NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

LAW OF TORTS - 2
SECOND TRIMESTER

FALSE IMPRISONMENT, FARE DODGING AND FEDERATION—

MR. ROBERTSON’S EVENING OUT

SUBMITTED BY: SUBMITTED TO: 

SHRUTI VERMA                                       PROF.(DR.) RAJIV KUMAR KHARE
2019 BA LLB (HONS 22)

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 CERTIFICATE

This is to certify that the project research titled “False imprisonment, Fare dodging and
Federation- Mr. Robertson’s Evening Out” who is incumbently pursuing his BA LLB (Hons.) at
National Law Institute University, Bhopal fulfilling the Law Of Torts-2 course. It is also certified
that this is an original and cherished research report and this project research has not been
submitted to any other university/college or any other institution, nor published in any journal.

Date-

Signature of the student-

Signature of Research Supervisor-

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 ACKNOWLEDGEMENT

On the completion of this project, I take the opportunity of thanking the people
who contributed in the completion of it, without whose aid, contribution and help
this project wouldn’t have seen practicability. First I extend my heartfelt gratitude
to, my mentor and teacher, Prof. (Dr.) Rajiv Kumar Khare whose continuous
guidance and support provided me with the much needed impetus and gave me a
better insight into the topic. I am grateful to the IT Staff for providing all necessary
facilities for carrying out this work. I thank all members of the Library Staff for
providing me the assistance anytime needed. I also thank my friends and batch
mates for providing me the much needed aid whenever needed. Most importantly, I
would like to thank my parents for providing me the much needed force for
accomplishing this project.

SHRUTI VERMA (2019BALLB22)

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TABLE OF CONTENT

SR. NO. NAME OF CASE PAGE NO.

1 Introduction 5
2 Conditions to prove the tort 9
3 Ingredients of false imprisonment 10
4 Defenses and Remedies 12
5 Case Laws - Raja p. v. Naidu Bahadur v. A. Roodrappa 14
6 Maharani of Naha v. Province of Madras 15
7 Hussainara Khatoon(I) v. State of Bihar 15
8 Raj Deo Sharma v. The State of Bihar 16
9 Robertson vs Balmain Ferry Co. Ltd. 17
10 Conclusion 18
11 Bibliography 19

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INTRODUCTION-

False imprisonment is the total restraint of the liberty of a person, for, however, short a time,
without lawful excuse.1 The word false means erroneous or wrong. Imprisonment means the
restraint of a man’s liberty irrespective of the place. 2 So, false imprisonment is the wrongful
restraint of a man’s liberty. The tort of false imprisonment is actionable per se.3

It may also be defined as an act of the defendant which causes unlawful confinement to the
plaintiff. For imprisonment it is not necessary that the person should be put behind bars, but he
should be confined in such an area from where there are no possible ways of escape except the
will of the person who is confining the person within that area.

It is not the degree of the imprisonment that matters but it is the absence of lawful authority to
justify unlawful confinement which is of relevance. If the person is unaware of a possible escape,
but an escape actually exists, it will still be a case of false imprisonment.4

No man may imprison another without due process of law is a principle accepted universally and
especially in all democracies.5 Article 21 of the Constitution of India has therefore envisaged and
afforded protection to life and liberty of a person. The right to personal safety gives rise to the
right of personal freedom and it contemplates and encompasses therefore the immunity not only
from the actual application of force but also from detention and unauthorized restraint, which go
to constitute this tort.

Every restraint of the liberty of one person by another is in law an imprisonment and, if imposed
without lawful cause, a false imprisonment which is both a criminal offence and an actionable
tort.6 So, false imprisonment can either be a crime or a tort.

The decision of the Privy Council in the case of Robertson v Balmain New Ferry Co Ltd remains
a part of many tort courses and tort textbooks in common law countries. Yet the reason for
including it tends to be to dismiss it as out of line with general principle, as non-representative
rather than paradigmatic. It is explained away as an aberration,3 a task made easier by the
eccentricity of its facts.4 Whilst for explanatory purposes this is a perfectly satisfactory way of
dealing with the case as part of the modern law of tort, it leaves open a number of questions.
First, if the case was considered contrary to general principle, why did the decisions of both the
High Court of Australia and the Privy Council find comprehensively in favour of the ferry
company? Analysis of contemporary legal doctrine suggests a lacuna in the law relating to the
operation of the system of collecting fares adopted by the ferry company. The matter was of
enormous importance to ferry companies: a result in favour of Robertson would have mandated
1
JUSTICE G P SINGH, RATANLAL & DHIRAJLAL- THE LAW OF TORTS, 259, (EDITION 26)
2
(WINFIELD,JOLOWICZ), TORT, 99, (EDITION 17)
3
(SIMON DEAKIN, ANGUS JOHNSTON AND OTHERS), MARKESINIS AND DEAKIN’S TORT LAW, 424, (EDITION 5)
4
Supra note 3, 103
5
B.M.GANDHI, LAW OF TORTS, 166, (EDITION 4)
6
(A. LAKSHMINATH, M. SRIDHAR), RAMASWAMY IYER’S THE LAW OF TORTS, 52, (EDITION 10)

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significant change in ferry companies’ practices. The way that the legal lacuna was filled by both
the High Court and the Privy Council avoided this commercially undesirable result — albeit with
reasoning that gave short shrift to the pleading rules that operated in New South Wales — and
ignored well-established limitations on the circumstances in which a person’s imprisonment
could be justified.

AS A CRIME-

False imprisonment as a crime is in The Indian Penal Code from S. 339 to S. 348. 7 The crime can
be either wrongful restraint or wrongful confinement that is S. 339 and S. 340 respectively under
The Indian Penal Code.

Under wrongful restraint, there is only a partial wrong and there is scope for escape. 8 However,
under wrongful confinement, there is a total or complete wrong and there is no way of escape. 9
For action as a civil wrong, wrongful confinement is required.

AS A TORT-

As a tort, false imprisonment is considered a trespass to person. Keeping a person confined in

one area or not allowing a person to move freely is restrictive on the body of a person and hence,
it is a trespass to person.

STATEMENT OF PROBLEM

The impact of the legal concept of false imprisonment is felt everywhere as no one’s liberty can
be wrongly restrained. Those who commit false imprisonment will be punished and thereby
ensure there is no human rights violation.

OBJECTIVES OF STUDY

The objective of this paper is to cover the topics-

 To define and understand all the features of the concept of false imprisonment as a tort.
 To study the conditions to prove the tort of false imprisonment.
 To understand the Ingredients and Defenses of false imprisonment
 To deeply analyse the important cases of false imprisonment.

HYOTHESIS

7
http://www.legalserviceindia.com/articles/fal_torts.htm (27/08/13, 7:34pm)
8
http://indiankanoon.org/doc/278610/ (27/08/13, 7:52pm)
9
http://indiankanoon.org/doc/1908902/ (27/08/13, 7:55pm)

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False imprisonment may be defined as an act of the defendant which causes the unlawful
confinement of the plaintiff. To constitute false imprisonment certain factors such as probable
cause for imprisonment, knowledge of the plaintiff for imprisonment, intention of the defendant
while causing imprisonment and period of confinement matters.

METHOD OF STUDY

This project is largely based on the doctrinal method of data collection.

REVIEW OF LITERATURE

The book “False Imprisonment”10 written by Nigel Joseph Ley is an up-to-date and
comprehensive analysis of all the relevant law. It provides an exhaustive summary of the statute,
reported and unreported case-law and the remedies available. Also examined are the
practicalities of bringing a civil action against the police, officers of HM Customs and Excise or
other authorities. In recent years the police (urged on by Home Office circulars) and other
authorities have become ever more ready to exercise their powers to detain suspected offenders.
These powers are subject to strict rules and restrictions and failure to comply with the correct
procedure will usually entitle the detainee to make a civil claim for damages. The Human Rights
Act 1998 allows victims of arrest or detention in contravention of Article5 (Right to Liberty) an
enforceable right to compensation and may lead to a sharp increase in those seeking redress for
alleged abuse of powers. False Imprisonment may be defined as an act of the defendant which
causes the unlawful confinement of the plaintiff. To constitute false imprisonment certain factors
such as probable cause for imprisonment, knowledge of the plaintiff for imprisonment, intention
of the defendant while causing imprisonment and period of confinement matters.

A private individual, a police officer or any public authority can falsely imprison a person as
well. For imprisonment it is not necessary that the person should be put behind bars, but he
should be confined in such an area from where there are no possible ways of escape except the
will of the person who is confining the person within that area. It is not the degree of the
imprisonment that matters but it is the absence of lawful authority to justify unlawful
confinement which is of relevance.
As almost every tort has a defence, so does this tort. The defences of false imprisonment are
consent of the plaintiff or voluntary assumption of the risk, probable cause and contributory
negligence. The defence of consent of the plaintiff and probable cause are complete defences
while the defence of contributory negligence is used only for mitigation of damages.
False arrest is the arrest of the individual by the police officer or private person without lawful
authority. Although we call it false arrest, it is a part of false imprisonment only. False arrest and
false imprisonment are virtually indistinguishable except in their terminology and have been held
by the courts as a single tort

10
“False Imprisonment” written by Nigel Joseph Ley
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There are three remedies for false imprisonment. They are damages, habeas corpus and self help.
Being a tort, the basic remedy for false imprisonment is an action for damages which can be due
to physical or mental suffering, loss of reputation or even malicious intent on behalf of the
defendant. If a person is unlawfully confined than ha can be released from such confinement by
the writ of habeas corpus. A person can also use reasonable force in order to escape from the
confinement.
Co Ltd
In reference to the case of Robinson vs Balmain New Ferry Co Ltd. , “The Mirror of Justice”, a
book published in 1906 and comprised of a collection of entries originally published as short
commentaries in The Daily Telegraph. The author was H R Curlewis, barrister-at-law and
lecturer at the law school at Sydney University. Although Curlewis thought the case was curious,
he evidently did not think the result at all out of the ordinary. Whilst he pointed out the case left
undecided whether Robertson was liable for breach of contract, he explained why damages of
£100 could be justified:

“But where there is a deliberate infringement of the rights of another, an attempt to enforce
what may or may not be your rights by the law of the stronger hand, juries are encouraged to
remind the defendant of his duties by awarding damages out of all proportion to the actual
injury sustained.”11

This is consistent with the report in The Daily Telegraph of comments made by Darley CJ when
summing up to the jury:

“These companies should know that they had no right to detain any person. It was not a case of
cheating. No doubt the plaintiff suffered a good deal of annoyance by being placed in a position
which caused people to think that he was trying to evade the payment of his fare.”12

A comment in The Daily Telegraph after the Full Court’s decision was to the same effect: no
one is allowed by the law of England to collect one’s debts by seizing the debtor and imprisoning
him until he pays. It noted: ‘This law is so clear that the company did not even argue the point’.

11
H R Curlewis, The Mirror of Justice (1906) 167–8
12
‘The State Courts’, above n 17.

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CONDITIONS TO PROVE THE TORT-

There are two conditions to prove that it is a case of false imprisonment.13

 The total restraint of the liberty of a person

 The detention must be unlawful

Restraint- The restraint must be complete. 14 There must have been restriction in all directions. If
the plaintiff was free to move in any direction, and was only prevented from proceeding in one
particular direction, then it will not be considered as constituting the wrong of false
imprisonment. This is seen in the landmark case of Bird v Jones.

In Bird v Jones, a section of Hammersmith Bridge was temporarily fenced off. The plaintiff,
who insisted on climbing over the fence to go forward, was prevented from doing so, but was
told he could go back instead. The court held that he had not been falsely imprisoned and held
that his attempt to move forward was a breach of the peace for which he had been lawfully
arrested

Unlawful- the act will be considered as false imprisonment only if the person has been
wrongfully arrested. If the person has been lawfully arrested, it will not be a case of false
imprisonment.

The detention of a person can be of two types-15

 Actual – This means that the detention involves physically laying hands upon a person.
May involve the use of handcuffs.
 Constructive – This involves merely show of authority like a police officer or a
constable. It does not involve the use of handcuffs.

LIABILITY-

A person may be liable for false imprisonment not only when he directly arrests or detains
the plaintiff but also if he was active in promoting or causing the arrest or detention, even if
he does so through the instrumentality of officers, when arrest is ordered by Magistrate on
complaint, the complaint is not liable unless he actively brings about the detention.

Arrest by public officer- Section 41(1) of the Code of Criminal Procedure, 1973 provides
that a police officer may arrest a person who has been concerned in any cognizable offence,
13
Supra note 1, 260
14
P.S.A PILLAI, LAW OF TORT, 31, (EDITION 9)
15
DR. AVATAR SINGH, INTRODUCTION TO LAW OF TORTS, 107, (2001 EDITION)

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 against whom a reasonable complaint has been made, or credible information has been
received or a reasonable suspicion exists of having been so concerned. The existence of a
reasonable suspicion that the person to be arrested is concerned in any cognizable offence is
the minimum requirement before an arrest can be made by a police officer.16

Arrest by private person- Section 43 of the Code of Criminal Procedure, 1973 provides that
a private person may arrest any person who in his view has committed a non-bailable and
cognizable offence or is a proclaimed offender. It is not essential that a private individual, in
whose presence a non-bailable and cognizable offence is committed, should himself
physically arrest the offender. He may cause such offender to be arrested by another person.17

INGREDIENTS OF FALSE IMPRISONMENT-

• Period of confinement – The period for which the detention continues is immaterial if it
is unlawful. Confinement for a very short period, say fifteen minutes is sufficient to create
liability of false imprisonment. The period of confinement is generally of no relevance except
in the estimation of damages. The lengthy confinement does not necessarily mean that a
compensable false imprisonment has occurred. An otherwise lawful detention may become
unlawful if the detention is prolonged for an unreasonable period of time.

• Intention factor18 - Normally this tort of false imprisonment must be intentional. A

person is not liable for false imprisonment unless his or her act is done for the purpose of
imposing a confinement or with knowledge that such a confinement, to a substantial certainty
will result from it. The necessary intent for the purposes of false imprisonment is the intent to
confine. In order to demonstrate the necessary element of intent, the defendant must only
intend to accomplish the act that causes the confinement, they need not contend that the
confinement was unlawful; the defendant’s actual motives are immaterial. Malice is
irrelevant to this tort. Even negligent acts causes this tort of false imprisonment for example
if a person locks someone inside a room without unaware of the fact that there is someone in
the room than he is held liable for false imprisonment.

• Knowledge of plaintiff– It is not necessary that the plaintiff should have been aware of
his imprisonment at the time of confinement. This is seen in the case of Meering v. Graham-
White Aviation Co. Ltd. where the court held that knowledge was not necessary. However, it
is different in the case of Herring v. Boyle in which, a mother went to pick up her son from a
private school but was not allowed to until she paid the fee. The court held that the boy had

16
GULABCHAND KANNOOLAL V. STATE OF M.P., 1982
17
GOURI PRASAD DEY V. CHARTERED BANK OF INDIA, AUSTRALIA AND CHINA, 1925
18
http://www.legalserviceindia.com/articles/fal_torts.htm (28/08/13, 6:43pm)

10
 not been falsely imprisoned because there was nothing to show that the plaintiff was at all
cognizant of any restraint.

• Place of confinement- The term false imprisonment is misleading in that it does not
necessarily means confinement to a jail or prison. To constitute the wrong in imprisonment
there needs to be no actual imprisonment in the ordinary sense- i.e. incarceration. Any
confinement in the ordinary sense whether be it prison or any place used temporarily for the
purpose of confinement constitutes false imprisonment. Thus an action of false imprisonment
may lie due to confinement in a mental institution, hospital, nursing home or juvenile home.
A mere unlawful arrest, for example amounts to false imprisonment and so does the act by
which a man is prevented from leaving the place in which he is: for example a house, a motor
car, or a bank. An example is the case of Bird v. Jones.

DEFENCES-

 Consent-
Although it has been denied that one may consent to unlawful restraint, on the ground
that liberty is an inalienable prerogative of which no one may divest himself, it is
frequently held that the consent of the plaintiff to acts which constitute an imprisonment
bars the right of recovery thereof. Consent must be free from duress, coercion, fraud or
mistake. Consent can also be implied in certain circumstances.
In Herd v. Weardale Steel, Coal and Coke Company Ltd. , the plaintiff a minor
descended to the bottom of the lift at the start of his shift but then refused to do certain
work and asked to be lifted up to the surface. The plaintiff was allowed to go back to the
surface at the end of the morning shift and even than he was not allowed to be taken back
when all the workers of the morning shift had been taken to the surface. The plaintiff
sued the defendants claiming false imprisonment. The House of Lords dismissed his
claim and held that the plaintiff voluntarily took the risk that if he did not work and
wanted to be taken back to the surface, than he can be made to wait.

 Contributory negligence
While there is some authority to the effect that the negligence of the plaintiff may bar
recovery for the tort of false imprisonment, there is some authority that the negligence of
the plaintiff in not a defense for false imprisonment. In any event the plaintiff’s
contributory negligence can be proved for the mitigation of damages but it is not taken as
an absolute defense for false imprisonment.

 Probable cause

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 It is a complete defense to actions for false imprisonment. When the probable cause is
established, then the action of false imprisonment fails completely. It is said that the test
for probable cause for imprisonment and arrest is an objective one, based not on the
individual’s actual guilt, but upon the information of credible facts or information that
would induce a person of ordinary caution to believe the accused to be guilty. A
defendant who in a false imprisonment or false arrest action has established the probable
cause for the alleged tort than he has no additional obligation to prove. Even malicious
motives will not support a claim if probable cause is found to exist.

REMEDIES-

There are three remedies for false imprisonment-

 Self help
 Habeas corpus
 Action for damages

1) Self help
A person who is unlawfully detained may use self-help to escape including reasonable
force so as to defend him from unlawful arrest. The force used must be proportionate in
the circumstances. This is risky course since the power to arrest is likely to depend upon
not only in the commission of offence but in the alternative, in a reasonable suspicion
thereof. Hence an innocent person who forcibly resists may be liable for battery if the
arrester had reasonable grounds for his suspicion.

2) Habeas corpus–
This writ is considered to be a golden remedy by the English Law. The Supreme Court of
India and High Court of states issue this writ under article 32 and 226 respectively. This
is concerned with the cases of false arrest or for prolonged detention by police officers.
Here the person can apply for the writ which will command him to come to the court on a
certain day, stating the day and the cause of his detention and then abiding by the
decision made by the court. The decision will be that either the prisoner will be released
or if the detention is proved than he will be speedily produced before the court for a trial.

Subject to the rules framed by the High Courts, an application for habeas corpus can be
made by the person in confinement or by any person on his behalf. The writ of habeas
corpus is effective means of immediate release from unlawful detention, whether in
prison or private custody.

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 3) Action for damages
Damages in false imprisonment are those which flow from the detention. A person
injured by the conduct that is either intentional or reckless is entitled to compensatory
damages and is under no duty to mitigate such damages. There is no legal rule for the
assessment of the damages and this is entirely left on the court to measure damages.
 Nominal and Compensatory Damages – The general rule in personal tort action is
that the plaintiff is entitled to recover such a sum that shall be fair and just, in the
absence of circumstances justifying an award for exemplary damages. The mere
unlawful detention constitutes the basis for the recovery of at least nominal
damages, but an award of only nominal damages may be insufficient and flawed
where the facts proved indicate a right to greater damages.

 Punitive, Exemplary and Aggravated Damages -

If an imprisonment is affected recklessly, oppressively, insultingly and
maliciously with a design to oppress and injure, the court may award exemplary
or punitive damages. Punitive damages are awarded in cases where the defendants
conduct is recklessly indifferent to the rights of others or in intentional or wanton
violation of those rights, and such damages are awarded to give a deterrent. In
some circumstances exemplary damages may be provided as when there is abuse
of power by the state.

CASES LAWS-

 Raja p. v. Naidu Bahadur v. A. Roodrappa19 -

This is the first Indian case ever reported under false imprisonment, which is earlier than
Bird v. Jones. In this case, the Raja a Zamindar having discharged certain persons for
some alleged misconduct ejected them from their premises to which the Raja had no title
and put them under personal restraint, seizing all the property. The aggrieved persons
filed a suit. The judicial committee ordered the restoration of property and payment of
compensation in damages of Rs.300 each for the unlawful restraint. The case points out
that the restrain on personal liberty is a very serious affair where more than mere nominal
damages that is, substantial damages may be awarded.

 Maharani of Naha v. Province of Madras –

19
B.M.GANDHI, LAW OF TORTS, 171, (EDITION 4)

13
 In this case it was decided that there was no false imprisonment because the restraint was
only partial and not total. The facts were that Maharani with her daughter was awaiting
the arrival of the train, in her own car placed in the railway compound fenced on three
sides by the railway premises and iron fencing on one side. On arrival of the train a police
sub-inspector acted on the bona-fide belief that he was to detain the Maharani not only
prevented her from boarding the train but also got the gate closed and posted two
constables near it.

 Hussainara Khatoon(I) v. State of Bihar20 –

In this case, it was held that speedy trial is an integral part of fundamental right of life and
liberty as enshrined in Article 21of the constitution. Further it laid down norms for speedy
disposal of cases, after analyzing the fact that a large number of men and women had been
held behind bars awaiting trial, for longer than periods that they would have to serve if their
offence was proved, thereby depriving them of their freedoms.

 Raj Deo Sharma v. The State of Bihar21 –

In this case, the question before the court was whether on the facts and circumstances of
the case, the prosecution against the petitioner is to be quashed on the ground of delay in
the conduct of trial.

 Sebasitian M. Hongray v. Union of India22 –

In this case, two persons were taken into custody by the Army authority in Manipur, but
were not produced in obedience to a writ of habeas corpus and it was held that those
persons must have met an unnatural death while in army custody. The Supreme Court
directed the Union of India to pay exemplary damages for the action of the army
authorities in murdering the two persons.

 Rudal Shah v. State Of Bihar23 –

In this case, a petition arose under article 32, complaining prolonged detention of the
petitioner even after his acquittal. The Supreme Court directed immediate release of the
petitioner and directed the state to for the damages.

CASE ANALYSIS OF ROBINSON V. BALMAIN FERRY CO. LTD. 24–

20
AIR 1979 SC 1360
21
(1998) 7 SCC 507
22
(1984) 3 SCC 82
23
AIR 1983 SC 1086: (1983) 4 SCC 141: (1983) 3 SCR 508
24
(1910) A.C.295

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Facts
In this case, the claimant paid a penny for entry to the defendant’s wharf from which he
proposed to cross the river by one of the defendant’s ferry boats. A boat had just gone
and there wasn’t another one for another 20 minutes. The claimant did not wish to wait
and went to the exit. There, he refused to pay another penny which was chargeable for
exit, which was mentioned on a notice board, and the defendant refused to let him leave
until the amount was paid. Robinson raised an action for false imprisonment.

Robertson’s Legal Action

As a result of his experiences, Robertson brought an action against the company for
assault and false imprisonment. On one level, it is perfectly obvious how the company
wanted to defend the action. This is apparent from an affidavit filed by the company’s
manager in support of the application for leave to appeal to the High Court of Australia.
It noted that 10,000 people a day travelled on the company’s ferries, and in his later
petition to the Privy Council Robertson himself said that 50,000 people a day used
Sydney ferries. What the company wanted to argue was that this very large transport
business simply could not operate if people were allowed to leave the wharf without
paying; the only workable practice was to charge everyone.

The difficulty was how this argument might be framed in terms of a defence to an action
for false imprisonment (the assault action fell or succeeded with the false imprisonment
action). This difficulty was particularly acute in New South Wales, which did not
introduce the Judicature Act reforms in full until 1972. Old-style pleading was the norm,
so the plaintiff pleaded a standard count in his declaration. To this pleading, the ferry
company responded with the general issue, that is, not guilty. This original choice of plea
needs some analysis. If the ferry company had wanted to plead that it had good cause to
detain Robertson, the general issue might not have been the correct plea; generally, pleas
of confession and avoidance — what a modern lawyer might call excuse — needed to be
specially pleaded, and the general issue would be an incorrect plea. The reason for the
general issue plea, however, becomes clear when one looks at the way the ferry company
argued the case at trial. Here the primary defence of the company was that the actions of
the attendants went outside the course of their employment with the result that the
company was not vicariously liable for their actions.13 The general issue was the
appropriate plea to raise this kind of defence.

The company was clearly confident in this line of argument — it took only two days to
respond to the declaration — and at the end of Robertson’s case the ferry company’s
counsel applied for a nonsuit. This was rejected by the trial judge, Darley CJ, who stated

15
that he would not nonsuit in the face of the notice (meaning, most probably, that the
attendants took the notice that entry and exit was conditional on payment of one penny as
their instructions — as they later testified — so that there was at least some evidence that
their conduct in restraining Robertson was in the course of their employment).15 The
ferry company appeared to have no fallback argument. Although evidence was led from
the attendants, it seems that the ferry company’s counsel admitted in summing up that the
conduct could not be justified and that the question was one of damages. This was
certainly the view of Darley CJ, who correctly noted that there was no justification on
file, and that the question was solely one of damages. Nor was this result forced on him
by the course of proceedings: he pointed out that it was important that companies knew
that they could not behave in this way.17 Almost belatedly, after the jury had retired,
counsel for the ferry company asked that the jury be directed that Robertson was bound
by the notice. This was rejected, as the Chief Justice said that there was no evidence of
knowledge of the notice. It is not clear why this was thought important, although the
issue arose a number of times in the future progression of the case.

Almost immediately thereafter the ferry company sought to overturn the jury verdict of
£100 in favour of Robertson by seeking a rule nisi, which was granted on three grounds.
The first related to the decision on vicarious liability whilst the latter two concerned the
failure of Darley CJ to direct the jury that Robertson was bound by the notice. Again, the
pleadings are vague as to why the notice was thought important, but it is clear from the
official report of counsels’ oral arguments before the Full Court of the Supreme Court of
New South Wales that the ferry company saw it as relevant only to the question of
damages. This was also the view of the Full Court. This approach suggests that no one
saw the existence of the contract or any obligation imposed by it as providing any
justification for the ferry company’s action. However, there was good authority, bearing
the imprimatur of Bullen and Leake’s Precedents of Pleading, that conduct that did not
amount to a justification could be led in evidence in mitigation of damages; conversely, if
the conduct was in effect a justification, it needed to be specially pleaded.20 By a
majority, the Full Court held that there should be no new trial on the question of
damages, effectively saying that the condition was of no importance at all in determining
liability and quantum.

The key change in the ferry company’s tack came in oral argument before the High Court
of Australia. Its written application for special leave to appeal to the High Court focused
on errors in the trial judge’s directions to the jury. It argued that Robertson was bound by
the notice, and that the ferry company had the right to demand payment of one penny.
Nothing was said about detention. But before the High Court, the ferry company’s lead
counsel, Rolin, put the argument somewhat differently.

16
 “The meaning of the notice was clear, viz, that any person who entered the wharf,
whether through the turnstile or from a boat, would be prevented from leaving through
the turnstile unless he paid a penny. That was a reasonable condition to impose under
the circumstances, because it would be impossible for the appellants to carry on their
business if it were necessary to inquire of each person whether he had actually travelled
by boat or not. The respondent [Robertson], therefore, when he entered the wharf, knew,
and accepted as an implied term of the contract of carriage, that he would have to submit
to such detention if he failed to carry out his part of the contract.”

Held

A person can be legitimately prevented from leaving if they had entered an earlier
contracted permitting so. When R entered the ferry gate, he agreed to pay a penny on
both entering and leaving the ferry. This bound him to a contract and D was entitled to
impose a reasonable condition before allowing him to pass through their turnstile from a
place to which he had gone of his own free will. This case narrows the law on false
imprisonment, following the case of Bird v. Jones [1845] 7 QB 742 in which it was held
that false imprisonment is constituted by total (and not partial) obstruction, however in
the present case it is held that it even where a person is totally obstructed it will not
constitute false imprisonment if there is a reasonable condition to passing.

Quotes

“The abridgement of a man’s liberty is not under all circumstances actionable. He may
enter into a contract which necessarily involves the surrender of a portion of his liberty
for a certain period, and if the act complained of is nothing more than a restraint in
accordance with that surrender he cannot complain. Nor can he, without the assent of the
other party, by electing to put an end to the contract become entitled at once,
unconditionally and irrespective of the other party’s rights, to regain his liberty as if he
had never surrendered it” (O’Connor J)

“It is an implied term of such a contract that the passenger will permit the restraint of his
liberty so far as may be necessary for the performance by the company of the contract of
carriage.” (O’Connor J)

CONCLUSION-

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The tort of false imprisonment is one of the most severe forms of human rights violation.
Recognition of the human being in the convicted offender is necessary. The Indian socio-legal
system is based on non-violence, mutual respect and human dignity of the individual. The right
of a person to personal liberty, freedom and life with dignity has been guaranteed by the
Constitution under the articles 19, 20 and 21, of which articles 20 and 21 cannot be abrogated
even during emergency, and false imprisonment is incongruous of the same. The term of
imprisonment is a decisive and vital factor to be taken into consideration in order to compute and
award damages. And while awarding damages for false imprisonment physical or mental injury
has to be kept in mind. The mere fact that the person has been imprisoned raises the claim of
nominal or compensatory damages if no other injury was caused to the plaintiff. The person who
is about to be falsely arrested or imprisoned can also use reasonable force in order to prevent
false arrest. He can use force for self-defense but has to make sure that the force used is
reasonable according to the circumstances. While awarding damages for false imprisonment
physical or mental injury, humiliation, loss of reputation, fright and the fact that the
imprisonment is affected recklessly, oppressively, insultingly and maliciously with a design to
oppress and injure has to be kept in mind. Ensuring fundamental rights to all its citizens is the
main objective of the land. False imprisonment is a violation of this right and hence, the
government has taken action against it and made it a crime as well as a tort. If false
imprisonment was not made an offence, people would be taken advantage of. So, the government
must be commended.

BIBLIOGRAPHY-

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BOOKS-

 The Law of Torts

Ratanlal & Dhirajlal

 Ramaswamy Iyer’s The Law of Torts

A. Lakshminath & M. Sridhar

 Law of Torts
B.M.Gandhi

 Introduction to Law of Torts

Dr. Avatar Singh

 Markesinis and Deakin’s Tort Law

Simon Deakin, Angus Johnston and Basil Markesinis

 Tort
Winfield and Jolowicz

 Law of Tort
P.S.A Pillai

INTERNET WEBSITES-

 http://www.legalserviceindia.com/articles/fal_torts.htm
 http://indiankanoon.org/doc/278610/
 http://indiankanoon.org/doc/1908902/

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