AFRICA NAZARENE UNIVERSITY
LAW SCHOOL
COURSE UNIT: TORT II
COURSE CODE: LAW 201
COURSE INSTRUCTOR: DR. CHARLES A. KHAMALA, SENIOR LECTURER
TRIMESTER: SEPTEMBER-DECEMBER 2020
LECTURE THREE: TRESPASS TO THE PERSON: DEFENCES AND RESTRAINT OF
MOVEMENT
After this lecture you will understand that:
o Defences to assault, battery and false imprisonment.
o Restraint of movement by “kettling.”
1. DEFENCES
The following justifications are available in an action of intentional trespass to
the person.
2. CONSENT
If the plaintiff expressly or impliedly consents to an act which would, “but for”
that consent, amount to the commission of a tort, the defendant is not liable.
Thus, the plaintiff may give their consent to physical contact within the rules of
a lawful sport or to the performance of a surgical operation. This is also the
better way of dealing with intentional but incidental contact in everyday life.
Although consent is not a defence to a criminal assault occasioning
actual harm, Lord Denning M.R. in Murphy v Culhane [1977] suggested that a
person could, in an appropriate case, either be taken to have “assumed the
risk” or be defeated by ex turpi causa. This might be so where, for example, the
plaintiff was the aggressor and “got more than he bargained for.” This view is
further supported by Barnes v Nayer [1986], but it cannot apply where the
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defendant’s response to the provocation is a “savage blow out of all proportion
to the occasion.”
In the context of material treatment the principles applicable to the
defence continue to evolve. Treatment without consent is prima facie a batter,
and an adult of full capacity has an absolute right to choose whether or not
to consent to treatment (see Airedale NHS Trust v Bland [1993]; Re MB
(Medical Treatment) [1997]). A consent need only be in general terms; once
there is such a consent, the case will not be in trespass as held in Chatterton
v Gerson [1981], although an issue as to whether proper information was given
in accordance with General Medical Council guidelines may raise issues of
informed consent in an action for medical negligence (see Chester v Afshar
[2004]).
In Chatterton v Gerson [1981] the plaintiff was suffering from severe
pain caused by a trapped nerve for which the defendant, a specialist in the
treatment of chronic intractable pain, gave her spinal injections. This helped
the pain for a while but it rendered her right leg numb. She claimed in trespass
on the ground that her consent to the injection was invalid as she had not been
warned of the risk or informed of the potential consequences. The High Court
held that the defendant was not liable in trespass. Although medical treatment
involving the direct application of force administered without the patient’s
consent, or giving treatment different from that for which consent has been
given, constitutes a battery, where a patient is informed in broad terms of the
nature of the procedure and consent is obtained, failure to disclose the
associated risks does not invalidate the consent.
An action in respect of failure to disclose sufficiently the risks inherent in
medical treatment must be based in negligence (see Sidaway v Bethlem Royal
Hospital Governors [1985]. In Chester v Afshar a neurosurgeon who failed to
warn a patient of a small inherent risk of injury was liable in damages for
injuries resulting when a serious side-effect occurred, even though there was no
negligence in the actual performance of the surgery. The majority of the court
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held that, unless the full award was made, the duty to warn would be a hollow
one.
If there is no consent, an action will lie. This right to personal autonomy or
self-determination was also in issue in Secretary of State for the Home
Department v Robb [1995] where, following Airedale NHS Trust v Bland, a
declaration was granted that prison officials and nursing staff responsible for
the care of a prisoner of sound mind who went on hunger strike could lawfully
abide by his refusal to receive nutrition, for so long as he retained the mental
capacity to do so. In reaching this decision the court declined to follow Leigh v
Gladstone [1909], which had held the forcible feeding of an imprisoned
suffragette on hunger strike to be justified on the ground of necessity.
Where an adult patient is not in a fit state to give or withhold consent, a
practitioner may nevertheless administer treatment in an emergency, in which
case the practitioner may rely on the defence of necessity (see below).
Otherwise, if the practitioner reasonably considers it to be in the best interests
of the patient to administer treatment, the guidance of the court in the form of
a declaration that the proposed treatment would not be unlawful should be
sought.
In Britain, a minor of 16 or 17 may consent to treatment without parental
approval (under the UK Family Law Reform Act 1969, s.8) as may a minor below
that age, provided that he or she has sufficient intelligence and understanding
to know precisely what is involved as the House of Lords held in Gillick v West
Norfolk & Wisbech Area Health Authority [1986]. It seems, however, that no
minor of whatever age can refuse medical treatment to which a parent has
validly consented, and that the court can, in all cases involving minors,
override the wishes of the patient in the exercise of its inherent wardship
jurisdiction.
Consent must be freely given and will therefore be vitiated if obtained by
duress. It may also be invalid if obtained by fraud or misrepresentation, but
only if the plaintiff is thereby mistaken as to the essential nature of the act. As
noted earlier, a mistake merely as to the consequences of the act does not
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affect consent, so that a patient need only be informed in broad terms of the
nature of any proposed treatment (see Chatterton v Gerson [1981]). Failure to
disclose known risks associated with the treatment cannot therefore give rise
to a battery but may be actionable in negligence (see again Sidaway v
Governors of the Bethlem Royal Hospital [1985] and Chester v Afshar
[2004]).
3. NECESSITY
The basis of this defence is that the defendant was obliged to act as they did in
order to prevent greater harm either to the plaintiff or a third party. The giving
of emergency treatment to one who is unable to consent, for example, may be
justified on this ground as was held in F v West Berkshire Health Authority
(HL, 1989). However, the defence is not available where the occasion of necessity
is brought about by the defendant’s negligence, and once this matter is raised
it is for the defendant to show that he or she was not negligent.
4. SELF-DEFENCE
An individual may use such reasonable force as necessary to protect their
person or their property, and to prevent the entry of, or to reject, a trespasser
upon their land. The use of reasonable force to prevent crime is statutorily
sanctioned (Kenya Penal Code section 16) so a defence is available to one who
goes to assist another under attack. However, the test in tort is whether the use
of force of the kind actually employed was reasonable in all the circumstances.
In Ashley v Chief Constable of Sussex Police [2008] Ashley was shot by
the police during an armed drugs raid at his home the early hours of the
morning. The police admitted negligence but disputed liability for battery on
the basis that the officer in question had acted in self-defence. The House of
Lords held that a defendant who had mistakenly but honestly thought it was
necessary to defend himself against an imminent risk could not rely on selfdefence if his mistaken belief, although honestly held, had not been a
reasonable one.
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5. LAWFUL AUTHORITY
We have already looked at some of the cases. Quinland v Governor of HMP
Belmarsh [2002] confirms that a lawful warrant of commitment from a court
is a complete justification for detention, providing that detention does not
extend beyond the time in fact authorized. At common any person may take
reasonable steps to stop or prevent an actual or reasonably apprehended
breach of the peace, and such steps may include the detention of a man
against his will.
Arrest raises many issues. Statute, in the form of the general powers in
both the National Police Service Act of 2011 and the Criminal Procedure Code
(Chapter 75 Laws of Kenya) (and many specific powers in other statutes) and
the common law, gives powers of arrest to constables. Action taken to exercise
such a power of arrest is a justification, both for the detention, and for the use
of reasonable force. However, the defendant must be able to satisfy all the
conditions in relation to the use of the power, and, where he cannot, absence
of malice is irrelevant. Under the Constitution, the state must provide for
compensation for improper deprivation of security of the person, but this
will not apply to cases where the arrest and detention were objectively
justified. In other cases damages for false imprisonment represent that
compensation.
For the arrest by a constable to be lawful, he or she must have a
reasonable suspicion that an offence has been, is being or is about to be
committed, as the case may be, and also that the person arrested is guilty. This
is an objective test, and it is not enough for the plaintiff to show that he was,
in fact not wrong-doer, e.g. Al Fayed v Metropolitan Police Commissioner
[2004].
We also need to consider how the rules apply to citizen’s arrests, which
are regulated by the National Police Service Act and the Criminal Procedure
Code. These powers are significantly narrower than those of constables. They
now apply to a person committing it reasonably suspected to committing a
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cognizable offence while he is in the act of committing the offence, and, where
an cognizable offence has been committed, to a person guilty or reasonably
suspected of having committed it. Reasonable suspicion that an offence has
been committed does not count as held in Walters v W H Smith [1914].
However there is also a requirement that it must not be practicable for the
police to effect the arrest, and the arrest must be necessary to prevent
injury, damage to property or the suspect making off before the police can
“assume responsibility” for him. There is no doubt that the intention is to
discourage citizen’s arrests except when the suspect is “caught in the act,”
and to encourage reporting to the police for them to take over the investigation.
In Davidson v Chief Constable of North Wales [1994] the plaintiff and
her friend were arrested by the police after a store defective wrongly suspected
they had stolen a cassette. The action against the police failed because of their
reasonable suspicion based on the initial statement of the store detective.
Could the store detective, however, be said to have “instigated, promoted and
actively incited” the arrest, thus rendering herself and her employer liable for
false imprisonment? No, according to the Court of Appeal. The police had
exercised their own judgment, even though the detectives said in evidence that
she was accustomed to the police acting on her information, and clearly expected
them to.
In Lumba v Secretary of State for the Home Department [2011] the
Supreme Court ruled that breach of a public law duty authorizing detention is
capable of making a detention in the context of immigration detention. A group
of foreign nationals detained pending deportation under the Immigration Act
1971 claimed in false imprisonment. Although official policy was that a foreign
prisoner who had been released from prison would not normally be detained
pending deportation, the Home Office introduced a secret ban on release
pending deportation. It was held that the breach of a public law duty authorizing
detention was capable of making that detention unlawful and the plaintiffs had
therefore been falsely imprisoned. The fact that the appellants would have
lawfully been detained in any event did not affect liability in false
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imprisonment. However, since false imprisonment actionable per se the
question of damages arose. In these circumstances a majority rued that no more
than nominal damages should be awarded.
6. RESTRAINT OF MOVEMENT BY “KETTLING”
In Austin v Metropolitan Police Commissioner [2009] the police, acting on
the basis of intelligence that the anticipated violent protests on May Day 2001
would create one of the most serious threats to public order ever seen in the
city, adopted kettling strategy to prevent violence. This involved placing an
absolute cordon to contain protestors and restrict movement around areas at
particular risk of personal injury and damage to property. The appellants, not
themselves protestors, were caught within this police cordon and prevented
from leaving the “kettle” for up to seven hours. They claimed that this
amounted to false imprisonment and deprivation of liberty within the
meaning of the European Convention on Human Rights. The House of Lords
held that the level of restraint did not in fact amount to imprisonment at
common law. On the basis of the specific and exceptional facts of this case,
kittling also did not amount to a deprivation of liberty so the ECHR was
inapplicable. However, the court went on to say: “Had it not remained
necessary for the police to impose and maintain the cordon in order to prevent
serious injury or damage, the ‘type’ of the measure would have been different,
an its coercive and restrictive nature might have been sufficient to being it
within article 5.”
7. DAMAGES IN TRESPASS
All forms of trespass are actionable per se without proof of damage but:

Nominal damages only may be awarded where no actual loss is suffered;

Aggravated damages may be awarded where, for example, an assault or
battery takes place in humiliating or undignified circumstances;

In an appropriate case, exemplary or punitive damages may be awarded.
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A significant punitive award of exemplary damage was awarded in Muuse v
Secretary of State for the Home Department [2010] because of the malicious
and oppressive conduct of the officials during his unlawful imprisonment.
In Muuse v Secretary of State for the Home Department [2010] Muuse
had been unlawfully detained pending deportation to Somalia even though
there was no right to deport him. Verification of his claims to establish this
conduct have been carried out quite simply but nothing was done and letters
from his solicitors to the relevant officials went unanswered. During his
detention Muuse was treated by officials in a malicious and oppressive manner
and was terrified that he would be deported. On the basis of this treatment by
the officials in question, the judge awarded a significant punitive award of
exemplary damages. The Home Secretary did not dispute the award of
compensatory aggravated damages for unlawful imprisonment but made an
appeal against the award of exemplary damages. The Court of Appeal held that
Home Office appeal was dismissed. Sir Scott Baker observed: “… it is to be hoped
that the worrying issues raised by his case have been or will be addressed.
Nothing less is acceptable in a true democracy.” In reaching its decision, the
court relied on Rookes v Barnard [1964] where Lord Devlin said an award of
exemplary damages is made where its effect serve “a valuable purpose in
restraining the arbitrary and outrageous use of executive power.”
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