#7164 - False Imprisonment - Torts A

The tort of false imprisonment is committed when a total restraint on the freedom of movement of the plaintiff is brought about intentionally or negligently by the positive and voluntary act of the defendant, without legal authority (legal authority will be discussed not as an element but as a defence).

It is actionable per se – no damage need be shown to claim in false imprisonment.

P must show that D’s act was a positive act and not mere passivity or omission (Innes v Wylie).

Innes v Wylie: standing blocking door not a positive act.

D’s act must have been voluntary, meaning D’s act was conscious and willed.

• D is not required to have intended to bring about the results of the conduct to satisfy this element.

P must show that the total restraint he/she suffered was direct, meaning that it followed ‘so immediately upon the act of the defendant that it may be termed part of that act’ (Hutchins v Maughan).

[Note any issues with directness]

The question in FI is: whether D’s act, on its own, was sufficient to bring about the restraint of P?

Injury that is merely consequential upon D’s act will not ground a claim in tort.

Restraint will be consequential if there is an intervening act between D’s act and the contact with P, such that the contact cannot be termed part of D’s act (Hutchins v Maughan).

It may be relevant if time has elapsed between D’s act and the injury to P (this can be inferred from Myer Stores v Soo).

Intervening acts [note if any of the below apply]

Human acts, including acts of P, may constitute an intervening act.

1. P’s own act of coming to the hazard can be an intervening act: Hutchins v Maughan

2. Voluntary action by P can be an intervening act: Myer Stores v Soo

HOWEVER an act that is reflexive or in self-defence will be considered an inevitable consequence of D’s unlawful act and will not be seen as intervening to undermine directness (Scott v Shepherd).

Natural forces can constitute an intervening act (Southport Corporation v Esso).

• Tide (Southport)

• Gravity is not considered an intervening act (dropping something on someone still trespass)

Southport: the intervening act of the tide in bringing oil to shore made damage to P’s shore only consequential on D’s act.

But P may argue that that Southport should not be followed as “inevitable consequences” of D’s act (such as gravity or as was held in Scott v Shepherd) should not be considered intervening acts.

D may argue that [agent], and not D, committed the battery on P and therefore there is no directness. However, P can argue that [agent] was acting as D’s agent. The court would then treat the principal (in this case D) as being in the position of his/her agent [agent] and therefore there will be no problem of directness (Dickinson v Waters).

Can police be agents?

D may argue that a police officer cannot be found to be an agent for him/her. It will usually be found that police acted independently by making their own assessments, rather than taking directions from members of the public (Davidson v Chief Constable of North Wales).

However, P can argue that it is not unheard of for police to be agents of citizens (see, eg, Dickinson v Waters) and that the circumstances of the case, namely the fact that [note the reason eg police took direction], means that the officer/s were acting as D’s agent.

D must prove on the balance of probabilities that he/she was not at fault (McHale v Watson), by showing that he/she

• Did not intend to totally restrain P; and

• Was not reckless or negligent (careless) in carrying out his/her actions

Here, it appears that D [intended/did not intend] the outcome of his/her act because…

Deemed intention?

While may appear there is no actual intention, it is probable that the doctrine of substantial certainty, as applied in the US, applies in Australia (though there is no direct precedent here). By that doctrine, D will be deemed to have intended the result of his/her actions if a reasonable person in D’s position would recognise that their acts were substantially certain to result in that outcome.

In this case, a reasonable person would/would not realise that doing … is substantially certain to result in …

A defendant will be held to be reckless as to the outcome of his/her actions if he/she knows that the outcome might ensue from a particular action, but does that action anyway. However, this standard is not overly necessary to prove fault as negligence will suffice in Australia.

In this case…

2. Duration of restraint

3. Area of restraint

4. Knowledge of restraint

5. Total restraint?

Total restraint will not be made out where there is an alternative means of escape (Bird v Jones).

(Identify the alternative route)

To show that there was no total restraint, the means of egress must be reasonable; the law does not require P to take an unreasonable route to escape the restraint (McFadzean v CMFEU).

Escape via police: The ability of a plaintiff to call police to release him or her from false imprisonment will not be considered a reasonable means of egress, as there is still false imprisonment until the point that the plaintiff is released by the police. However it may be relevant to damages (less damages if could have escaped via police).

The law (per McFadzean) states that egress will not be reasonable if the route involves:

If the route involves a risk to life or limb, the route will not be reasonable.

What is a threat or danger to self will depend on the circumstances of the case.

• The court in McFadzean indicated by reference to R v Garrett that threat or danger to others may mean a means of egress is...