TRESPASS TO PERSON

Trespass to the person encompasses the three

torts of battery, assault and false imprisonment.

All trespasses are actionable per se meaning

that there is no need to prove actual damage.
The tort protects personal integrity,.
TRESPASS TO PERSON
Direct and Physical
One of the requirements was that the act
had to be direct and physical. Where the
interference indirect there may be a
remedy in a tort derived from nuisance or
negligence, but not in trespass. (Read
Scott v Shepherd (1773) 2 W Bl 892)
TRESPASS TO PERSON
State of Mind
In Stanley v Powell [1891] 1 QB 86,
where it was held that trespass to the
person was not actionable in the absence
of intention or negligence. The decision
confirmed that trespass is a fault-based
tort.
TRESPASS TO PERSON
State of Mind
Letang Vs Cooper [1965] 1 QB 232
Lord Denning was of the opinion that
where the act causing the damage was
intentional, the correct cause of action
was trespass. Where the act was negligent,
the cause of action was in negligence.
There was no overlap between trespass
and negligence
 ASSAULT
An assault is any act of the defendant that
directly and intentionally or negligently causes
the claimant reasonably to apprehend the
imminent infliction of a battery. (Collins v
Wilcock)

Elements
Directly and intentionally
Reasonable Apprehension
Imminent Battery
 ASSAULT

Direct and Intention

Letang Vs Cooper [1965] 1 QB 232 where the
act causing the damage was intentional, the
correct cause of action was trespass.

Intension means that the action must be willful

 ASSAULT
Reasonable Apprehension
The test for reasonable apprehension is an
objective one not subjective.

A reasonable person could not be expected to

know that the gun was not loaded. Conversely,
if the claimant is paranoid and perceives the
defendant’s innocuous waving of his hand in
the air during conversation as a threat, there is
no assault.
 ASSAULT
Reasonable Apprehension
Thomas v National Union of Mine workers
[1985] 2 All ER 1)
Violent gestures by pickets at colleagues who
are still working and pass by in buses protected
by a police cordon is not an assault.
 ASSAULT
Imminent Battery
Previously mere words could not constitute an
assault, however, this position has since
changed. R v Ireland [1998] AC 147

Tuberville v Savage (1669) 1 Mod Rep 3

By analogy, words that instill a reasonable fear
of an imminent battery should equally amount
to a tortious assault.
 BATTERY
A battery is the direct and intentional application of
force to another person without that person’s consent.

The application of the force must be voluntary and

intentional.

The original force may be unintentional but a failure

to rectify the situation may render it a battery.
(Fagan v Metropolitan Police Commissioner [1969]
1 QB 439.)
 BATTERY
Elements
Direct and intention
Positive Act
Application of force

Direct and Intention

Collins v Wilcock [1984] 3 ALLER 374
Goff LJ stated interference with a person’s body will
generally be lawful where they consented to it. There is
also a broad exception to allow for the exigencies of
everyday life such as jostling in the street and social
contact at parties.
 BATTERY
Direct and Intention
Wilson v Pringle [1986] 2 All ER 440
The Court of Appeal held that the act of touching
the plaintiff had to be intentional and the touching
had to be a hostile touching. The relevant intention
was the intention to do the act. There need be no
intention to cause damage. Hostility was not to be
construed as malice or ill-will and would be a
question of fact in each case. The act of touching
in itself might display hostility.
 BATTERY
Direct and Intention
F v West Berkshire Health Authority [1989] 2
All ER 545.)
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 has
consented to it, all these things may transcend the
bounds of lawfulness, without being characterized
as hostile . The general rule is that consent is
necessary to render such treatment lawful.
 BATTERY
Direct and Intention
The approach of Lord Goff was confirmed in
Wainwright v Home Office [2003] 4 All ER 969
by Lord Hoffmann.
In medical cases the hostility requirement has
been rejected. In order to avoid an action for
battery, a doctor must show either that consent
was given for the touching, or that the touching
was necessary in the best interests of the patient.
 BATTERY
Positive Act
In battery, it has been said that there must be a
positive act by the defendant. In Innes v Wylie, a
policeman prevented the claimant from pushing into a
room. Denman CJ in summing up to the jury said:
The question is: did the policeman take any active
measures to prevent the [claimant] entering the room,
or did he stand in the door-way passive, and not move
at all?
 BATTERY
Positive Act
Contrast the position in the Innes case with
Fagan v Commissioner of Metropolitan
Police [1969] 1 QB 439. For our part, we
cannot regard such conduct as mere omission or
inactivity. It was held that the same constituted
battery.
 BATTERY
Application of force
This means that there must be some contact
with the claimant before a battery is committed.
Merely obstructing a person’s progress without
any contact is not a battery.
The merest touching is probably enough to
amount to a battery. Holt CJ said in the early
case of Cole v Turner (1704): ‘The least
touching of another in anger is a battery.’
Infliction of Mental Suffering
Nervous Shock
A psychiatric harm is a medically
recognised condition of a sustained nature
that disturbs the normal functioning of the
mind. It might or might not be
accompanied by overt physical symptoms.
Infliction of Mental Suffering
Dulieu v White & Sons [1901] 2 KB 669
The plaintiff, who was pregnant, was
working behind the bar when the defendant’s
servant negligently drove a horse van into the
public house. The plaintiff suffered shock
which resulted in the premature birth of her
child. The plaintiff was entitled to recover.
See Hambrook v Stokes Bros [1925] 1 KB
141
Infliction of Mental Suffering
Primary victims
Primary victims are those persons who
are either physically injured by the breach
of duty by the defendant or those in fear
of their own safety, although in the event
they do not actually sustain bodily
injuries, and in both types of case the
victim suffers from a psychiatric illness.
Dulieu v White & Son
Infliction of Mental Suffering
Page v Smith[1995] 2 All ER 736
The majority of the House decided that as
long as personal injury harm, whether this
was physical or mental, was reasonably
foreseeable, then a primary victim could
succeed in a shock claim.
Infliction of Mental Suffering
McLoughlin v O’Brian [1982] 2 All ER
298; [1983] 1 AC 410
Summary
It is essential to distinguish between the
primary victim and secondary victims.
The secondary control mechanisms have
no place where the [claimant] is the
primary victim.
Infliction of Mental Suffering
 A defendant who is under a duty of care
to the [claimant], whether as primary or
secondary victim, is not liable for
damages for nervous shock unless the
shock results in some recognized
psychiatric illness.
Infliction of Mental Suffering
Secondary Victims
Read Jones v Wright [1991] 2 WLR 814;
[1991] 3 All ER 88 (CA)
The issue for the court was therefore whether
the defendant owed each plaintiff a duty of
care. Two issues were pertinent as to
proximity. First, the necessary degree of
relationship between the plaintiff and the
person in danger. Second, the question of
geographical proximity to the accident.
Infliction of Mental Suffering
Secondary Victims
Alcock v Chief Constable of the South
Yorkshire Police [1991] 4 All ER 907
Requirements
A sufficiently close relationship of love and
affection with the primary victim to make it
reasonably foreseeable that the plaintiff might
suffer nervous shock if they apprehended that
the primary victim had been injured or might
be injured.
Infliction of Mental Suffering
Proximity to the accident, or its
immediate aftermath, was sufficiently
close in terms of time and space.
Jaensch v Coffey (1984) 54 ALR 417,
where the aftermath of the accident
continued as long as the victim remained
in the state produced by the accident, up
to and including immediate post-accident
treatment.
Infliction of Mental Suffering
They suffered nervous shock through
seeing or hearing the accident or its
immediate aftermath. Bourhill v Young
[1943] AC 92
The claimant must have suffered a
psychiatric injury recognized by law. This
will normally be PTSD. Vernon v Bosley
(No 1) [1997] 1 All ER 577
Infliction of Mental Suffering
 In applying a foreseeability test the court
will take into account the egg-shell skull
principle, that the defendant must take the
claimant as they find them as regards
physical characteristics.
Brice v Brown [1984] 1 All ER 997
False Imprisonment
False imprisonment is the unlawful
imposition of constraint on another’s
freedom of movement from a particular
place’
Requirements
Restraint must be total
 Knowledge of the detention
The restraint must be unlawful
False Imprisonment
Restraint must be total
Bird v Jones (1845) 7 QB 742
A prison may have its boundary large or narrow,
visible and tangible, or, though real, it may itself
be moveable or fixed: but a boundary it must
have; and that boundary the party imprisoned
must be prevented from passing; he must be
prevented from leaving that place, within the
ambit of which the party imprisoning would
confine him, except by prison-breach.
False Imprisonment
Restraint must be total
Robinson v Balmain New Ferry
Company Ltd [1910] AC 295
It was held that there was no false
imprisonment at all because the [claimant]
was merely called upon to leave the wharf
in the way in which he contracted to leave
it.
False Imprisonment
Knowledge of the detention
Knowledge is not a necessary ingredient of the tort.
Meering v Grahame-White Aviation Co Ltd
(1920) 122 LT 44
Atkin LJ stated that knowledge of the detention
was irrelevant to whether the tort had been
committed. Knowledge might, however, be
relevant to the assessment of damages.
See Murray v Ministry of Defence [1988] 2 All
ER 521.
False Imprisonment
The restraint must be unlawful
Herd v Weardale Steel, Coal and Coke Co Ltd
[1915] AC 67
A coalminer, in breach of contract, refused to
continue with his work and demanded to betaken
to the surface. His employers refused for some
time. This was held not to be false imprisonment.
The miner had consented to remain underground
until the end of his shift and was not entitled to
be taken to the surface until then.
MALICIOUS
PROCECUTION
In order to succeed, the claimant must
prove that there was a prosecution without
reasonable and probable cause, initiated
by malice, and the case was resolved in
the claimant’s favour. It is necessary to
prove that damage was suffered as a result
of the prosecution.
MALICIOUS
PROCECUTION
Prosecution
There must have been a prosecution initiated by
the defendant.
In Martin v Watson [1996] 1 AC 71 that what is
required here is for the defendant to have been
actively instrumental in the instigation of
proceedings, and that merely giving information
to a police officer, who then goes on to make an
independent judgment on the matter, will not be
sufficient to form the basis of a claim for
malicious prosecution.
MALICIOUS
PROCECUTION
Without reasonable and probable cause
This is an objective test. The objective
approach would be to ask whether a
reasonable person in possession of all the
facts, would conclude that there was
sufficient evidence to cause the police to
think that the accused was probably guilty
and should face trial.
MALICIOUS
PROCECUTION
Initiated by malice
Malice’ means motivation by some desire
other than that of bringing the accused to
justice (Stevens v Midland Counties Rly
(1854) 10 Exch 352).
MALICIOUS
PROCECUTION
The case must be resolved in the
claimant’s favour
If the claimant is acquitted, or the
proceedings are dropped or discontinued,
or the claimant is convicted but the
conviction is quashed on appeal, there
will be a good basis for a claim for
malicious prosecution.
MALICIOUS
PROCECUTION
Damages
In order to succeed, the claimant must
prove that he or she has suffered loss of
reputation, loss of life or limb or liberty,
or financial loss.
Defenses
Consent
Njareketa V director of Medical
Services (1950) 17 EACA 60
 Self Defense
Self-defence is a defence where
reasonable force is used in defence of the
claimant’s person, property or another
person. Lane v Holloway [1968] 1 QB
379
Defenses
Contributory negligence
The court will assess the degree by which
the plaintiff is liable for his or her injury
and that sum will be used to mitigate the
damages to be awarded.