1) Introduction
FXS (Through His Father And Litigation Friend JLM) v Mulberry Bush Organisation Ltd concerned alleged mistreatment of a highly vulnerable child (FXS), aged 9–11 during 2008–2009, while resident at the Mulberry Bush School, an “Outstanding” non-maintained special residential school run by Mulberry Bush (a charity and private limited company).
The claim advanced three causes of action: (i) negligence in relation to multiple aspects of care (dismissed at trial and not the subject of a successful appeal); (ii) battery arising from three “face down” restraints; and (iii) false imprisonment arising from multiple incidents where staff used a towel around the internal door handle to hold the bedroom door partly closed from outside (“the towel method”).
The appeal raised issues of wider legal significance: (a) whether battery requires “hostile intent”; (b) how to judge the legality of restraint and seclusion in schools—particularly the relationship between statutory reasonableness, school policies, and non-statutory departmental guidance; (c) the boundary between false imprisonment and justified, safety-driven containment; and (d) the proper basis for aggravated damages in trespass-to-the-person cases.
3) Analysis
A. Precedents Cited
1. Battery and “hostility”: from Collins and Wilson to In Re F
The Court’s discussion is anchored in Collins v Wilcock [1984] 1 WLR 1172, where Robert Goff LJ emphasised bodily inviolability and explained why everyday contact is non-actionable: not because “battery is angry touching”, but because of consent and/or a general exception for “generally acceptable” contact in daily life. The judgment relied on Collins both for the breadth of the tort and for the conceptual problems with importing “anger/hostility” as a defining criterion.
The defendant relied on Wilson v Pringle [1987] QB 237 to argue that battery requires “hostile intent”. The Court of Appeal rejected that proposition, identifying practical and conceptual difficulties (including the idea that unlawfulness alone could supply “hostility”, making “hostility” an unstable criterion), and questioning whether the authorities invoked in Wilson truly supported the stated requirement.
Critically, the Court treated In Re F (Mental Patient; sterilisation) [1990] 2 AC 1 as authoritative confirmation that “hostile” touching is not a necessary ingredient. Lord Goff explicitly doubted the “hostility” gloss (and gave concrete examples—pranks, over-friendly slaps, mistaken-consent surgery—that may be unlawful without being “hostile”). This case was used to validate the Court’s conclusion that “hostile intent” should play no role in the elements of battery.
The Court also addressed older and ancillary authorities invoked in the historical debate—Tuberville v Savage (1699) 1 Mod 3 (assault, not battery), Cole v Turner (1704) 6 Mod (cryptic “in anger” phrase), and noted modern inconsistency with hostility such as Bentley v Brudzinsky (1982) 75 Cr App R 217. The Court used these to show the doctrinal fragility of the “hostility” requirement.
2. False imprisonment: imprisonment vs unlawfulness
For the “imprisonment” element, the Court relied on R (Jalloh (formerly Jollah)) v Secretary of State for the Home Department [2021] AC 262, endorsing Baroness Hale’s formulation that false imprisonment is confinement within an area delimited by the defendant; it may be achieved by physical barriers, guards, threats, or other coercion. The Court rejected any attempt to import the Article 5 “deprivation of liberty” distinction into the tort.
On strict liability as to authority to detain, the trial judge had cited R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] 2 AC 19. The Court of Appeal did not dispute the strictness point, but emphasised the prior question: whether the school had lawful justification (principally reasonableness under statutory/common-law powers and duties).
3. School duties and the standard of care
The judgment located restraint decisions within schools’ protective duties:
Van Oppen v Bedford Charity Trustees [1990] 1 WLR 235,
Gower v London Borough of Bromley [1999] ELR 356, and
Bradford-Smart v West Sussex County Council [2002] EWCA Civ 7
were cited on schools’ duty to take reasonable care for pupils’ safety, including protection from other pupils.
In special educational needs contexts, Phelps v Hillingdon London Borough Council [2001] 2 AC 619 was cited to caution against finding negligence too readily while preserving liability for truly meritorious cases—reflecting the Court’s sensitivity to the operational realities of special residential provision.
4. Aggravated damages: separation from basic damages
The Court’s approach to aggravated damages drew on:
Thompson v Commissioner of Police for the Metropolis [1998] QB 498
(aggravated damages are compensatory for injury to feelings caused by aggravating features),
Rookes v Barnard [1964] AC 1129 (historical rarity and structure of exceptional damages),
and Richardson v Howie [2004] EWCA Civ 1127 (the principled warning against double counting: indignity and distress from the tort itself belong in ordinary general damages; aggravated damages require something additional).
On whether litigation conduct is “out of the norm”, the Court referenced Excelsior Commercial and Industrial Holdings Ltd [2002] EWCA Civ 81 and Esure Services Ltd v Quarcoo [2009] EWCA Civ 595, using the contrast to illustrate why the conduct relied on did not justify aggravated damages.
B. Legal Reasoning
1. The new doctrinal clarification: battery does not require “hostile intent”
The Court rejected the submission that “hostile intent” is essential to battery, and stated a structured definition of the tort’s ingredients. In substance, battery requires: (i) intentional application of force (however slight), (ii) not accidental, (iii) without valid consent, (iv) outside “generally acceptable” everyday contact, and (v) without lawful excuse (such as self-defence, lawful authority, prevention of crime, etc.).
This is the judgment’s most important “law-stating” feature: it disclaims the Wilson v Pringle hostility gloss and re-centres battery on intentional contact plus absence of lawful justification, aligning with the approach in Collins v Wilcock and Lord Goff in In Re F (Mental Patient; sterilisation).
2. Policy and departmental guidance: relevant, but not determinative of lawfulness
The Court treated the trial judge as having slipped into error by making non-statutory guidance do the work of law. In relation to the towel incidents, the judge applied paragraph 3.8 of the 2002 Guidance (multi-disciplinary pre-agreement, written plan, trained supervisor) as if non-compliance rendered the containment unlawful. The Court held that was an error of principle: guidance does not set the legal test; the test is statutory/common-law reasonableness in all the circumstances.
The Court also warned that even the 2002 Guidance’s status was uncertain (the version before the court was a later iteration with a disclaimer that it no longer reflected policy). It contrasted later, more judgment-driven guidance (including the 2011 “Use of reasonable force” document referenced through the 2012 National Minimum Standards), emphasising professional judgment and the absence of any legal requirement for parental consent to use force.
3. The statutory framework does the work: Children Act 1989 s.87 and Education and Inspections Act 2006 s.93
The Court’s central move was to frame both restraint and containment within schools’ protective duties and powers. Under Children Act 1989 s.87, a residential school must “safeguard and promote” welfare, and must balance welfare across all pupils where one child’s conduct threatens others. Under Education and Inspections Act 2006 s.93(1), staff may use reasonable force to prevent offences, injury, property damage, and prejudice to good order/discipline.
Importantly, the Court construed “force” in s.93 broadly, to include temporary detention or seclusion as well as physical contact—because (i) “force” in the school setting naturally includes compelled compliance; (ii) assault, battery, and false imprisonment are historically all trespass to the person; (iii) as a matter of policy, seclusion may be less invasive than hands-on restraint and would be an odd exclusion; and (iv) the common law and legislative history of teachers’ authority (in loco parentis) supported that parity.
4. Application to the facts
Face down incidents (battery): Although the Court accepted that breach of school policy was not, by itself, conclusive of battery, it upheld the trial judge’s evaluative conclusion that the face down restraints were unreasonable. The notes conveyed deliberate adoption of an untrained, higher-risk manoeuvre, including one incident of face down restraint for roughly ten minutes, and another involving weight on the back. The Court treated reasonableness as fact-sensitive and deferred to the trial judge’s findings where supported by evidence and credibility assessments.
Towel incidents (false imprisonment): The Court accepted the towel method amounted to confinement for false imprisonment purposes (following Jalloh), but found it was lawful because it was reasonable and proportionate for safety/de-escalation and statutory purposes. The Court placed weight on the contemporaneous notes and the unchallenged evidence of Mr Long that the method was used sparingly and as a safer alternative to physical restraint, with staff present and communication maintained.
C. Impact
1. Battery doctrine: a practical re-statement likely to be pleaded and cited
The judgment gives future courts and practitioners a clearer framework: battery is not about “hostility” but about intentional touch plus absence of lawful justification. This will likely reduce defendants’ reliance on Wilson v Pringle as a “hostility” gatekeeper and shift the focus to justification (reasonableness, statutory powers, consent, necessity).
2. School restraint/seclusion disputes: guidance is evidence, not law
In civil claims arising from school behaviour management, the case underscores that departmental guidance and internal policies matter (as evidence of good practice, risk awareness, and foreseeability) but are not substitutes for the legal test. The legal question remains whether conduct was reasonable under s.93 and/or at common law (as preserved by s.93(5)).
3. False imprisonment in care settings: “imprisonment” is wide; lawfulness turns on justification
The Court reaffirmed that the tort’s “imprisonment” element is readily satisfied by compelled confinement, without importing Article 5’s “total deprivation” taxonomy. Defendants will therefore often contest unlawfulness, not “imprisonment”—requiring careful, incident-by-incident assessment of necessity and proportionality.
4. Damages: tightening aggravated damages in trespass-to-the-person claims
The decision strengthens the discipline against double counting. In assault/battery cases, injury to feelings from the incident itself belongs in ordinary general damages; aggravated damages require additional, truly egregious features (including but not limited to high-handed or oppressive conduct), and ordinary evidential disagreement about historic notes will rarely suffice.