Trespass to the person

Question 1

What trespass to the person aims for?

Answer 1

Trespass to the person protects personal integrity or personal space. It is actionable per se, so a defendant can be liable merely for committing the tort, even if no physical harm is done. This includes any form of unwanted touch or physical violence.

Question 2

What the Assault?

Answer 2

Assault is defined in Collins v Wilcock, as an act which causes another person to apprehend the infliction of immediate, unlawful force on his person. It is actionable per se.

Question 3

What are the elements of the assault

Answer 3

1. Defendant’s action

2. Reasonable expectation of force

Question 4

Defendant’s action element

Answer 4

In the past, it was thought that there had to be some physical movement, but it now appears that threatening words may be enough.

R v Constanza
It was held that threats made by a stalker could be criminal assault.

R v Ireland
It was held that in the right circumstances silence could be enough. The defendant made silent malicious phone calls to the claimant.
A threatening act which would normally amount to assault can be prevented from being one by the words which are spoken at the same time.

Question 5

What is a Reasonable expectation of force?

Answer 5

Threatening act or words 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 was actually afraid, only that it was reasonable for them to expect that it was about to happen. Hence, it must be possible for the defendant to carry out the threat then and there.

Thomas v National Union of Mineworkers
The strikers, who were held back by a police cordon, made violent gestures as the bus drove past. The court held that there was no assault, as there was no reason to believe that immediate physical force could be used against him.

Question 6

What is the battery?

Answer 6

Battery is defined in Collins v Wilcock, as the actual infliction of unlawful force on another person.

Question 7

What are the elements of batery?

Answer 7

1) Forse
2) Direct application
3) Intention
4) Hostility

Question 8

Forse element

Answer 8

Any physical contact with a person’s body or clothes may amount to force. There is no requirement for physical harm. This is based on the belief that everyone has a fundamental right to bodily integrity.

Question 9

Direct application element

Answer 9

The battery only applies to force that is direct.

Question 9

Intention element

Answer 9

Trespass to the person requires an intentional act.

Letang v Cooper
The defendant ran over the claimant’s legs with his car, without intending to do so. The court held that the act was negligence, not battery. The defendant need not intend to apply force to the claimant.

Livingstone v Ministry of Defence
The claimant successfully sued for battery after being hit by a bullet that was aimed at someone else.

Question 10

Hostility element

Answer 10

The courts have considered an extra element, “hostility”, to distinguish unacceptable physical contact and acts part of everyday life.

Wilson v Pringle
The defendant jumped at the claimant to pull his schoolbag off his shoulder, and the claimant broke his leg. The court held that this was merely normal playing among boys.

Question 11

What is a false imprisonment?

Answer 11

False imprisonment is depriving the claimant of freedom of movement, without a lawful justification.

Question 12

What are the elements of the false imprisonment?

Answer 12

1) Imprisonment

2) Unlawfulness

Question 13

Imprisonment element

Answer 13

‘Imprisonment’ covers any restraint on freedom of movement, even for a short time.

Walker v Commissioner of Police of the Metropolis
The claimant was held in a narrow doorway by a police officer for a few seconds, before he was lawfully arrested. The court allowed a claim for false imprisonment, but since it was for a very short time and does no real damage, only nominal damages will be awarded.
False imprisonment can take place outdoors as well.

Austin and another v Metropolitan Police Commissioner
The police prevented the demonstrators from moving for seven hours through kettling, and it was accepted that this was false imprisonment.
There must be complete restraint. It is not sufficient to prevent someone using a particular route if they still have another open to them.

Question 14

Unlawfulness element

Answer 14

The imprisonment must be unlawful. Where a person is carrying out a lawful arrest, no false imprisonment is committed. In order for an arrest to be lawful, the person making the arrest must follow the procedures set out mostly in the Police and Criminal Evidence Act 1984 and Serious Organised Crime and Police Act 2005.

Strict liability
R v Governor of Brockhill Prison made it clear that false imprisonment is a tort of strict liability, hence someone can be liable even if they could not have acted in any other way.

R v Governor of Brockhill Prison
In calculating the time in prison, the governor used rules set out in case law, but these rules were later declared wrong by the Divisional Court. This made the time the claimant was supposed to spend in prison too long. While the governor was following rules that were correct at the time, and they had no choice but to do so, it was held that they were liable.

Question 15

List of defences

Answer 15

1) Violenti(consent)
2) Self-defence
3) Statutory authorisation
4) Inevitable accident
5) Ejection of a trespasser

Question 16

Violenti(consent) defences

Answer 16

The defences for trespass to person include volenti (consent). If the claimant agrees to what the defendant does, either explicitly or impliedly by behaviour, there is no liability for trespass.

Herd v Weardale Steel Coke and Coal
The minor refused to continue working and asked to be taken back up, but was kept waiting for 20 minutes. The claim failed, as he had given implied consent to stay underground for the length of the shift.

Nash v Sheen
The claimant asked for a perm, but was given a colourant. This was held to be battery, as he had only consented to a perm.
Where an injury is received by a player during a lawful game or sport, played according to the rules, volenti can apply, as players are deemed to have voluntarily taken the risk of injury.

Question 17

Self-defence element

Answer 17

Self-defence
A person is protected by self-defence when they commit a trespass against the person as a result of using reasonable force which they reasonably believe is necessary to protect themselves, or someone else, or property. The basic principle is that the amount of force must be balanced reasonably against the need for proteciton.

Lane v Holloway
The claimant smacked the defendant on the shoulder, and the defendant responded by punching him in the eye, causing a wound that needed 19 stitches. The court held that the blow was out of proportion, so he was not covered by self-defence.

Question 18

Statutory authorisation element

Answer 18

Some statutes authorise trespass to the person in particular circumstances. s.3(1) Criminal Law Act 1967 provides that no trespass is committed when a reasonable amount of force is used to lawfully arrest a person. The Road Traffic Act 1988 and Family Law Reform Act 1969 also authorise certain medical tests.

Question 19

Inevitable accident element

Answer 19

An inevitable accident results in a defendant not liable for an event over which they had no control, and could not have avoided by using the greatest care.

Stanley v Powell
The defendant fired a shot but it ricocheted off a tree and hurt the claimant. It was held that this was an inevitable accident.

Question 20

Ejection of a trespasser element

Answer 20

Ejection of a trespass allows an occupier of land to use reasonable force to prevent a trespasser from entering or eject them. The trespasser must have been requested to leave and given a chance to do so peaceably for this to be justified.

Harrison v Duke of Rutland
The claimant used a public highway crossing the defendant’s land, to disrupt grouse-shooting upon the defendant’s land. He complained after he had been forcibly restrained by the defendant’s servants from doing so. The court held that the defendant’s actions were justified as the claimant was a trespasser.