INTENTIONAL WRONGS TO THE

PERSONSTRESPASS TO THE PERSON

INTRODUCTIONThe heading of this chapter is usually phrased as “Trespass to the person”, but because some of the topics discussed there under cannot strictly fit into the frame of trespass it has been thought necessary to modify it. Trespass generally comprises assault, battery and false imprisonment. But quite often Intentional Physical Harm and Malicious Prosecution are also discussed even though the harm caused is only consequential and also they require proof of damage; hence they cannot be Trespass.

WHAT IS TRESPASS?Trespass is an intentional act which directly affects the body or property of the plaintiff. It is also said to be actionable per se, unlike negligence in which there must be proof of damage.

TRESPASSThere however appears still to be controversies as to:

a) whether the harm must be the direct result of the defendant’s act;

b) whether trespass is an intentional tort only or whether there can be negligence;

c) Whether hostility is an essential ingredient of the tort of trespass to the person.

We shall therefore discuss these before going on to discuss assault, battery and false imprisonment.

DIRECT HARMIn Scott v. Shepherd , the defendant threw a lighted squib into a market place. The squib was picked by a stallholder who threw it away from himself and a third person also threw it away from himself whereupon the firework exploded in the face of the plaintiff who lost an eye as a result. He brought an action in trespass against the person who first threw the squib. The majority of the court found for the claimant on the grounds that the defendant’s act was unlawful. Blackstone J. observed that the trespass action was not the appropriate one. He continued;

DIRECT HARM“The lawfulness or unlawfulness of the original act is not the criterion, for it is held in the same case that if I throw a log of timber into the highway (which is an unlawful act) and another man tumbles over it and is hurt, an action on the case only lies, it being a consequential damage, but if in throwing it I hit another man he may bring trespass because it is an immediate wrong. The original act was as against Yates, a trespass not as against Ryal or Scott. The tortuous act was complete when the squib lay at rest upon Yates’s stall. He or any bystander had a right to protect themselves by removing the squib. But Shepherd is not answerable in an action of trespass and assault for the mischief done by the squib in the new motion impressed upon it and the new direction given it by either Willis or Ryal.”

DIRECT HARMDe Grey C.J., speaking for the majority observed: “This is one of the cases wherein the line drawn by the law between actions on the case and actions of trespass is delicate. The question here is whether the injury received by the claimant arises from the force of the original act of the defendant, or from a new force by a third person. I look on all that was done subsequent to the original throwing as a continuation of the first force and first act which will continue until the squib was spent by burning. The new direction and the new force flow out of the first force and not a new trespass.”

DIRECT HARMIn spite of the judgement in Scott v. Shepherd however, the true rule is that if the claimant cannot show that the harm is direct, then he is outside the scope of the trespass writ and must sue in an action on the case such as negligence or nuisance.

INTENTION AND NEGLIGENCEIn all cases of accidents on the highway the plaintiff must prove fault, either intention or negligence. In Holmes v. Mather the defendant’s horse ran out of control as a result of a dog barking at them. The defendant’s servant was doing his best to control them but they stuck the claimant nevertheless. Bramwell B. observed:

INTENTION AND NEGLIGENCE“The driver is absolutely free from all blame in the matter not only does he not do anything wrong but endeavour to do what is best in the circumstances. This misfortune happens through the horses being so startled by the barking of a dog that they ran away with the defendant. It seems manifest that under such circumstances she could not bring an action. For the convenience of mankind in carrying on the affairs of life, people as they go along the road must expect, or put with, such mischief as reasonable care on the part of others cannot avoid.”

INTENTION AND NEGLIGENCEA similar position was taken in Stanley v. Powell , the claimant was struck by a pellet fired by the defendant which glanced off the bough of a tree. Denman J., commented: “In the present case the claimant sued in respect of an injury owing to the defendants’ negligence and the jury negatived such negligence. It was argued that inasmuch as the claimant was injured by a short from the defendant’s gun that was an injury owing to an act of force by the defendant and therefore the action would lie. I am of the opinion that this is not so.”

INTENTION AND NEGLIGENCEIn another shooting case, Fowler v. Lanning , the facts were that the claimant was shot during a shooting party and in his statement of claim he (claimant) merely stated that he had been shot by the defendant on a particular date at a particular place. The defendant argued that no cause of action was disclosed and Diplock J. upheld his argument. He Said:

INTENTION AND NEGLIGENCE“If therefore it is conceded that in the case of involuntary trespass to the person on the highway the onus of proving negligence lies on the claimant, why should it be otherwise when the involuntary trespass to the person is not committed on a highway. He then summarised the law as follows: Trespass to the person does not lie if the injury to the claimant, although the direct consequence of the act of the defendant, was cause unintentionally and without negligence on the defendants part. Trespass to person on the highway does not differ in this respect from trespass to the person committed in any other place. He therefore held that the statement of claim in its present form disclosed no cause of action.

INTENTION AND NEGLIGENCEAnother point which appears not to have been settled is whether there is such a thing as a negligently inflicted trespass to the person. This appears to have been settled in Letang v. Cooper but it still rings in some passages in books. In that case the plaintiff was run over by a car negligently driven by the defendant. A writ was issued over three years later alleging negligence and in the alternative trespass to the person, both based on the same facts. Any claim for personal injuries arising from negligence, nuisance or breach of duty must be started within three years. The claimant argued that where the action was based on trespass the limitation period was six years. Lord Denning in a famous judgement observed:

INTENTION AND NEGLIGENCE“The truth is that the distinction between trespass and case is obsolete. We have a

different sub-division altogether. Instead of dividing actions for personal injuries into trespass (direct damages) or case (consequential damage), we divide the causes of action now according as the defendant did the injury intentionally or unintentionally. If one man applies force directly to another, the claimant has a cause of action in assault and battery, or, if you so please to describe it, in trespass to the person. If he does not inflict injury intentionally but only unintentionally, the claimant has no cause of action today in trespass. His only cause of is in negligence and then only on proof of want of reasonable care. If he cannot prove want of reasonable care, he may have no cause of action at all. Thus it is not nowadays for the claimant to plead ‘the defendant shot the claimant’. He must also allege that he did it intentionally or negligently. If intentional it is the tort of assault and battery. If negligent and causing damage, it is the tort of negligence. When the injury is not inflicted intentionally but negligently, I would say that the only cause of action is negligence and not trespass. In my judgement therefore the only cause of action in the present case (because the injury was unintentional) is negligence and is barred by reason of the express provision of the statute.

HOSTILITYThere have been express opinions that for trespass in, particular battery, to be actionable the act constituting the trespass must show some hostility. The leading case on the principle is said to be Wilson v. Pringle ; however the starting point is in fact traceable to the case of Collins v. Wilcock

HOSTILITYIn that case the plaintiff successfully sued for battery when she was restrained unlawfully by a police woman by the arm. The learnered Judge made the following significant observation: “The law draws a distinction between an assault and a battery. An assault is an acct which causes another person to apprehend the infliction of immediate unlawful force on his person; a battery is the actual infliction of unlawful force on another person. Both assault and battery are forms of trespass to person.

HOSTILITYAnother form of trespass to the person is false imprisonment which is the unlawful imposition of constraint on another’s freedom of movement from a particular place. The requisite mental element is of no relevance in the present case. We are primarily concerned with battery. It has long been established that any touching of another person, however slight, may amount to battery. So Holt, C.J. held in Cole v Tunner , that the least touching of another in anger is a battery.

HOSTILITYBut so widely drawn a principle must be subject to exceptions; for example children may be subjected to reasonable punishment; people may be subjected to the lawful exercise of the power of arrest; and reasonable force may be used in self-defence or for the prevention of crime. But apart from these special instances where the control or restraint is lawful, a broader exception has been created to allow for the exigencies of daily life. Generally speaking consent is a defence to battery and 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.

HOSTILITYSo nobody can complain of the jostling which is inevitable from his presence in, for example a supermarket; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is slapped. Although in the past it has sometimes been stated that a battery is only committed where the action is angry or revengeful, or rude or insolent, we think that these days it is more accurate to state the broad underlying principle subject to the broad exception.”

HOSTILITYIn Wilson v. Pringle , a school boy was involved in what was described as ‘horseplay’ with another boy who was injured as a result. The defendant argued that there had to be some hostility if the claimant was to succeed. Croom-Johnson L.J. stated that for there to be an assault or a battery there must be something in the nature of hostility. It may be evinced by anger, by words or gesture. The learned judge continued: “In our view the authorities lead to one conclusion that in a battery there must be an intentional touching or contact of the plaintiff by the defendant. That touching must be proved to be a hostile touching. But the question is when is a touching to be called hostile? Hostility cannot be equated with ill will or malevolence, like punching or stabbing or shooting. The element of hostility must be a question of fact. It may be imported from the circumstances. Take for example the police officer in Collins v. Wilcock who touched a woman deliberately but without an intention to do more than restrain her temporarily. Nevertheless, she was acting unlawfully and in that was acting with hostility.”

HOSTILITYIn F. v. West Berkshire Health Authority , however, Lord Giff strongly criticised the importation of the notion of hostility into the law of battery. The case involved consent to surgical operation, and his Lordship observed: “In the old days it used to be said that for a touching of another person to amount to a battery, it had to be a touching in anger, and it has recently been said that the touching must be hostile to have that effect. I respectfully doubt whether that is correct. A prank that gets out of hand, an over-friendly slap on the back, surgical treatment by a doctor who mistakenly thinks that the patient has consented to it, all these things may transcend the bounds of lawfulness without being characterised as hostile. Indeed the suggested qualification is difficult to reconcile with the principle that any touching of another’s body is, in the absence of a lawful excuse capable of amounting to a battery and a trespass.

ASSAULT AND BATTERYAs noted above assault is an intentional act which causes the plaintiff to apprehend an immediate application of force to his body. Actual fear is not necessary, provided a reasonable man would have apprehended battery; a brave man who did not entertain any threat of battery would still be entitled to an action of assault. Moreover, the defendant need not have the ability to execute his threat. Thus if a person points an unloaded gun at the plaintiff who is not aware that the gun is unloaded he is liable to the plaintiff for assault.

ASSAULT AND BATTERYIt was observed in R v. St. George :“My idea is that it is an assault to present a pistol at all, whether loaded or not. But if you threw the power out of the pan or tick the percussion cap off and said to the party ‘this is an empty pistol’, then that would be no assault.”

ASSAULT AND BATTERYWords alone without a positive act cannot be assault. However, in R v. Wilson , Lord Goddard LJ took the view that to shout ‘Get out the knives’ would in itself be an assault. However, gestures may constitute assault, for example, raising one’s fist in the others face. Moreover, words may reinforce an action for it to constitute an assault; for example in Read v. Coker , the plaintiff was approached by the defendant’s employees, rolling up their sleeves and threatening to break his neck if he did not leave. On the other hand words may negate assault. In Tuberville v. Savage , it was allege that the defendant put his hand upon his sword and said, “If it were not assize time I would not take such language from you.”

ASSAULT AND BATTERYBattery on the other hand has been defined as an intentional act which causes immediate or direct physical contact with the body of the plaintiff. For battery to take place there must be a positive act. Thus in Innes v. Wylie , where a policewoman prevented the plaintiff from pushing into a room by just passively standing in the doorway without taking any active measures to prevent the plaintiff from entering the room it was held that there was no battery.

ASSAULT AND BATTERYOn the other hand in Fagan v. Commissioner of Metropolitan Police , where the defendant was instructed by a police constable to park his car to answer questions and he drove the car unintentionally onto the foot of the policeman but kept the car on the policeman’s feet for some time after he had been told of the fact and used the words indicating an intention of keeping the wheel in that position, it was held that the defendant was liable for battery.

ASSAULT AND BATTERYNormally battery is preceded by assault but where there can be cases where there can be battery without assault. This occurs where, for example the plaintiff is struck from behind. There are several exceptions to the tort of battery. Most of these will be treated later.

FALSE IMPRISONMENTFalse imprisonment is the unlawful imposition of constraint on another’s freedom of movement from a particular place. Being a trespass it is actionable per se. Accordingly the actual state of mind of the defendant is irrelevant, that is to say, the defendant need not decide to imprison the plaintiff. It is sufficient if the defendant negligently locks a door unaware of the presence of somebody in the room.

FALSE IMPRISONMENTFurther, knowledge of the plaintiff that he is imprisoned is not required. In Meering v. Graham-White Aviation Co. Ltd , the plaintiff’s employers who suspected him of theft sent two of the works police to bring him in for questioning at the company’s offices. He was taken to a waiting room where he said that if he was not told why he was there he would leave. He was told that he was wanted for the purpose of making enquires about things that had been stolen and he was wanted to give evidence, he then agreed to stay.

FALSE IMPRISONMENTUnknown to the plaintiff the works police had been instructed not to let him leave the waiting room until the Metropolitan Police arrive. The works police therefore remained outside the waiting room and would not have allowed the plaintiff to leave until he was handed over to the Metropolitan Police who subsequently arrested him. The question for the Court of Appeal was whether on this evidence the plaintiff was falsely imprisoned during the hour he was in the waiting room. Lord Atkin said:

FALSE IMPRISONMENT“It appears to me that a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious and while he is a lunatic. It is quite unnecessary to go on to show that in fact the man knew that he was imprisoned. If a man can be imprisoned by having the key turned upon him without his knowledge, so he can be imprisoned if, instead of a lock and key or bolts and bars, he is prevented from, in fact exercising his liberty by guards and wardens or policemen . . . It is true that in all cases of imprisonment so far as the law of civil liberty is concerned that ‘stone walls do no a prison make,’ in the sense that they are the only restraint within defined bounds which is restraint in fact may be an imprisonment.”

FALSE IMPRISONMENTThe restraint constituting the imprisonment must be total. That is to say, if the plaintiff has some way of escape, there will be no false imprisonment. In Bird v. Jones , the defendant enclosed part of the public footway on a bridge put some seats in it for the use of spectators of a regatta on the river and charged for admission to the enclosure. The plaintiff insisted on passing along this part of the footpath and climbed over the fence of the enclosure without paying the charge. The defendants refused to let him go forward but he was told that he might go back into the carriage way and cross to the other side of the bridge if he wished. He refused to do so and remained in the enclosure for half an hour. The defendants were held not to have committed false imprisonment. The court observed:

FALSE IMPRISONMENT“I am of the opinion that there was no imprisonment. To call it so appears to me to confound partial obstruction and disturbance with total obstruction and detention.”But in a dissenting judgement, Denman C. J., observed “It is said that the party here was at liberty to go in another direction. I am not sure that in fact he was, as long as I am prevented from doing what I have the right to do, of what importance is it that I am permitted to do something else? How does the imposition of an unlawful condition show that I am not restrained? If I am locked in a room am I not imprisoned because I effect my escape through a window or because I might find an exit dangerous or inconvenient to myself as by wading through water or by taking a route so long that my necessary affairs would suffer by delay?”

FALSE IMPRISONMENTHowever, the majority decision was affirmed in Robinson v. Balmain New Ferry Company Ltd. In that case the plaintiff paid a penny for entry to the efendants’ wharf from which he proposed to cross the river by one of the defendants’ ferry-boats. A boat had just left and as there was not another one for twenty minutes the plaintiff wished to leave the wharf and was directed to the turnstile which was its exit. There he refused to pay another penny which was chargeable for exit and was stated on a notice-board and the defendant declined to let him leave the wharf unless he paid. The Judicial committee held that this was not false imprisonment.

FALSE IMPRISONMENTLord Loveburn L.C. delivering the judgement said: “There was no false imprisonment at all. The plaintiff was merely called upon to leave the wharf in the way in which he contracted to leave it. There is no law requiring the defendants to make the exit from their premises gratuitous to people who come there upon a definite contract which involves leaving the wharf by another way and the defendants were entitled to resist a forcible passage through their turnstile.”

FALSE IMPRISONMENTIn Herd v. Weardale Steel Coal and Coke Co. Ltd , also a claim of false imprisonment was rejected. In that case, a miner in breach of his contract of employment refused to do certain work allotted to him in the mine and demanded to be taken to the surface by the lift five hours before the end of his shift. He was not allowed to leave for twenty minutes. The House of Lords rejected his claim for damages for false imprisonment.

FALSE IMPRISONMENTA thorny issue which often arises is whether it is the defendant or the police who must be held liable for the alleged false imprisonment. This was discussed in Davidson v. Chief Constable of North Wales . In that case the plaintiff was arrested on suspicion of shop lifting on information supplied by a store detective but it was a mistake because the item in question had actually been paid for by the plaintiff’s friend. The plaintiff sued for false imprisonment against the employer of the store detective. Thomas Bingham, MR; made the following observation:

FALSE IMPRISONMENT“The question which arose for the decision of the learned Judge in this case was whether there was information properly to be considered by the jury as to whether what the store detective did went beyond laying information before police officers for them to take such action as they thought fit and amounted to some direction, or procuring, or direct request, or direct encouragement that they should act by way of arresting the plaintiff. He decided that there was no evidence which went beyond the giving of information. Certainly there was no encouragement. Certainly there was no discussion of any kind as to what action the police officers should take.”

FALSE IMPRISONMENTIn White v. WP Brown , however, the decision went the other way. Here the plaintiff, an elderly lady, was detained for fifteen minutes by a store detective after she was thought to have stolen a birthday card. Her handbag was taken away from her and searched and eventually the police took her to the police station. It was held that there had been false imprisonment.

DEFENCES TO ASSAULT, BATTERY & FALSE IMPRISONMENT: (A) SELF DEFENCEA person in self-defence may commit a battery on another.

However, the defence will not be upheld if the force applied to the plaintiff is unreasonable or excessive. In Cockcroft v. Smith , in a courtroom scuffle the plaintiff moved his finger as if to poke the defendant in the eye and the defendant bit the end of the finger off. Holt C.J. observed: “If a man strike another who does not immediately after resent it, but takes his opportunity and then some time later falls upon him and beats him, in this case self-defence is no good plea; neither ought a man in case of a small assault give a violent return. For hitting a man a little blow with a little stick on the shoulder is not a reason for him to draw a sword and hew the other.”

DEFENCES TO ASSAULT, BATTERY & FALSE IMPRISONMENT: (B)PROVOCATIONThis appears to be a defence but like contributory

negligence, it does not eliminate liability. In Lane v. Halloway , the plaintiff was struck a severe blow to the face after he (plaintiff) had made some rude commends about the defendant’s woman friend and having pushed the defendant on the shoulder. Lord Denning, MR, said, “The defendant has done a civil wrong and should pay compensation for the physical damage done by it. Provocation by the plaintiff can properly be used to take away ay element of aggravation; but not to reduce the real damages.”

DEFENCES TO ASSAULT, BATTERY & FALSE IMPRISONMENT: (C) EX TURPI CAUSA AND VOLENTI NON FIT INJURIA

Lord Denning made the following observations in Lane v. Holloway : “It has been argued that no action lies because this was an unlawful fight that both of them were concerned in illegality, and that therefore there can be no cause of action in respect of it. To that I disagree. Even if the fight started by being illegal I think that one of them can sue the other for damages for a subsequent injury if it was inflicted by a weapon or savage blow out of all proportion to the occasion. I agree that in an ordinary fight with the fists there is no cause of action to either of them for any injury suffered. The reason is that each of the participants in a fight voluntarily takes on himself the risk of incidental injuries to himself – volenti non fit injuria. But he does not take on himself the risk of a savage blow out of all proportion to the occasion.”

DEFENCES TO ASSAULT, BATTERY & FALSE IMPRISONMENT: (D) CONSENTGenerally where there is consent there cannot be trespass to the person. Consent may be express or implied. In surgical operations the consent of the patient is express, but in sports it is implied. If a Doctor treats a patient without his consent he is liable for battery. Where however the patient cannot give the consent and the case is an emergency one consent might be implied. In games there may be cases in which actions for assault and battery have succeeded when the game has involved considerable hostility and punches have been thrown.

DEFENSES TO ASSAULT, BATTERY & FALSE IMPRISONMENT: (A) SELF DEFENSE