Bachelor of Sharia and Law – Law of Tort II

TRESPASS TO THE PERSON

Introduction

There are mainly three categories of trespass: trespass to the person, trespass to goods,
and trespass to land. They protect claimants against interference with their bodies, their
property and their land respectively.

All three are actionable per se, which means that the claimant only has to prove the tort
has been committed; it is not necessary to prove that the trespass caused damage.

For example, unwanted physical contact can constitute trespass to the person even
though the claimant suffers no physical injury.

TRESPASS TO THE PERSON

Trespass to the person means that any unwanted or unjustified interference with a
person’s body, liberty or a creation of fear of such interference is actionable at law.

There are three types of trespass to the person:

• Assault
• Battery
• False Imprisonment

Assault

In everyday language, to assault someone means to use physical violence against them,
for example by hitting them. In tort law, however, the name given to this kind of
behaviour is battery, which will be discussed later.

Assault in tort law is defined as an act which causes the claimant reasonably to
apprehend that immediate physical violence will be used on him or her;

In other words, you may commit assault if you do something that gives someone else
reasonable cause to think you are about to use physical violence against them.

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Bachelor of Sharia and Law – Law of Tort II

An assault is an act which intentionally causes another person to apprehend the infliction
of immediate, unlawful, force on his person.

Fagan v MPC [1969]: House of Lords set the definition of assault as: "an assault is
committed where the defendant intentionally or recklessly causes the victim to apprehend
immediate unlawful personal violence.“

There are therefore two key elements to the tort:

• The defendant must act.

• The effect of the action must be a reasonable expectation of immediate physical
violence.

Note that there is no requirement for the claimant to be caused any actual damage by
the defendant. Assault, like all forms of trespass, is actionable per se.

The defendant’s action

Obvious examples of actions that could amount to assault would be pointing a gun at
someone, raising your fist to them, or picking up a rock as if to throw it at them.

Threats may be acts, words or both.

R v Meade and Belt (1823): 'no words or singing are equivalent to an assault'.

Barton v Armstrong (1969): a threat to someone made over the telephone may be an
assault if it intentionally raises an apprehension of imminent body contact.

R v Ireland (1998), the House of Lords said that in the right circumstances even silence
could be enough.

Effect of the action - Apprehension of imminent harm

The threatening act or words must of a kind that could give the claimant a reasonable
expectation that the defendant is going to use violence against them at that time.

The claimant does not have to prove that he or she was actually afraid of violence, only
that it was reasonable for them to expect that it was about to happen.

Stephens v Myers (1830) :The defendant made a violent gesture at the plaintiff by
waiving a clenched fist, but was prevented from reaching him by the intervention of
third parties. The defendant was liable for assault.

Effect of the action - Apprehension of imminent harm

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Bachelor of Sharia and Law – Law of Tort II

Logdon v DPP [1976] : The defendant pointed an imitation gun at a woman in prank.
She was terrified. The defendant then told her it wasn't real. Held: An assault had been
committed as the victim had apprehended immediate unlawful personal violence and
the defendant was reckless as to whether she would apprehend such violence

Tuberville v Savage (1669): The defendant put his hand on his sword and stated, 'if it
were not assize-time, I would not take such language from you'. Assize-time is when
the judges were in the town for court sessions. It was held that this did not amount to
an assault as the words indicated that no imminent violence.

Zanker v Vartzokas (1988), a young woman got in the defendant’s van after he offered
her a lift home. When he started to offer her money for sexual favours, she asked to be
let out. He accelerated and refused to let her out, saying ‘I am going to take you to my
mate’s house. He will really fix you up’. The court held that this threat was imminent,
even though it was one of future violence as the violence threatened would occur
immediately at the end of the period of imprisonment of the woman. There was thus an
immediacy or imminent threat of the harm occurring.

Battery

A battery is the actual intentional infliction of unlawful force on another person. The
direct and intentional application of force by the defendant to the claimant without
legal justification.

R v Ireland [1997]: Lord Steyn defined battery as: “unlawful application of force by the
defendant upon the victim”

There are therefore three key elements to consider are:

• Force
• Direct application
• Intent
• In addition, the courts have tended to add an extra element described as
‘hostility’; in others, it is addressed as an issue of consent, which is a defence to
trespass to the person.

Like assault, battery is actionable per se, so the claimant does not have to show that they
were caused any injury or damage.

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Bachelor of Sharia and Law – Law of Tort II

Force

Contact with the body of the claimant: Any physical contact with a person’s body or the
clothes they are wearing can be sufficient to amount to force; there is no requirement for
violence or physical harm.

Cole v Turner (1704), -‘the least touching of another in anger is battery’.

R v Cotesworth (1704) - spitting in someone’s face

Fisher v Carrousel Motor Hotel Inc (1967) - an unwelcome kiss or hitting a person with
a or object such as a water bomb or a stick.

Pursell v Horn (1838) - Contact may also extend to throwing water over the clothes of
the claimant, without the need for any contact with the body of the claimant.

Direct application

Normally Battery only applies to force that is direct.

This is quite a difficult concept to explain and the courts have sometimes struggled with
it.

DPP v K (a minor)[1990]: A 15 year old school boy took some acid from a science lesson.
He placed it into a hot air hand drier in the boys' toilets. Another pupil came into the
toilet and used the hand drier. The nozzle was pointing upwards and acid was squirted
into his face causing permanent scars. The defendant was charged. Held: The
application of force need not be directly applied but direct in cause is enough.

Scott v Shepherd (1773): In this case, the defendant threw a lighted squib made of
gunpowder on to the stall of Y whereupon W instantly and to prevent injury to himself
picked up the lighted squib and threw it across the market-house upon the stall of R
who instantly, to save his goods, picked up the still lighted squib and threw it to
another part of the market-house where it struck the plaintiff and exploded, putting out
one of the plaintiff’s eyes. The defendant was held to be liable in trespass (battery) to
the plaintiff and the injury to the plaintiff was held to occur because of a ‘direct’ act of
the plaintiff.

Note that the acts of W and R were not regarded as breaking the chain of directness, as
W and R were not regarded as free agents, but as acting under a compulsive necessity
for their own safety and preservation.

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Bachelor of Sharia and Law – Law of Tort II

Intent

The D must intend to apply force - negligence was not a trespass.

Letang v Cooper (1965): The claimant was sunbathing on a piece of grass outside a
hotel, near to where cars were parked. The defendant was moving his car, and ran over
the claimant’s legs. The court held that in these circumstances the proper action was
negligence, not trespass.

The D need not intend to apply force to the C, as long as they intend to apply it to
someone, and as a result, it is applied to the claimant.

Livingstone v Minister of Defence (1984), where the claimant successfully sued for
battery after being hit by a bullet that was aimed at someone else.

It is not necessary that the intent of the defendant extend to harming the claimant;

Collins v Wilcock [1984]: A police woman took hold of a woman's arm to stop her
walking off when she was questioning her. Held: The police woman's actions amounted
to a battery.

An extra element?

From the paragraphs above, you will realise that an huge amount of perfectly ordinary
everyday behaviour would appear to fit the definition of battery: jostling someone as
you get on a train; touching someone’s arm to get their attention, for example.

Courts have tried to pin down what it is that decides whether a particular application of
direct force is a battery, or normal everyday contact.

In early cases, it was suggested that jostling in a crowd and similar types of contact
were not trespass because each of us gives implied consent to that kind of contact when
we go about life in places where there are other people.

Wilson v Pringle (1987), the defendant and claimant were schoolboys, and the claim
arose from an incident where the defendant jumped at the claimant to pull his
schoolbag off his shoulder, which made the claimant fall and break his leg. The
defendant argued that the incident was just the kind of playing about that is normal
among boys (and therefore comparable to jostling on a train, for example), and the
Court of Appeal held that whether it amounted to a battery depended on whether there
was an element of hostility.

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Bachelor of Sharia and Law – Law of Tort II

False imprisonment

False imprisonment is the unlawful imposition of constraint upon another's freedom of

movement from a particular place or False imprisonment is defined as depriving the
claimant of freedom of movement, without a lawful justification for doing so.

The two key elements are:

• There must be an imprisonment.

• The imprisonment must be unlawful.

Imprisonment

‘Imprisonment’ means more than just locking someone in a room or building. It covers
any restraint on freedom of movement, even for a short time, and can take place
outdoors as well as in.

Austin and another v Metropolitan Police Commissioner (2005), the case arose from a
demonstration which took place in London, where the police surrounded a section of
the crowd in Oxford Circus, and prevented them from moving from the area for seven
hours. Some members of the crowd sued, and it was accepted that this situation was a
case of false imprisonment (though the police escaped liability as they were found to
have the defence of necessity).

If there is a reasonable escape route -no false imprisonment

Bird v Jones (1845): Bird is crossing a bridge, and is stopped by Jones and policemen.
No violence used, but it was expected that violence could have been used. Bird was able
to go in another direction. Held that Partial obstruction, without by force or threat of
force, does not constitute false imprisonment.

Robinson v Balmain Ferry: The claimant wanted to cross on a ferry. The charge was 'a
penny on, a penny off'. He just missed the ferry, so changed his mind about crossing
and tried leaving from the way he came. He was asked to pay the agreed penny off, but
refused stating the fact he did not cross. It was held that as he had agreed beforehand to
pay a penny to get off the premises, it was a reasonable condition to leave.

This would probably only apply, however, where it was reasonable to expect the
claimant to use the alternative route, and not, for example, where the only other route
was dangerous in some way.

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Bachelor of Sharia and Law – Law of Tort II

Any form of deprivation of liberty is sufficient, even if it is only for a short period of
time.

Symes v Mahon (1922), a man was held to be falsely imprisoned when he accompanied
a police officer to town on a train, even though he had paid his own fare and sat in a
separate compartment to the officer. The court held that the man, who was told that
there was a warrant out for his arrest, had submitted to the defendant’s power. This
was based upon a reasonable belief that he had no way of escape which could
reasonably be taken by him.

Cowell v Corrective Services Commission (1988), the plaintiff, a prisoner, was detained
past his due date for release. The plaintiff’s action for false imprisonment succeeded.

Claimant need not be aware of the restraint at the time: in fact, no need the claimant
even know that they are being prevented from leaving.

Meering v Grahame-White Aviation Co (1919), the plaintiff went to the employer’s

office to answer questions about theft. He remained in the office for a long time and
there were detectives stationed outside the room to stop him leaving. This was held to
be false imprisonment.

Hart v Herron (1984), the plaintiff was detained by the defendant and given treatment
such as deep sleep therapy ETC to which he claimed he had not consented. The court
held this to be false imprisonment, even though the plaintiff could not remember the
treatment.

If no harm, only norminal demages are awarded.

Murray v Ministry of Defence (1988), though the court pointed out that where someone
was unaware of being detained and suffered no harm as a result, only nominal
damages would usually be awarded.

“Lord Griffiths did state in the case: 'If a person is unaware that he has been falsely
imprisoned and has suffered no harm, he can normally expect to recover no more than
nominal damages ...”

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Bachelor of Sharia and Law – Law of Tort II

Unlawful

The imprisonment must be unlawful, so a criminal who is lawfully convicted and kept
in prison as decreed by a court has no case against the prison service for false
imprisonment.

However, if that same prisoner were to be trapped in his or her cell by another prisoner,
they may have a claim against that person.

Where a person is carrying out a lawful arrest, no false imprisonment is committed,

even if the person arrested has done nothing wrong. This applies whether the claimant
is a police officer or an ordinary citizen. In order for an arrest to be lawful, the person
making the arrest must follow the procedure set down by law.

Volenti, or consent: Volenti (consent) If the claimant agrees to what the defendant does,
there is no liability for trespass.

Self-defence: Under common law, a person is protected by this defence when they
commit a trespass against the person as a result of using reasonable force which they
honestly and reasonably believe is necessary to protect themselves or someone else, or
property.

Contributory negligence: The normal rules on contributory negligence apply in cases of

trespass to the person.

Statutory authority: Statutes which authorise trespass to the person in particular

circumstances. Criminal Law Act 1967, provides that no trespass to the person is
committed when a reasonable amount of force is used to lawfully arrest a person,
prevent a crime or assist

Inevitable accident: A defendant will not be liable in trespass to the person for an event
over which they had no control, and could not have avoided by using even the greatest
care and skill.

Parental authority: Parents may exercise reasonable restraint or chastisement on their

children, without being guilty of trespass to the person.

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