A. DELICTS AGAINST THE PERSON

(1) ASSAULT
(2) HARASSMENT
(3) WRONGFUL DEPRIVATION OF LIBERTY
A wrongful physical act directed against another with the intention of causing affront, insult or harm. (Bell Principles, § 2032)
*Ashley v Chief Constable of Sussex [2008] UKHL = Officer shot and wounded a man without warning. He thought the deceased had been in possession of a firearm. The incident took place in a dawn raid (took place in the course of the officers employment) Legal question of whether the [force would be vicariously liable]= the man jumped out of bed. The officer fired because he thought the man was armed (even as he had no clothes on) HELD= officer acquitted of a criminal charge of manslaughter – On this case, he was given the benefit of the doubt *However, a civil charge was brought (to defeat ‘self-defence’) – In civil proceedings the belief had to be reasonably held, that he reasonably believed the other man was armed. The onus of proof was less than in criminal law. Civil claim for damages
Collins v Wilcock [1984] = Police officers see woman on street with a known prostitute of the area. They jumped to the conclusion that she was also a prostitute. Police officer then grabbed her arm to pull her. HELD= this was an assault. This was a hostile act by the police officer. Woman was not a prostitute
Wilkinson v Downton [1897] ** Scottish courts have cited this case with approval. Facts: Defendant joked to man’s wife that her husband had had both legs broken. Lady was so shocked by this that she took to bed for weeks and was unwell because if it, even though it was a joke. HELD= Physical injury had been triggered by this joke.
Revill v Newberry [1996] Landlord was fed up when vandals went to trash his property. He shot at people in desperation, but this was held to be disproportionate.
Psychiatric harm has proven to be a problem category
*Sidaway v Board of Governors of Bethlem Royal Hospital [1985] =Sidaway needed a surgical procedure, which carried with it a small risk of damage to the nerve route (not told about the spinal cord risk). Unfortunately, this happened after the operation. There was a Risk of less than 1% but she argued, that she had incomplete information in relation to this. HELD: The doctor had to withhold information that was reasonable in the circumstances. It was the consensus of the medical profession, that where there was a risk of less that 1% that information did not need to be disclosed. She had not been impugned and the claim against the doctor failed. (Operation to relieve pain in neck and shoulders caused damage to spinal cord. Patient had been advised of risk of damage to nerve root, but not to spinal cord. Should she have been more fully informed? Held: doctor should inform patient about risks which a responsible body of medical opinion would think it proper to disclose.
Observed: patient's consent is not vitiated by doctor's failure to give sufficient information. Basis of liability is failure of duty of care towards patient rather than assault.) FOLLOWED IN: Scots cases of Moyes v Lothian Health Board 1990 (No duty to disclose risk assessed at less than 1%); Smith v Lothian University Hospitals NHS Trust 2007
Courts have shifted in the standard of care. English case of Bolitho v City and Hackney Health Authority [1998] The court must determine the practice. Lord Browne-Wilkinson conduct of reasonable doctor required to be “responsible, reasonable, and respectable” – to have a “logical basis”.
Chester v Afshar= Chester suffered from back pain. She needed to have disks from her back removed. There was a risk of 1% to 2% that could lead to nerve damage. Afshar did not tell Miss Chester about that. She suffered that adverse consequence. He performed the operation without negligence. The problem was that Miss Chester said in court she would have carried on with the operation anyway. Even after further research. The “But for test” of causation was (blown out the water, since her claim could not succeed. In other words----But for not mentioning the risk, she would have still had the operation) The risk had not increased by the defective advice. >Material risk (not satisfied) Nevertheless, on this occasion it was held that Court would allow a modest departure from the rules of causation. It was important on policy grounds, to give a patient a right to choose for herself. Court endorsed this narrow departure from causation. ***Anomaly in the rules of causation (no
Protection from Harassment Act 1997, s 8 “S 8— Harassment” (1) Every individual has a right to be free from harassment + person must not pursue a conduct which amounts to harassment of another (a) is intended to cause “the person alarm or distress” (s 8(3)) e.gg • Phone calls, letters, and loitering beside the pursuer’s home McGuire v Kidston 2002 SLT • Bullying in the work place Robertson v Scottish Ministers 2007 CSOH • Pestering customers with unwarranted gas bills Ferguson v British Gas Trading Ltd [2010]
Majrowski v Guy’s & St Thomas’s [2007] Gay man, suffered. Claimed he was being harassed.Employer was held to be vicariously liable (sufficiently close connection)Baroness Hale [66] “All sorts of conduct may amount to harassment. It includes alarming a person or causing her distress…But conduct might be harassment even if no alarm or distress were in fact caused. A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and genuinely offensive and unacceptable behaviour.” Robertson v Scottish Ministers [2007] CSOH Similar case
(ECHR article 5) Stair, Institutions, 1.2.5 Liberty is “a most precious right, yet it is not absolute”. Act of the Parliament of Scotland of 1701 “For preventing wrongous Imprisonments and against undue delayes in tryals”
Arrest may be: A. with warrant; B. without warrant but justifiable in terms of common law or statute; C. not justifiable in these terms
*Henderson v Chief Constable, Fife Police 1988=The pursuer was a health board worker. Workers were interfering with hospital activities during a protest. The police came along and arrested them. They were taken to the police station, cautioned and charged. Mr johns was handcuffed – Miss Henderson though was asked to remove her bra. Her action for wrongful detention however failed. ***Article 5, hasn’t been a game changer here. Not a huge change.
*Henderson v Chief Constable, Fife Police Case about lady in underwear. It was held it was reasonable in the interest of hospital business to remove this person. Claim for damages (must meet the test the they action was not justified.) If is not justified on common law or statute, there is prima facie a case for damages
Wrongful arrest
Downie v Chief Constable, Strathclyde Police 1998 =Police came to house looking for a check fraudster. Suspect was not in house, but police charged Downie after he ran eventhough he wasn’t involved HELD = No public interest for someone who was the wrong man. Awarded 15.000 pounds There is nor requirement to prove malice where there is no justification for the arrest.

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Notas sobre INJURIES TO SPECIFIC INTERESTS - created from Mind Map, criado por raulblacktower em 17-12-2013.