We are running a series of posts for law students and junior lawyers looking at legal basics. In this first post, we examine common law claims for false imprisonment. If you are looking for legal advice on the following area, please consult a lawyer.
False imprisonment is an unlawful restraint of a person by another within a fixed area and can give rise to a civil claim. This is a sub-category of the tort of trespass to the person.
There are some areas of law that cross into both civil and criminal law. One such area is false imprisonment. In the criminal realm, false imprisonment is often alleged alongside assault and battery. That being so, false imprisonment is not merely a subcategory of assault. In NSW, false imprisonment is a common law offence.
The right to not be the subject of false imprisonment and to liberty more generally has been described as:
“the most elementary and important of all common law rights and is protected by the common law doctrine of false imprisonment”: Ruddock v Taylor (2005) 221 ALR 32; [2005] HCA 48
What are the elements
The elements of false imprisonment are:
- The defendant must have been restrained directly (a positive/ voluntary act) against their will by the plaintiff. Note that a physical restraint is not required, restraint can occur as a result of a mental coercion. This may result from a threat of force (see Symes v Mahon [1922] SASR 447).
- The defendant must have been restrained within a fixed area. It is not sufficient, for example, to claim false imprisonment within Australia. (see Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 at 53)
- The restraint must be total. Where there is a physical restraint, it must be total and not merely an obstruction. Whether or not restraint is total is a question of fact (see Bird v Jones (1845) 7 QB 742).
Who must show what?
The plaintiff must first prove that his or her imprisonment was caused by the defendant. It is then for the defendant to show lawful justification (see Ruddock v Taylor (2005) 221 ALR 32; [2005] HCA 48 at 140).
The duration of the false imprisonment is not an element but will be relevant to the question of damages (see White v State of South Australia [2010] SASC 95).
Consent is another potential defence to a claim of false imprisonment (see Myer Stores Ltd v Soo [1991] 2 VR 597).
