I am quite happy to be called a "Hoffmann-ian".

 

However, although there may have been a public law wrong in this case, in private law a tort is not constituted by having an unlawful policy as a matter of public law. Detaining someone against their will without lawful authority is the wrong.

 

If I trespass on your land it doesn't cease to be trespass if you would have given me permission if I had asked nicely. The wrong is constituted by walking on the land without permission. the wrong is not constituted by the failure to ask nicely. Similarly that they could have detained the claimants lawfully doesn't alter the fact that here they did not.

 

If my actions with respect to you are wrongful they are wrongful, regardless of whether I could have done the same thing non-wrongfully.

 

I agree that in Chester v Afshar the wrong was constituted by failing to advise. It may have been appropriate to award a sum of money to vindicate this wrong (Hoffmann's 'modest solatium'). The decision of the majority in that case to allow her to recover the full loss she suffered as a result of the surgery, even though this loss was coincidental to the wrong (ie the risk of this loss was not increased in this case by the failure to advise) is unjustifiable in my view.

Rob