UNIVERSITY OF GUYANA

FACULTY OF SOCIAL SCIENCES

DEPARTMENT OF LAW

LAW 13 A – LAW OF TORTS I

Lecturer-J.K. Kyte-Thomas

TRESPASS TO THE PERSON

A. INTRODUCTION

1. Trespass to the person

Trespass to the person consists of:

(a) Assault
(b) Battery
(c) False Imprisonment

Trespass to person: i.e. assault, battery and false imprisonment all must be committed
intentionally, by direct and immediate actions and are actionable without proof of damage. The
common element of these three torts is that the tort must be committed by direct means.

There is also an analogous tort embodied in the case of:

Wilkinson v Downton 1897 2 QB 57 (discussed later)

ASSAULT
A person commits an assault if he intentionally causes another reasonably to apprehend the
application of immediate unlawful force on his person: Letang v Cooper [1964]; Collins v
Wilcock [1984] 3 All ER 374.

Winfield and Jolowicz: An assault is an act of the defendant which causes a plaintiff reasonable
apprehension of an infliction of a battery on him by the defendant.

Kodilinye, Commonwealth Caribbean Tort Law –

“An assault is a direct threat made by the defendant to the plaintiff, the effect of which is to
put the plaintiff in reasonable fear or apprehension of immediate physical contact with his
person.”

REQUIREMENTS OF ASSAULT

1.Reasonable apprehension of harm:

C does not have to be afraid; just reasonably apprehend the contact;
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It is irrelevant that C is courageous, not frightened… or could easily defend himself.

2. Force apprehended must be immediate:

if C has no reasonable belief that D had the present ability to effect his purpose then no assault is
committed.

Thomas v NUM (South Wales Area) [1986]

NB this depends on the facts of each individual case.
See Smith v Chief v Chief Superintendent of Working Police Station [1983]. Court held it
was an assault to stand outside P house and stare in while she was wearing nothing but night
clothing with the intend to frighten her and. See also R v Ireland and Burstow [1998].

Also, In Stephens v Meyer (1830), D attempt a blow on C which was intercepted by a third-party
Court found that this was assault.
If C knows that threat will not be carried out there can be no assault as there will have been no
reasonable apprehension of contact: Tubervell v Savage (1669)
Murray v Ministry of Health [1985]
R v St George (1840)

3. It must be intentional
D intends C to apprehend reasonable force would be used or was reckless as to the consequence
of his or her action.

NB- Words can negate an assault: as in Turberville v Savage (1669), where D said “If it were not
assize time I would not take such language from you”;

However, where the treat is conditional, it may result in assault: in Read v Coker (1853); D
liablewhere he and his servant threaten to break the P’s neck if he did not leave the shop.

In R v Wilson [1995] it was considered that the word: “get out the knives” could result in an
assault;
See also R v Ireland and Burstow [1998]

NB- Stevens v Myers 1830 4 C & P 349; (1830) 172 ER 735

Thomas v National Union of Mineworkers 1986 Ch 20
Blake v Barnard 1840 C&P 626
R v St George 1840 9 C&P 483
Hull v Ellis
Smith v Chief Supt 1983 76 Cr App R 234

BATTERY

This is ‘the intentional and direct application of force [personal contact is unnecessary] to
another person (without lawful justification)’

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Requirement of battery

1) It must be intentional:
For battery there must be a voluntary action by D, not an omission: Fagan v MPC [1969]

For D to be liable of battery his conduct must be voluntary and it must be proved on a balance of
probabilities that D intended to bring about the contact thus D will be liable even if the
consequence was not foreseeable: Willaim v Humprey [1975]

D was liable for deliberately pushing a guess in the swimming pool though he did not intend to
cripple P who break his ankle.
In this context intention included subjective recklessness: R v Savage [1992] and in Bici v MOH
[2004]: “D appreciated the potential harm to C and was indifferent to it”

Battery even if original action unintended, if D at some point intended to apply force: Fagan v
MPC [1969]
If the contact is intentional and direct, a mistaken belief that it is lawful is irrelevant. In Poland v
John Parr and Sons [1927] 1 KB 236 where an employee thought he saw a boy stealing sugar
from his employer’s cart and attacked the boy, there was a battery.

ii. Direct- It must be Direct: however, this was interpreted flexibly e.g. Scott v Shepherd (1773)
and DPP v K [1990]-

Fagan v Metropolitan Police Commissioner 1968 3 AER 442, 445 James J :

“Where an assault involves a battery, it matters not in our judgment whether the battery is
inflicted directly by the body of the offender or through the medium of some weapon or
instrument controlled by the action of the offender. An assault may be committed by the laying
of a hand upon another, and the action does not cease to be an assault if it is a stick held in the
hand and not the hand itself which is laid upon the person of the victim. So for our part we see no
difference in principle bet the action of stepping on to a person’s toe and maintaining that
position and the action of driving a car on to a person’s foot and sitting in the car while its
position on the foot is maintained.”

iii. Force. The least touching of another in anger is battery: Cole v Turner [1704]; on this
basis the CA held battery must be committed with “hostile” intent: Wilson v Pringle [1986]

Winfield & Jolowicz-

“Any physical contact with the body of the plaintiff (or his clothing) is sufficient to amount to
force: there is battery when a defendant shoots a plaintiff from a distance just as much as when
he strikes him with his fist. … mere passive obstruction, however, is not a battery”

Cole v Turner 6 Mod 149

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Innes v Wylie 1844 1 C&K 257, 263
Donelly v Jackman 1970 1 AER 987
Wilson v Pringle 1984 2 AER 440
Collins v Wilcox
F v West Berkshire Health Authority 1989 2 AER 545/ Re F (Mental patient sterilisation) [1990]
2 AC 1

iv. Hostility- What is hostile creates problem thus Robert Golf LJ in Collins v Wilcock [1984]
took the view that the law should exclude liability for conduct generally accepted in the
ordinary conduct of daily life- he reiterated this in RE F [1990]

Cole v Turner
Wilson v Pringle
F v West Berkshire Health Authority 1989 2 AER 545/ Re F (Mental patient sterilisation) [1990]
2 AC 1
R v Brown 1994

v. Without Consent
Chatterton v Gerson 1981 QB 432
Freeman v Home Officer No 2 1984 QB 524

vi. Without Lawful Excuse

F v West Berkshire Health Authority 1989 2 AER 545/ Re F (Mental patient sterilization) [1990]
2 AC 1

ASSAULT AND BATTERY DISTINGUISHED

Collins v Wilcock 1984 3 AER 374: Goff LJ in this case defined an Assault as

“an act which causes another person to apprehend the infliction of immediate unlawful force on
his person” while a Battery is “the actual infliction of unlawful force on another person”.

Goff LJ went on to state that the fundamental principle is that any person's body is inviolate,
except in situations where the bodily contact "[falls] within a general exception embracing all
physical contact which is generally acceptable in the ordinary conduct of daily life".

These are two separate torts although in popular usage assault is used to cover both torts. See:

Fagan v Metropolitan Police Comm. 1968 3 AER 442, 445 James J:

“for practical purposes today “assault” is generally synonymous with battery and is a term
used to mean the actual intended use of unlawful force to another person without his consent”.

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In tort :assault involves putting another person in fear of being struck- it does not need to
involve actual striking; whereas battery involves striking the person or body of someone else.

Defences

1. Consent
Consent maybe expressed where the plaintiff either orally or in writing agrees to a particular
trespass, for example, where a patient enters the hospital for surgery –
Chatterton v Gerson 1981 QB 432

Freeman v Home Office 1984 QB 524

Colby v Schmidt 1986 37 CCLT 3
Condon v Bassi 1985 1 WLR 866
Murphy v Colhane 1977 QB 94
R v Brown 1992 2 AER 552;1993 2 AER 75;
Freeman v Home Office 1984 QB 524

2. Necessity
F v West Berks Health Authority 1989 12 AER 545
Leigh v Gladstone 1909 26 TLR 139
Re T 1992 4 AER 649

3. Self Defence/Defence of property

Lane v Holloway 1967 3 AER 129; 1968 1 QB 379
Revill v Newberry 1996 1 291

4. Acting in support of Lawful/statutory authority (arrest)

5. Exercise of Parental or other authority

Mayers v AG of Barbados 1231 of 1991 High Court of Barbados unreported

6. Provocation
Lane v Holloway 1967 3 AER 129; 1968 1 QB 379
Murphy v Colhane 1977 QB 94

7. Contributory Negligence
Hoeburger v Coppens 1977 2 NZLR 597
Sayers v Harlow 1958 1 WLR 623

FALSE IMPRISONMENT:

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False imprisonment is the intentional deprivation of the claimant’s freedom of movement from a
particular place for any time, however short unless expressly or impliedly authorized by the law.

Meering v Graham-White Aviation Co. Ltd. [1919] 122 LT 44- The passage in Termes de la Lay
was approved by Atkin and Duke LJJ.

False Imprisonment is the imposition of a total restraint for some period, however short upon the
liberty of another without lawful justification. Note that there need not be an actual
imprisonment nor is force necessary. “False” means wrongful, so that a wrongful arrest will be
false imprisonment.

- The claimant must prove that he or she was intentionally denied freedom of movement
but where a defendant claims that the restraint was lawful the burden is on the defendant to
justify this.

- False imprisonment must involve complete restriction on C’s freedom of movement, this
was not the case in Bird v Jones (1845) as even though C was barred from using the fence part of
the bridge, he could have crossed on the unfence part;

NB If there is an escape route but it’s not a reasonable one then the tort is committed.

- If there are conditions of leaving premises agreed by others, it may not be False
Imprisonment.

Such was the case in Robinson v Balmain Ferry Co. Ltd [1910] AC 295 the claimant paid one
penny to enter a wharf in order to catch a ferry but then realized that there was a 20-minute wait
for the next ferry. There was a charge of one penny for leaving the wharf – stipulated on a notice
above the turnstile – and the defendants refused to let him leave until he had paid the charge.

The Privy Council held that there was no false imprisonment.

In Herd v Weardale Steel, Coal and Coke Co. Ltd [1915] AC 67 the claimant, a miner,
demanded (in breach of his contract of employment) to be taken to the surface before the end of
the normal shift. His employers (the defendant) refused. The House of Lords held: the defendant
was not liable, partly because he (the claimant) had impliedly consented to remain until the shift
ended.

- The restraint must be actual rather than potential; see R v Bournewood Community and
Mental Health NHS Trust ex parte L [1998] 3 ALL ER 28

- FI may be from anywhere from which C does not have a reasonable means of escape.

• a coalmine: Herd v Weardale Coal co. [1915],

• a bridge: Bird v Jones and

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• possibly even public lavatory: Sayers v Harlow Urban District Council [1958]

- C awareness of imprisonment:

• If C too ill an action of FI will still lie: Grainger v Hill (1838).

• It is unnecessary whether C was aware or not of the FI: Meering v Grahame-White

Aviation (1919); the claim can lie even if C does not know he/she is been detained

More recently in Murray v Ministry of Defense [1988] Lord Griffiths expressed agreement with
Lord Atkins in Meering.

- Where a prisoner is detained for extra days due to wrong calculation, the same is entitled
to damages for FI: R v Governor of Brockhill Prison ex parte Evans (No 2) [2000]

However, this case was distinguished in Quinland v Governor of Swaleside Prison [2003] 1 All
ER 1173 where the governors had not made any arithmetical or other errors. The warrant
specified the incorrect, longer sentence and they were, therefore, not at liberty to release the
claimant any earlier.

-Sayers v Harlow Urban District Council 1958 1 WLR 523.

"The concept of 'intention' in the intentional torts does not require defendants to know that their
acts will result in harm to the plaintiffs. Defendants must know only that their acts will result in
certain consequences"

Like the other forms of trespass to the person it is actionable per se. In Murray v Ministry of
Defense [1988] 1 WLR 692 Lord Griffiths commented (obiter) that:

‘the law attaches supreme importance to the liberty of the individual and if he suffers a wrongful
interference with that liberty it should remain actionable even without proof of special damage’

- Proof that such physical restraint is wrongful or not legally justified. False Imprisonment
seeks to provide a cause of action where someone has been physically restrained and the
restraint does not constitute that which is lawful

Liversidge v Anderson [1942] AC 206 at 245 Lord Atkin: “in English law every imprisonment is
prima facie unlawful and it is for a person directing an imprisonment to justify his act.”

Jangoo v Gomez 1984 High Court, Trinidad and Tobago, No. 2652 of 1978 (unreported)-
Mustapha Ibrahim J: “A claim for False imprisonment…is really an action of trespass to the
person. Once the trespass is admitted or proved, it is for the defendant to justify the trespass.(see
the judgment of Goddard LJ in Dumbell v Roberts 1944 1 AER 326 at p 931)”

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DEFENCES TO FALSE IMPRISONMENT

The various elements of the defences are directly related to the broad elements and sub-elements
of the tort in question. Thus, if one can show that either:

a. The physical restraint was not legally sufficient-

 not total

 there was consent, necessity, or

b. The physical restraint, if legally sufficient, was lawful-

Lawful arrest-then the tort has not been established.

- Lawful Arrest/Defendant acting in support of the law

Powers of arrest are derived from three sources:

a. Arrest with a Warrant

b. Arrest at Common Law

c. Arrest under Statute

In determining whether the physical restraint is wrongful/unlawful or not one must consider

whether the arrest/detention was by:

i. A Police Officer or person with statutory authority

ii. An Ordinary/Private citizen

Cummings v Demas [1950] 10 Trin LR 43. The onus of proof of lawful arrest is on the
defendant.

Note that where a statute gives the power of arrest to a police officer or other public official,the
scope of authority to make that arrest would be governed by the particular statute (that statute
being interpreted strictly).

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