From: Neil Foster <neil.foster@newcastle.edu.au>
To: Craig Purshouse <C.J.Purshouse@leeds.ac.uk>
Wright, Richard <rwright@kentlaw.iit.edu>
Peter Radan <peter.radan@mq.edu.au>
Date: 24/09/2020 02:37:04
Subject: Re: [Ext] Trespass to Person Case

Dear Colleagues;

Yes, I agree with Craig. In fact the tort issues are barely reached, but the comment in para [37]: “Where someone is so intoxicated that she is unable to make an informed choice then circumstances will arise in which a police officer can readily assume that consent to the removal of clothing can be implied” seems to approach the matter on a wrong basis. The more obvious tort defence would be that of “necessity” : In Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 under the heading of avoiding harm to the plaintiff. If the defence of necessity may arise where it is necessary to administer medical treatment to someone who is unconscious and unable to give consent, it would also seem reasonable to apply it where she may be subject to other risks caused by fouled clothing. For those interested Illert v Northern Adelaide Local Health Network Inc (Modbury Hospital) [2016] SASC 186 has a helpful overview of the defence.

Regards

Neil

 

 

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From: Craig Purshouse <C.J.Purshouse@leeds.ac.uk>
Date: Wednesday, 23 September 2020 at 5:36 pm
To: Richard Wright <rwright@kentlaw.iit.edu>, "peter.radan@mq.edu.au" <peter.radan@mq.edu.au>
Cc: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Re: [Ext] Trespass to Person Case

 

On the substantive law, this case is poorly reasoned. You cannot rely on consent (implied or otherwise) if C lacks capacity (as she clearly did). The same result would have been reached on best interests grounds though.

 

Dr Craig Purshouse

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From: Wright, Richard <rwright@kentlaw.iit.edu>
Sent: Tuesday, September 22, 2020 11:56 PM
To: Peter Radan <peter.radan@mq.edu.au>
Cc: obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: [Ext] Trespass to Person Case

 

Wow! What a novel and very interesting claim! I look forward to many valuable and interesting comments from the relevant side of the Atlantic, and also some from my own side of the Atlantic, while waiting cowardly in reserve to comment on all posts.

 

On Tue, Sep 22, 2020 at 5:40 PM Peter Radan <peter.radan@mq.edu.au> wrote:

Colleagues,

I am not a torts lawyer, but the opening paragraphs of Pile v Chief Constable of Merseyside Police [2020] EWHC 2472 (QB), caught my attention: 

 

"1. Cheryl Pile brings this appeal to establish the liberty of inebriated English subjects to be allowed to lie undisturbed overnight in their own vomit soaked clothing. Of course, such a right, although perhaps of dubious practical utility, will generally extend to all adults of sound mind who are intoxicated at home. Ms Pile, however, was not at home. She was at a police station in Liverpool having been arrested for the offence of being drunk and disorderly. She had emptied the contents of her stomach all over herself and was too insensible with drink to have much idea of either where she was or what she was doing there. Rather than leave the vulnerable claimant to marinade overnight in her own bodily fluids, four female police officers removed her outer clothing and provided her with a clean dry outfit to wear. The claimant was so drunk that she later had no recollection of these events.

 

2. It is against this colourful background that she brought a claim against the police in trespass to the person and assault alleging that they should have left her squalidly and unhygienically soaking in vomit. Fortunately, because this appeal will be dismissed, the challenge of assessing damages for this lost opportunity will remain unmet."

 

Am I wrong to think that Cheryl was a little hard done by on her trespass to person claim?

 

Peter

 

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