What is False Imprisonment

Sha Hotchin

False imprisonment as the name suggests is the intentional imprisonment of a person without lawful justification, which is an offence at common law and also a civil wrong (a tort). A person can be imprisoned by private authorities such as a shopkeeper if they believe a customer has committed retail theft, however this commonly arises in the context of arrests by police officers. Police officers are governed by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which reflects the importance of adhering to procedure in carrying out warrants or arrests, particularly because the act of arrest is one which removes a person’s liberty. If there is an issue and a failure to comply with procedure, or any failure by police to caution a person appropriately, this may be a crucial aspect of evidence in any legal proceedings brought by a plaintiff.  

By definition, false imprisonment is a total and direct restraint on a person’s liberty and occurs when a person’s freedom has been unlawfully restricted including being detained for a period of time by actively causing the person’s confinement or preventing that person from leaving the place where he or she is located. Such imprisonment can occur anywhere, including in your home, jail, in a street or even in a moving vehicle.  An example of false imprisonment is demonstrated in the case of Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714, where the Court found that a prisoner was held in detention beyond the terms of their imprisonment sentence and this was an intentional act and constituted an unlawful restraint on the inmates liberty. The defendant argued it was an honest mistake however the Court held such action constituted false imprisonment.

In bringing proceedings for false imprisonment, unlawful imprisonment is a tort of strict liability which means it is not a necessary element for a plaintiff to establish the fault of the defendant in false imprisonment cases. The detention and the directness of the cause must be proven. It is then for the defendant to demonstrate lawfulness in justification as established in the case of Ruddock v Taylor (2005) 222 CLR 612 at [140].

Entitlement to damages for being falsely imprisoned

The tort of false imprisonment reflects a person’s fundamental entitlement to freedom of movement and freedom from restraint, and the common law right in protecting individual liberty. The effect of unlawful restraint or imprisonment has adverse effects on a person’s dignity or reputation, and it can be a humiliating and dehumanising experience.  

If you have been unlawfully imprisonment, you may be entitled to compensation in a range of general damages, including damages for trespass to the person, in the form of assault or battery if subjected to an arrest. Claims for false imprisonment must be brought within six years of the incident.

If you require legal advice or representation in a false imprisonment matter, please contact the team at Longton Legal.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice beforetaking any course of action.*

Key Contact

Sha Hotchin
Partner | Accredited Personal Injury Law Specialist VIC

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Another successful medical negligence claim for a couple
Another successful medical negligence claim for a couple