December 25, 2021
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TRESPASS TO A PERSON

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Author: Kritika Soni

INTRODUCTION

The Law of Torts recognizes a number of actions in trespass. This research note deals with the tort of Trespass to Person. It’s the direct and intentional interference with an individual’s bodily integrity or the apprehension of injury to oneself. This is perhaps the reason why a remedy against this tort was one of the earliest remedies that were provided under the English law. This was done so that people don’t attempt to take law into their hands and attack a person’s body.

The tort of Trespass to Person includes:

1.         Assault

2.         Battery 

3.         False Imprisonment.

Assault constitutes causing a reasonable apprehension in the mind of a person that he/she may get harmed in some way whereas Battery includes the use of force which results in physical injury. False imprisonment includes falsely restricting or limiting a person’s right to movement, without any sort of lawful justification.

METHOD OF STUDY

The method of research in this note is the doctrinal method where the already existing legal propositions, case laws and other sources are analysed for the purpose of study.

OBJECTIVES

  1. Understanding the concept of trespass to person
  2. Analysing the three forms of trespass to person with the help of examples
  3. Analysing the relevance of intention in the tort of trespass to person
  4. Understanding the various defences available under this tort

STATEMENT OF PROBLEM

The real problem arises when it’s questionable whether an action for trespass to person can be brought to court in case of the defendant’s act being unintentional and also whether the claimant has to prove the extent of damage, because of the trespass to his person, that he has suffered.  

HYPOTHESIS

When the defendant’s act is unintentional, then there lies no action in this tort. Rather, an action for negligence would arise. Trespass to person is a tort that is actionable per se, which means the plaintiff doesn’t need to prove that he has suffered damage as a consequence of this trespass.

RESEARCH QUESTIONS

  • What are the essentials for constituting the tort of Trespass to Person?
  • Does every physical contact amount to the tort of battery?
  • How relevant is intention in this tort?
  • Does threatening language constitute the tort of assault?
  • What are the defences provided for this trespass to person?

SUBSTANTIVE DISCUSSION AND ANALYSIS

Trespass to Person is the cause of apprehension of undue interference with one’s individual and body as well as a third party and involves the use of force on the body that causes harm. Through an ulterior motive, the trespasser transgresses the right of another person and makes a change in it with the purpose of causing wrongful loss or wrongful gain as the case may be. Even if the wrongdoer did not realise that the property belonged to another, it is regarded as deliberate.

Trespass to Person includes 3 forms of this trespass. They are listed below-

1. ASSAULT:

  • Definition– Assault is the only tort in English law where merely an apprehension or offensive feeling, excluding any type of psychosomatic symptom or external stimuli, can give a victim a remedy under law to get damages. It happens when the wrongdoer causes an apprehension in the mind of the plaintiff that he/she is going to suffer an imminent harm or unwanted physical interference which then leads to them thinking that they’re going to be physically harmed. No touch is necessary for the tort of assault.
  • Use of Threatening language– Mere threatening or using violent language shall not constitute assault as long as it’s clear from the defendant’s actions that he has the intention to carry out his promise of hurting the plaintiff. Even if there’s no intention to carry out the promise and if this is unknown to the plaintiff, it will amount to assault as it is capable of instilling fear in the plaintiff’s mind. For example – if the defendant is pointing a gun towards the plaintiff knowing that it is unloaded but this fact being unknown to the victim, will constitute assault.

For a long time, it was believed that bodily interference is necessary for assault and mere threatening words shall not be punishable. However, in R v. Ireland[1], the House of Lords held that threatening words also come under assault, given that the plaintiff has reason to believe that the threat will be carried out against them in the near future to have to qualify as ‘immediate’. In fact, the courts went as far to say that even silent telephone calls made with a malicious intention can come under this as it had the same effect as had the defendant spoken to the plaintiff. The Judge, Lord Steyn held that “The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller’s arrival at her door may be imminent. She may fear the possibility of immediate personal violence”.

  • Conditional threats: While threatening words can constitute assault, they can also refute the nature of the threat. In Tubervell v. Savage[2], the court held that a conditional threat without any means and intention of carrying it out shall not amount to assault. Similarly, if a property owner tells a trespasser to leave his land or he would reasonably force him to get out, it’s not going to be assault.
  • Apprehension of the Use of Force: Similarly, if there’s apprehension of hurt to a person but there’s absolutely no physical contact between both the parties, it will still amount to assault as its essence lies in the instilling of fear of immediate threat to the body of a person. Apprehending the threat means expecting the threat to be carried out against one’s person. However, the plaintiff shall have the reason to believe that the wrongdoer can back his threat with a course of action.

2. BATTERY:

  • Definition – The intentional physical interference with a person’s body without that person’s consent is what constitutes battery. There shall be no lawful justification for using this force on another person. Even throwing water on someone without a reasonable justification or a kissing someone who doesn’t want it, will amount to battery. But that doesn’t mean that every touch or contact with another person amounts to battery. Small, everyday physical contacts will not make up the wrong of battery. Also, even if no injury has occurred to the plaintiff, an action can still be taken in the courts for battery as battery is an actionable per se tort which means that there’s no requirement of proving that battery has occurred.
  • The Act – For battery to arise, there must be an act that involves the defendant coming into contact with the plaintiff. Intentionally making an object come into contact with another person’s body also constitutes battery. For example – where a person deliberately removes the chair from underneath another person, means that there is use of force to cause someone harm or discomfort and so, it will mean that battery has occurred. The defendant shall also do an act so that directly come into contact with the other person, so for example – if K snatches S’s hand and uses it to hit C, S here will not be liable but only K will be liable for battery because it was never S’s intention to physically come in contact with C.
  • Hostile and Direct Contact – However, not every touch is going to be a battery. According to the Court of Appeal in Wilson v. Pringie[3], for a touch to qualify under battery, it needs to be proved that it was hostile in nature. Lord Goff in Collins v. Wilcock[4] held that hostility is any physical contact that exceeds ‘the normal standard of physical touch or contact between people’.
  • In Cole v. Turner[5], the plaintiff was a couple who claimed that they had suffered battery at the hands of the defendant. The issue that arose was whether any touch would amount to battery or would a certain level of aggressiveness be required. Lord Holt CJ held that:

“The least touching of another in anger is a battery. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it is no battery. If any of them use violence against the other, to force his way in a rude inordinate manner, it is a battery; or any struggle about the passage, to that degree as may do hurt, is a battery.”

But as aforementioned, this doesn’t mean that anger is absolutely necessary for constituting battery. Any type of intentional touching against a person’s consent, leading to reasonable discomfort to their personal dignity shall be battery, doesn’t matter if that touching was done with ill-intention or was just a practical joke.

Relationship b/w Assault and Battery – In most cases, assault always precedes battery for a short interval but there are situations where this doesn’t happen. For example – When a person is hit from behind, by the assailant, and doesn’t have any apprehension of an imminent injury and hence, no assault occurs. This can also be vice versa where assault can happen without battery. An example would be where the wrongdoer has no wish or intention to carry out his threat, without the victim knowing this. In Stephen v. Meyers[6], the defendant was storming towards the plaintiff with clenched fists but was stopped by the churchmen. It was held that although there was no physical harm done, the defendant had the intention to hurt the chairman nonetheless and had it not been for the churchmen, the plaintiff would’ve been injured. Thus, he was held liable for assault.

3. False Imprisonment:

  • Definition – False imprisonment arises when the wrongdoer intentionally and fully imprisons the plaintiff without any lawful justification. The amount of time for which one has been imprisoned is completely irrelevant. The terms ‘false’ and ‘imprisonment’ are sort of misleading in the sense that there need not be either physical restraint or a physical prison in order for a person to be contained in it. Simply put, if a person is wrongly restricted from using his liberty and freedom to move in his surroundings, it will give rise to the tort of false imprisonment. It’s also not essential for a plaintiff to know that he/she has been imprisoned. Hence, a person can be fast asleep or drunk when he’s falsely imprisoned. It is an actionable per se tort. In Murray v. Ministry of Defence[7], Justice Griffith said that “the law attaches supreme importance to the liberty of an individual and if he suffers unlawful interference with that liberty, it should be actionable even without proof of special damage.”
  • Constituents –
  1. There needs to be total restraint of the freedom of a person – the restriction on a claimant can either be actually physically restricted.
  2. Secondly, there needs to be absolutely no lawful justification for this restrain. The time period for which the person was restrained is completely irrelevant but it shall be without any legal reason.
  • Absence of Consent – It’s not false imprisonment if the claimant consented to an order by the wrongdoer. But his consent is not to be considered to be given just on account of him not resisting the force.
  • Knowledge of the Plaintiff –The tort of false imprisonment will still arise in a situation where the claimant had to idea that he was being falsely detained, as given in the case of Meering v Graham-White Aviation Co Ltd[8].
  • Restraint shall be complete – False imprisonment will not arise if the plaintiff isn’t restrained from all directions. In Bird v. Jones[9], the defendants had closed off a certain part of the public footbridge and put seats there for spectators to witness the race. They were charging fees to whoever entered that part of the bridge. The plaintiff wanted to use that same part to go to the other side of the bridge even though there being another way to reach there but he also refused to pay the charges and remained in the enclosure for half an hour. In the end, the defendants were said to have not committed the tort of false imprisonment.
  • Means of Escape – If a person doesn’t know that he has a way to escape his imprisonment, even then false imprisonment can occur given that the person didn’t have any way for looking for an escape route.
  • Difference between False Imprisonment and Lawful Arrest – A cause of action can arise against a defendant when he hasn’t himself detained the claimant but did so through another person or intermediary who had no discretion of his own.

PRINCIPLES OF TRESPASS TO PERSON

– DIRECT INTERFERENCE WITH THE PLAINTIFF’S BODYILT FREEDOM: an unwanted interference with a person’s body without their consent or any legal justification constitutes trespass to person. Defining the term ‘direct’ is hard because there’s no set criterion given anywhere. However, the classic example of this is throwing a log of wood on the highway. In case it hits a passer-by, it will complete the essential of directness but not if a person stumbles upon it on his own volition. Only in the tort of battery is directness defined as an unwanted force used against the plaintiff. But in assault and false imprisonment, that’s not the case. An imminent threat to a person instilling apprehension of hurt will amount to assault whereas false imprisonment contains restricting the liberty of a person. None of these clearly demarcate what ‘directness’ actually mean and it is still contestable.

– INTENTION REQUIRED: The claimant has never had to prove that the defendant was at fault for trespass of person, historically. But this has undergone a lot of change because of two significant judgements in this regard.

The first one is Fowler v. Lanning[10], Lord Diplock J said that where intention wasn’t present while there being physical interference with another person’s body, the plaintiff would have to prove that the defendant in turn was negligent in his action. And so because there was no intention or negligence involved, no cause of action can arise.

The second judgement was that of Letang v. Cooper[11]. In 1957, the plaintiff was sunbathing in an area where there was a car parking. The defendant came negligently and drove over her legs with his car. In 1961, more than three years after the incident had taken place, by a writ issued through 2(1) of the Law Reform (Limitation of Actions, etc.), the claimant brought an action in the court of law for trespass as well as negligence. The issue that arose was whether trespass to person could also include a negligent act rather than an intentional act. But in the judgement, it was held that the claimant’s cause of action was barred s. 2(1) of the Limitation Act, 1939 for the following reasons:

  • Injury to the plaintiff will give rise to a cause of action in negligence and not trespass to person as the harm was not deliberate. Also, since the action in negligence was statute barred and the time of 3 years had already been surpassed, the argument for a cause of action in negligence was rejected.
  • However, if the claim was made under trespass to person, “breach of duty” would cover that cause of action. Trespass to person will not arise in a situation where the act, even though a direct consequence of the defendant’s actions, was not deliberate.

– ACTIONABLE PER SE: Tort of trespass to person is actionable per se which means that it’s completely irrelevant whether the claimant actually suffered any harm or damage or not. There being mere intentional and unwanted interference with a person’s liberty and body without that person’s permission would be enough for a plaintiff to go to the courts and obtain compensation. Therefore, there’s no need to prove the damage or the extent of damage.

DEFENCES AVAILABLE AGAINST TRESPASS TO PERSON

  1. Consent: The trespass to person cannot arise if the physical contact is not unwanted by the plaintiff as he himself has consented to it. This goes to say that the person giving the consent shall be fully in a condition where he is able to give his consent. If after many inquiries, the person committing an act has found that the other person can’t give his consent because he’s not in the position to do so and if the act is beneficial, then no cause of action shall arise.
  2. Contributory Negligence: If the plaintiff himself has contributed to the trespass that has happened against him along with the defendant’s fault, the defendant may use the defence of contributory negligence and his liability may be mitigated to a certain extent or the liability may be divided among both the parties and it all depends upon the discretion of the court.
  3. Self-Defense: Any reasonable force used to protect either oneself or someone that we’re close to, from unreasonable force is lawful. The protection can be of either us or our close relatives or any stranger for that matter. However, the force used to protect oneself shall not be disproportionate or unnecessary to the force being used on us. The relationship between the us and the person we’re defending shall not matter but they can be relevant to examine the amount of reasonable force that was used.
  4. Preventing a Trespass: If the owner of a land or his agents (who’ve been assigned the authority to take care of the property) use reasonable force to prevent someone from trespassing on their land or uses it to expel the trespasser from the property, trespass to person can’t be pleaded by the trespasser in question until and unless, there’s was unreasonable force applied.
  5. Statutory Authority: If there are authorities who have been empowered by law to do search and seizure or conduct bodily searches when entering public/private properties will not constitute trespass to person as they are authorised by law to do it.
  6. Acting in Support of Law: If the defendant proves that his act was in support of the law of the land, then he shall not be liable under trespass to person. However, there should be no unreasonable interference with a person’s liberty without any lawful justification and hence, the onus of proof would lie with the defendant to provide legal justification and prove that he complied with all statutory guidelines.

CONCLUSION

The very basis and foundation of this tort of trespass to person is intention. If intention is not there, then it will give rise to a cause of action for negligence. Because of there being so much confusion regarding trespass to person and negligence, people often end up filing the wrong suit. Also, not every touch is unwanted or unlawful, which is explained in the project with the help of real-life examples. It’s very important for people to be able to differentiate what actions constitute the tort of trespass.

Trespass to person is a sort of tort which people suffer in everyday life but are so unaware of the remedies that the law provides that they suffer in silence and don’t file suits in the court of law. This project focused mostly on explaining the nuances of each type of trespass to person while also discussing cases related to each aspect of these trespasses. Even the defences available are numerous regarding this tort and the relevance of intention in the tort to trespass as a whole has also been elaborated upon.

[1] (1997) 3 WLR 534

[2] (1669) EWHC KB J25

[3] [1987] QB 237 (CA)

[4] (1984) 3 AII ER 374

[5] [1704] 6 Mod Rep 149

[6] (1840) 4 Car. & P. 349

[7] (1988) 2 AII ER 521

[8] (1919) 122 LT 44

[9] [1845] 7 QB 742

[10] [1959] 2 W.L.R 241

[11] [1964] 2 AII ER 929

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