I recently read Waine v Carnival PLC t/as P&O Cruises Australia [2022] NSWDC 650. This case may be of interest to students in my Torts Law class. The plaintiff was 15 weeks pregnant when she started to show signs of losing her baby. At the time she was enjoying a...
Trespass to the Person, False Imprisonment and the Stolen Generations!!
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As you may know I am teaching Torts at the moment. We recently covered trespass to the person, which I admittedly have a soft spot for. I like it because trespass to the person actions are easily relatable. I also like it because it shows us how a number of areas of law interact with each other.
When we think about assault and battery actions, you would be forgiven for thinking these only relate to criminal law- where the police bring charges against another for offences. You may not know that there are also comparable civil actions which can be pursued by individuals.
Trespass to the person actions can come in a number of forms and include things such as assault, battery and false imprisonment. Assault essentially relates to putting someone in the apprehension of imminent harm. Battery relates to some sort of touching. Often battery and assault cases can coincide. The action I find most intriguing is that of false imprisonment. As the name would suggest, false imprisonment relates to a direct act by one party which totally deprives another party of their liberty.
One case relating to false imprisonment which I find fascinating, yet disturbing, is State of South Australia v Lampard-Trevorrow (2010) 106 SASR 311. In this case, Bruce Trevorrow was fostered out without the consent of his parents. The then Section 10 of the Aborigines Act 1934 (SA) said that the Aborigines Protection Board was ‘the legal guardian of every Aboriginal child.’ For many years, Bruce’s parents did not know where he was. He did not see his parents again until later in his childhood.
Amongst other things, Bruce Trevorrow claimed he was falsely imprisoned whilst in foster care. He claimed for damages relating to the loss of cultural identity, depression, alcoholism, poor health, poor relationships and erratic employment.
In this case the claim for false imprisonment was not upheld as it was found that there was not total restraint due to the child’s age. Therefore, the state was not liable for false imprisonment in this case.