Tort - Trespass to the Person

Question 1

What are the two types of Trespass to the Person and what are their definitions?

Answer 1

1) Battery - the intentional direct application of unlawful force to another person
2) Assault - an intentional act by the defendant causing the claimant to reasonably apprehend the immediate infliction of a battery upon him

Question 2

What are the three elements of Battery?

Answer 2

1) Intentional
2) Direct Application
3) Unlawful Force

Question 3

Case Law that helps to define the three elements of Battery

Answer 3

Intentional

• Wilson v Pringle: the defendant must only intend their actions, not the consequences
• F v West Berkshire Health Authority: no need for hostility

Direct Application of Force
- The force must flow almost immediately with no intervention

Unlawful Force
- F v West Berkshire Health Authority: physical contact which is generally accepted in the conduct of ordinary life will not be unlawful (like bumping into someone on the train)

Question 4

What are the three elements of Assault?

Answer 4

Intentional Act
- Letang v Cooper: Intentional conduct is an essential element to assault. If it’s not there, the relevant Tort will be negligence

• Bici v Ministry of Defence: The Defendant must intend that the Claimant apprehends the infliction of a battery
• R v Ireland: Words and actions can constitution as an assault ‘a thing said is a thing done.’ Silence can also amount to an assault — i.e. threatening silent phone calls (replaced traditional view that words alone cannot constitution an assault held in Read v Coker)

Causes the Claimant to apprehend
- Turberville v Savage: The court accepted that words can ‘negative’ (cancel out) an assault. ‘If we weren’t being watched by the cops I’d hit you’ — in this case the individual would not have reasonably apprehended the immediate threat of battery

Immediate
- R v Ireland: Within a minute or so

Question 5

Who has to prove the defendant has committed a trespass to the person?

Answer 5

The claimant

Question 6

Who, in theory, has to justify the action by making out an available defence?

Answer 6

The defendant

Question 7

What does the case Co-Operative Group Ltd v Pritchard set out regarding contributory negligence as a defence in claims for assault and battery?

Answer 7

That the defendant cannot allege contributory negligence as a defence to claims for assault and battery.

They can no longer say that the claimant was partially responsible for the assault

Question 8

What are the four available defences for Trespass Against the Person?

Answer 8

1. Consent
2. Defence of the Person
3. Defence of Property
4. Necessity

Question 9

Consent can be both ____ and ____

Answer 9

Express or Implied

Question 10

If a claimant has expressly or impliedly consented to the defendants act, will the defendant be liable?

Answer 10

If the claimant has expressly or impliedly consented to the defendant’s act then the defendant will not be liable in trespass to the person

Question 11

Chatterton v Gerson sets out what in relation to consent in Medical cases?

Answer 11

Chatterton v Gerson sets out that a patient is deemed to have consented to medical treatment once:
- informed in broad terms of the nature of the procedure intended
and
- consent would not be ‘real’ if it was induced by misrepresentation to the nature of the treatment 


Question 12

Chester v Afshar sets out what in relation to consent in Medical cases?

Answer 12

Chester v Afshar sets out that a doctor’s failure to disclose risks will not invalidate the patient’s consent (they may have a claim in negligence instead)

Question 13

What case provides us with information about consent in Sports cases?

Answer 13

Condon v Basi

Question 14

What does Condon v Basi establish in relation to consent in sport?

Answer 14

Condon v Basi sets out that a sports competitor consents not only to all conduct within the rules of the sport, but also to conduct outside the sport but within the spirit of the game

Question 15

Is consent a general defence?

Answer 15

Consent is a general defence and may also be raised as a defence to negligence

Question 16

If the defendant wants to use the defence of ‘Defence of the Person’ what must they establish?

Answer 16

per Cockroft v Smith the defendant must establish that their force was

• Used in self defence (not an act of retaliation)
• Reasonable and
• Proportionate to the force used/threatened by the claimant

Question 17

Who decides what constitutions ‘reasonable force’ in the Defence of the Person defence?

Answer 17

The court will decided what constitutes as reasonable force by taking into consideration all the circumstances of the case

Question 18

Who else does Defence of the Person extend to?

Answer 18

Family and in an employment context i.e. protecting employer or employee

Question 19

Does Defence of the Person stand up against defending a third party outside of the family/employment context?

Answer 19

There is no specific case guidance on this. It is likely that a future court would extend the defence to protecting any other person. Provided that the steps taken were
- reasonable in all the circumstances (this would include the defendant’s relationship with the third party)

Question 20

Can one take reasonable steps to defend one’s property?

Answer 20

yes one may take reasonable steps to defends one’s property. Including taking reasonable steps to eject a trespasser (asking them to leave Green v Goddard)

Question 21

In order to use the defence of Necessity, what must the defendant show?

Answer 21

The defendant must show that

1) The situation of necessity existed and that 
2) his actions were reasonable

Question 22

Which case identified two situations where the defence of Necessity could justify treating an adult medically without consent? And what were they?

Answer 22

F v West Berkshire Health Authority

1) An emergency situation where the patient is unconscious
2) A state of affairs (e.g. a stroke) where the patient is rendered incapable of giving consent

Only if the operation is in the best interest of the patient — if the actions are life saving, or to ensure improvement or prevent deterioration in the patient’s physical or mental health

Question 23

What if you can’t show trespass to the person?

Answer 23

You can use Tort under the rule in Wilkinson v Downtown

Question 24

What did Wilkinson v Downtown establish?

Answer 24

Wilkinson v Downton established a separate tort, in cases where the defendant intended to cause shock to the claimant, and the claimant suffers some tangible damage as a result

Question 25

In what case was it restated in?

Answer 25

Rhodes v OPO

Question 26

What elements did the new separate tort, restated in Rhodes v OPO comprise of?

Answer 26

1) a conduct element requiring words or conduct directed at the claimant for which there was no justification or excuse
2) a mental element requiring an intention to cause at least severe mental or emotional distress; and
3) a consequence element requiring physical harm or recognised psychiatric illness
- Wainwright v Home Office - distress and upset is not enough — must be a medically recognised condition

Question 27

Why is the tort Wilkinson v Downtown created not ‘actionable per se’

Answer 27

Because the claimant must suffer from some recognised illness or injury

Question 28

Tort created by Wilkinson v Downtown often appears in what scenario?

Answer 28

When someone has played a joke on someone with the intention to cause some shock.