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Introduction
False Imprisonment may be defined as an act of the defendant which
causes the unlawful confinement of the plaintiff. To constitute
false imprisonment certain factors such as probable cause for
imprisonment, knowledge of the plaintiff for imprisonment,
intention of the defendant while causing imprisonment and period
of confinement matters.
A private individual, a police officer or any public authority can
falsely imprison a person as well. For imprisonment it is not
necessary
that the person should be put behind bars, but he should be
confined in
such an area from where there are no possible ways of escape
except the
will of the person who is confining the person within that area.It is not the degree of the imprisonment that matters but it is
the
absence of lawful authority to justify unlawful confinement which
is of
relevance.
As almost every tort has a defence, so does this tort. The
defences of
false imprisonment are consent of the plaintiff or voluntary
assumption
of the risk, probable cause and contributory negligence. The
defence of
consent of the plaintiff and probable cause are complete defences
while
the defence of contributory negligence is used only for mitigation
of
damages.
False arrest is the arrest of the individual by the police officer
or
private person without lawful authority. Although we call it false
arrest, it is a part of false imprisonment only. False arrest and
false
imprisonment are virtually indistinguishable except in their
terminology
and have been held by the courts as a single tort.
There are three remedies for false imprisonment. They are damages,
habeas corpus and self help. Being a tort, the basic remedy for
false
imprisonment is an action for damages which can be due to physical
or
mental suffering, loss of reputation or even malicious intent on
behalf
of the defendant. If a person is unlawfully confined than ha can
be
released from such confinement by the writ of habeas corpus. A
person
can also use reasonable force in order to escape from the
confinement.
Constituents Of False
Imprisonment.
# Period Of Confinement:
However short the period of unlawful detention an action for false
imprisonment will always lie ,provided that the other requirements
of
the torts are satisfied. Confinement for a very short period, say
fifteen minutes is sufficient to create liability of false
imprisonment.
The period of confinement is generally of no relevance except in
the
estimation of damages.
The lengthy confinement does not necessarily mean that a
compensable
false imprisonment has occurred. An otherwise lawful detention may
become unlawful if the detention is prolonged for an unreasonable
period
of time.
# The
Intention Factor:
Normally this tort of false imprisonment must be intentional. A
person
is not liable for false imprisonment unless his or her act is done
for
the purpose of imposing a confinement or with knowledge that such
a
confinement , to a substantial certainty will result from it. The
necessary intent for the purposes of false imprisonment is the
intent to
confine. In order to demonstrate the necessary element of intent,
the
defendant must only intend to accomplish the act that causes the
confinement, they need not contend that the confinement was
unlawful,
the defendants actual motives are immaterial. Malice is irrelevant
to
this tort. It is ordinarily for the jury to determine from the
evidence
, as a question of fact, the intention of the defendant in an
action
for false imprisonment. Even negligent acts causes this tort of
false
imprisonment for example if a person locks someone inside a room
without
unaware of the fact that there is someone in the room than he is
held
liable for false imprisonment.
#
Knowledge Of The Plaintiff:
Whether plaintiff's knowledge about his detention is of any
importance?
There is no requirement that the plaintiff alleging false
imprisonment
was aware of the restraint on his freedom at the time of his
confinement. This can be illustrated by ctitng the example of a
case. In
Meering v. Grahame ?White Aviation Co a man persuade by works
police to
remain in his office, but unaware that had he tried to leave he
would be
prevented from doing so, successfully recovered damages for false
imprisonment. In Herring v Boyle an action brought by a schoolboy
against his headmaster for being detained in the school during the
holidays because his parents had not paid the fees failed.
Actual knowledge of detention is not a necessary element of this
tort .
Proof of a total restraint of liberty is sufficient.
What is the position if the plaintiff is in a particular room or
building and defendant decides that if plaintiff attempts to leave
the
room or building he will prevent plaintiff from doing so but
because
plaintiff has not yet attempted to leave the room or building in
question, defendant has not actually done anything yet to prevent
plaintiff from leaving the room or building? Has defendant
imprisoned
plaintiff? One would think that the answer would be no whether or
not
defendant has imprisoned plaintiff cannot merely rely on the
defendants
mental state. The House of Lords confirmed this decision in the
case of
R v Bournewood Community and Mental Health NHS Trust, ex parte L.
. that
case concerned one L who had a history of health problems. Having
spent
30 years in Bournewood hospital , L was discharged into the
community in
the year 1994 and looked after by paid carers. However, in 1997
after an
incident in a day care center , L became particularly agitated and
voluntarily agreed to go back to hospital. Once there, he was kept
in an
unlocked ward and was not restrained from leaving. However the
staff
there decided that if he attempted to leave than they will section
him
under the Mental Health Act 1983 and prevent him from leaving. L
did in
fact attempted to leave and was sectioned under the act. When L
was
eventually discharged he sued the hospital, claiming that his
employees
had falsely imprisoned him in the period his entering the hospital
and
his being sectioned. The Court dismissed the claim and held that
the
fact that during that time they were prepared to section L if he
attempted to leave did not mean they had imprisoned him.
However in the United States it is generally held that the
plaintiff in
a false imprisonment claim should be aware or conscious of
confinement.
There is no liability for intentionally confining another, if he
doesn't
know about it.
#
Place Of Confinement:
The term false imprisonment is misleading in that it does not
necessarily means confinement to a jail or prison. To constitute
the
wrong in imprisonment there needs to be no actual imprisonment in
the
ordinary sense- i.e. incarceration. Any confinement in the
ordinary
sense whether be it prison or any place used temporarily for the
purpose
of confinement constitutes false imprisonment. It is enough that
the
plaintiff in any manner has been completely derived of his
liberty, for
any time, however short. Thus an action of false imprisonment may
lie
due to confinement in a mental institution, hospital, nursing home
or
juvenile home. A mere unlawful arrest ,for example amounts to
false
imprisonment and so does the act by which a man is prevented from
leaving the place in which he is: for example a house, a motor
car, or a
bank etc.
To constitute imprisonment the deprivation of the plaintiffs
liberty
should be complete that is there must be on every side of him a
boundary
drawn beyond which he cannot pass. The boundary may be quite
narrow or
broad but it must be complete and definite. It is not imprisonment
to
prevent the plaintiff from going in certain directions if he is
free to
go in other directions and thus there will be no action for false
imprisonment.
If a person has induced another to put himself or herself in a
place
which is impossible to leave without such persons assistance, by
words
or by other conduct , the refusal to give such assistance, of for
the
purpose of detaining the other is a sufficient act of confinement
to
make such person liable.
In Bird v Jones
a public right of way ran through an enclosure
created
by the defendants for the purpose of viewing a boat race. The
plaintiff
in an attempt to use the right of way .entered the enclosure. The
defendants prevented the plaintiff from walking through the
enclosure
and instead instructed him to run back and reach the destination
through
some other route. The plaintiff refused to move and stayed in the
enclosure for half an hour. The plaintiff sued the defendants
claiming
that they had committed false imprisonment. The claim was rejected
: the
defendant had done nothing that completely restricted the
plaintiffs
freedom of movement. The plaintiff had been free to leave the
enclosure
and find any different route for getting to the place he wanted
to.
#
Use Of Force Or Its Reasonable Apprehension:
Any exercise of force, or express or implied threat of force,
whereby
another person is deprived of his or her liberty or is compelled
to go
in a direction in which he doesn?t wish to go is false
imprisonment.
Thus, though the confinement or restraint necessary to create
liability
for false imprisonment may be imposed by compulsive physical
force, the
actual us of physical force is not necessary. The essential thing
is
the restraint of the person which can be done by threats or by
using
actual force as well or by inducing threat by using words which
cause a
suitable apprehension of the use of a force in the mind of the
person.
If the words or conduct are such as to induce reasonable
apprehension of
force such that the person is effectually restrained, than it will
constitute false imprisonment. Thus in order to be actionable, the
actions of the defendant must at least furnish a basis for the
reasonable apprehension of force. The relationships surrounding
the
parties and the circumstances surrounding the incident have an
important
effect in this case.
#
Other Factors:
Though assault is an ingredient of false imprisonment it is not
considered as a constituent of false imprisonment. An action of
false
imprisonment does not include proof of injury to the individual
persons,
character or reputation.
It is frequently held that the want of probable cause is not an
essential element of false imprisonment and need not be alleged by
the
plaintiff. Although some courts have expressly required the
plaintiff in
a false arrest action to show a lack of probable cause.
#
Defenses:
To avoid liability in false imprisonment the defendant must either
show
that he did not imprison the plaintiff or that he had reasonable
grounds
of to justify his imprisonment. The presence of probable cause for
imprisonment is not a defence unless it constitutes reasonable
grounds
for acting in defense of property or in making an arrest without
warrant. An offer to release the plaintiff for temporary period
time
has no effect on the action of false imprisonment.
Irrespective of the above fact, there can be certain other factors
due
to which the defendant can be exonerated from liability or the
damages
can be mitigated. If a person acting under a statute arrests a
person,
with the power that has been vested in him by the statute, than
that
person cannot be held liable. For example many state legislatures
in
USA have enacted statutes giving the merchants a qualified
privilege to
detain suspected shoplifters.
1)
Consent: Although it has been denied that one may consent to
unlawful
restraint, on the ground that liberty is an inalienable
prerogative of
which no one may divest himself, it is frequently held that the
consent
of the plaintiff to acts which constitute an imprisonment bars the
right
of recovery thereof. Consent must be free from duress , coercion
,fraud
or mistake. Consent can also be implied in certain circumstances.
The maxim volenti non fit injuria applies to the case of false
imprisonment. The restraint must be involuntary. There is no
imprisonment if the plaintiff agrees of his or free choice, to act
in
conformity with the request of the defendant. One who enters the
premises of others upon terms which involve some restrictions on
his
liberty cannot complain of false imprisonment.
In the case of
Robinson v Balmin New Ferry Company Ltd. , the
plaintiff
wanted to take a ferry across a river. In order to get to the
wharf from
which the ferry would depart, he had to go through the trunstile
operated by the defendants. As notices on either side made it
clear that
the charge of using the turnstile was one penny. The plaintiff
handed
over the penny , went through the turnstile and waited on the
wharf for
the ferry to arrive and pick him up. The plaintiff than decided to
not
to take the ferry and changed his plans. He wanted to go through
the
turnstile for which the defendants resisted by saying that if he
wanted
to use the turnstile than he was supposed to pay one penny. The
plaintiff refused to pay the penny and the defendants didn?t allow
him
to use the turnstile. The plaintiff sued the defendant's claiming
that
they had falsely imprisoned him. The court dismissed his claim by
stating that ?if he walked through the turnstile than he
voluntarily
agreed to take the risk , that if he would not pay a penny than he
will
not be allowed to go back, he would be imprisoned by the
defendants.? In Herd v. Weardale Steel , Coal and Coke Company Ltd . , the
plaintiff a
minor descended to the bottom of the lift at the start of his
shift but
than refused to do certain work and asked to be lifted up to the
surface. The plaintiff was allowed to go back to the surface at
the end
of the morning shift and even than he was not allowed to be taken
back
when all the workers of the morning shift had been taken to the
surface.
The plaintiff sued the defendants claiming false imprisonment. The
House
of Lords dismissed his claim and held that the plaintiff
voluntarily
took the risk that if he did not work and wanted to be taken back
to
the surface , than he can be made to wait.
As seen in the cases of
Robinson v Balmin New Ferry Company Ltd
and
Herd v Weardale Steel , Coal and Coke Company Ltd . in the above
sections, volenti non fit injuria applies to the tort of false
imprisonment and exonerates the defendant from liability.
2)
Contributory Negligence : While there is some authority to the
effect
that the negligence of the plaintiff may bar recovery for the tort
of
false imprisonment , there is some authority that the negligence
of the
plaintiff in not a defence for false imprisonment. In any event
the
plaintiffs contributory negligence can be proved for the
mitigation of
damages but it is not taken as an absolute defence for false
imprisonment.
3)
Probable Cause: It is a complete defence to actions for false
imprisonment, and false arrest specially. When the probable cause
is
established than the action of false imprisonment and false arrest
fails
completely. It is said that the test for probable cause for
imprisonment and arrest is an objective one, based not on the
individuals actual guilt, but upon the information of credible
facts or
information that would induce a person of ordinary caution to
believe
the accused to be guilty. A defendant who in a false imprisonment
or
false arrest action has established the probable cause for the
alleged
tort than he has no additional obligation to prove. Even malicious
motives will not support a claim if probable cause is found to
exist.
On the other hand ,some courts have expressly implied that the
plaintiff
is required in a false arrest action to show a lack of probable
cause
for the detention, or indicated that the plaintiff has the burden
of
proving that lack of probable cause by affirmative evidence.
One of the probable causes can be necessity. If defendant has
imprisoned
plaintiff but it was necessary for defendant to imprison plaintiff
in
the way he did than defendant had a lawful justification or excuse
of
imprisoning plaintiff, the way he did. Suppose defendant locked
plaintiff in a room fearing that if he didn?t ,than plaintiff will
assault a third person. In such a case if can establish that it
was
necessary on his part to perform such an action than he cant be
held
liable for false imprisonment.
Sometimes the imprisonment may be justified on the ground that the
defendant was acting in support of the law. But the courts are
anxious
to see that the liberty of the subjects is not invaded except
under due
process of law.. and the onus of proving a legal justification
lies on
the defendant.
Remedies For False Imprisonment
There are broadly three remedies for false imprisonment, which can
be
categorized as:
1) Action for Damages:
Damages in false imprisonment are those which flow from the
detention. A
person injured by the conduct that is either intentional or
reckless is
entitled to compensatory damages and is under no duty to mitigate
such
damages. There is no legal rule for the assessment of the damages
and
this is entirely left on the court to measure damages.
Elements of the injury to the person which are included in the
purview
of recovery of damages include injury to the person and physical
suffering, mental suffering and humiliation, loss of time earnings
and
interruption of businesses, reasonable and necessary expenses
incurred,
injury to the reputation and generally the deprivation of any
right
caused by the loss of liberty such as the plaintiffs loss of the
family
company during the period of arrest.
The arresting officer is liable for damages incase of false arrest
up to
the time the officer produced the person before the judicial
officer and
is not liable thereafter. The damages for false arrest are to be
measured only to the time of arraignment or indictment. Where
however
there exists a continuity between an unlawful arrest and
subsequent
discharge of the accused as to constitute one continuous unlawful
act,
the defendant is liable for all the consequences resultant from
false
arrest.
The scope of damages recoverable goes beyond those which are
already
suffered . The general rule is that ,in an action for personal
torts
future damages to an injured person are an element of recovery,
where
there is reasonable certainty that they will result in false
imprisonment.
Most cases declare the broad and general rule that the person
causing
the wrongful confinement is liable for all the natural and
probable
consequences thereof. Where a plaintiff is injured due to not only
to
false imprisonment but due to another non-compensable cause, only
those
damages found to be a natural result of false imprisonment are
recoverable.
o Nominal and Compensatory Damages:
The general rule in personal tort action that the plaintiff is
entitled
to recover such a some as will be a fair and just compensation for
the
injuries sustained and the recoverable damages are limited to such
compensation, in the absence of circumstances justifying an award
for
exemplary damages, applies in case of false imprisonment.
The mere unlawful detention constitutes the basis for the recovery
of at
least nominal damages, but an award of only nominal damages may be
insufficient and erroneous where the facts proved indicate a right
to
greater damages.
The damages recoverable must be susceptible of ascertainment with
a
reasonable degree of certainty and damages for false imprisonment
which
are merely speculative are not recoverable .
It has been held now that the person can now be imprisoned without
knowing it. In such cases the plaintiff might obtain only nominal
damages.
Mental suffering including fright, shame and mortification from
the
indignity and disgrace, consequent upon an illegal detention, is
usually
considered an injury for which compensation may be made in an
action for
false arrest or false imprisonment.
The fact that no physical injury was inflicted on one complaining
of
false imprisonment has been said to be no grounds for denying the
recovery of reasonable compensation for mental suffering.
Humiliation,
fright and shame are elements considered in assessing the mental
suffering.
o Punitive, Exemplary and Aggravated Damages:
If an imprisonment is affected recklessly, oppressively,
insultingly and
maliciously with a design to oppress and injure, the jury may go
beyond
the rule of compensation and as punishment to the defendant may
award
exemplary or punitive damages. Punitive damages are awarded in
cases
where the defendants conduct is recklessly indifferent to the
rights of
others or in intentional or wanton violation of those rights. In
some
circumstances exemplary damages may be provided as when there is
abuse
of power by the state.
Aggravated damages may be awarded in a proper case as when the
imprisonment in itself of a nominal character is offensive or hurt
fell
to the plaintiffs feelings.
Punitive damages have been awarded as a means of deterring
defendants
from future conduct. Punitive damages have been awarded in most of
the
cases of false imprisonment when the act was done maliciously.
Even in those jurisdictions where an action of exemplary damages
is
generally permitted such damages will not be allowed in the
absence of
actual damage sustained by plaintiff. However where actual damage
has
been shown than the extent is material for determining whether
punitive
damages are allowed. Punitive damages have also been allowed where
an
arrest was made with the knowledge that it was in violation of the
court
order.
Courts have often held that a malice
or malicious conduct will
warrant an award for exemplary or punitive damages in an action
for
false imprisonment or false arrest. Similarly implied or presumed
malice
has been held to sustain such an award, without clarification of
the
circumstances warranting an implication or presumption. ?Malice?
as
used in the cases which allow recovery for exemplary damages where
the
imprisonment is actuated by malice, does not necessarily mean
anger, or
a malevolent conduct or vindictive feeling towards the plaintiff ,
but a
wrongful conduct without reasonable excuse is malicious within the
legal
meaning of the term.
Punitive or exemplary damages will not be allowed where the false
imprisonment was brought about in good faith, without malice in
fact or
in law and where there is no element of wantonness or oppression.
2) Habeas Corpus:
This writ is considered to be a golden remedy by the English Law.
The
Supreme Court of India and High Court of states issue this writ
under
article 32 and 226 respectively. This is concerned with the cases
of
false arrest or for prolonged detention by police officers. Here
the
person can apply for the writ which will command him to come to
the
court on a certain day, stating the day and the cause of his
detention
and than abiding by the decision made by the court. The decision
will be
that either the prisoner will be released or if the detention is
proved
than he will be speedily produced before the court for a trial.
Subject to the rules framed by the High Courts, an application for
habeas corpus can be made by the person in confinement or by any
person
on his behalf.
The question of habeas corpus is whether the subject is lawfully
detained ,if he is the writ cannot issue and if he is not than the
writ
can issue. In Kanu Sanyal v D.M. Also the writ of habeas corpus
will
lie if the mala fides of the detaining authority is established.
The writ of habeas corpus is effective means of immediate release
from
unlawful detention, whether in prison or private custody. Physical
confinement is not necessary to constitute detention , control and
custody are sufficient. Thus a child is forcibly kept apart from
his
parents, if a man is wrongfully kept in confinement as a lunatic-
if in
short, any man, woman or child is or is asserted on apparently
good
grounds to be deprived of liberty , the court will always issue a
writ
of habeas corpus to anyone who has the aggrieved person in his
custody
to have such person brought to the court, and if he is suffering
restraint without lawful cause , set him free.
Where an unlawful detention is continuing the plaintiff may seek
this
writ. This is not often used but it has certainly not fallen into
disuse. This writ is also used in criminal cases of false
imprisonment.
3) Self Help:
A person who is unlawfully detained may use self-help to escape
including reasonable force (though this is a question of fact one
might
ask what force is reasonable to escape police custody). A person
may use
reasonable force to defend himself fro unlawful arrest. The force
used
must be minimum and necessary in the circumstances, which means it
should be proportionate to the circumstances. This is risky course
since
the power to arrest is likely to depend upon not only in the
commission
of offence but in the alternative, in a reasonable suspicion there
of.
Hence an innocent person who forcibly resists may be liable for
battery
if the arrester had reasonable grounds for his suspicion.
Conclusion
Thus, after analyzing the various case laws and going through the
various principles of Tort Law, it can be thus concluded that:
# The right to personal liberty and freedom has been
guaranteed
by the Constitution under the articles 19,20 and 21 and the later
two
articles cannot be abrogated even during emergency. It is very
well
understood that false imprisonment essentially deals with the
total
restraint on the liberty of the person irrespective of the fact
whether
this restraint is made by the knowledge of the plaintiff or
whether the
defendant intends to impose such a restraint on the person. This
is
unlawful.
# The mere fact that the prisoner is serving his sentence,
doesn't give the jail authorities the right to torture him
unnecessarily
and that the prisoner subject to intolerable hardships is
remediless.
# The term of imprisonment is an important factor while
considering the award of damages. If the imprisonment is for
twenty
minutes still the person has a claim for damages, which may be
nominal.
# While awarding damages for false imprisonment physical or
mental injury, humiliation, loss of reputation, fright and the
fact that
the imprisonment is affected recklessly, oppressively, insultingly
and
maliciously with a design to oppress and injure has to be kept in
mind.
# The mere fact that the person has been imprisoned, raises
the
claim of nominal or compensatory damages if no other injury was
caused
to the plaintiff. If the injury caused is only mental suffering
still
the defendant has a claim for damages, which may be nominal.
# Punitive or exemplary damages are also awarded in certain
cases
such as when the conduct of the defendant is reckless towards the
rights
of the plaintiff or when there is malice in the actions of the
plaintiff
in causing the imprisonment.
# If the person is unlawfully confined by any police
officer or
government officer, than he or any person on his behalf can file
for the
writ of habeas corpus. This writ ensures the liberty of the person
who
is confined.
# The person who is about to be falsely arrested or
imprisoned
can also use reasonable force in order to prevent false arrest. He
can
use force for self defence but has to make sure that the force
used is
reasonable according to the circumstances.
****
Bibliography
A) Books:
# Margaret Brazier & John Murphy, Street on Torts (Butterworths,
London
,10th edn., 1999).
# Nicholas J Mc Bride & Roderick Bagshaw, Tort Law (Pearson
Education
Pvt. Ltd, Delhi,1edn.,2003)
# Ratanlal and Dhirajlal , The Law of Torts (Wadhwa and company,
Nagpur,24th edn., 2004).
# Salmond and Heuston, Law of Torts (Universal Law Publishing Co.
Ltd.,
Delhi, 20th edn. 2003.)
# W.V.H Rogers, Winfield and Jolowicz on Tort (Sweet & Maxwell,
London,
15th edn., 1998)
# 32 Am Jur 2d, Factors and Commissioning Agents, (Lawyers
Cooperative
Publishing, New York, 2 edn.,1995)
# Mahendra P Singh, Constitution of India (Eastern Book Company,
Lucknow, 10 edn.,2001)
|
False
Imprisonment as a tort
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author can be reached at:
kartikeymahajan@legalserviceindia.com /
