an arrest as it had not been shown that a non-bailable and seizable offence had been committed. The court held that the words ‘in his view’ in sec 27 of the Code must be given a liberal interpretation. In the instant case the commission of the offence was within sight of the private citizen and fell within the meaning of ‘in his view’. This phrase would cover situations where although the private citizen did not actually witness the non- bailable and seizable offence being committed, he was certain that those persons trying to escape were the offenders themselves.  FALSE IMPRISONMENT Arrest and Restraint by the Authorities: (Continuation) (d) Arrest by magistrate or Justice of Peace Sec 30 of Code provides that a magistrate or Justice of Peace may arrest without a warrant or authorise any person to arrest a person if an offence is committed in their presence and within the local limits of their jurisdiction. See also sec 31 of the Code- whereby unlike Justice of Peace, a magistrate is also empowered powers of arrest under the said sec.  FALSE IMPRISONMENT Defences: (a) Self-defence This defence is relevant in a case of trespass to person, be it a cause of action in assault, battery or false imprisonment. The general principle is that when a person is being attacked, he must take reasonable steps to defend himself, especially in situations where he does not have the time or opportunity to get help. All persons have the right to defend themselves against any violence that is prohibited by law. The key to a successful defence of self-defence is the element of ‘reasonableness’, as the defence will only operate if the force used by the defendant is proportionate to that being applied by an attacker. In the context of false imprisonment, a person may also react in order to resist an unlawful arrest, provided of course, that the violence used in resistance is reasonable and proportionate in the circumstances (see the case of R v Wilson 1 WLR 493).  FALSE IMPRISONMENT Defences: (Continuation) (b) Lawful Arrest The defence of lawful arrest may justify what would otherwise amount to false imprisonment, battery or interference with goods. For example, a police officer who reasonably suspects that a seizable offence is being committed may effect an arrest without a warrant under sec 23 of the Criminal Procedure Code. Reasonable suspicion includes the arrest of the ‘wrong’ offender, provided that the circumstances were such that any reasonable man would have suspected that the plaintiff was the offender concerned. See the case of Tan Eng Hoe v AG MLJ 151. Hence, a police officer who arrests someone whom he reasonably suspects to be committing a seizable offence but who is in fact not committing such an offence may justify his action on grounds of lawful arrest. See the case of Ramly & Ors v Jaafar- where a police arrested the plaintiff based on information from one Zakaria during interrogation. The trial judge held that the information was not reasonable and not credible but on appeal it was held the test should be objective test and it was reasonable.  FALSE IMPRISONMENT Defences: (Continuation) (b) Lawful arrest A police officer is also entitled to arrest any person who in his presence commits or is accused of committing a non- seizable offence and thereafter refuses to give details of his name and address upon the demand of the police officer. (See sec 24(1) of the Criminal Procedure Code) Furthermore, a police officer who conducts a search may take away any articles found on the person arrested and these articles will be placed in safe custody or brought to the court if there is a belief that the articles serve as evidence of crime. This in effect justifies what could otherwise give rise to the tort of interference with goods.  FALSE IMPRISONMENT Defences: (Continuation) (b) Lawful arrest A penghulu also conducts a lawful arrest when the situations relating to lawful arrest by a police officer above are satisfied. A penghulu must however surrender the person arrested to the nearest police officer or police station without unnecessary delay. (See sec 25 of the Criminal Procedure Code). Therefore when there exists unnecessary delay the arrest may become unlawful during the time of that ‘unnecessary delay’, constituting the tort of false imprisonment. A private citizen would not be liable for false imprisonment if he detains a person who in his sight commits a non-bailable and seizable offence. See the case Metro (Golden Mile) Pte Ltd v Paul Chua Wah Liang (unreported). See also the case of PP v Sam Hong Choy 1 CLJ 514.  FALSE IMPRISONMENT Defences: (Continuation) (c) Reasonable condition for release If the defendant’s detention of the claimant is contingent upon the performance of a reasonable condition i.e. payment of a toll or delay based on the need to wait for appropriate transport, but the claimant refuses to comply, his continued detention will be considered voluntary. See the case of Robinson v Balmain Ferry AC 295- In this case there was a pier and by the regulations a penny was to be paid by those who entered and a further penny to be paid on exit. Plaintiff paid his penny to enter with the intention of boarding a ferry for which there would be no further charge; he changed his mind and tried to leave without paying his penny at the exist point. Defendant refused to let him leave until he had paid. The court held that this was not false imprisonment, there was no duty to make exist free to those who had come by definite contract involving their leaving by another way and a charge of a penny was reasonable; notice of the condition was immaterial.  FALSE IMPRISONMENT Defences: (Continuation) (d) Medical detention There are circumstances when a person requires protection from their own behaviour and thus detention may be authorised by the provisions of the Mental Health Act 1983 (UK statute). Individuals suffering from particular contagious diseases may be detained against their will to the Public Health (Control of Disease) Act 1984 (UK statute) (e) Consent The defence of consent must be distinguished from the defence of volenti non fit injuria although there are views that they are essentially the same. Consent means the willingness of a plaintiff for what would otherwise amount to a tort to be committed upon him or his property, whereas volenti non fit injuria is a willingness on the part of the plaintiff to run the risk of injury as a result of the defendant’s conduct; this is often described as assumption of risk and the defence is more relevant in negligence cases.  FALSE IMPRISONMENT Defences: (Continuation) (e) Consent The defence of consent must be distinguished from the defence of volenti non fit injuria although there are views that they are essentially the same. Consent means the willingness of a plaintiff for what would otherwise amount to a tort to be committed upon him or his property, whereas volenti non fit injuria is a willingness on the part of the plaintiff to run the risk of injury as a result of the defendant’s conduct; this is often described as assumption of risk and the defence is more relevant in negligence cases. The consent must be given voluntarily (see the case of Latter v Braddell). Thus, the existence of duress or threats would therefore vitiate consent. Furthermore, the consent must be given only after the plaintiff has been fully informed of all relevant risks. Consent must be to the act complained of, and not something else. For example, the occupier of premises may have consented to Peter entering the premises but this consent does not extend to Peter committing say, false imprisonment on the occupier. In a situation where the plaintiff is unconscious or drunk or otherwise incapable of giving consent, the defence of consent is not available to the defendant.  FALSE IMPRISONMENT Defences: (Continuation) (f) Statutory authority There are a number of statutes which authorise trespass to the person in particular circumstances. One of the most important is the CPC. Also, a sentence of imprisonment passed by a court provides a complete defence to an action of false imprisonment. See Art 5(1) of the Federal Constitution which provides that no person may be deprived of his personal liberty save in accordance with law. Therefore, there are instances where the restriction on a person’s freedom from confinement is made in accordance with the law and so no false imprisonment arises. Arrest and restraint by the authorities is one such instance. See the case of Percy v Hall (1996), where the claimants had been arrested for breach of certain byelaws. They argued that the byelaws were invalid (for reasons which are derived from public law, and not important here). The court said that the byelaws were in fact valid, but even if they had not been this would not have prevented the defence of statutory authority, so long as the arresting officers had acted in the reasonable belief that the claimants were committing an offence.  FALSE IMPRISONMENT Intentional Tort other than Trespass to Persons: Here the defendant need not to have the intention to cause any personal injury. Indeed, personal injury or damage need not be proven as the torts are all actionable per se. If the defendant has the intention to inflict injury, or injury is caused to the plaintiff as a result of the defendant’s act, the following cause of action may be brought against him: (a) Liability under the principle in Wilkinson v Downton 2 QB 57 In Wilkinson v Downton, the defendant told the claimant that her husband had been seriously injured in an accident (had broken both legs). This was untrue and had been meant as a practical joke. The claimant suffered a serious shock (to the nervous system & physical incapacitation) which led her to suffer adverse physical symptoms for a period of time. It was held that a person who has ‘wilfully done an act calculated to cause physical harm to the plaintiff that is to say, to infringe her legal right to safety, and has in fact thereby caused physical harm to her’ has provided a good cause of action.  FALSE IMPRISONMENT Intentional Tort other than Trespass to Persons: (Continuation) (a) Liability under the principle in Wilkinson v Downton 2 QB 57 Note: This liability is usually categorised as intentional harm other than trespass to person. In other words, an act wilfully done which is calculated to cause, and actually does cause, physical harm to another person, is a tort. The decision of the case was significant in that it established a liability when the harm sustained is indirect. In other words, this case gave rise to a separate category of tortious liability based upon the infliction of indirect harm to another.  FALSE IMPRISONMENT Intentional Tort other than Trespass to Persons: (Continuation) (a) Liability under the principle in Wilkinson v Downton 2 QB 57 See also the case of Janvier v Sweeney [1918-19] 2 All ER 1056- where the plaintiff claimed that a man had introduced himself to her as a detective and had told her that if she refused to co-operate with him, he would inform the relevant authority that her fiancé was a German spy. The plaintiff, whose fiancé was not a spy, claimed that she suffered nervous shock due to the threat and stress. The court held that since the plaintiff could prove the truth of her allegation, that the shock was a direct consequence of the defendant’s act, her claim succeeded. Elements of liability under the principle are: (i) an act, not mere omission. This principle need not be limited to acts but also extends to statements; and (ii) this act must be wilfully done in that it is deliberate. Certainly any element of malice would support this particular requirement; (iii) this act is calculated to cause some harm. Although it has been suggested that it is the intention to do the act which must be proved, and not the intention to cause the harm; and (iv) actual damage must occur i.e. personal. It has not been tested yet whether damage to property is recoverable under the principle, although there should be no reason why a broader interpretation should be denied.  FALSE IMPRISONMENT Intentional Tort other than Trespass to Persons: (Continuation) (a) Liability under the principle in Wilkinson v Downton 2 QB 57 The requirements for liability were clarified in a recent Court of Appeal judgment (Wong v Parkside NHS Trust EWCA Civ 1721): i) There must be actual harm (physical harm or recognised psychiatric illness). This differentiates this tort from other forms of trespass as they are actionable per se. ii) The defendant must have acted intentionally. iii) The conduct must be of such a degree that it is calculated to cause harm so that the defendant cannot say he did not mean to cause it. Note: It is sometimes questioned whether the rule in Wilkinson v Downton should fall within trespass to the person. It involves the indirect infliction of harm to an individual so satisfies the general requirement of interference with personal integrity/autonomy that characterises these torts but it does require that the claimant suffers harm which is inconsistent with the notion that trespass is actionable per se.  FALSE IMPRISONMENT Intentional Tort other than Trespass to Persons: (Continuation) (b) Tort of harassment Harassment is defined as the pursuit of a course of conduct that the defendant knows or ought to know amounts to harassment of another. There is no requirement that the claimant suffers physical or psychological harm as a result of the harassment. The tort is satisfied if the claimant experiences alarm or distress as a consequence of the defendant’s actions, something which will vary according to the character of the victim (some people are more readily distressed than others). Once harassment is established, the claimant may obtain an injunction to prevent further harassment.  FALSE IMPRISONMENT Intentional Tort other than Trespass to Persons: (Continuation) (b) Tort of harassment The applicability of the principles on which liability may be established under the rule in Wilkinson v Downton has arguably been extended fairly recently in Khorasandijian v Bush QB 727; 3 All ER 669, CA. In this case, the plaintiff’s former boyfriend was unhappy that their relationship had ended and persistently pursued the plaintiff as well as her family with unwanted visits and abusive telephone calls. The Court of Appeal held that the defendant’s conduct amounted to a tort and the plaintiff was granted an injunction so that she would be protected from further harassment. (See also the case of Burris v Azadani 1WLR 1372- where a similar decision was made by the court). Note: Harassment per se does not constitute tort. However, although injury to health is not a prerequisite of a ‘tentative’ tort of harassment, the House of Lords in Hunter v Canary Wharf Ltd AC 655 at 707- appeared to suggest that distress, inconvenience or discomfort may suffice to establish a case of intentional harassment.  FALSE IMPRISONMENT Conclusion All in all, false imprisonment is the infliction of bodily restraint which is not expressly or impliedly authorised by law. In other words, tort of false imprisonment arises when the restraint is unlawful. Hence, to bring an action under false imprisonment, it must be proven that there was a total restraint of liberty. It does not matter whether the detainee is unaware that he has been deprived of his liberty. Thus, the interest that is protected is that of freedom from confinement. It serves to maintain a person’s liberty to unrestricted movement.