Tort: Trespass To The Person
- Valeria
- Dec 9, 2023
- 10 min read
Updated: Jun 3, 2024
🛎️ To make this notes i have used the 7th Edition of Tort Law by Kirsty Horsey & Erika Rackley and my lecture notes.
When referring to an individual's bodily integrity. The harm lies in not whether the defendant's actions have caused physical damage but rather in the violation of the claimant's right to be free from unjustifiable interference. Trespass to the person is divided into three categories: assault, battery, and false imprisonment.
Traditionally the trespass to the person torts are described as having similar characteristics:
They must be committed intentionally;
They must cause direct and immediate 'harm'; and
They are actionable per se.
Intention or Negligence
Stanley v Powell (1891)It was held that trespass requires either intention or carelessness. In this situation it was an unfortunate accident.
NBC v Evans [1951]It was held that the act of Evans was neither willful nor negligent, and was 'utterly without fault'. However, this case was distinguished purely because Evans had no knowledge of the act that constituted the trespass.
Morris v Marsden [1952]It was held:
The act was voluntary, in the sense that he knew he was directing his hand to hit the plaintiff.
He did not realise however that this would cause him harm.
In a civil case, it was only necessary to show that he knew the nature and quality of the act.
Therefore, the defendant must intend the act, not the harm, and the torts will be committed even where he doesn't know he is tresspassing. This was outlined by Stable J:
'...Where there is a capacity to know the nature and quality of the act, albeit that the mind directing the hand that did the wrong was diseased, that suffices.'
Letang V Cooper [1965]The outcome of this case suggests that there can be no such thing as 'unintentional' trespass in the modern law. If the facts reveal negligence, the claim will be tretead as negligence, and subjected to the relevant limitation period.
Fowler v Lanning [1959] Diplock J held that unless the plaintiff can say how he has came to be shot (i.e., intentional or negligently), there will be no claim.
Fagan v MPC [1969]The necessary element of intention was established by allowing the car to remain on the constable's foot.
Assault
Assault was defined by Goff LJ in Collins v Wilcock [1984], as 'an act which causes another person to apprehend the infliction of immediate, unlawful force on his person' (at 1177), assault protects the claimant who fears or apprehends a battery.
Assault and battery will usually, but not always, occur together: unless for example, the assailant changes their mind, misses their target or a third party intervenes, the immediate anticipation of a battery (an assault) will almost always be followed by a battery (actually being hit). R v St George [1840] - Thus, if D points a gun at V he has committed an assault. It makes no difference, whether the gun is loaded (assuming V does not know that this is the case) as he has reason to apprehend a battery. |
An actionable assault requires the following:
The defendant intends that the claimant apprehends the application of unlawful force;
The claimant reasonably apprehends the immediate and direct application of unlawful force;
For which the defendant has no lawful justification or excuse.
Intention
The defendant must have acted voluntarily, and have intended to cause the claimant to apprehend the application of immediate unlawful force, or be subjectively reckless as to the possibility that their actions will cause the claimant to apprehend the application of such force.
Reasonable apprehension
Stephens v Myers [1830] Assizes - for there to be an assault the claimant must reasonably anticipate or expect the application of unlawful force - that is the infliction of battery. Where the test of reasonableness is an objective one. It didn't seem to matter that the threat was in fact incapable of being carried out because the warden was in the way. What mattered was that the plaintiff could reasonably have thought overwise.
Of the immediate and direct application of unlawful force
For there to be an assault the claimant must reasonably apprehend the infliction of the immediate and direct unlawful force.
Stephens v Myers [1830] Assizes - 'It is not every threat when there is no actual violence, that constitutes an assault, there must, in all cases, be the means of carrying that threat into effect'.
Read v Coker (1853) - A threat of violence is an assault even if the defendant is not actually about to strike or use a weapon. It does not matter that the threat is conditional on the claimant refusing to comply with the defendant's demands.
The view from Myers [1830] was confirmed in Thomas v National Union of Miners (South Wales Area) [1986], where Scott J dismissed the claim of the claimants and held that the actions of the striking miners did not meet the requirements of immediacy or directness necessary to establish an assault: 'the working miners are in vehicles and the pickets are held back from the vehicles, I do not understand how even the most violent of threats or gestures could be said to constitute an assault' (at 62).
However, that does not mean that there can never be an assault where the defendant lacks the immediate means to put it into effect.
R v Meade and Belt [1823] - 'No words or singing are equivalent to an assault'.
Tuberville v Savage [1669] - Though a threatening gesture can be negated by words suggesting that an assault is not imminent
Conaghan &Mansell - The reason for the judicial emphasis on gestures rather than words, is based on the fact that there is a need to distinguish a mere insult from a serious and immediate threat. This is important to balance the conflicting interests of freedom of speech and public order.
R v Wilson [1955] - Per Goddard CJ, the words 'get out knives' could amount to an assault.
R v Ireland [1998] - a criminal law case with applicability to the law of tort where it was held that words can amount to an assault.
Lawful excuse or justification
Battery
Battery was described by Buxton LJ in Home Office v Wainwright and another [2001] at [67] as an intentional application of unlawful force to another person. It is the 'physical interference with' or 'invasion of' the claimant's body or person.
To be an actionable battery three criteria will have to be proven, this will include the following:
The intentional application of unlawful force (touching or contact);
Which is direct and immediate;
For which the defendant has no lawful justification or excuse
Intentional application
Gibson v Pepper [1695] - There is no battery unless D intends to, for example, hit someone. Nor is there a battery if the defendant acts involuntarily. Therefore, there is a mental element necessary for the tort of battery to show. This includes an intention to apply force to another person or recklessness as to one's actions causing the application of force to another person.
Livingstone v Ministry of Defence [1984] - If the defendant intends to make contact with A but instead touches B, the tort of battery will be committed against B, by virtue of the 'transferred intent'.
Per Hutton J
In my judgment when a soldier deliberately fires at one rioter intending to strike him and hits another rioter nearby, the soldier has 'intentionally' applied force to the rioter who has been struck.
Williams v Humphrey [1975] - The defendant will be liable to compensate the claimant for any harm suffered as a result of the unlawful touching even if the defendant did not intend the harm, or the possibility of causing harm never crossed their mind.
Fagan v MPC [1969] - A battery can also be committed, even if the original action by the defendant was involuntary if the defendant has the opportunity to stop inflicting the unlawful force and fails to do so.
Unlawful Touching or 'Hostile Intent'
Wilson v Pringle [1987] - The Court of Appeal, suggested that in order for the defendant's actions to be unlawful, and for there to be an actionable battery, there needed to be 'hostile intent'. The Court of Appeal equates 'hostility' with 'acting unlawfully' (at 253). Here hostile intent appears means 'little more than that the defendant has interfered in a way to which the claimant might object'.
Cole v Turner (1704) - Lord Holt C.J. held that
the least touching of another in anger is battery... but if two or more meet in a narrow passage and, without any violence or design of harm, one touches the other gently, it will be no battery.
Collins v Wilcock [1984] - Goff LJ had a better approach to the hostility issue. He stated that touching will only amount to a battery where it does not fall within the category of physical contact.
[A] broader exception has been created to allow for the exigencies of everyday life. Generally speaking, consent is a defense to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact...
Re F (Mental Patient Sterilization) [1990] at (252) - Goff LJ reinstated his judgment from Wilcock
it has recently been said that the touching must be 'hostile' to have that effect... I respectfully doubt whether that is correct. A prank that gets out of hand; an over-friendly slap on the back; surgical treatment by a surgeon who mistakenly thinks that the patient consented to it - all these things may transcend the bounds of lawfulness, without being characterized as hostile. (at 73)
Direct and Immediate Force
The unlawful touching must be the direct and immediate result of the defendant's actions.
Reynolds v Clarke [1725] - A common example to illustrate this point is the distinction between the claim of a person who is hit by a log as it is deliberately thrown onto the road and the claim of someone who later trips over it. While the first case is a battery the latter one was restricted to the tort of negligence. |
In practice, however, the courts have approached the 'directness' requirement extremely flexibly:
In Scott v Shepherd [1773], the defendant had thrown a lit squib into a market place was liable for battery, despite the fact that two stallholders had caught the squib and thrown it on to protect themselves and their wares before it had eventually exploded in the claimant's face injuring his eye.
In DPP v K [1990], a schoolboy aged 15, was found liable for injuries caused to another pupil as a result of him pouring sulphuric acid into the upturned nozzle of an electric hand-drying machine, which had subsequently been blown onto the pupil's face leaving a permanent scar.
In both these cases, the unlawful force appears to be a consequential rather than direct result of the defendant's actions. Nevertheless, it appears that the shortness of time between the act and the contact is sufficient to satisfy the 'direct and immediate' requirement in battery.
Pursell v Horn (1838) - The directness requirement is satisfied where the touching is done via a weapon or missile (i.e., throwing water). However, where the clothes of the plaintiff was splashed, but not his body, this will be insufficient to amount to an immediate and direct act.
In Hopper v Reeve (1817) - It was said obiter that it would be a battery to overturn a chair in which the plaintiff was sitting (the presence of the chain of touching).
Dodwell v Burford (1670) - The 'direct' requirement was satisfied when the defendant slapped a horse with such force that it threw its rider.
Haystead v Chief Constable of Derbyshire [2000] - In battery, force can be applied through the medium of a weapon, and the mother dropping the baby was akin to that.
Lawful Excuse or Justification - Consent
Lane v Holloway [1967] - It was held that challenging someone to a fight does not amount to consenting to be hit. Moreover, provocation is not a valid reason for reducing the amount of compensatory damages awarded.
R v Billinghurst [1978] - It was held that a player of sport consents only to the sort of force that might reasonably be used during the course of the game, not the force used in incidents outside the course of play.
Freeman v Home Office [1984] - The plaintiff had consented to the administration of drugs because he had been informed in broad terms of the purpose of the treatment.
R v Brown [1993] - The law would not allow people to consent to being hurt for no good reason. Consent cannot be a defense to engage in activities that are 'unpredictably dangerous and degrading to body and mind'
False imprisonment
Collins v Wilcock [1984] - Goff LJ defines false imprisonment as involving the 'unlawful imposition of constraint on another's freedom of movement from a particular place' (at 1177). False imprisonment extends to any actions that deprive the claimant of their freedom of movement - so long as there is a complete restriction of this freedom and D has no lawful justification or excuse the claimant will have been falsely imprisoned.
Robinson v Balmain Ferry (1910)
To amount to false imprisonment, the following have to be shown:
The defendant must intend to completely restrict the claimant's freedom of movement;
Without lawful justification or excuse.
Intention
Iqbal v Prison Officers Association [2010] - Smith LJ gave an example concerning false imprisonment: If a security guard in an office block locks the door to the claimant's room believing the claimant has gone home for the night and not realizing that he is in fact still inside the room, he has committed a deliberate act. However, he did not intend to confine the claimant. He may well be guilty of negligence because he did not check whether the room was empty but he would not be guilty of the intentional tort of false imprisonment. (at [72]) This example shows that:
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The defendant needs to intend to restrict the claimant's freedom of movement, it is not necessary for the defendant to intend to do so unlawfully. There are two cases to remember:
R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] - the claimant was imprisoned for various criminal offences. Because the prison governor miscalculated her release date, her claim was successful even though the prison governor did not intend to hold the claimant for any longer than the lawful duration.
Esegbona v King's College Hospital Foundation NHS Trust [2019] - NHS Trust was found to have falsely imprisoned a patient for almost five months. Due to her illness (heart failure) she spent three months in the hospital and wished to return home. A psychiatrist advised that there needed to be an assessment of her capacity as the doctors believed that she was suffering from cognitive impairment and communication difficulties. The hospital failed to do so and the claimant was awarded £130 a day.
A Complete Restriction of the Claimant's Freedom of Movement
There must be a complete restriction of the claimant's freedom of movement the conditions for the tort are not satisfied if the claimant is able to move in another direction (Bird v Jones [1845]; Hicks v Young [2015]) or if there is a reasonable means of escape. But, where the claimant's freedom of movement was completely restricted, it does not matter how long this restrictions lasts.
Robinson v Balmain New Ferry Co Ltd [1910] - Where the defendant imposes reasonable conditions on the manner in which the visitor leaves his premises, these will be considered to amount to a reasonable means of escape and the restriction of the claimant's freedom will not be considered 'complete'.
Iqbal - False imprisonment cannot be committed by an omission.
Meering v Grahame-White Aviation [1920] - Although it is necessary to show to show a complete restriction of movement, the claimant need not be aware of the restriction. Nor does the claimant need to suffer additional harm (from the restriction of movements) from his false imprisonment.
R v Bournewood Mental Health Trust (ex p L) [1998] - the potential deprivation of a claimant's liberty was not held to be sufficient to ground a claim. Where a mentally ill patient was voluntarily held in an unlocked hospital ward, there is not (it was concluded) imprisonment until the claimant was sectioned; an agreement to imprison the claimant was not the same as actually imprisoning him.
Lady Hale notes in Jalloh the following:
So far as is known, Bournewood is the only example of a deprivation of liberty which did not amount to imprisonment at common law: generally speaking, one may well be imprisoned without being deprived of one's liberty, but the other way round is harder to envisage (at [23]).
Without Legal authorisation
The essence of false imprisonment is the restriction of an individual's freedom of movement without lawful justification or excuse.
