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2.2.4 False Imprisonment

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Introduction and overview

1. Members of the jury, in this trial, the plaintiff alleges that on [date], the defendant falsely imprisoned [him/her], as a result of which [he/she] alleges [he/she] is entitled to compensation.

2. It is only if the plaintiff has proven to you, on the balance of probabilities, that [he/she] was falsely imprisoned by the defendant that [he/she] is entitled to be compensated. If the plaintiff fails to prove this to you, then [his/her] case fails.

3. What is false imprisonment? False imprisonment, as the name suggests, is the intentional imprisonment of a person without legal justification. Imprisonment means causing a person to be confined or restrained so as to prevent [him/her] from exercising [his/her] right to leave the place where [he/she] is. Imprisonment may occur anywhere. It can occur in an open field, in a street, in a person’s house as well as a gaol. It involves restraint of movement within a particular space or area.

4. The basis upon which the law allows a civil action for false imprisonment is that, in our modern society, we are all entitled to freedom of movement and freedom from restraint, unless there is proper legal justification to do otherwise. Improper restraint or imprisonment may affect a person’s liberty, dignity or reputation. The law provides that where a person is improperly imprisoned, [he/she] is entitled to damages as compensation for the infringement upon that liberty, dignity or reputation, and any mental suffering which flows.

If use of physical force is in issue, insert the following shaded section:

5. The constraint does not require physical force. It is enough that the constraint upon a person’s will is such as to submit to a deprivation of liberty. Further it is sufficient that a person has a justified apprehension that if [he/she] does not submit to what [he/she] is asked to do, it would occur with force.

6. Once the plaintiff has established [he/she] was imprisoned, it is not necessary for [him/her] to prove that imprisonment was unlawful or unjustified. It is then for the defendant(s) to prove justification.[1]

If elaboration is required on examples of imprisonment, insert one or more of the examples in the following shaded section:

7. The concept of deprivation of freedom is a wide one. It includes, for example, driving a car at such a speed so as to prevent a passenger from getting out,[2] confinement within an aeroplane or setting a person adrift in a boat without the capacity to return to land.[3]

8. Further false imprisonment may occur where a threat of force is used to confine a person without actual physical barriers. An assertion of legal authority, if used to confine a person, where that authority does not exist or is improperly utilised, constitutes a false imprisonment.

9. False imprisonment may occur when a store detective or police officer claims to arrest a person, giving them reasonably to the view that they must submit or be compelled to do so, where there is not the power to arrest or the power is improperly exercised.[4]

The elements

10. There are a number of elements that the plaintiff must prove to you, on the balance of probabilities, before a case of false imprisonment is made out. They are:

11. Let me explore these elements in some further depth.

The first element

12. Firstly, the defendant must have intended to imprison, confine or restrain the plaintiff.

13. This requires you to be satisfied that the defendant actually intended to imprison the plaintiff. If the defendant acted carelessly, even negligently, then the necessary element of intention is not made out.[5]

If there is no evidence as to the defendant’s intention, insert the following shaded section:

14. In this trial, there is no evidence as to the defendant’s intention up to and including the time of the alleged false imprisonment. It is therefore necessary for you to determine that intention from all of the circumstances present at the time. An intention may be inferred from what was said and done by the various parties, in particular, the defendant, at the time.

If it is alleged that the imprisonment was by the defendant’s agent, insert the following shaded section:

15. A false imprisonment may be carried out by an agent of the defendant providing the act was authorised. If the defendant has directed a police officer to arrest the plaintiff, on grounds which subsequently prove to be insufficient, the plaintiff’s action will be in false imprisonment.[6]

16. The evidence relied upon by the plaintiff in establishing the necessary element of intent is as follows:

  • [set out relevant evidence]

The second element

17. Secondly, the imprisonment, confinement or restraint must be against the plaintiff’s will.

18. Voluntary compliance with a request does not necessarily constitute false imprisonment. However, if the request by [insert appropriate example, e.g. a police officer, store detective] is without proper legal basis or involves overzealousness or inappropriate rudeness and, as a result, a person feels obliged to be confined or restrained, that may be sufficient.

19. False imprisonment need not necessarily involve the use of actual force or physical contact. A threat of force may be sufficient. For example, 'if you don’t remain in that room I shall use force to ensure you do'. There must be a constraint on a person’s will so as to lead [him/her] to submit.

If elaboration is required, insert one or more of the examples in the following shaded section:

20. False imprisonment may occur while a person is asleep or under the influence of drugs or anaesthetic, providing [he/she] finds out about it at a later time, in particular, through the observations of others who have witnessed [his/her] predicament.[7]

21. However, false imprisonment shall not have occurred where a person has agreed to remain confined by an agreement or an arrangement. For example a person who goes down a mineshaft to work on a normal workday and then determines to return to the surface earlier than the normal knockoff time, cannot successfully allege false imprisonment.

22. A personal search by police officers may impose a restraint on a person’s freedom.[8]

23. A house search by police officers may constitute a false imprisonment.[9]

24. To detain a prisoner after the proper date of release may constitute false imprisonment, even though the reason for the detention is that the prison authorities relied on a judicial interpretation of the relevant legislation, which interpretation was later held to be incorrect[10].

25. The evidence relied upon by the plaintiff as constituting this element is as follows:

The third element

26. Thirdly, the imprisonment, confinement or restraint must be total.

27. A partial obstruction or confinement, but with a way out, is not false imprisonment. For example, there is no false imprisonment to obstruct a person’s passage in one direction only, or prevent a person leaving from a place only through one exit when others are available,[11] providing those other exits give reasonable and safe passage.[12] A person placed in foster care at an early age is unlikely to constitute false imprisonment.[13]

28. The evidence relied upon by the plaintiff to establish this element is as follows:

The fourth element

29. Finally, the plaintiff must have suffered an infringement upon [his/her] liberty, or had [his/her] dignity or reputation adversely affected, or suffered psychological injury or mental harm as a result.

30. It is not necessary to establish actual psychological injury. An effect upon a person’s reputation is sufficient. Elements to be taken into account include disgrace or humiliation, particularly if observed by others. The size of the place of confinement and the period may be relevant to damages.

Judicial note: Claims in respect of false imprisonment often include claims as to aggravated and exemplary damages.[14]

31. The evidence relied upon by the plaintiff to establish this element is as follows:

In cases where there has been an arrest by a police officer or another, but where there has been no warrant executed, insert the following shaded section

32. In this case, the defendant claims that the arrest which led to the restraint or confinement was undertaken appropriately and in accordance with law. As earlier stated, the onus rests with the defendant to prove these matters to you providing you are satisfied that the plaintiff was confined or restrained.

33. As the arrest was affected without any formal warrant, the law provides that it is a condition of that arrest that the following occur:

  • as the defendant alleges the plaintiff was arrested upon reasonable suspicion of the following crimes [insert alleged crimes], the defendant is obliged to inform the plaintiff as to the true grounds upon which [he/she] is being arrested. [He/She] is not entitled to keep the reasons for the arrest to [himself/herself] or give a false reason;
  • if the plaintiff was not properly informed as to the reason for [his/her] arrest, but is nevertheless seized, then the defendant is liable for false imprisonment, providing the other elements to which I have referred have been made out;
  • the requirement to be informed as to the crime which is alleged was committed does not exist if the circumstances are such that a person would ordinarily know the reason for which he is being arrested or detained;
  • no technical nor precise language need be used to inform the plaintiff;
  • a person cannot be seen to complain if [he himself/she herself] produces a situation which makes it impossible to properly inform [him/her], for example by running away.[15]

If defendant alleges that the arrest was lawful and pursuant to warrant, insert the following:

34. In this case, the defendant alleges that the arrest of the plaintiff was carried out appropriately and in accordance with law, in that it was undertaken pursuant to a properly issued and executed warrant for the plaintiff’s arrest.

35. The evidence relied upon by the defendant in that regard is as follows:

  • [set out relevant evidence]


Judicial note: It will be necessary in the case of arrest pursuant to a warrant to examine the statutory requirements as to the issue and execution of the warrant and to determine whether it occurred in accordance with that legislation.

[1] Myer Stores Ltd & Ors v Soo [1991] 2 VR 597 at 599, 625.

[2] Burton v Davies & General Accident Fire & Life Assurance Corporation Ltd [1953] St R Qd 26.

[3] R v Macquarie (1875) 13 SCR (NSW) 264.

[4] Watson v Marshall & Cade (1971) 124 CLR 621.

[5] Note, however, negligent restraint may lead to an action in negligent trespass – Williams v Milotin (1957) 97 CLR 465. See however Halsbury, where it is said that although there is no authority in Australia as to whether the tort may be committed through negligence, it may be presumed it can.

[6] Dickenson v Waters (1931) 31 SR (NSW) 593.

[7] Walter v Alltools Ltd (1944) 171 LT 371.

[8] Brazil v Chief Constable of Surrey [1983] 3 All ER 537.

[9] Myer Stores Ltd & Ors v Soo (supra) at 600.

[10] R v Governor of Brockhill Prison; Ex Parte Evans [2001] AC 19, Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714.

[11] Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 at 387.

[12] Myer Stores Ltd & Ors v Soo (supra) at page 598, McFadzean & Ors v Construction Forestry Mining Energy Union & Ors (2007) 20 VR 250.

[13] State of New South Wales v Lampard [2010] SASC 56.

[14] See Myer Stores Ltd & Ors v Soo (supra) at pages 602, 604, 606; State of New South Wales v Riley [2003] NSWCA 208 at paragraphs 118-143.

[15] State of New South Wales v Riley (supra) at paragraph 76.

Last updated: 14 April 2014

Note: This charge is a guide only, and may require modification to fit the facts of an individual case.

See Also

2.2 Intentional torts

2.2.1 Battery

2.2.2 Assault without battery

2.2.3 Sexual assault

2.2.5 Malicious prosecution