Trespass vs. Negligence: An Analysis of Damage Requirements and Loss of Freedom, Lecture notes of Law

Download Trespass vs. Negligence: An Analysis of Damage Requirements and Loss of Freedom and more Lecture notes Law in PDF only on Docsity! NEGLIGENT INFLICTION OF IMPRISONMENT: ACTIONABLE 'PER SE' OR 'CUM DAMNO'? By PETER G. HEFFEY* [This article examines the extent to which negligence is or should be available as a means of protecting personal liberty. Under the historical distinction between actions in trespass and case, trespass is actionable per se while proof of actual damage is required under case. Mr Heffey investigates whether the per se actionability rule makes an action in trespass superior to an action in negligent infliction of imprisonment; whether the loss of freedom of movement is itself sufficient damage to sustain an action in negligence; and whether the distinction between trespass and case is worth maintaining. In this context, he discusses in detail the directness requirement in trespass, the duty question in negligent certification cases, the damage requirement in negligence and negligence compared with negligent trespass. He concludes that the trespass-case classification should be abandoned. He suggests that if an interest belonging to a plaintiff which the law considers valuable is infringed by the defendant, then it can be said that the plaintifJ has suffered damage, and the plaintiff should have an action, whether the defendant caused the damage intentionally or negligently, and whether it was caused directly or indirectly. The only distinction that is then' drawn is between intentional and negligent infliction of damage.] INTRODUCTION The case which prompted this article was decided over a century ago: Smith v. Iffla.1 It is exhumed today because of its relevance to an important aspect of the law of torts, the protection of freedom of movement. The tort which traditionally aims at providing this protection is false imprisonment. This tort, a form of trespass to the person, proscribes the direct placement of total restraint upon the plaintiff's liberty of movement. The plaintiff may have suffered damage in such a case, but the traditional view is that he need not prove it in order to establish the tort. Trespass to the person is said to be actionable per se, i.e. the violation of a legal right actionable whether damage is proved or not. In this sense it is an example of iniuria sine damno. Where the defendant has caused the plaintiff's loss of freedom through indirect means (for example by obtaining a court order), or where the loss of freedom is not total (for example restriction of movement in one direction only) no action in trespass for false imprisonment is available. However, the plaintiff may have what would have been described formerly as an action on the case, for example, malicious prosecution in the former instance, public nuisance in the latter. In such cases damage must be proved. They are examples of iniuria cum damno. Less usually associated with the protection of freedom of movement is the tort of negligence. This tort is also * LL.B. (Hons), B.C.L. (Oxon.); Senior Lecturer in Law, Monash University. 1 (1881) 7 V.L.R. 435. The author is grateful to Bernard O'Brien of the University of Melbourne for drawing this case to his attention. 53 54 Melbourne University Law Review [Vol. 14, June '83] derived from the action on the case. The plaintiff must establish damage caused by a breach of a duty of care owed to him by the defendant. The main purpose of this article is to consider the extent to which negligence is or should be available as a means of protecting personal liberty. Is loss of freedom of movement itself sufficient 'damage' for the purposes of the action on the case? Does the actionability per se rule in trespass give that tort any advantage over negligence? Is the trespass-case classification worth retaining? In Smith v. [ffla the plaintiff was detained for two months in a lunatic asylum. He sued the defendant, a medical practitioner, for giving a certi­ ficate of insanity under section 11 of the Lunacy Statute2 without due examination of the plaintiff. Two counts were originally stated in the declaration. First, trespass for causing the plaintiff to be imprisoned in a lunatic asylum. Second, negligent certification of lunacy under the Lunacy Statute. The first cause of action was struck out at the trial. The jury found for the plaintiff on the second count, awarding £520 damages. The Full Supreme Court (Higinbotham, Williams and Holroyd JJ.) refused to interfere with the jury's verdict. This decision gives rise to a number of questions which will now be discussed. I. THE 'DIRECTNESS' REQUIREMENT IN TRESPASS The first question of interest which arises from Smith v. [fila is: why was the trespass (false imprisonment) count struck out at the trial? The reason for this is not revealed in the report. One possible reason is that the defendant had not directly caused the plaintiff's detention for three months at the lunatic asylum. The plaintiff alleged that the defendant signed a certificate 'whereby the plaintiff was arrested and imprisoned'.3 As Street states: 'it is not false imprisonment to cause a person to be temporarily detained in an asylum by making false statements to the authorities ... or to dig a pitfall into which the plaintiff falls'.4 In such cases the interference is indirect. But it is a prima facie false imprisonment to take a person or direct that he be taken to an asylum, or to keep him there, or to push him into a pitfall.5 In such cases the interference is direct. A common law or statutory defence may be available. For example, at common law a mentally disturbed and dangerous person may be apprehended. But if he is not in fact 2 Lunacy Statute 1867 (Vie.). 3 Smith v. lffla (1881) 7 V.L.R. 435. 4 Street on Torts (6th ed. 1976) 25. 5Anderson v. Burrows (1830) 172 E.R. 674; Watson v. Marshall (1971) 124 C.L.R. 621; Marshall v. Watson (1972) 124 C.L.R. 640. The lack of a defence revealed in the latter case was remedied by statute: Mental Health Act 1959 (Vie.), s.42(3A). Negligent Infliction of Imprisonment 57 The case is interesting in that it decides, or rather assumes, that a duty of care is owed by a medical practitioner in certifying.14 Referring to the statutory requirements of personal examination, Higinbotham J. pointed out that the purpose of the provision was to protect persons who may not be fit subjects for a mental institution from being sent there by improperly motivated persons. It is a most important act that a medical practitioner is required to do, and should be done with all care and caution, and all the inquiry which, under the circum­ stances, he can reasonably make at the time.1D The question whether when a medical practitioner certifies as to a person's mental soundness he owes a duty to such person has been considered in England on several occasions. In De Freville v. DU[16 the plaintiff alleged that the defendant, a medical practitioner, was negligent in giving his certificate under section 16 of the Lunacy Act 1890, and that as a result of his negligence, she was taken, although sane, to a hospital and detained there for two days before she was discharged. After reviewing the authoritiesp McCardie J. held that the defendant owed a duty of care to the plaintiff. He was not happy with this conclusion. He said, 'I feel I must bow to the weight of opinion'.ls The policy considerations relevant to determining whether to impose a duty in the certification situation will be considered later in this article. Ill. THE DAMAGE REQUIREMENT IN NEGLIGENCE The third question of interest which arises from Smith v. IfJla is: was it necessary for the plaintiff to prove damage? From the report it does not appear that any damage as such was alleged by the plaintiff. £520 damages were awarded for two months' wrongful detention in a lunatic asylum. One basis on which the defendant argued for a new trial was that the damages were excessive. The Full Court unanimously rejected this argument. Higin­ botham J. thought the amount was 'a severe penalty for an act done in good faith, without any malicious intention, and the result of haste'.19 But it was a question for the jury, and the jury had made no mistake. Williams J. said that he did not know how it could be said that '£500 is too much for a man being locked up in a lunatic asylum for two months, by the negligent act of another man'.20 (i) A distinction between trespass and case One of the traditional distinctions between trespass and case is that 16 [1927] All E.R. 205. 17 Hall v. Semple (1862) 176 E.R. 151; Everett v. Griffiths [1920] 3 K.B. 163, [1921] 1 A.C. 631 (House of Lords); Harnett v. Fisher [1927] 1 K.B. 402, [1927] A.C. 573 (House of Lords). See 'Certification of Insanity and the Duty of Care', (1937) 11 Australian Law /ournaI215. lS [1927] All E.R. 205, 210. 19 (1881) 7 V.L.R. 435, 440. 20 Ibid. 442. 58 Melbourne University Law Review [Vol. 14, June '83] trespass is actionable per se (i.e., without proof of damage), whereas as a general rule damage is the gist of case. For a tort to be considered action­ able per se special justification is needed. In respect of trespass to land, for example, actionability per se facilitated the determining of disputed rights in land, prevented the acquisition of prescriptive rights, and deterred breaches of the peace. In 1824 Littledale J. said: It is true, that in trespass for a wrongful entry into the land of another, a damage is presumed to have been sustained, though no pecuniary damage be actually proved. So in the case of an action for the obstruction of a right of common, or a right of way, any obstruction of that right, is a sufficient cause of action.21 Moreover, an intrusion on land is an invasion of privacy, whether damage is committed or not. As there is no tort which protects privacy as such in Australia, it is important that trespass to land be actionable per se. Lord Scarman has referred to 'the fundamental right of privacy in one's own home, which has for centuries been recognised by the common law'.22 In respect of trespass to the person actionability per se facilitated the protection of a person's dignity, mental tranquillity, and freedom. Thus there are well known statements to the effect that 'the least touching of another in anger is a battery',23 and 'when the liberty of the subject is at stake questions as to the damage sustained become of little importance'.24 In actions on the case, as a general rule, damage had to be proved. As Littledale J. said: generally speaking, there must be a temporal loss or damage accruing from the wrongful act of another, in order to entitle a party to maintain an action on the case.25 Today actions derived from the action on the case are still governed by the same principle. The High Court of Australia has affirmed this in respect of negligence: When you speak of a cause of action you mean the essential ingredients in the title to the right which it is proposed to enforce. The essential ingredients in an action of negligence for personal injuries include the special or particular damage - it is the gist of the action - and the want of due care.2(\ (U) Is negligent trespass actionable per se? In England the prevailing authority restricts trespass to the person to 21 Williams v. Morland (1824) 107 E.R. 620, 622. 22 Morris v. Beardmore [1980] 2 All E.R. 753, 764. It is uncertain, however, whether trespass to goods is actionable per se. See Everitt v. Martin [1953] N.Z.L.R. 298, and discussion in Morison W. L., Sharwood R. L., Phegan C. S. and Sappideen C., Cases on Torts (5th ed. 1981) 50. Should a defendant be able to touch a plaintiff's statues, read his letters, erase his tapes, use his tooth brush, and feed his dog with impunity? There are privacy and other interests here which ought to be protected. 23 Cole v. Turner (1705) 87 E.R. 907; cf. Donnelly v. Jackman [1970] 1 All E.R. 987. 24 John Lewis & Co. v. Tims [1952] 1 All E.R. 1203, 1204. ' ... English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty': per Lord Reid in S. v. McC; W. v. W. [1972] A.C. 24, at 43. 25 Williams v. Mar/and (1824) 107 E.R. 620,622. 26 Williams v. Milotin (1957) 97 C.L.R. 465, 474. The damage requirement is significant in the context of limitation of actions as time may not begin to run against the plaintiff until his cause of action accrues: e.g. Roberts v. Read (1812) 104 E.R. 1070. Negligent Infliction of Imprisonment 59 intentional interferences.27 In Australia trespass to the person may be committed either intentionally or negligently.28 Although the cases are concerned only with trespass in the form of direct physical interference (battery), it is likely that by analogy false imprisonment is covered as well. It is possible to argue that one of the advantages for a plaintiff suing in trespass rather than negligence is that he need not prove damage: i.e., negligent trespass is actionable per se.29 This will hardly be an advantage if the plaintiff has suffered actual damage sufficient to found an action in negligence. But in 1966 an article in this Review posed the following question: If A due to unintentional but careless conduct spits in B's face, an action in negligence will not lie in the absence of material damage; but may not an action in trespass be available to protect the plaintiff'!! dignity?30 A later article argued that a reader, locked up in a library by a careless attendant, may have an action for negligent false imprisonment.31 In England, however, since trespass does not lie for negligent conduct, the only cause of action available to the carelessly imprisoned reader is negligence. Unless the reader can prove damage no such action will lie.32 (iii) Must damage be proved in the negligent certification cases? The discussion so far would indicate that damage is the gist of an action for negligent certification. How then is the finding of liability in Smith v. Iffia explained? One explanation is that the action for negligent certification constitutes an exception to the rule that damage is the gist of case and its modern derivatives. An alternative explanation is that detention, or loss of freedom of movement, is itself 'damage'. As stated earlier, there is no discussion of this question in Smith v. Iffia. Higinbotham J. said: The jury are to give an amount which will reasonably compensate a plaintiff for the effects of the wrong that has been done to him.33 Williams J. said: [damages] are given to compensate a plaintiff for the injury sustained by him from the wrongful act of a defendant.M 27 Letang v. Cooper [1965] 1 Q.B. 232. 28 Williams v. Milotin (1957) 97 C.L.R. 465; McHale v. Watson (1965) III C.L.R. 384; Venning v. Chin (1974) 10 S.A.S.R. 299. 29 A contrary view was expressed by Lord Diplock in Letang v. Cooper [1965] 1 Q.B. 232, 244-5. 30 Heffey P. G. and Glasbeek H., 'Trespass: High Court versus Court of Appeal', (1966) 5 M.U.L.R. 158, 163. 31 Trindade F. A., 'Some Curiosities of Negligent Trespass' (1971) 20 International and Comparative Law Quarterly 706,710-11. 32 This is the view adopted by Williams G. and Hepple B. A. in Foundations of the Law of Tort (1976) 53, and by Harding A. J. and Tan Keng Feng in 'Negligent False Imprisonment - A problem in the Law of Trespass', (1980) 22 Malaya Law Review 29. In Sayers v. Harlow Urban District Council [1958] 1 W.L.R. 623 the unfortunate plaintiff who was locked in a public toilet recovered damages in negligence on proof of actual injuries she incurred in attempting to escape. (If the plaintiff had sued for false imprisonment she may not have been able to establish directness.) 33 (1881) 7 V.L.R. 435, 440 (italics added). M Ibid. 441 (italics added). 62 Melbourne University Law Review [Vol. 14, June '83J maliciously procured to secure his attendance at court as a witness, may have an action.46 Earlier in this article it was suggested that it was not false imprisonment to dig a pitfall into which the plaintiff falls. The interference in such a case is not direct, even though the defendant may have intended the result. Assuming the plaintiff suffers no personal injury but is merely confined to the hole for a period of time, it surely cannot be argued that he would fail in an action on the case because he suffered no damage.47 The damage is constituted by his loss of freedom. If it is not correct to classify loss of freedom as damage, it must be maintained that cases such as Smith v. IfJla and De Freville v. Dill represent an exception to the rule that in an action on the case the plaintiff must prove damage. Other exceptions exist, for example, libel and breach of contract.48 (v) Should negligently inflicted loss of freedom be actionable? It can be argued that actionability per se has no place where the plaintiff is complaining of negligent behaviour. Harari in his admirable book on negligence took this view.49 He presumed that a person who brought an action sounding in trespass to the person for an unintentional but direct and negligent contact with his person from which he sustained no actual injury, would be laughed out of court. The court would either apply the maxim de minimis non curat lex or find that the plaintiff had not shown negligence because he had not shown damage, thereby 'confusing the complex breach of duty plus damage with breach of duty simpliciter' ,f)() Harari considered that the plaintiff who complained of direct intentional contact should be able to recover. He said: where trespass is brought for an intentional contact which did not result in actual damage, and plaintiff recovers, he does so for the affront offered to him: in trespass to the person, for the indignity, etc., inflicted upon him, and in trespass to chattels, for the usurpation of his rights in the object in question. There is no affront in a negligent contact.1i1 Some definitions of battery require that the contact be either harmful or offensive52 whereas others state that contact simpliciter is sufficient.M It is possible to adopt either definition and still maintain that battery is action- 46 Roy v. Prior [1971] AC. 470. In such a case the defendant maliciously institutes some process short of actual prosecution: the plaintiff's action is for malicious abuse of the judicial process. Cf. Varawa v. Howard Smith Co. Ltd (1911) 13 C.L.R. 35. 47 There was formerly an action on the case for the intentional infliction of injury by indirect means, e.g. Bird v. Holbrook (1828) 130 E.R. 911. Today the broad principle in Wilkinson v. Downton [1897] 2 Q.B. 57 could be applied. 48 See Williams and Hepple, op. cit. 55-6. 49 Harari A., The Place of Negligence in the Law of Torts (1962) 145. 00 Ibid. Lord Diplock may have been guilty of this 'confusion' in Letang v. Cooper [1965] 1 Q.B. 232, 244-5. See supra n. 29. 51 Harari A., loco cit. 52 E.g., Fleming, The Law of Torts (6th ed. 1983) 23. M E.g., Street on Torts (6th ed. 1976) 18. Negligent Infliction of Imprisonment 63 able per se, because 'actual damage' need not be proved: mere contact or offensive contact is sufficient. One difficulty with the foregoing reasoning is that it assumes that contact or even offensive contact is not damage. As stated earlier there is no conceptual reason why it should not be regarded as damage.M Sometimes judges say the damage is presumed. In a recent case Stephenson L.J. said: Whereas damage is presumed in trespass and libel, it is not presumed in negligence and has to be proved. There has to be some actual damage.05 If this means that in trespass non-existent damage is imputed, then it is a fiction that is best avoided. To say, for example, that when A walks over B's land damage is imputed serves no purpose. One can say this intrusion is actionable either because damage does not have to be proved or because, if damage does have to be proved, the intrusion in itself is damage. Under present law nominal damages for torts actionable per se are awarded not as compensation for loss but as a non-compensatory means of signifying the infringement of a right. In some cases the plaintiff might be equally well satisfied with an injunction, or a declaration - especially if he is seeking to protect or determine a property right. But he will often wish to claim substantial damages. He may, of course, establish actual damage. Where this damage is difficult to quantify in money terms the damages are said to be 'at large'. For items of loss such as loss of freedom, insult, distress, etc. the court must make an intuitive rather than a mathematical assessment. Such items of loss should be proved rather than presumed. But a distinction should be drawn between the difficulty of assessing damages for proven loss, and the difficulty of proving loss. For example, in libel cases it is difficult for the plaintiff to prove actual loss of reputation. Hence he need only prove the likelihood as distinct from the actuality of loss of reputation.oo In such a case it is fair to say that damage is presumed, as substantial damages may be awarded without proof of actual loss. But even in such a case, the presumption may be rebutted. The violation of a person's physical integrity or the restriction of his freedom of movement should be regarded as damage. Instead of saying as Holt C.J. said in Ashby v. White: 57 'Every injury imports a damage', one might go so far as to say: 'every injury is a damage'. But whether one accepts this novel approach or prefers to regard the interferences in question as actionable per se, the question remains: should the negligent as distinct from the intentional infliction of these interferences give rise to liability? It is submitted that the answer to this question should be, yes. If the M Cf. le dommage moral in French law: Amos M. S. and Walton F. P., Introduction to French Law (3rd ed. 1967) 209. 05 Forster v. Outred and Co. [1982J 1 W.L.R. 86, 94. See text accompanying n.21 supra for a similar judicial statement in respect of trespass to land. 00 See: The Law Reform Commission Report No. 11, Unfair Publication: Defamation and Privacy (1979) paras 80-1. 57 (1703) 92 E.R. 126, 137. 64 Melbourne University Law Review [Vol. 14, June '83] interference is intentional but trivial only small damages should be awarded or the case may be a suitable one for the application of the de minimis rule. Costs may be awarded against an unmeritorious albeit successful plaintiff. If the circumstances are aggravated, for example, the plaintiff is wounded, or insulted, or confined for a lengthy period, these will be taken into account when awarding compensatory damages. There is no reason why these same principles should not apply to interference resulting from negli­ gent behaviour. Rather than state categorically as Harari does that there is no affront in negligent contact, the matter of affront should be taken into account in assessing damages. Equally, if not more so, the negligent infliction of loss of freedom of movement should give rise to a claim for damages. The damages will depend on the duration of the loss of freedom, the degree of humiliation, illness resulting, and so forth. It is true that the victim's degree of humiliation or affront may be affected by his knowing whether the defendant interfered with him intentionally or negligently, but this goes to assessment of damages. Moreover the presence of malice on the part of the defendant may exacerbate the hurt to the plaintiff's feelings. Prima facie negligently inflicted loss of freedom should be actionable. The reader locked in the library or the visitor confined to the pitfall should have a claim against the person who either intentionally or negligently brought about his loss of freedom. In the certification cases the defendant medical practitioner may in fact intend that the plaintiff lose his freedom. In Smith v. Ifjla, for example, the negligence count in the plaintiff's declaration commenced thus: 'That the defendant ... negligently ... and with intent to cause the plaintiff to be imprisoned . . .'. But the medical practitioner in certification cases acts in the exercise of a statutory power. He will be held liable only if he is negligent in the exercise of that power, i.e. if he was negligent in the way he came to the conclusion that the plaintiff should lose his freedom. IV. NEGLIGENCE VERSUS NEGLIGENT TRESPASS If it is agreed that negligently inflicted loss of liberty is and prima facie should be actionable (whether the loss is regarded as damage or not), a final question remains: is the appropriate tort negligence or (negligent) trespass? The overlaps between trespass and negligence and the advantages of the former over the latter cause of action have given rise to a quite extensive literature. From the plaintiff's point of view, the advantage of trespass is that in non-highway cases the burden of disproving fault (i.e. intention or negligence) is on the defendant. 58 It has been argued in this article that the supposed advantage that trespass is actionable per se is not 58 Bailey R. J., 'Trespass, Negligence and Venning v. Chin' (1976) 5 Adelaide Law Review 402; Fridman G.H.L., 'Trespass or Negligence?' (1971) 9 Alberta Law Review 250. See also Heifey and Glasbeek, op. cif. and Trindade, op. cif. Negligent Infliction of Imprisonment 67 Another solution would be to require the plaintiff to prove that the medical practitioner acted maliciously. The analogy here is with malicious prosecution. The burden on a plaintiff attempting to establish the tort of malicious prosecution is considerable as society has an interest in the efficient enforcement of the criminal law. This requires, as Fleming states, that 'private persons, who co-operate in bringing would-be offenders to justice, should be adequately protected against the prejudice which is likely to ensue from the termination of the prosecution in favour of the accused'.71 It is doubtful if the interest of society in protecting medical practitioners who certify under mental health legislation is so strong that a similar qualified immunity should be granted to them. The courts on the whole have shown no inclination to grant such immunity. In Hall v. Semple72 it was argued that if the forms of the Act had been pursued - at all events bona fide - the defendant could not be liable. But Crompton J. intimated that he thought the question would not turn on malice but on negligence, and the words 'falsely and maliciously' in the declaration were struck out. In Smith v. Ifjla, words in the declaration indicating that the defendant knew the plaintiff was sane were struck out. Moreover, Higinbotham J. was critical of the use of the phrase 'without reasonable and probable cause' in the declaration. In the course of argument he said: 'The court would be slow to extend to other actions the rule applicable to actions for malicious prosecution, that the Judge is to say whether, on the facts, there was reasonable and probable cause'.73 The better view, it is submitted, is that no restrictions should be placed on actions against medical practitioners for making negligent recommen­ dations under mental health legislation. As Crompton J. directed the jury in 1862, 'it is of great importance that they should very carefully sign certificates of this kind, and that personal liberty should not be interfered with improperly by an abuse of the power which the law has entrusted to these parties'.74 It is true, as he said, that very often 'it is a difficult and delicate matter to be decided upon'75 but this goes to standard of care. The medical practitioner, who may not be a specialist in the area, will not be liable for mere errors of judgment or mistakes which do not connote carelessness according to professional standards.76 71 Fleming, op. cit. 576. 72 (1862) 176 E.R. 151, 157. Statutory powers are not frequently held to impose a requirement of honesty only. See Craig P. P., 'Negligence in the Exercise of a Statu­ tory Power' (1978) 94 Law Quarterly Review 428, 431, 453; de Smith S. A., Judicial Review of Administrative Action (3rd ed. 1973) 295-6. 73 (1881) 7 V.L.R. 435, 436; see also 439. 74 Hall v. Semple (1862) 176 E.R. 151,157. 75 Ibid. 76 Contrast the absence of any immunity for reasonable mistake as to insanity in exercising the common law privilege to apprehend an insane and dangerous person. See supra n. 6. Reasonable mistake should surely not negate the privilege any more than it does under the modern statutory reform of the law of arrest: Crimes Act 1958 (Vie.), ss 458,462. 68 Melbourne University Law Review [Vol. 14, June '83] (ii) The remoteness test. One disadvantage of trespass from the plaintiff's point of view is that he must prove direct interference as an ingredient of the tort. Negligence is not limited by this requirement. We have seen that the reader locked in the library by the careless attendant may sue in false imprisonment; but the trespass action was struck out in Smith v. [ffla, and withdrawn in De Freville v. Dill, probably for lack of directness. Assuming, however, that a wrongful imprisonment is made out in a trespass action, what is the test of remoteness governing consequences of that imprisonment? It was pointed out earlier that the test of remoteness in trespass may be 'directness' or 'reasonable and natural consequence'.77 How does this com­ pare with the test of foreseeability which prevails in negligence? In 1961 the Privy Council stated in The Wagon Mound (No. 1)18 that the reasonable foresight test 'corresponds with the common conscience of mankind'79 and the directness test 'leads to nowhere but the never-ending and insoluble problems of causation'.80 But the extent to which either test favours the plaintiff or the defendant, or corresponds with the 'common conscience of mankind', 81 depends largely on how the courts apply (or manipulate) the tests. In cases in which the plaintiff sues a medical practitioner for negligent certification there is usually some intervening act of a third party following the certification, and it is this act which finally brings about the plaintiff's loss of freedom. The intervening act may be that of a police officer, a hospital superintendent, or a judicial or quasi-judicial tribunal. In the cases reported in this context, before the Privy Council adopted the foreseeability test of remoteness in 1961, the analysis of remoteness was concerned with whether the intervention constituted a new and independent cause. This is the same kind of analysis one would expect in a trespass case on the issue of remoteness, i.e. a test of direct causation.82 Considerable judicial diversity is evident in the application of this test of remoteness. Thus in the Court of Appeal in Everett v. GriffithsM Scrutton L.J. said: the cause of the plaintiff's detention is the independent opinion of the justice, not the certificate of the doctor, though that may be evidence on which the justice after consideration acts.84 77 Harnett v. Bond [1925] AC. 669; Hogan v. Wright [1963] Tas.S.R. 44 (trespass to land). But in McIntosh v. Webster (1980) 30 AC.T.R. 19,31, O'Connor J. applied without discussion the foreseeability test of remoteness, holding the defendants liable for the foreseeable consequences of an illegal arrest: taking of photograph and finger­ prints by third persons. This approach was affirmed on appeal by the Full Federal Court: Webster v. McIntosh (1980) 32 AL.R. 603,608. 78 [1961] AC. 388. 79 Ibid. 423. 80 Ibid. 81 Ibid. 82 See Harnett v. Bond [1925] AC. 669. 83 [1920] 3 K.B. 163. 84 Ibid. 192. See also Lord Reading C.l. at first instance; and SCrutton L.l. again in Harnett v. Bond [1924] 2 K.B. 517, 565 (C.A). Negligent Infliction of Imprisonment 69 Atkin L.J., on the other hand, took the opposite view. He said: the certificate is given in the terms that the doctor is of opinion that the plaintiff is of unsound mind, in an inquiry which is to determine whether the plaintiff shall be confined or not, the defendant well knowing, as the fact is, that his certification is a condition precedent to such detention. I cannot doubt that, if the certificate is wrongfully given, the damages for detention may be the natural and direct result of the wrong.85 In De Freville v. Dill, McCardie J. held that the defendant who certified that the plaintiff was insane was the cause of her detention despite the intervention of a justice's order. He said: 'If I had been freed from authority, I should have thought, myself, that the effective cause of that detention was the order of the justice, and not the certificate of the doctor'.86 The remoteness issue was not considered in Smith v. Iffla, but it did arise in the earlier Victorian case of Roberts v. Hadden.87 There the plaintiff was committed to an asylum by virtue of an (irregular) order of the justice, acting in reliance on the certificate of the defendant medical practitioner. Barry J. held that the plaintiff had failed to give any evidence of want of care on the part of the defendant. It was argued by the plaintiff that the fact that the defendant reported the plaintiff to be a 'dangerous lunatic' rendered the defendant liable for what followed. Barry J. rejected this argument, saying: If a report that the plaintiff was a dangerous lunatic could have been legally followed by what was done it might be so. But the magistrate was no more justified in acting on that certificate than he would have been justified in acting on a report that the plaintiff was a felon. It was the act of the justice only . . . and though the report might have been causa sine qua non, it was clearly not causa causans~88 Barry J. was apparently of the opinion that if the justice had been acting within jurisdiction the medical practitioner could have been held liable if he had been proved negligent. In Harnett v. FisherS9 the plaintiff was imprisoned under a justice's reception order following the defendant's certification. The judge at first instance, Horridge J., held that 'the negligent giving of the certificate was a direct cause of the reception order and detention'.90 He also considered the result was reasonably foreseeable: In this case the doctor, who was guilty of the original negligence, ought reasonably to have anticipated, as the result of his negligence, the making of the reception order, and therefore . .. the making of the order was not the intervention of a fresh independent cause, and the defendant is ... liable for the consequences of his negligence, even though the actual order under which the plaintiff was received was made by the justice.91 85 Everett v. Griffiths [1920] 3 K.B. 163, 219. See also Lord Finlay in the House of Lords: [1921] 1 A.C. 631, 667-8. 86 [1927] All E.R. 205, 211. He preferred the approach taken in Harnett v. Bond [1925] A.C. 669, but felt constrained by later authority such as Everett v. Griffiths [1921] 1 A.C. 631. 87 (1873) 4 Australian lurist Reports 167 and 181. :: Ibid. 182. "A'4>";,, '. [1927] 1 K.B. 402; [1927] A.C. 573 (House··aa:.ordS). 90 [1927] 1 K.B. 402, 410. . .' 91 Ibid. (italics added). 72 Melbourne University Law Review [Vol. 14, June '83] remoteness. A voluntary intervening act may well be foreseeable but still regarded as a suitable reason for absolving the defendant from responsibility.2 'A defender is not liable for a consequence of a kind which is not foresee­ able. But it does not follow that he is liable for every consequence which a reasonable man could foresee.'3 A judge may end up drawing the line where 'policy', 'common sense', 'instinct', or even the discredited directness test dictates. Life throws up too many complicated situations for any test of remoteness to be acceptable in all circumstances. Broadly speaking a defendant should be held responsible for interventions by third parties and other eventualities which fall within the risk created by his wrong, unless in the circumstances it is not reasonable so to hold. The wrong may be false imprisonment or negligence, but the test of remoteness governing the consequence of that wrong should be the same. CONCLUSION To the extent to which the historical division of torts into trespass and case has survived, the law is bedevilled with some unsatisfactory distinctions. The direct-indirect distinction is unsatisfactory, so also is the varying of the incidence of burden of proof in respect of fault, and the differing tests of remoteness of damage. This article has emphasised yet another unsatisfactory distinction: the rule of actionability per se in trespass and the 'actual damage' requirement in case. It was argued that despite the latter require­ ment a plaintiff can sue in negligence for the negligent infliction of loss of physical freedom, relying on this latter loss as 'damage'. But whether loss of freedom be regarded as 'damage' or not, a plaintiff suing for negligent certification is not dependent on an action for negligent trespass with its supposed advantage of actionability per se. The general conclusion is that all these distinctions should be abandoned. Judicial discontent with them has been expressed from time to time. It has been stated that '[t]hese old forms of pleadings have long since been abolished and swept away and should not now govern the judicial approach';4 and that '[t]he difference appears ... to originate in history rather than to be based on logic'. 5 In England, Lord Denning has attempted a new classification: Instead of dividing actions for personal injuries into trespass (direct damage) or case (consequential damage), we divide the causes of action now according as the defendant did the injury intentionally or unintentionally. If one man intentionally applies force directly to another, the plaintiff has a cause of action in assault and battery .... 'The least touching of another in anger is a battery', per Holt C.J. in 2 See Millner M. A., 'Novus Actus Interveniens: The Present Effect of Wagon Mound' (1971) 22 Northern Ireland Legal Quarterly 168; Lamb v. Camden London Borough Council [1981] 2 W.L.R. 1038. 3 McKew v. Holland [1969] 3 All E.R. 1621, 1623. 4 Foth v. O'Hara (1958) 15 D.L.R. (2d) 332, 336. 5 Berry v. British Transport Commission [1962] 1 Q.B. 306, 339 (per Ormerod L.J. referring to the distinction between case and other actions). Negligent Infiicti@n of Imprisonment 73 Cole v. Turner.6 If he does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action today in trespass. His only cause of action is in negligence .... 7 This reclassification, however, still leaves us with the direct-indirect distinction in respect of intentionally inflicted injuries. Trespass is said to be restricted to direct intentional injuries, whereas presumably intentional injuries indirectly effected will be covered by some other tort derived from case. If Lord Denning intends that the former be actionable per se and the latter dependent on proof of damage, one is compelled to ask: why? It is not a satisfactory answer to say that in trespass the plaintiff recovers for the affront offered to him, and that there can be no affront where the inter­ ference is indirect.8 Moreover it has been argued in this article that to vary the requirement of proof of damage according to whether the action is for a negligent or intentional act is not satisfactory. If an interest of the plaintiff which the law considers valuable has been violated by the defendant, then it can be said that the plaintiff has suffered 'damage'. This means that the actionability per se rule has no role to play in trespass. If the defendant has caused damage, either intentionally or negligently, he should be prima facie liable, whether the damage is caused directly or indirectly. Thus if the plaintiff suffers physical contact or loss of physical freedom and this is the result of the intentional or negligent behaviour of the defendant, prima facie he should have an action. The damages awarded may vary from small to substantial depending on all the circumstances. Damages are 'at large' in respect of matters such as duration of interference, degree of insult, etc. If the damage is trivial and the action unmeritorious then the de minimis principle could be applied; or, in the discretion of the court, the plaintiff should be deprived of his costs and in some cases even required to pay those of the defendant. While it may be debated whether the burden of proof in respect of fault should rest on the plaintiff or the defendant, it should be the same in all cases. Where abuse of the judicial process is alleged 'malice' should continue to be an ingredient of the tort. It will be noticed that the above classification still retains the notions of intentionally and negligently inflicted damage. Is the distinction between negligent and deliberate harm worth maintaining? If negligence is defined as a failure to meet a standard of reasonable behaviour, then to intentionally inflict damage must surely be negligence. But if negligence is understood as being a state of mind, then negligence and intention are mutually exclusive. As Millner states in respect of negligence: 6 (1705) 87 E.R. 907. 7 Letang v. Cooper [1965] 1 Q.B. 232, 239. 8 In Harari op. cit. 145, n. 93, the author states that 'the nature of the affront is different where it consists of anything which might be called "an application of force" (i.e., a direct contact), and where the contact is brought about indirectly'. But even if it is 'different' doeil this justify a different rule in respect of proof of damage? 74 Melbourne University Law Review [Vol. 14, June '83] in contrast with an intentional act, the consequences are not foreseen (inadvertent negligence), or, even though they are foreseen, at least as a possibility, they are not desired (advertent or conscious negligence). . • .9 If a plaintiff sues in negligence, the defendant should not be able to defend himself by saying that he intended the harm. The point is that he is guilty of an intentional breach of the duty of care. But because there is an important moral distinction between the states of mind of the person who desires harm and of the person who does not, it is probably worth maintaining the distinction between intentional and negligent infliction of harm. A greater degree of moral turpitude attaches to a finding of deliberate wrongdoing, as distinct from carelessness, and an award of exemplary damages may be appropriate. At least it is a rational distinction unlike the other distinctions which this article has suggested should be abandoned. 9 Millner M. A., Negligence in Modern Law (1967) 171. 'An action for intentional trespass to the person ... cannot be regarded as an action of negligence': per Cooke J. in Long v. Hepworth [1968] 1 W.L.R. 1299, 1302.