Trespass to the Person

Question 1

What are the 4 sub-torts to Tresspass against the person?

Answer 1

The tort of trespass to the person (sometimes called trespass against the person) is made up of a number of sub-torts:

assault,

battery,

false imprisonment and

intentional infliction of emotional distress.

Question 2

What are the key features of the Tort of Trespass to the Person?

Answer 2

• Trespass to the person is committed by means of a direct act of the defendant.
• must be voluntary
• Once the plaintiff proves the direct act in question the onus is on the defendant to show that he acted neither:
  
  • intentionally or
  • negligently and
  • that the action was inadvertent.

Trespass to the person is actionable per se

 -although lack of actual damage will most likely result in an award of nominal damages.

Trespass to the person is on the plaintiff’s personal rights, rather than on the reasonableness of the defendant’s behaviour.

Question 3

Where does the state have obligation to protect bodily integrity?

Answer 3

International law in the ECHR

Constitution

Statute

Common Law

Question 4

Distinctions between tresspass to person and negligence?

Answer 4

The usual distinction made between trespass and negligence is that trespass is the direct result of the actions of the defendant; whereas in negligence the defendant usually causes the harm indirectly.

Question 5

Breslin v. McKenna

Answer 5

Set off bomb- court held that it is necessary to demonstrate that the infliction of harm is direct.

Blowing something up, laying a trap, and hitting someone directly do this as there is intention

Question 6

Fowler v. Lanning

Answer 6

For the purpose of the civil law of trespass to the person, a direct act can be committed either intentionally or negligently.

I can summarise the law as I understand it from my examination of the cases as follows:

(1) Trespass to the person does not lie if the injury to the plaintiff, although the direct consequence of the act of the defendant, was caused unintentionally and without negligence on the defendant’s part ….
(4) The onus of proving negligence, where the trespass is not intentional, lies upon the plaintiff, whether the action be framed in trespass or in negligence.

Question 7

What is battery?

Answer 7

Battery is the direct and unlawful application of force to the person of another. The slightest touching can constitute a battery.

Question 8

Collins v. Wilcock

Answer 8

The defendant does not need to act violently or with any hostility towards the plaintiff. Generally, the plaintiff’s consent will render the contact lawful. If the plaintiff agreed to participate in a football game he will have impliedly consented to the appropriate degree of physical contact necessitated by the sport. However, physical contact going beyond what is usual or normal in a game of football would constitute a battery.

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. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is, within reason, slapped: see Tuberville v. Savage (1669) 1 Mod 3. Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life ….

Question 9

What is Assault?

Answer 9

An assault is committed when a person commits an act which puts another person in a position of reasonably apprehending immediate physical contact. Assault is sometimes described as the threat of force, while battery is the actual application of force.

The plaintiff must apprehend the immediate physical contact. Therefore, if one is asleep or has one’s back turned when the defendant is threatening physical force there is no assault. The tort is committed, however, once the plaintiff’s apprehension is reasonably held. If the defendant points an unloaded gun at the plaintiff, but the plaintiff does not know the gun is not loaded, the tort of assault is committed.

Question 10

Doran v. Bus Éireann

Answer 10

Words usually cannot amount to an assault. However, the context with those words can imply that the plaintiff believed to be at immediate risk of harm amounting to an assault.

An assault consists of an act that places another person in reasonable apprehension of an immediate battery being committed upon that person. There is no reason why words in and of themselves cannot constitute an assault. When spoken in a context suggesting the imminent use of force, words suffice for assault. As Lord Steyn observes in R. v. Ireland [1998] A.C. 147, 162, “The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done.” Here, of course, there are acts as well as words: the bus-driver got out of his bus, came across to Mr Doran’s car, inclined to the driver-window of the car and launched into a foul-mouthed, aggressive, and racially coloured diatribe. Mr Doran instinctively recoiled at this point, convinced by both the forcefulness of the language and the approach and stance of the bus-driver, that the driver was about to hit him.

… It is not surprising in all the circumstances presenting that Mr Doran thought that he was about to get a fist in the face and instinctively recoiled from the anticipated blow. The bus-driver, in prompting this reaction by the totality of his actions, committed an assault on Mr Doran. For that assault the payment of some level of damages must follow.

Question 11

R v. Ireland [

Answer 11

Lord Steyn indicated that silent telephone calls could constitute an assault as the plaintiff may fear the caller’s arrival at her door and immediate personal violence. However, McMahon and Binchy point out that in most cases the person will not apprehend any immediate physical contact as a result of silent telephone calls.

Question 12

Intentional Emotional Suffering

Answer 12

The intentional infliction of emotional suffering was recognised as providing a cause of action in damages in the case of Wilkinson v. Downton. the plaintiff need only show that the defendant intended to cause the plaintiff emotional distress, and does not need to show that the defendant intended to injure the plaintiff as such.

Question 13

Wilkinson v. Downton [1897] 2 QB 57.

Answer 13

The defendant attended at the home of the plaintiff and by way of practical joke falsely represented to her that her husband had met with a serious accident whereby both his legs were broken. The plaintiff became seriously ill as a result of developing nervous shock. Wright J. set out the basis upon which she could recover.

Question 14

Kinsella v. Governor of Mountjoy Prison

Answer 14

Hogan J confirmed that Article 40.3.2 ̊ of the Constitution protects not only the integrity of the human body “but also the integrity of the human mind and personality”.

Question 15

Sullivan v. Boylan

Answer 15

High Court was prepared to find there had been a violation of the plaintiff’s constitutional rights in that case and the plaintiff was entitled to obtain compensation for “acute mental distress” caused by the intentional actions of the defendant in an action in tort for breach of her constitutional right to the protection of her person as well as of the right to inviolability of her dwelling.

Question 16

What is false imprisonment?

Answer 16

False imprisonment is the unlawful and total restraint of the personal liberty of another whether by constraining him or compelling him to go to a particular place or confining him in a prison or police station or private place or by detaining him against his will in a public place … the fact that a person is not actually aware that he is being imprisoned does not amount to evidence that he is not imprisoned, it being possible for a person to be imprisoned in law, without his being conscious of the fact and appreciating the position he is placed, laying hands upon the person of the party imprisoned not being essential. There may be an effectual imprisonment without walls of any kind. The detainer must be such as to limit the party’s freedom of movement in all directions. In effect, imprisonment is a total restraint of the liberty of the person. The offence is committed by mere detention without violence.

Question 17

Burns v. Johnston

Answer 17

it was held that an employer was not guilty of false imprisonment when he extended working hours by an extra 30 minutes and locked the factory gates. The plaintiff could have requested a pass to leave but did not do so.

Question 18

Dullaghan v. Hillen [

Answer 18

Set out the definition for false imprisonment

Question 19

Philips v. Great Northern Railway Company Limited

Answer 19

plaintiff alleged she was falsely imprisoned in circumstances where she was falsely alleged to have travelled on a train without a ticket. She went to get into a cab at the train station but was told by the ticket collector not to move. The ticket collector returned with the station master. The plaintiff got into the cab and drove off. On appeal it was held that there was no evidence that the plaintiff had been “so dominated by the action of the ticket-collector that, succumbing to that domination, she lost her liberty”. It was held there was a lack of “total restraint” and she could have left the station.

Question 20

GE v. Commissioner of An Garda Siochána & Ors

Answer 20

he plaintiff’s detention pursuant to provisions of the Immigration Act 2004 was held to be unlawful due to errors on the face of the warrant. He brought an claim seeking damages for false imprisonment. Relying on Lumba, the defendant argued that where detention has been deemed unlawful, a defendant will defeat any claim for compensatory damages if it can be shown that, had the plaintiff not been unlawfully detained, he could and would have been lawfully detained.

This proposition was rejected by the Court of Appeal, which highlighted the importance of the tort of false imprisonment as a means of vindicating the constitutional right to personal liberty under Article 40.4.1° of the Constitution.

Question 21

What are the defences in Trespass to the Person?

Answer 21

A number of defences can be raised to a charge of trespass to the person which may render the defendant’s actions lawful. Defences include:

1. consent;
2. self- defence;
3. defence of others and property;
4. lawful authority.

Generally, it is for the defendant to establish the appropriate defence on the balance of probabilities.

Question 22

What are the aspects of Consent for Trespass to the person?

Answer 22

The plaintiff’s consent will usually render an act lawful and is based on the principle of volenti non fit injuria or no wrong is done to one who consents. Consent, however, must be valid. Consent must be real, i.e., it must not be obtained by force, fear, or fraud. If consent is alleged to have been obtained by fraud, generally the fraud must relate to the nature of the act—not a collateral aspect of the act. A number of criminal cases illustrate this point.

Question 23

What are the aspects of Consent for Trespass to the person?

Answer 23

The plaintiff’s consent will usually render an act lawful and is based on the principle of volenti non fit injuria or no wrong is done to one who consents. Consent, however, must be valid. Consent must be real, i.e., it must not be obtained by force, fear, or fraud. If consent is alleged to have been obtained by fraud, generally the fraud must relate to the nature of the act—not a collateral aspect of the act. A number of criminal cases illustrate this point.

Question 24

R v. Papadimitropoulous

Answer 24

a man was acquitted of rape when a woman said she only consented to sexual intercourse on the basis that she believed she was married to the man. The issue was the moral aspect of the act, which was collateral to the nature of the act in question.

Question 25

R v. Flattery 1878

Answer 25

Fraud and consent:

a woman was tricked into having sexual intercourse with a man on the basis that it was a medical treatment which would cure her asthma. Her consent was found to have been obtained by fraud.

WOULD NOT BE FOLLOWED TODAY

Question 26

Hegarty v. Shine (

Answer 26

It was held by the Irish Court of Appeal that a man was not guilty of battery when he infected his partner with venereal disease. The partner did not know the man suffered from venereal disease. Ball LC held that there was no “deceit as to the nature of the act”.

Question 27

Corcoran v. W & R Jacob & Company

Answer 27

The terms of the consent must not be exceeded.

an employee consented as part of his terms of employment to being searched, but the Supreme Court held this did not justify a security officer making a “power dive” at the employee in an attempt to search him.

Question 28

Must consent be expressed at all times?

Answer 28

Consent may be express or implied. A person who agrees to play a game of football impliedly consents to the force that is usually expected in such a game. If a person goes to the accident and emergency department of a hospital to be treated, the person may be assumed to have impliedly consented to normal medical treatment. Treatment going beyond what is usually to be expected should be consented to expressly by the patient.

Question 29

Where can the court override consent?

Answer 29

1. where an adult patient is incompetent and incapable of consenting;
2. where an adult patient is competent but a doubt arises as to his or her
   capacity to refuse treatment; and
3. where the patient is a minor and the parents are refusing consent.

Question 30

F v. West Berkshire Health Authority

Answer 30

English case:

House of Lords authorised the performance of a sterilisation on an adult patient who was found to be incapable of consenting to the procedure due to mental disability (she had the mental age of a small child). The House reasoned that the procedure was in the best interests of the patient in the circumstances.

Question 31

Fitzpatrick v. FK

Answer 31

In that case the Coombe Hospital secured an emergency High Court order permitting it to administer a blood transfusion to a Congolese woman who claimed to be a Jehovah’s Witness. The hospital said it feared the woman’s life would be in danger were she not transfused. The woman had earlier that day lost an estimated 80 per cent of her blood while giving birth to her first child, a boy, but refused the blood transfusion because of her religious beliefs. Abbott J granted the emergency order as he found that “the welfare of the child, which was newly born into this State with no parent in sight other than Ms K, was paramount. Therefore, it was in the interests of the child that the wishes of his mother, which might result in her death, should be overridden.” The court also said it “was influenced by erring on the side of preserving life, stating that any arguments in relation to whether or not this was a correct decision could be made at a later stage.”

Question 32

What are the relevant legal principles in consent?

Answer 32

(1) There is a presumption that an adult patient has the capacity, that is to say, the cognitive ability, to make a decision to refuse medical treatment, but that presumption can be rebutted.

(2) In determining whether a patient is deprived of capacity to make a decision to refuse medical treatment whether –
(a) by reason of permanent cognitive impairment, or
(b) temporary factors, for example, factors of the type referred to by Lord Donaldson in In re T, [unconsciousness or confusion or the effects of fatigue, shock, pain or drugs],

Question 33

What are the relevant legal principles in consent?

Answer 33

(1) There is a presumption that an adult patient has the capacity, that is to say, the cognitive ability, to make a decision to refuse medical treatment, but that presumption can be rebutted.

(2) In determining whether a patient is deprived of capacity to make a decision to refuse medical treatment whether –
(a) by reason of permanent cognitive impairment, or
(b) temporary factors, for example, factors of the type referred to by Lord Donaldson in In re T, [unconsciousness or confusion or the effects of fatigue, shock, pain or drugs],
the test is whether the patient’s cognitive ability has been impaired to the extent that he or she does not sufficiently understand the nature, purpose and effect of the proffered treatment and the consequences of accepting or rejecting it in the context of the choices available (including any alternative treatment) at the time the decision is made.

(3) The three-stage approach to the patient’s decision-making process adopted in the C case is a helpful tool in applying that test. The patient’s cognitive ability will have been impaired to the extent that he or she is incapable of making the decision to refuse the proffered treatment if the patient–
(a) has not comprehended and retained the treatment information and, in particular, has not assimilated the information as to the consequences likely to ensue from not accepting the treatment,
(b) has not believed the treatment information and, in particular, if it is the case that not accepting the treatment is likely to result in the patient’s death, has not believed that outcome is likely, and
(c) has not weighed the treatment information, in particular, the alternative choices and the likely outcomes, in the balance in arriving at the decision.

(4) The treatment information by reference to which the patient’s capacity is to be assessed is the information which the clinician is under a duty to impart – information as to what is the appropriate treatment, that is to say, what treatment is medically indicated, at the time of the decision and the risks and consequences likely to flow from the choices available to the patient in making the decision.
(5) In assessing capacity it is necessary to distinguish between misunderstanding or misperception of the treatment information in the decision-making process (which may sometimes be referred to colloquially as irrationality), on the one hand, and an irrational decision or a decision made for irrational reasons, on the other hand. The former may be evidence of lack of capacity. The latter is irrelevant to the assessment.
(6) In assessing capacity, whether at the bedside in a high dependency unit or in court, the assessment must have regard to the gravity of the decision, in terms of the consequences which are likely to ensue from the acceptance or rejection of the proffered treatment. In the private law context this means that, in applying the civil law standard of proof, the weight to be attached to the evidence should have regard to the gravity of the decision, whether that is characterised as the necessity for “clear and convincing proof” or an enjoinder that the court “should not draw its conclusions lightly”.

Question 34

North Western Health Board v. HW and CW

Answer 34

he parents of a child of 14 months refused their consent to a routine and minimally invasive test, known as the “PKU test” or “Heel Prick test”. Their refusal was upheld by the Supreme Court on the basis that it had not been established that this was an exceptional case requiring State intervention to vindicate the child’s constitutional rights where the parents had failed for physical or moral reasons in their duty to the child. If there was an immediate threat to the life, health, or welfare of the child the result would have been different.

Question 35

Health Service Executive v. C and D

Answer 35

granted the HSE an order allowing doctors to administer blood transfusions or other treatments considered “medically necessary” to twin babies after their birth in order to avoid death or serious injury. The twins, who were unborn at the time of the order, were severely anaemic and would require transfusions within minutes of being prematurely induced, in order to avoid risk of death or serious injury. Their parents, as Jehovah’s Witnesses, had objected to the blood transfusion on religious grounds but agreed to abide by the court order.

Question 36

In Gillick v. West Norfolk and Wisbech Area Health Authority

Answer 36

House of Lords said that a minor’s capacity to make a decision depends on the “understanding and intelligence” of the minor rather than any fixed age limit. In that case the House of Lords held that while in most cases parents were the best judges of matters concerning the child’s welfare, there might be exceptional cases in which a doctor was a better judge of the medical advice and treatment which would be conducive to a child’s welfare. In particular, it might be desirable for a doctor to give a girl, in her own best interests, contraceptive advice and treatment, if necessary without the consent or even the knowledge of her parents.

Question 37

R v. Brown

Answer 37

A person cannot consent to unlawful behaviour.

hat a person may not consent to sado-masochistic behaviour involving serious harm.

Question 38

What is the self-defence defence?

Answer 38

If a person acts in self-defence or defence of others there is no assault or battery.

The force used in self-defence must be proportionate to the threat.

Resistance must ‘not exceed the bounds of mere defence and prevention’ or … the force used in defence must be not more than commensurate with that which provoked it.

A person threatened with force, i.e., assaulted, is not required to wait until the other person strikes a blow before retaliating, but the force must be reasonable in the circumstances.

A person should avail of the opportunity to retreat where it is reasonable to do so.

Question 39

Dullaghan v. Hillen

Answer 39

When one is wrongfully assaulted it is lawful to repel force by force, provided that no unnecessary violence is used. How much force and of what kind it is reasonable and proper to use, in the circumstances, is a question of fact. Resistance must ‘not exceed the bounds of mere defence and prevention’ or … the force used in defence must be not more than commensurate with that which provoked it.

Question 40

Gregan v. Sullivan

Answer 40

the defendant was aged under forty and used a pitchfork to inflict thirteen puncture wounds on and broke the arm of the plaintiff, a man of 65, who had struck the defendant on the lip. The force used in that case was thought to be disproportionate to the threat posed

Question 41

Defence of Property

Answer 41

A person is entitled to use force to evict an intruder who trespasses on to land with force and violence. The use of force must be reasonable and proportionate. The person acting in defence of property must have the necessary possession of the property, although a person may be entitled to use force to defend the property of another in certain circumstances.

Question 42

MacKnight v. Xtravision

Answer 42

the plaintiff took an action in the Circuit Court for assault and battery. The defendant owned a shop in a shopping centre.

The defendant had failed to pay its rent and the landlord locked the door of the shop with a chain. The plaintiff was a security guard who attempted to restrain the defendant’s employees from cutting the chain. The plaintiff was injured by the defendant’s marketing manager and a member of the defendant’s security team, who was also a light middle-weight boxer. The defendant claimed its employees were using no more force than was necessary in removing the plaintiff – a trespasser - from the vicinity of its shop.

Carroll J held that the degree of force used in this case might have been justified if the plaintiff was an intruder in a domestic house. The defendant was held to be entitled to lay hands lightly on the plaintiff to move him aside. However, if that was not sufficient to remove the plaintiff the defendant should have desisted and was not entitled to assault him so as to inflict the type of injuries sustained. The defendant could have sought an injunction from the court as an alternative remedy. It was said that “if parties were to resort to private violence in cases such as this, there would be an end to all law and order”.

Question 43

Racz v. Higgins

Answer 43

ound that reasonable force had been used to remove a customer from a nightclub.
Section 18(1) of the Non-Fatal Offences Against the Person Act 1997 provides, in respect of criminal liability, that it is not an offence to use reasonable force:
(c) to protect his or her property from appropriation, destruction or damage caused by a criminal act or from trespass or infringement; or
(d) to protect property belonging to another from appropriation, destruction or damage caused by a criminal act or (with the authority of that other) from trespass or infringement.

Question 44

What is the law set out in Criminal Law (Defence and the Dwelling) Act 2011 for intruding into a dwelling?

Answer 44

Section 2 states that a person in lawful occupation of a dwelling may use force against another where (a) he believes the other person has entered or is entering the dwelling as a trespasser for the purpose of committing a criminal act, and (b) the force used is reasonable in the circumstances as he believes them to be. Section 2(4) clarifies that the use of force does not have to be objectively reasonable, provided the person honestly believed the circumstances required the use of force, although the court may have regard to the presence or absence of reasonable grounds for such a belief. Section 2(5) of the Act appears to revoke the common law rule which required a person to retreat before using force: it is not a requirement under the Act for a person in lawful occupation of a dwelling to retreat.

Question 45

Humphries v. Connor

Answer 45

If a person acts with lawful authority to effect an arrest, there is no assault or battery or false imprisonment.
it was held that the removal of an orange lily from the clothes of a woman could constitute a battery, but that the defendant police man was acting to prevent a breach of the peace (the orange lily was a political symbol), and therefore acting within his lawful authority.

Question 46

Collins v. Wilcock

Answer 46

the defendant was suspected to be a prostitute. A police officer took hold of her arm to restrain her. The defendant scratched the police officer’s arm and was arrested for assaulting a police officer in the execution of her duty. She was convicted of the offence.

On appeal it was held that the police officer had exceeded her authority when she took hold of the defendant’s arm and that action was unlawful and amounted to a battery as it went beyond the generally accepted conduct of touching a person to get the person’s attention.

Under the relevant legislation the police officer could caution the defendant but had no power to stop and detain the defendant. Accordingly, the conviction was quashed as the police officer was not acting in the course of her duties when the defendant scratched her arm.

Question 47

Under what circumstances can a civillian arrest someone?

Answer 47

SEction 4 of Criminal Law Act 1997

1. Must have REASONABLE CAUSE to suspect someone to be IN THE ACT of committing an ARRESTABLE offence.
2. Where an arrestable offence has been committed, any person may arrest someone else where they have REASONABLE CAUSE that the suspect is guilty of the offence.
3. An arrest may only be carried out where the person suspects the person would otherwise attempt to avoid, or is avoiding, arrest by a member of the police.
4. A person under arrest must be transferred to police custody as soon as is possible.

Question 48

DPP v. Cullen

Answer 48

Excessive force of police officer.

The lawfulness of the arrest is contested here because, in effect, the Garda officer in charge applied handcuffs, not because he believed them to be necessary to restrain or control the particular suspect, but because he had a general policy of always placing handcuffs on persons he was arresting on suspicion of driving under the influence of alcohol. In my view, it is unlawful to place handcuffs on suspects who are being arrested without giving any consideration to the context and in particular to the behaviour and demeanour of the individual being arrested. It is unlawful because, as a matter of principle, the police must use only such force as is reasonable in the circumstances: I emphasise, of course, that it is the police officer who must make that judgement. In the present case, the evidence suggests that the officer in question abdicated any such responsibility.

Question 49

Can you take people’s DNA samples with or without consent?

Answer 49

Section 2 of the Criminal Justice (Forensic Evidence) Act 1990 (as amended by s 14 of the Criminal Justice Act 2006) allows for the taking of non-intimate samples and saliva without a person’s consent.

Initmate samples require consent such as blood, urine, pubic hair.

However, there is common law power to take samples with consent. DPP v. Boyce

Question 50

Gammell v. Doyle t/a Lee’s House

Answer 50

Contributory Negligence in cause one’s own trespass to person

held that the second named defendant had been provoked by a “tirade of appalling abuse and lewd sexual references” as well as having been poked by the plaintiff. Although this did not excuse the defendant’s conduct, the court reduced the damages awarded by 50% and held deliberately provoking the defendant could amount to contributory negligence in the circumstances.