Tort 1 Tutorial

The legal issues to be determined are whether 1) Diana and Edward may be liable for the false
imprisonment of Celia, 2) Whether Diana may be liable for the battery of Celia, 3) Whether
Celia may be liable for the battery of Diana and whether she can rely on the defence of Self-
defence

In addressing the first issue, the concept of false imprisonment has to be focused on. False
imprisonment is defined as depriving the claimant of freedom of movement, without a lawful
justification for doing so. For one to be liable under this tort, there must be an imprisonment and
the imprisonment must be unlawful. It is a fundamental requirement of the tort that the plaintiff’s
freedom of movement in every direction must have been restricted even for a short time. In the
case of Austin and another v Metropolitan Police, the police surrounded a section of the crowd
in Oxford Circus and prevented them from moving from the area for seven hours. Some
members of the crowd sued and the court found that the situation amounted to false
imprisonment. In applying the law to facts, Celia was intentionally locked in the garden shed for
some time before she found a way to escape her imprisonment. It does not matter how long she
was in there; what is important is that she was locked in for at least some time. Notwithstanding
this, however, a partial restraint is not sufficient. In the case of Bird v Jones, a boat race was to
run on the Thames, and the defendants fenced off part of the footway on Hammersmith Bridge to
provide a viewing point, charging for admission. The claimant was in the habit of walking along
the footpath, and, insisting on his right to do so as usual, climbed into the enclosure without
paying. The defendants refused to let him walk across the enclosure and out the other side, and
said he could go out the way he came in, cross the road and walk past on the opposite side.
Because this alternative route was available, they were not liable for false imprisonment.
Similarly, in the instant case, Ceila had discovered a mode to escape her imprisonment by
breaking a small window and climbing through it. By virtue of this, it is clear that her restraint
was partial.

Furthermore, the means of escape must be reasonable. It will not be reasonable if it exposes the
plaintiff to the danger to life or limb. It would be reasonable to conclude that Celia’s act of
breaking and climbing through the window may have exposed her to danger of her physical
being and by extension her life.

The second issue to be determined is whether Diana maybe liable for the battery of Celia. 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. There doesn’t need to be any bodily
contact between the defendant and the plaintiff. It is sufficient if the defendant brings some
material object into contact with the plaintiff’s person. Therefore, for someone to be liable for
this offence, there must be force, direct application and intent. In the given scenario, Diana made
physical contact with Celia’s body when she leaped over her to punch her in the face thus giving
her a nosebleed. Further, Diana used a material object such as the balls to deliberately hit Celia.
A similar precedent was seen in the case of Scott v Wilkie where a lifeguard assaulted the
plaintiff by knocking over a chair on which he was sitting and hitting him with it. The court ruled
that there was a direct application of force used when the defendant hit the plaintiff with the
chair. The chain of events conducted by Diana as it relates to her hitting Celia with the balls and
punching her in the face was all deliberately done as she felt that Celia was better than her in the
sport of tennis and such competition agitated her.

Ultimately, the legal issue to be determined is whether Celia would be liable for the battery of
Diana and if she can rely on the defence of self defence. Celia made direct contact and used force
when she pushed Diana away thus causing her to break her ankle. This was done intentionally as
it was a direct reaction to the attack meted out to her.

Therefore, the question to be asked is whether Celia’s actions can be construed as a self defence
to the attack made on her by Diana? An assault or battery is justified if committed in reasonable
defence of oneself or another. What is reasonable depends on the circumstances. Firstly, the
battery must be committed in actual defence from and not by way of retaliation from an attack.
In the present scenario, Celia reacted or retaliated after Diana attacked her. Celia, however,
should have used her mode of attack at the time or while Diana was attempting to attack her in
order to be successful with this defence. Secondly, the self defence or defence of another must
reasonably commensurate with the attack. In Cachay v Nemeth, C, N and N’s wife were present
at a private party. C was acting in an irritating manner by attempting to kiss N’s wife, against the
latter’s will. N struck C a karate blow to the side of the head, breaking C’s jaw. It was held that
N was entitled to act in defence of his wife, but that he had used excessive violence and was
liable in battery. Contradistinctive to this, Celia’s attack cannot be construed as being excessive
and may be seen, to a lesser degree of attack on Diana compared to what Celia received.
Although she satisfied this criterion, her attack may still appear as a retaliation.

Therefore, based on the cases and principles cited, it can be concluded that both Diana and
Edward may be liable for the false imprisonment of Celia, Diana may be liable for the battery of
Celia and Celia may not be successful in raising the defence of self defence, thus she may be
liable for the battery of Diana.
Question 3.
How far is an occupier of premises responsible for their condition to trespassers present on the
premises?
For more than a century, the law has recognized that people who occupy land have a duty
towards the safety of others who come onto the land. This duty developed through the common
law, but in 1957, it began to be regulated by statute in England, with the introduction of the
Occupier’s Liability Act which laid down the rules about the duty of occupiers towards people
who came onto their land with permission. Barbados and Jamaica have enacted the OLAs but
other Caribbean jurisdictions have retained the common law position. The OLA 1984 of England
sets out the duty owed by occupiers toward those who enter their land without permission,
known as trespassers. This legislation, however, has not been adopted by Caribbean territories.
(Including Guyana)

The 1957 Act does not define “occupier” but states that the common law definition obtains.
Under common law, an occupier is the person who controls the premises. They do not have to be
the physical occupier, nor the owner; the critical issue is whether they exercise a sufficient
degree of control to allow or prevent other people entering. The owner of the property may have
let out to a tenant. The tenant becomes the occupier for the purpose of the statue. The duty under
the acts is to take such care as in all the circumstances of the case is reasonable to see that the
visitor will be reasonably safe in using the premises for the purposes for which he is invited or
permitted by the occupier. In Wheat v. Lacon & Co, the claimant and her family stayed at a
public house, The Golfer’s Arms in Great Yarmouth, for a holiday. Unfortunately, her husband
died when he fell down the stairs and hit his head. The stairs were steep and narrow. The
handrail stopped two steps from the bottom f the stairs and there was no bulb in the light. The
claimant bought an action under the Occupiers Liability Act 1957 and therefore both owed the
common duty of care. It is possible to have more than one occupier. The question of whether a
particular person is an occupier under the Act is whether they have occupational control. Lacon
had only granted a license to the Richardsons and had retained the right to repair which gave
them a sufficient degree of control. There is no requirement of physical occupation. However, it
was found that Lacon was not in breach of duty since the provision of light bulbs would have
been part of the day to day management duties of the Richardsons. Since the Richardsons were
not party to the appeal, the claimant’s action failed.

Lord Denning stated “wherever a person has sufficient degree of control over premises that he
ought to realize that any failure on his part to use care may result in injury to a person coming
lawfully there, then he is an “occupier” and the person coming lawfully there is his “visitor” and
the occupier is under a duty to his visitor to use reasonable care, In order to be an “occupier” it is
not necessary for a person to have entire control over the premises. He need not have exclusive
occupation; suffice it that he has some degree of control.

The occupier of premises owes a common duty of care to visitors to those premises. A visitor is
someone who has express or implied permission from the occupier to enter the premises. Anyone
who enters the property without such permission is a trespasser. Until 1972, the rule was that an
occupier owed no duty to trespassers other than a duty to refrain from deliberately or recklessly
causing harm to them. This rule was felt to be unduly harsh to trespassers, particularly “innocent
ones such as playing children or wandering adults. In British Railways Board v. Herrington, it
was held that an occupier does not owe a duty of care but a duty of “common humanity”. This
duty was less demanding than that owed to a legitimate visitor.

This principle was applied to the case Ellis v Jamaica Railway Corporation. In that case, a
trespasser tripped and fell on a railway track and was seriously injured when struck y a passing
train. The duty of common humanity entails having regard for the well-being of a trespasser
where (1) there is a foreseeable risk of his acts doing harm to the trespasser or (2) he knows of
the presence of the trespasser. It was held that there was no breach of duty. The driver applied
breaks as soon as he saw P and had not been negligent in any way.

Furthermore, in Kirton v Rogers, the plaintiff, an eight year old boy, was struck on the forehead
by a stone expelled from the defendant’s land, where explosives were being used for the purpose
of quarrying. It was held that the plaintiff ought to have anticipated that potential trespassers
were likely to be present and was under a duty to take reasonable steps to avoid danger to them.
He could discharge that the duty by posting someone to warn persons approaching to keep out of
the range of the blasting until the danger was past.
Tort

Nuisance – purpose of the tort - to protect the right to use and enjoyment of land without the
interference from others.

1. Private Nuisance – common law tort , remedy (injunction)

2. Public- a crime
3. Statutory- offences which are created under various statutes – public health,
Private Nuisance

Prevent unreasonable behavior or interference with another’s use and enjoyment of the land.
Court does a balancing exercise to determine each party’s right to the peaceful enjoyment of the
land.

Factors the court take into consideration

Element of the tort – What does the C has to prove

1. An in erect interference with the enjoyment of the land

2. Interference caused damage to the C
3. The interference was unreasonable

What is interference?

This can be caused by the continuing state of affairs. Some cases may involve physical invasion.

 Nuisance which caused emotional distress

 Running a brothel in an extra residential area

Hunter and Panary Wharf – loss of this kind of recreational facility did not amount to nuisance

Leaky and National Trust

Rybrooke barne garden center v kent county council

The interference caused by the D to c’s enjoyment of land would only amount to nuisance if the
interference was unreasonable.

Southwark London Borrow v Mills – court looked at the peculiar circumstances

What is reasonableness?
1. Sensitivity- a defendant is not responsible for damages if the c’s situation is overly
sensitive. Robertson v Kilvert
2. Locality- where the interference takes place. St. Helen Company
3. Duration – the longer the interference goes on, the more likely that the court will find it to
be nuisance
4. Malice – bad motive, where D acts with malice the court will find it as nuisance.

The question of damage

The interference must have caused some kind of damage to the C (physical damage to the land
Cambridge Water company v Eastern County – remoteness and reasonable forcability