A Misconceived Issue In The Tort Of False Imprisonment

DOIhttp://doi.org/10.1111/j.1468-2230.1981.tb02744.x
Published date01 March 1981
Date01 March 1981
A MISCONCEIVED ISSUE IN
THE
TORT OF FALSE IMPRISONMENT
Is
a peison liable for false imprisonment if he restrains the liberty
of another to enforce a condition as to exit from his premises?
This question is frequently raised in the tort of false imprisonment.
A
leading tort textbook answers
:
It
is no tort to prevent
a
man
from leaving your premises because he will not fulfil
a
reasonable
condition subject to which he entered them.” The learned author
of the book cites the Privy Council case
of
Robinson
v.
Balmain
Ferry
Co.
Ltd.=
and the House of Lords case of
Herd
v.
Weardale
Steel, Coal and Coke Co. Ltd.3
as authorities for the proposition.
In
Robinson’s
case the plaintiff, Robinson, intended to cross a
harbour by the use of the defendants’ ferry. He paid one penny to
enter the defendants’ wharf.
A
notice board in the wharf stated
that
a
penny must be paid on entering or leaving the wharf whether
or
not a passenger used the ferry. The defendants collected fares
only on the side of the harbour Robinson entered. On entering the
wharf Robinson discovered that there would be
a
twenty-minute
wait before the next ferry left. He decided to leave the wharf. He
refused to pay another penny and was forcibly prevented by the
defendants’ officers from leaving the wharf through the turnstile for
about twenty minutes. He sued the defendants for assault and false
imprisonment.
In
Herd’s
case, Herd was employed by the defendants to work in
their mine. In breach of his contract of service Herd refused to do
certain work in the mine. In the ordinary course Herd would have
been raised from the mine to the surface at the end of his work
shift. His employers refused to bring him out prematurely although
the lift, which was the only means of egress from the mine, was in
fact available for this purpose for
a
period of twenty minutes before
he was actually brought out of the mine. In respect
of
this detention,
Herd sued his employers for false imprisonment.
The tort textbook states that in
Roblnson’s
case the Privy Council
regarded “the charge of
a
penny for exit as reasonable”4 and
similarly in
Herd’s
case the House of Lords regarded as reasonable
the condition that a miner would only be brought to the surface at
1
Rogers,
Winfie[d and Jolowicz
on
Torts
(11th ed.,
1979)
at p.
58.
2
[I9101 A.C.295.
3
[1915] A.C.
67.
Winfield,
A
Textbook
of
the
Law
of
Tort
(4th ed.,
1948)
at
pp.
219-220,
posits from
Robinson’s
case the imposition
of
a
reasonable condition
as
a
defence in the tort
of
false imprisonment.
Herd’s
case according to Winfield
rests
on
the defence of consent. The tenth edition
of
the book by Rogers, however,
cites both
Robinson
and
Herd
as authorities for Winfield’s proposition. The latest
edition, Rogers,
op.
cir.
at pp.
58
and
59,
adds, quite contradictorily, that in
Robin-
son’s
case it was crucial that the restraint
of
liberty was incomplete, and that in
Herd’s
case the added difficulty was that the imprisonment was caused by an omission
rather than a positive act.
4
Rogers,
loc.
cit.
166

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