Bostridge v Oxleas NHS Foundation Trust

Damages for false imprisonment are compensatory. Where a claimant would in fact have been lawfully detained throughout the same period had the tort not been committed, the claimant has suffered no compensatable loss and is entitled only to nominal damages.

This conclusion does not depend on the defendant itself holding the alternative lawful power of detention. The court must ask what would actually have occurred. Neither vindicatory damages nor a greater award for the loss of procedural protections is available in those circumstances.

The claimant, who had schizophrenia, was recalled to hospital under an invalid community treatment order and was unlawfully detained. The trust admitted false imprisonment and unlawfulness under the Human Rights Act 1998.

The county court held that he would have been lawfully detained under section 3 of the Mental Health Act 1983 throughout the relevant period if the defect had been identified. It therefore awarded nominal damages. He appealed, contending that substantial damages were required because the trust itself had lacked a lawful power to detain him and because of the loss of liberty and procedural protections.

1. Appeal dismissed. The judge correctly awarded nominal damages. The governing compensatory principle is to place the claimant in the position he would have occupied had the tort not occurred.

2. The court held that the decisive counterfactual question was whether the claimant would in fact have been lawfully detained. It was immaterial that the necessary lawful route would have required action by medical practitioners and an approved mental health professional or nearest relative, rather than an exercise of power by the trust alone.

3. The agreed evidence established that lawful detention under section 3 of the Mental Health Act 1983 would have occurred throughout the period. The claimant would have received the same treatment and suffered the same distress. He therefore sustained no compensatable loss from the unlawful character of the detention.

4. Lumba and Kambadzi required that result. They establish that a detention may be unlawful and actionable even though lawful detention would inevitably have occurred, but that inevitability limits compensation to nominal damages. They also preclude vindicatory damages in this class of case.

5. Christie concerned liability for false imprisonment, not the assessment of damages. Kuchenmeister, insofar as it supported vindicatory damages despite the absence of loss, was inconsistent with Lumba. Wintwerp confirmed that domestic procedural and substantive requirements govern lawfulness, but did not address the appropriate compensation.

6. No greater sum was justified as compensatory damages or as just satisfaction for breach of article 5 of the Convention. The loss of liberty and of procedural protections did not warrant a separate substantial award where lawful detention would have produced the same position.

• Court of Appeal (Civil Division): Dismissed the claimant’s appeal and upheld the award of nominal damages: [2015] EWCA Civ 79.
• Central London County Court: HHJ Hand QC held that the unlawful detention caused no compensatable loss because the claimant would have been lawfully detained under section 3 of the Mental Health Act 1983, and awarded nominal damages.