lawyers in India

False Imprisonment as a tort - Tort law

Written by: Kartikey Mahajan - Student of NLU
Woman Law
Legal Service
  • 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.

    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.

    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.

    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.

    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)

    The author can be reached at: [email protected] / Print This Article

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