To succeed in a negligence action in tort, the claimant must prove three things

University Degree Law

Samantha Freeman Tort

BA Hons Legal Studies Year 2

Question 1

To succeed in a negligence action in tort, the claimant must prove the following three things:

1. That the defendant owed a duty of care.

2. That the defendant was in breach of that duty.

3. That the claimant suffered damage caused by the breach of duty.

Lord Atkin defines duty of care, as “you must take reasonable care to avoid acts or omissions, which you can reasonably foresee would likely to injure your neighbour.” To decide whether there is an existence of a duty of care, it involves applying one or more of the following: foresight, proximity and consideration of justice and reasonableness.

Foreseeability means that the defendant must have foreseen some damage towards the claimant. A case that shows foreseeability and the neighbour test is Donoghue v. Stevenson [1932] A.C 562; 20 M.L.R. 1 it was held in this case, that there could be a remedy in tort as a manufacture has a duty of care to the consumer, also if it is foreseeable that the claimant may be injured then the defendant will be held liable.

Proximity will vary from case to case, as it will be examined differently in each individual case. An example of a case, which shows this, is Bourhill v. Young [1943] A.C. 92 in this case the claimant was not within the area of impact so there was no proximity, so the House of Lords held the claimant was owed no duty of care.

Justice and reasonableness is seen as the reasonable man test. Would someone else do in the same situation do the same? This was shown by the case Caparo Industries PLC v. Dickman [1990] 2 A.C. 605 in which Lord Roskill commented; “It has now to be accepted that there is no simple formula or touchstone” in our scenario was Henry driving negligently?

If Henry was found to be driving negligently, the neighbour test can be applied and it can be found using the above criteria first set out in this question, using the above it is clear that he owed the children a duty of care. Although the issue here is not whether the children can sue, it is Mrs N and Anthony and whether they can sue for Nervous Shock?

Nervous shock is a psychiatric injury, which has to be proved. It is important to note that nervous shock is not related directly with physical injury. A case that shows this is Dulieu v. White [1901] 2 K.B. 669 in this case the claimant was pregnant and working behind a bar, when the defendant negligently drove his horse in to the bar. The claimant suffered shock resulting in the premature birth of her child.

There are two types of victims in nervous shock. There are primary victims and secondary victims. A primary victim is a person who is a participant. Described by Lord Oliver “as someone who suffers from what he sees or hears, such as person who is within the range of foreseeability”. The claimant in Dulieu v. White is a prime example of a primary victim. In the scenario of question 1 the children are primary victims and could sue for nervous shock. Mrs N and Anthony could not sue as primary victims as they are not within the range of foreseeability. White v. Chief constable of South Yorkshire Police [1999] 1 ALL ER 1 is a good example of foreseeability and to show that Mrs N and Anthony have no claim as rescuers, as they have not been exposed to physical danger.

A secondary victim is someone who witnesses the accident (but is not a direct participant) or arrives at the immediate aftermath of the accident. Secondary victims are required to satisfy additional criteria, which was set out in Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C. 310, which requires proof of a special emotional link with the person injured at the accident. McLoughlin v. O’Brien [1983] AC 410 shows the emotional link; Mrs McLoughlin was at home, when her family was involved in a accident. An hour later she was informed of the accident by the police and was taken to the hospital. Where one daughter had died and her other daughter and husband were covered in dirt and oil with cuts and bruises, and her son was screaming hysterically. She then suffered depression as a result of seeing the immediate aftermath.

Mrs N is a secondary victim, because when she got there she saw the immediate aftermath of the accident, although it may be argued that because she did not see her children she did not see the immediate aftermath. In the case of Anthony he can not be classed as a secondary victim, because he did not witness the accident or arrive at the immediate aftermath, so he can not sue as a secondary victim.

After the Alcock case the House of Lords stated the requirements for a duty of care in nervous shock are:

A close relationship of love and affection with the victim so that it was foreseeable that if anything happened they may suffer nervous shock a case which shows this is McLoughlin v. O’Brien [1983]
Proximity to the aftermath or the accident, and was close in terms of space and time. Alcock v. Chief Constable of South Yorkshire [1992]
They suffered nervous shock through seeing or hearing the accident or its immediate aftermath. A person who was informed of the accident by a third party would have no claim. White v. Chief constable of South Yorkshire Police [1999] 1 ALL ER 1.

Does Mrs N satisfy all the requirements set out by Alcock? It is assumed that because she is the mother of the children she may suffer nervous shock. So therefore she satisfies the first requirement of foreseeability. It also could be said that because Mrs N heard the “loud crash” and “police running down the road” that she arrived at the immediate aftermath, so it could be argued that she satisfies the second requirement of proximity. Although it may be counter-argued that because Mrs N, did not actually see her children, as they were already on their way to hospital whether there was any proximity. A case that shows this is Palmer v. Tees Health authority (1999) this case found that the claimant did not satisfy the immediate aftermath test. If this were found to be the case then Mrs N would not be able to sue for nervous shock. McLoughlin v. O’Brien would counteract the argument of the Palmer v. Tees Health Authority.

Mrs N satisfies the third need of suffering nervous shock after seeing and hearing the accident and immediate aftermath, and she was not informed through a third party. If Mrs N were found to satisfy all three requirements she would be able to sue for nervous shock.

Does Anthony satisfy all three requirements set out by Alcock?

The first point of a close relationship with the children would need to be proved because he was not there father. If proved then he would satisfy the first requirement. The second requirement of proximity would be difficult for Anthony to show because he was in Hong Kong. He did not see the accident or the immediate aftermath as shown by the case of Palmer v. Tees Health Authority. He could argue that he heard everything down the telephone so it was equivalent to being at the aftermath, but is very unlikely that he would succeed. The third requirement would not be satisfied because he would have been told of the accident by a third party, and he would need to prove he suffered nervous shock through hearing the accident in the background, which is very unlikely he could. I think in the case of Anthony it would be very difficult to sue for nervous shock.

Question 2A

This question is concerned with Occupiers Liability. There are two acts, which govern the position on Occupiers Liability.

The Occupiers Liability Act 1957 - This governs a duty to lawful visitors. Section 2(1) provides “ An occupier of premises owes the same duty, the common duty of care to all his visitors, except in so far as he is free to and does extend, restrict modify or exclude his duty to any visitor or visitors by agreement or otherwise”
The Occupiers Liability Act 1984 – This governs duty to persons other ...

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Question 2A

This question is concerned with Occupiers Liability. There are two acts, which govern the position on Occupiers Liability.

The Occupiers Liability Act 1957 - This governs a duty to lawful visitors. Section 2(1) provides “ An occupier of premises owes the same duty, the common duty of care to all his visitors, except in so far as he is free to and does extend, restrict modify or exclude his duty to any visitor or visitors by agreement or otherwise”
The Occupiers Liability Act 1984 – This governs duty to persons other than visitors. Section 1(1)(a) states that this act covers three categories of entrants:

Trespassers
Persons who can enter land in the exercise of rights conferred by the National Parks and Access to the Countryside Act 1949
Persons lawfully exercising a private right of way

Who is an occupier and who is a visitor? An occupier according to the House of Lords is someone who has a sufficient degree of control over the premises, to unable him be under a duty of care to people who lawfully come on to his premises. A Case that shows this is Wheat v. Lacon (E.) & Co. Ltd [1966] AC 522. In this case the defendants were owners of a public house, which was run by a manager. They granted the manager a license to use the top floor as accommodation; the managers’ wife took in paying guests. A guest fell down the staircase and was killed. The House of Lords declared that there may be two or more occupiers at anyone time. Lord Denning said “ a landlord who lets the premises has parted with control of the premises so the tenant will be the occupier”. Section 1(3) of the Occupiers Liability Act 1957 defines premises as any fixed or moveable structure.

If what Lord Denning has said were to be taken in to consideration in our scenario, it would make Mr and Mrs Fontes the occupier of the premises.

Section 1(2) of the Occupiers Liability Act 1957 provides “a visitor is a person who would be treated at common law as an invitee or licensee”. Where a person enters under a contract, a term would be implied that they owe that person a common duty of care this is shown in Section 5(1), and under section 2(6) where persons are entering for any purpose in the exercise of a right conferred by law. So in this case Mr Arantes would be able to claim he is a visitor under section 5(1) and section 2(6) of the Occupiers Liability Act 1957. Section 2(1) states that the occupier owes his common visitor a duty of care, and Section 2(2) defines duty as “ a duty to take such care as in all the circumstances is reasonable to see that the visitor will be reasonably safe in using for the purposes for which he was invited or permitted” (Cooke 153). This means that Mr and Mrs Fontes owe Mr Arantes a duty of care. If Mr and Mrs Fontes were found to be liable, Mr Arantes would be able to claim for physical damage and the damage to his watch.

My advise to Mr Arantes would be that Mr and Mrs Fontes could discharge the liability. Mr and Mrs Fontes could claim the duty was discharged under, Section 2(4)(a) which states “a warning of danger may discharge the duty of care”, Mr and Mrs Fontes warned Mr Arantes that the ladder was faulty and could discharge there duty of care. Although Mr Arantes could argue that there should have been a barrier or a added notice of the warning, as seen in the case Rae v. Mars (U.K) Ltd [1990] 3 E.G.80

Mr and Mrs Fontes could use the defence of volenti. Volenti is provided by Section 2(5) “The common duty of care does not impose upon an occupier any obligation accepted as his by the visitor”. By Mr Arantes accepting the ladder as being faulty by saying “I have successfully used worse ladders in the past” he is accepting liability for what ever happens, if this defence was proved successful Mr Arantes would not be able to claim for damages.

The other defence that Mr and Mrs Fontes could use is contributory negligence, “this defence will apply in actions under the act, and a visitor who has failed to take reasonable care for their own safety and that failure was a cause of their damage will have their damages reduced”. A case that shows this is Solle v. Hautt, and also the Law Reform (contributory Negligence Act 1945 section 1 (1)). This act will only apply where a person has suffered damage.

Question 2B

As seen in question 2a we have already established that Mr and Mrs Fontes are the occupiers, and we have established the position on premises.

Mr Arantes is a trespasser. A trespasser is a person “Who goes on to land without an invitation of any sort, and whose presence there is either unknown to the occupier or is objected to”. (Cooke 267)

The original duty owed was seen in the case of Addie v. Dumbreck Collieries [1929] AC 358, were it was said a trespasser was not intentionally or recklessly injured. The British Railways Board v. Herrington [1972] AC 877 changed the situation, where the court had to take in to account of the resources of the occupiers.

The Occupiers liability Act 1984 tried to establish where the ground lied after this case. Section 1 (1)(a) of the act applies a duty of care to persons other than the visitors. As it is established that Mr and Mrs Fontes are the occupier and Mr Arantes is a trespasser, Section 1(3) of the act can be applied although there is not an automatic duty Section 1(3) states:

“An occupier of premises owes a duty to another in respect of any such risk as referred to in subsection if –

He is aware of the danger or has reasonable grounds to believe it exists
He knows or has reasonable grounds to believe that the other is in the vicinity of danger concerned or that he may come in to the vicinity of danger
There is one against which, in all circumstances of the case, he may reasonably be expected to offer the other some protection.”

Was a duty owed?

If Mr and Mrs Fontes were aware that the staircase was defective then they would owe Mr Arantes a duty of care, but it would need to be proved that they were aware of the defective staircase. This is due to section 1(3)(a) which has been stated above. It does not say in the scenario whether Mr and Mrs Fontes were aware or not.

Section 1(3)(a) and (b) are seen as subjective as shown in White v. St Albans City Council (1990) The Times 12 March. In this case the claimant, a trespasser, was taking a short cut across the defendants fenced off the property, when he fell in a trench and injured himself. It was held that the defendants were not liable because they had taken precautions to stop people from entering their land.

If Mr and Mrs Fontes had a fence around their garden, they would not owe a duty of care, but if they did they would owe Mr Arantes a duty, it is not established whether there is a deterrent from the land.

Under Section 1(3)(c) did Mr and Mrs Fontes offer reasonable protection. A case where the term reasonable grounds were used is Swain v. Natu Ram Puri (1995).

Section 1(4) states the content of the duty as “to take such care as is reasonable in all the circumstances of the case to see that the trespasser does not suffer injury on the premises by reason of the danger concerned”. So an occupier may owe a duty to a trespasser who is engaged in committing a crime at the time of injury. This was seen in the case of Revill v Newbury 1996, it was held that the defendant was liable as it is governed by common law. This means that Mr and Mrs Fontes could still be liable even if Mr Arantes was committing a crime, so they would owe Mr Arantes a duty of care.

Mr and Mrs Fontes could claim a defence under Section 1(5), if they gave reasonable warning about the defective staircase, although it does not seem that they did give Mr Arantes any warning, so Mr Arantes could sue.

It could be argued that contributory negligence was a defence as he was trespassing on their land although this is very arguable.

If Mr and Mrs Fontes were found to be liable, Mr Arantes would only be able to claim for damages for physical injury, he would not be able to claim for his watch. As under section1 (8) the act does not apply to loss of or damage to property.

Question 3A

This question is concerned with nuisance. Nuisance is concerned with indirect interference with land. There are three types of nuisance. Statutory nuisance is concerned with central governments concern for health, so statues such as The Noise Act 1996 and The Environmental Protection Act 1990 Part III cover it.

The nuisance that this question was concerned with to advise Jerry is public and private nuisance.

Public nuisance is “an lawful act or omission which materially affects the reasonable comforts and convenience of life of a class of Her majesty’s Subjects” defined in the case Attorney General v. PYA Quarries [1957]. It is normally a crime, but an individual can sue on the grounds that they have suffered special damage. A case that shows public nuisance is Attorney General v. PYA Quarries [1957] 2 QB 169. In this case dust and vibrations from quarrying operations affected local residents, due to the fact so many residents were affected it was classed as a public nuisance. Halsey v. Esso Petroleum Co Ltd 1961 shows special damage. In this case the defendants operated a oil distributing depot, the claimant claimed that acid smuts were damaging their washing. The smuts also caused damage to the car; due to the special damage the claimant could make a claim under public nuisance, and did not need an interest in land.

In respect of public nuisance, and advise to Jerry in respect of public nuisance would be that he could argue it was a public nuisance, but would need that the other residents felt this way. He would also need show that he had suffered special circumstances, as seen in the case Halsey v. Esso Petroleum Co Ltd 1961, but I don’t think Jerry could show this. I do not think he could sue under public nuisance.

“Private nuisance is an unlawful interference with a persons use or enjoyment of land, or some right over or in connection with it” (Cooke 243). A case that shows this Sadleigh – Denfield v. O’Callaghan 1940. Where the overflow of water onto the land of another constitutes physical damage and is actionable in nuisance. Private nuisance is normally concerned with use of land between neighbours and it must be shown that there is an interest in the land. A case that shows this is Malone v. Lasky [1970] 2 KB 141 in this case the wife of tenant of premises was injured when a astern was dislodged by vibrations caused by the defendant. The wife had no claim under private nuisance, as she had no proprietary or possession interest in the land.

Jerry is a neighbour and has sufficient interest in the land, and so it looks as if he would be able to use private nuisance. A case that is important to help Jerry in the issue of private nuisance is St Helens Smelting Co v. Tipping (1865). In this case the claimant bought an estate near to the defendants plant. Fumes from the defendants’ plant damaged the claimants’ trees and crops. The court drew a distinction nuisances causing material damage to land and those, which caused sensible personal discomfort, where it causes personal discomfort locality becomes important.

Jerry has had no physical damage to his land so locality is important. Jerry could use the case of Sturges v. Bridgman (1879) to his advantage. In this case the defendant had used industrial pestles and mortars for twenty years. The claimant was a doctor who built an extension, and at this point he said the defendant had become a nuisance. The actions succeeded because the court took into account the fact that so many doctors worked in this area. Jerry could use this case to argue that the locality is that of industrial land, which employs a lot of people from the area, and so locality is important to them.

It would be advisable to tell Jerry that Do-It Ltd may say it was Jerry’s abnormal sensitivity. So “If the damage is due more to the claimants property than the defendants conduct then no nuisance is committed”.

The defences that Do-It Ltd may argue is coming to the nuisance, although this is not a defence, they could argue it as in the case of Miller v. Jackson [1977] QB 966. Although Jerry should not worry because they cannot use this as a defence. Do-It Ltd may argue social utility, but the fact that the defendant’s activity is a useful one is not a defence. Do-It ltd may try to use the defence of contributory negligence, but there is little authority on whether contributory negligence is available as a defence to nuisance. Do-It Ltd may be able to argue an act of god, due to the fact that the wind is blowing it in that direction. The remedies if Jerry Succeeded that could be made available to him are. 1. Damages 2. Injunction 3. Self Help.

Question 3B

This question is concerned with the rule in Rylands and Fletcher. The rule is a form of strict liability, this means that the liability does not depend on fault. “It governs liability for escapes from land, used for a non-natural purpose” (Cooke 261). Through the Rylands v. Fletcher (1865) case Blackburn J, established the following rule “ a person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes”.

There are though requirements of the rule:

The first rule is that the defendant must bring the thing on to the land. The case that shows this is Giles v. Walker (1890), where it was held that the defendant was not liable because natural forces blew the seeds on to the claimants land. In this question Dibonicus has satisfied this first requirement, because he has bought the chemicals on to the land, and it is not usually used for chemical use. The second requirement is anything that is likely to do mischief if it escapes. A case that shows this is Rylands v. Fletcher itself, where water was the mischief. In the question Dibonicus has settled the second requirement, the chemicals could cause mischief if they escaped. The third requirement of the rule is that the thing must escape. A case that shows this is Read v. J. Lyons Ltd (1947), it was held, as there had been no escape of the thing that inflicted the injury, Rylands and Fletcher became inapplicable. In the question Diboncus satisfies the third requirement, because the chemicals escape. The fourth requirement was non -natural use of land by the defendant. A case that shows this is Rickards v. Lothian (1913), it was held, and there was no liability under Rylands v. Fletcher, because the supplies of water via normal installations were a natural use of land.

In the question Dibonicus is using the land for non-natural use of land, it is a row of dwellings so people live in houses, and to use dangerous chemicals is a non-natural use of land, because it is not naturally found there. The fifth requirement of the rule is foreseeability, injury must be foreseeable. Cambridge Water Co v. Eastern Counties Leather (1993) shows this, it was held that Rylands and Fletcher could not be applied, because the defendants had not known, and could not reasonably have foreseen, that the escape would cause pollution. Dibonicus could reasonably foresee that if it escaped would cause pollution, because of the word imprinted on the side of the container “DANGER HIGHLY FLAMABLE AVOID SMOKING IN THE SAMR ROOM”. Can Alfredo and Heraculta sue Dibonicus?

My advise to Alfredo would be that he could sue Dibonicus, because there was damage to his land and chattels on his land. A case that validates this point and would be beneficial to Alfredo would be Weller v. Foot and Mouth Disease Research Institute [1996] 1 QB 569, because although in this it was found that there was not sufficient interest in the land for Rylands and Fletcher to be applied. Alfredo did have a sufficient interest in the land. So therefore Rylands and Fletcher could be applied. My advise to Alfredo would be that although Dibonicus may have reasonable defences (which will be discussed further on) he has a good case to claim for damages under Rylands and Fletcher.

The advise to Heraclita, would be that she may be able to claim. The position with regard to Rylands and Fletcher is clear with regard to personal injury. The difficulty comes from the case of Read v. Lyons, where it was stated that negligence must be proved for damages. You are unable to prove that Dibonicus was negligent because he has kept it in accordance with manufactures instructions, So Heraclita it is an undecided situation.

There are certain defences that Dibonicus could use. He could use the defence of an act of a stranger “where the escapes is caused by the act of a stranger over whom the defendant has no control, this will be a defence”. (Cooke 267)

A case that shows this is Perry v. Kendricks Transport Ltd (1956), in this case it was held that the defendants were not liable as a stranger, who they had no control over, caused the explosion. Dibonicus had no control over Wanderer, so he may be found not to be liable. If it is found that he is a private nuisance, Dibonicus may use the defence of a third party. In the case of Smith v. Littlewoods Organisation Ltd (1987), the key principle was that there was no general duty of care to prevent third parties from harming others by their deliberate wrongdoings. Although in this case Lord Goff stated that the “defendant, negligently causes or permits to be created a source of danger and its reasonably foreseeable that third parties may interfere with it the defendant may be liable.” So if it is seen that Dibonicus permitted the source of danger the chemicals, may be still liable if it was reasonably foreseeable that a third person may interfere with it.

Question 4A

The first issue that this question raises is vicarious liability. An employer in tort is responsible damage occurring to its employees acting in the course of their employment.

To impose vicarious liability there are two conditions that must be met, there must be a specific employee – employer relationship. It must be separated from an independent contractor, as an employer is not usually liable for independent contractors. So we need to distinguish whether Pietro is a servant or an independent contractor. There are tests to distinguish this factor, firstly the control test and the degree of control an employer has over his employee this is shown by the case Yewens v. Noakes (1880). Secondly there is the organisation test where organisations can have theories applied to see if they are an organisation, a case that shows this Stevenson, Jordan and Harris v. McDonald (1952) this case determined whether someone’s job was an integral part of the business an independent contractor would not be integral. Thirdly there is the test mutuality of organisations this is shown by O’Kelly v. Trusthouse Forte Plc (1983). The whose business is it is shown by the case of Lane v. Shire Roofing (1993). No single test is conclusive; you need to include the intention of the parties, the degree of control, integration within the business and the allocation of financial risk all need to be taken in to account.

The express intention of the parties as to the classification of their working relationship is an important factor, a case which shows this is Ferguson v. John Dawson & Partners (contractors) Ltd (1976). Where it was held that the employees were liable for no guard on the roof even though the employee failed to check the safety.

Pietro in this question as the employer is the one who pays him, and can dismiss and can tell him how to do his job. Pietro is acting in the course of employment, if what he does is authorised, expressly or implied by his employer. If it is what he is paid to do, and he carries it out in an unauthorised manner he is still in line with his employment. Whatman v. Pearson (1868) showed this where it was held that the employer’s duty involved looking after a horse and cart, and even though he did this in an unauthorised manner he was still acting within the scope of his employment so therefore he was acting within the scope of his employment, as he was just to look after the horse.

It could be argued using this authority, that even though Pietro was not using the safety belt, he was still acting in accordance with his employment so therefore Thrift Ltd would be liable. When considering the scope of employment it is enough to show that the employee was generally doing his job at the time and doing it negligently does not take an employee outside the course of his employment. A case that shows this is Century Insurance Co Ltd v. Northern Ireland Road Transport Board [1942] this would be a valuable case for Pietro to use to show that Thrift ltd were liable.

The advise to Thrift Ltd in respect of Pietro it would be to argue that he was on a frolic of his own, because he was so negligent. They could argue the of Warren v. Henlys [1948], where it was held the defendants were not liable because the employee was acting outside the course of employment.

The Chief Accountant may try to sue Thrift Ltd for the damage of his car by arguing, that he was still acting with in the course of his employment by using the case of Smith v. Stages [1989] in this case it was held that the men travelling back early was immaterial, since they were still being paid wages so they were still on duty and the defendant was liable. As it is a driving case he cannot sue anyone for his car. Thrift ltd could argue the of Storey v. Ashton [1869], where a new and separate journey will take the employee outside the course of employment, and his new journey was going to Ginos for lunch.

If though Thrift ltd were found liable for Pietro and the chief Accountant, they could claim Employers indemnity. This is where an employer has been found vicariously liable for an employee and is entitled to seek an indemnity from the employee to recover any damages. A case that shows this is Lister v. Romford Ice & Cold Storage Co [1957]. So this means Thrift Ltd could also argue contributory negligence. In the case of I.C.I v. Shatwell [1964], it was found that the employer was not liable because the claimant was held to have accepted the risk of injury. So Thrift ltd could state the Pietro accepted the risk of injury by not using his harness that he was supposed to.

Question 4B

This question is concerned with trespass to the person. Trespass is any direct or immediate interference with a person’s freedom; it also includes freedom of movement.

There are three types of trespass to the person. The first type is battery. Battery is the direct and intentional application of physical force to the person of another without lawful justification. The claimant only has to show the defendant intended to touch him, which was shown in Collins v. Wilcock [1984]. Where a police officer had gone beyond the scope of her duty and so committed battery. The case of Wilson v. Pringle [1987] went on to further clarify this issue where Croom-Johnson L.J stated, “ in battery there must be an intentional touching or contact in one form or another, that touching must be proved to be hostile touching”. From this it could said that PC Nat was liable for battery, because he had no intention of contracting another. It could however be said that Jonas is liable for battery, by spitting on the police officer because there was intention from his statement of “ That’s on behalf of the kite flyers association”. Although the intention to thump PC Nat would not be battery because there was no actual contact.

The second type of trespass to the person is assault. Assault is an act that directly and intentionally causes the claimant to fear that the defendant will immediately inflict a battery on him. If the defendant does not have the means to carry out the threat then no assault has been committed. So there must be a fear of immediate battery. So in the case Thomas v. National Union of mineworkers [1985], a violent gesture by pickets at colleagues who were still working and pass by in buses is not assault. When the defendant attends to hit another, but is held back by a third party an assault is committed. This means that when Jonas was shaking his fist at Pc Nat, it was not an assault. It only became an assault when he went to thump PC Nat, but was back by Didier. If Jonas had said something along the lines of “I would hit you but I am to hungry”, this would then neutralise the assault, and so he would not be liable. This was shown in the case Tuberville v. Savage [1969], but Jonas did not neutralise his action.

If Jonas was found liable for assault and battery, he may be able to use the defence of contributory negligence, Barnes v. Nayer [1986] as Pc Nat did not know that Jonas was congratulating Didier.

The third issue of trespass to the person is false imprisonment. False imprisonment is an unlawful justification of constraint on another’s freedom of movement, it must be completely deprived. Bird v. Jones [1845] showed this, it was held in this case that there was no false imprisonment, since there was no total restraint.

Where a claimants liberty is subject to a reasonable condition, it is not false imprisonment to restrain a claimant, until that condition has been met. Robinson v. Balmain Ferry Co Ltd [1910] held that there was no imprisonment because the condition imposed was a reasonable one in the circumstances. Although knowledge of the restraint at the time is not necessary to succeed in action for false imprisonment. Meering v. Grahame-White Aviation Co Ltd [1919] may show Didier liable for false imprisonment by grabbing Jonas’s arm for two minutes. Although it may be seen as subject to a reasonable condition, due to the fact Jonas was going to thump Pc Nat and he stopped it from occurring, Didier would be able to use the defence of necessity. The defence of necessity may be valid to trespass to the person my be valid where the defendant acts for the purpose of protecting the claimants own health and safety. This was seen in the case Leigh v. Gladstone [1909]. In this case it was found it was necessary to intervene because they had a duty to the others in their custody. It could be said that Didier acted on behalf of Jonas’ safety and the safety of Pc Nat, by falsely imprisoning Jonas. It also stopped Jonas from being liable for battery. If this was applied Didier would not be liable for false imprisonment.