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Tort Law - Trespass

Trespass to the Person

False Imprisonment

False imprisonment overlaps heavily with false arrest, so the two are dealt with simultaneously here. In Bird v Jones (1845) 7 QB 742 it was ruled that imprisonment need not be in a locked room. All that is needed is that a person be kept in one place against their will.  ‘Imprisonment is... a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience it may bring on him.’ Therefore there must be no reasonable means of escape. The court qualified this by stating that mere obstruction of passage alone cannot constitute imprisonment, whether by threat of violence or otherwise, if the person is at liberty to stay where they are, or to go in another direction.


In a serious confrontation, false imprisonment may become an issue for a civilian enforcer as the victim. A surveillance subject may demand an explanation or a debtor or interviewee may have complaints to get off their chest and prevent the investigator or debt collector from leaving for a time. This is relevant also in the event of a citizen's arrest executed incorrectly. See the section on citizen’s arrest and criminal false imprisonment in the chapter on Criminal Law. Not only is false imprisonment a criminal matter, but it can be sued on as a tort in civil proceedings with costly exemplary damages as a potential outcome.


Implied Imprisonment

Implied imprisonment/arrest is an issue which may be crucial at times for circumstance investigators who conduct interviews with insurance policy holders. In Symes v Mahon[1] a police officer sought the attendance of a Mr McMahon at a meeting to discuss child support obligations and mistook Mr Mahon for McMahon. The plaintiff was not formally arrested, but compelled by notice to travel from home to Adelaide for a meeting. He willingly submitted to the authority of Constable Symes and boarded the same train. Having failed to attend of his own volition twice, the police directive becomes a key factor in Mahon’s course of action. The court recognised the importance of a psychological barrier to escape – the plaintiff submitted willingly to the defendant’s power as it seemed a better option than formal arrest.


The court’s treatment of his action amounts to recognising an implied form of arrest – one which can be affected without physical force, but where the person is left with only one viable option. Let us suppose that a person whose income has declined recently has an insurance claim pending with a vast sum of money expected after the theft of a large quantity of jewellery, or suppose key business equipment has been stolen and they cannot continue to operate their business until their claim is accepted. By participating in the interview they are said to have complied with the investigation of their own free will, but in fact due to their need for their claim to be honoured, they have no viable alternative except to comply. Suppose further that the person has a very busy schedule and is most begrudging to devote the time required and can think of more productive ways of spending the time taken by the investigation. Thus there is a deprivation of liberty. If a person’s physical movements are clearly imposed upon by the undertaking of an investigation then there is a risk that they could argue they were falsely imprisoned.

As expressed in Darcy v State of New South Wales the person imposing restraint needs to justify their actions somehow. This can be done firstly by reference to the contractual term implied in all insurance policies (as held by common law) that the policy holder will comply with any investigation undertaken into any claim they make. But a further question to be addressed lies in whether the strength of the factual basis for suspicion justifies the scope and depth of the enquiry. If the degree of imposition upon any person’s movements is clearly unduly long in the light of the available facts on which suspicion is based, then an argument of false imprisonment may stand. In so much as the client or firm is responsible for the parameters of an investigation, they would be vicariously liable. Such a matter could also be argued as a breach of the good faith requirement.

[1] Symes v Mahon [1922] SASR 447.

[2] Darcy v State of New South Wales [2011] NSWCA 413.

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