False imprisonment involves intentional interference with a person’s freedom of movement. Many people regard liberty or freedom of the individual as a fundamental political right. Hence the policy of the law is that imposing restraints or restrictions on that freedom is wrong. It is a legally actionable wrong and thus a tort. However, there are some exceptions, as you will see.
In this unit we will also look at other torts which are often grouped with false imprisonment, because all in some sense involve abuse of legal process. These other torts are malicious prosecution, maintenance and champerty.
When you have completed this unit, you should be able to:
- identify the key elements in the tort of false imprisonment;
- apply relevant principles of law to factual situations in relation to false imprisonment;
- list possible defences to false imprisonment; and
- analyse torts concerned with abuse of legal process, such as malicious prosecution, maintenance and champerty.
Principle of False Imprisonment
We now introduce you to the principles of false imprisonment* through examples and relevant cases.
Total restriction on freedom of movement
In order for an act to amount to the tort of false imprisonment, the restriction on a person’s freedom of movement must be total or comprehensive. If there is some reasonable opportunity available for escape, then the courts will hold that a person has not been falsely imprisoned.
The first two examples provide a contrast in terms of how much a person’s freedom of movement is restricted.
Example 4.1: Detention in a speeding car
Suppose a driver stops to pick up a hitch-hiker. The hitch-hiker gets in the car and the driver drives on. After some talk in the car, the hitch-hiker decides that the driver is a strange person. She says, “I want to get out of the car now”. The driver says nothing, but speeds up the car. The hitch-hiker again demands to be allowed out of the car. The driver speeds up even more. After more protests by the hitch-hiker, the driver says, “I am in a hurry. I cannot stop now to waste time on you. If you want to get out, then jump out the door.” The car is by now doing 120 kilometres per hour.
“Opportunity to escape” as a defence
Has the driver falsely imprisoned the hitch-hiker? In his defence, the driver will say that he allowed the hitch-hiker the opportunity to escape. He knew that she did not want to remain in the car any longer but, in his view, he had his own convenience to consider first. He was in a hurry. He told her how she could get out of the car. How could he have wrongfully detained her, if he allowed her to jump out at any time?
That is not a reasonable argument. From the time when the hitch-hiker said she wanted to get out, the driver had the power to stop the car and let her out. It was his car and he was in control. Matters of inconvenience that the driver raised are not serious enough to outweigh a person’s right to liberty and freedom of movement. The hitch-hiker was being detained in a particular place against her will. That is false imprisonment.
Was detention total?
But was the detention* in that place (i.e. the car) total? Can we accept the driver’s argument that there was an opportunity to escape? In one sense there was, but it was an opportunity which the hitchhiker could only take at the risk of death or serious injury. The opportunity provided must be reasonable, such that it allows the person to take an action which:
- a reasonable person would or could do in the circumstances; and
- the person could do without serious risk of injury or damage.
Contrast the first example with the following situation.
Example 4.2: Prevention from walking along a public road
You are walking along a road with the intention of going for a hike through a nearby parkland. You come to an intersection in the road. You want to go straight ahead because that is the shortest way to get to the parkland. However, much to your alarm, you find that a number of bulldozers and men have blocked off the roadway. One of the men says to you that you cannot go any further along that road, as they are about to start work nearby and they don’t want anybody interfering with their preparations. You say, “You are not council employees or police officers. You cannot stop me. I have the right to go along this public road. I want to get to the parkland. This is the shortest route. Let me through, you fools!”
One of the men replies, “You are not coming through here. If you try, we will put you underneath one of these bulldozers. You can take the alternative road to the left here. It will only take you a couple of hours of extra walking. It should improve your fitness. Anyway you look as if you need a bit of exercise. Get lost. You are not getting in here.”
You say, “You don’t scare me one bit, but I will go the other way anyway in protest. You have interfered with my freedom of movement and you will hear from my lawyers tomorrow (Monday).” You then leave by the other route to go off to the parkland.
What are you rights in tort?
Now, what rights if any do you have in tort? You might think about assault, but if you understood unit 3 thoroughly, you should know that it is unlikely that the workers will be liable for assault. They made a conditional threat—”If you do this, then we will do so and so!” Your response was “You don’t scare me!” Where is your apprehension of injury? Thus you would have some problems in bringing an assault case.
However, if you understood unit 1 thoroughly, you might be wondering about the tort of public nuisance in this case. If you are thinking that it was probably a public nuisance to obstruct a person’s public right of access on a public highway, then you are correct. But we are not concerned with this tort at this stage.
Confinement in a particular place
Is it false imprisonment? Your lawyer tells you yes. There is nothing worse than a bad lawyer! She is wrong. It is not false imprisonment at all. Why? Because false imprisonment is not concerned with blocking a person’s access to somewhere he or she wants to go. It is about confining or detaining a person in a particular place against his or her will.
Certainly, in this instance, people prevented you from gaining a particular means of public access. They stopped you from going somewhere. They inconvenienced you considerably. They denied you the opportunity to go specifically where you wanted to go and as a result you had to make other choices about where you went.
But none of that amounts to false imprisonment. You cannot say that you were detained or confined in a particular place against your will. We can describe this situation by saying:
- the workers did not confine you in a particular place at all; or
- the workers presented you with several alternatives for escape—”Go left, go right, go backwards”. It might have been inconvenient but causing inconvenience is not enough to establish false imprisonment.
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