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Trespass-to-person-part 3 ( last)
Tort Law I (LIA 1003)
Universiti Malaya
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3 FALSE IMPRISONMENT
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 (Meering v Graham White Aviation)
3 Elements of False Imprisonment
3.2 Mental State of The Defendant
Restraint must be committed intentionally
W Elphinstone v Lee Leng San- plaintiff was arrested by police at the
entrance of court on charge of driving a lorry with inefficient brakes. Plaintiff said
that the police officer negligently arrested. Held, false imprisonment cannot
occur through negligence.
3.2 Consequence of the Defendant’s Act
Only person who directly causes the confinement may be sued successfully
(Aitkeen v Bedwell; Ansell v Thomas)
Harnett v Bond- plaintiff went to D1’s house and he was thought to be acting
strangely and D1 called D2. D2 asked D1 to keep him there until he send a car.
D2 then kept Plaintiff in his asylum. After 9 years he was shifted to another place
where he was proving sane. The court of appeal found D1 liable for 3 hours and
D2 for 12 years FI.
3.2 Restraint Must Be Complete
The restraint must be total, and no safe means of escape should exists.
If escape can occur with damages, then FI still can be established.
Bird v Jones- a part of bridge was specially reserved for a regatta. Plaintiff
wanted to cross the part of the bridge reserved but defendant asked him to take
another path instead. The Plaintiff refused and stand there for half an hour. Held,
no FI.
Wright v Wilson- no false imprisonment arises when the Plaintiff can escape,
even it has to be a trespass to other’s land to regain liberty.
3.2 Considerations
i) Knowledge of Plaintiff
- whether the plaintiff knows he is detained or not
Herring v Boyle- schoolboy detained for not paying fees until his mother came and
fetch him. No FI because the boy doesn’t aware that he is detained
Meering v Graham White Aviation Ltd- Plaintiff suspected stealing varnish frm def. def
call police to arrest Plaintiff and bring into their office and asked to stay there. He
was proven innocent and successfully sued defendant. A person can be detained
without his knowledge
R v Bournewood Community and mental health NHS Trust- a person’s
awareness of imprisonment can only result in variation of damages
Murray v Minister of Defence- victim must aware of the fact of denial of liberty
ii) Entering premises under contract
- If a person enters under contract, he cannot sue someone for FI if he wish to
leave earlier than the period agreed upon
Robinson v Balmain New Ferry Ltd- Plaintiff want to cross river on defendant ferry. He paid one Pence to enter. Plaintiff changed mind about wanna cross the river and decide
to leave. He was stopped from leaving as he don’t wanna pay another penny to get
out. No FI because it is reasonable for defendant charge money to enter and
leave.
Herd v Werdale Steel- the Plaintiff went down into defendant mine at 9 am and should have been brought up at 4 pm. At 11 am defendant want to go up. He was
only brought up at 1 pm. No False Imprisonment. Defence of volenti non fit
injuria accepted.
iii) Arrest and restrain by authorities
- No person shall be deprived of his personal liberty save in accordance with law
(Article 5(1) of the Federal Constitution)
- If a person is arrested he should be informed of his ground of arrest and
to be allowed to consult by a legal practitioner of his choice. (Article 5(3) of the
Federal Constitution)
Abdul Malek b Husin v Borhan b Haji Daud - the Plaintiff was arrested without a warrant
by a group of special branch officers. He was never informed about the reason
except only Internal Security Act (ISA). In 57 days of trial he was only allowed to see
his family twice a day and interrogated for 19 days. He also alleged that there were alleged physical abuse.
Court held that it was unlawful arrest and the detention was mala fide 2
Where a person who is arrested must be presented infront of magistrate without delay and in 24 hrs. Cannot detain without magistrate’s authority. (Article 5(4) of the
Federal Constitution)
a) Police officer- Section 23(1) of Criminal Procedure Code allows arrest
without warrant. Section 2 of Police Act 1967 defines police officer as any member of the Malaysian Royal Police. Arrest without warrant is applicable in
seizable 3 cases. Eg robbery (Saul Hamid v Inspektor Abdul Fatah)
Mahmood v Government of Malaysia – Police can shoot if the person tries to
escape
Shabaan v Chong Fook Kam- the Plaintiff were arrested for reckless driving and causing death. They were informed that they will be detained for longer
period. The Plaintiff’s wish to tender the defence of alibi 4 but it was
unsupported. Held first detention was unlawful because no reasonable
suspicion. Second detention is lawful. FI established until the 2nd detention.
b) Penghulu – Authority given by Section 23 and 24 of Criminal Procedure Code
4 LIABILITY UNDER THE PRINCIPLE OF WILKINSON V DOWNTOWN 5
Wilkinson v Downton [1897] 2 QB 57
Facts of the case: As a practical joke, Defendant told Plaintiff that her husband had been injured in an accident. The effect of Defendant’s statement was a violent shock to
Plaintiff’s nervous system resulting in weeks of suffering and incapacity.
Held: Party may seek recovery for outrageous conduct that causes physical harm or
mental distress. In this case defendant wilfully performed the act which caused
harm to the Plaintiff.
Elements Of Liability Under The Principle
i) A positive act / statement (not an omission)
ii) The act must be willfully and deliberately done.
iii) The act is calculated (foreseeable) to cause some harm
iv) Plaintiff suffers actual damage
Janier v Sweeney- Plaintiff’s fiance (German descent) and Plaintiff worked as maid. Plaintiff’s
employer investigated, Defendant (detective) threatened Plaintiff by accusing her of
corresponding with German spy in order to get her to help him investigate her employer. Plaintiff suffered nervous shock and rashes. Defendant liable as Plaintiff could prove
her allegations and that the shock was a direct consequence of Defendant’s act.
Khoransandijan v Bush- The Plaintiff was an 18-year-old woman who was being harassed
by the defendant a 23-year-old man. He had threatened her with violence,
behaved aggressively when he saw her, shouted abuse at her, he would pester her
with phone calls at her parents and grandparents house. Defendant’s conduct
amounted to a tort and Plaintiff was granted an injunction so that she would be
protected from harassment.
Burris v Azadani- A woman was granted an injunction against a man who had
been harassing her; the injunction provided inter alia 6 that Defendant was not to go
within 250 yards of Plaintiff’s home. Upholding a four-week committal to prison for
breaches of this injunction.
Wainwright v Home Office- The Plaintiff suffered humiliation and distress as the result of being strip-searched (ie. required to undress) while visiting a relative in prison. Although the conduct of the prison officers (for whom the defendant, the Home Office
was responsible) in requiring the plaintiff to undress was in good faith, it was not
protected by statutory authority. The rule in Wilkinson v Downton should not apply
without proof of a specific intention to cause either physical or psychiatric injury.
Trespass-to-person-part 3 ( last)
Course: Tort Law I (LIA 1003)
University: Universiti Malaya
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