As Barbara was walking through the perfumery department in Fenham’s Department store, her arm was suddenly seized by Katherine, a sales assistant, who was demonstrating a new perfume.
Katherine sprayed Barbara’s wrist with perfume. Barbara protested and indicated that if she had not had an urgent appointment she would have given Katherine ‘a good hiding’.
Katherine responded by obstructing Barbara from proceeding and compelling her to go a longer way to leave the store.
Barbara telephoned Katherine at Fenham’s several times but, apart from the first occasion when she reminded Katherine of her threat, she made no sound. She also arranged for the delivery to her of unwanted and objectionable items. As a result Katherine became ill and had to resign.
Consider the liability of Barbara and Katherine in the law of trespass to the person.
Law of tort deals different many situations in which one person causes harm or threatens to cause harm to another. In complex societies, there are a variety of competing and conflicting interests, and one aim of tort is to decide which of these interests should receive legal protection so I may have committed a tort if I trample on your flower beds, or cause you to be injured whilst you are visiting my flat or if I hit you deliberately. Even in negligence, this is a tort, which can impose a duty on one person to take care not to injure another person or another’s property.
In regards the issue of incident between Barbara and Katherine, they would be charged with Trespass to the person. Trespass to the person has three forms which include Battery, Assault and False imprisonment. Katherine maybe charged with battery and assault. Battery is defined as an act of the defendant which directly and either intentionally (or possibly negligently) causes some physical contact with the person of the claimant without claimant’s consent. In battery it requires that the defendant intentionally touches the claimant with the body or clothing no damage is necessary not to be proved beside the (Wilkinson v Dawnton), the principle of actionable per se.
In Scott v Shepherd (1773)1 Defendant injured Claimant while throw lighted firework into a market, Court were prepared to extend the definition of direct injury to give Claimant a remedy where inappropriate form of action has been taken. The distinction between directness and indirectness was important; later the court start began to focus on the element of fault that lies behind the defendant behaviour. Here Katherine had direct intention in relation to seized Barbara’s arm. In Fowler v Lanning 2 Lord Diplock J states that trespass to the person does not lie if claimant has been injured, even though the direct consequence of the defendant act, was caused unintentionally without negligence on the defendant’s part.
In order to consider Katherine intention to seized Barbara’s arm is a question of a fact that, it is not possible to be certain that they would conclude that Katherine is liable for an offence, but they may accept that her action was direct intention.
In Collins v Wilcock 3 Defendant touched women deliberately but not intentionally with more than restrain her temporarily. However, her act was unlawful and in that way she was acting with hostility. A general exception enforcing all physical contact which is generally acceptable in the ordinary conduct of daily life’ Robert Goff LJ suggested that bodily contact was not an actionable it was generally acceptable in everyday life. Here, there is a clearly direct act as resulting in contact which is unacceptable in everyday life.
1. 9 ER 525
2. 1 QB 426
3. AII ER 374
The Law is not clear on the requirement of hostility it was held in Wilson v Pringle (1987)4 that for the battery “touching must be proved to be a hostile touching”. Katherine intentionally applies direct force while seized Barbara’s arm, which cause of action Trespass to the person.
In order to consider Barbara’s liability of threatening attitude towards Katherine may consider as an Assault. Assault is defined as an act which causes another person to apprehend the infliction of immediate, lawful force on this person (Collins v Wilcock) 5. In common law ‘assault’ word used to cover the cases where the claimant apprehends contact. When Barbara indicate in response to Katherine’s sprayed on her wrist, it may be that in content of her words is insufficient to amount to the threat or if words themselves amount to be threat then there is no any clear legal authority that words alone could constitute an assault. Meade’s & Belt’s Case (1823)6 Holroyd J held that “no words or singing are equivalent to an assault”7The issues arose in Read v Coker 8 whether a verbal constitute an assault mean intent to harm. It was held that an assault is a threat of violence, but it does not need to be touching. It can be a punch but that didn’t land of a verbal assault with intention that carried out9.However it is arguable that use of words alone may be assault while taking into account of nearby situation. Therefore, Barbara’s indication could be anything e.g. punch, slap which may harm Katherine. However, it is clear that the word which Barbara used have to be examined whether, it contain immediate threat of violence or whether the word just used in response of Katherine’s behaviour. (Turbell v Savadge)(1669)10 where defendant said that “I will not attack you now”
So, in regards of Barbara’s telephoned Katherine and makes no sound amounts to be assault but it remains the issues that there cannot be assault if the threat is immediate and gives a reasonable apprehension of the imminent infliction of a battery. R v Ireland 11 and R v Burstow Lord Steyn12“The proposition that a gesture may amount to an assault, but that words can never suffice”. House of lord stated in R v Ireland that touching is still requirement. Lord Steyn said that fear may dominate emotions as it may be fear that the courier arrival at her door may be imminent and she may be bear the possibility of immediate personal violence. House of lord ‘A silent telephone call may be an assault where it creates a necessary element of apprehension in the mind of claimant’.
In the respect of Barbara’s arranged delivery for unwanted and objectionable item to Katherine she became ill and due to that reason she had to resign, may lie under the principle of Wilkinson v Downton (1897)13Wright J held that “The defendant has wilfully done an act that calculted to cause physical damage to the plaintiff. That proposition, without more, appear to me to state a good cause of action, there being no justification alleged for the act” where is physical harm is caused indirectly, then the liability may arise under this rule which applies to act aswell as the words. Court of appeal stated in Wong v Parkside Health NHS Trust 14that damage must occur physcial damage or recoginisable pyschiatric injury.
4. QB 237
5. 3 AII ER 374
6. 1Lew C.C 184
8.138 ER 1437
10. 86 ER 684
11. Q.B. 114
13. 2 Q.B. 57
14. 3 AII ER 932
Lord Hoffman’s state that ‘ English law does not recongnise a tort of intentional harrasment going beyond the intentional infliction of harm’. To calculted to cause physcial harm, means that the defendant intented or reasonably foresaw that the plaintiff would suffer harm then the defendant will be liable, if there is actual harm, defendant acted intentionaly or conduct must be of such a degree that calculated to cause harm. It is not necassery to show that harm was the actual intention. Before the enforcement of Protection from Harassment Act 1997 people lay down on the principle of (Wilkinson v Downton). The definition of harassment act 1997 S.1 (1) breaks down in three elements which must be proved to establish in order to succeed. Under the principle it would have to be shown that Barbara’s had actually indented to cause harm to Katherine even thought this might be happened indirectly.
False imprisonment has been defined as the infliction of bodily restraint which is not expressly or impliedly authorised by the law (Winfield & Jolowicz). Any restriction in the absence of consent where person’s right to leave the position may amount to false of imprisonment. Only partial restraint in this case so therefore there is no false of imprisonment Bird v Jones (1845)15 therefore, it is depends on law what they requires an intention to imprison or only an intention to do an act which cause the fact of imprisonment. However, Katherine obstructing the way of Barbara from proceeding and compelling her to go a longer way to leave the store, unfortunately she haven’t obstruct the way of Barbara fully as there was an alternative way. There would be no false of imprisonment if there are a reasonable means of escape. Defendant must be aware that he/she is being to falsely imprisoned? It was held in Herring v Boyle (1834)16 that false imprisonment had not been committed because boy had been unaware that he had been false imprisoned. Atkin LJ held that ‘imprisonment may damage a person’s reputation even he did not know about it’ (Meering v Grahame- white Aviation) [1918-19]17, CA Accordingly in Murry v Ministry of Defence (1988)18it was approved in the speech of Atkin LJ’s in (Meering) that the lack of plaintiff’s knowledge is not relevant to the cause of knowledge but to the recoverability of damages. However, if plaintiff had been false imprisonment and had suffer no harm then it could be expect to be a normal damages. Thus, In regards of Katherine obstructing the way of Barbara’s could be expect to be a normal damage as there was an alternative route which Barbara may use of it while taken the long route.
15. 7 QB 742
16. 6 C & P 496
17. AII ER Rep Ext 1490
18. 2 AII ER 521
However, the remaining issues may be consider the consent, which is unclear that whether the consent is a true defence or whether it is just for the claimant to consider the lack of consent in order to succeed in the first place it was decided in the case Freeman v Home office 19 there will be complete defence if claimant consented expressly or impliedly. In Wilson v Pringle, consent is not a defence to trespass to the person, but rather a denial any tort was committed in the first place due to this because if a trespass is defined as an offensive. As regards in first paragraph, Barbara didn’t protest when Katherine got hold of her, therefore it could be argue that there is implied consent for liability of battery to be overcome.
Thus we should advice Katherine that she can sue Barbara in respect of her illness and can claim Compensation for her resignation. We should advice Barbara that she is liable to Katherine for Katherine’s illness while threat her and delivered unwanted and objectionable items. However Fenham’s Department store would be liable for Katherine’s act as they are her employer and Katherine is their employee as she was acting as a sale assistant in the course of her employment.
19. 3 AII ER 583
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