Trespass to Person

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TRESPASS TO PERSON BSS 411MARDIAH HAYATI BINTI ABU BAKAR LAW FACULTY UiTM SHAH ALAM

LEARNING OUTCOMEAble to understand the elements of assault, battery and false imprisonment Able to appreciate the defences for assault, battery and false imprisonment

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

TRESPASS TO PERSONDirect invasion of a protected interest was actionable under trespass The tortfeasor (e.g thief, burglar) could be sued by the writ of trespass. Law protect the citizens interest in bodily safety, security from attack, liberty of movement and possession of property. Protection was provided if the invasion resulted directly from a positive actUiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

TRESPASS TO PERSON1) ASSAULT2) BATTERY 3) FALSE

IMPRISONMENT

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

ASSAULT -

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Definition An intentional and direct act of the defendant which causes the plaintiff reasonable apprehension of the immediate infliction of a force onto his person. (Collins v Wilcock [1984] 3 All ER 374) Act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery. (Salmond and Heuston)UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

ELEMENTS OF ASSAULT1.

2.

3.

4.

Intention of the Defendant to do harm/act onto the plaintiff; Effect on the Plaintiffs mind/ reasonable fear of harm; Capability of the Defendant to carry out the threat; Bodily movement of the Defendant; interception of blow.UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

INTENTION OF THE DEFENDANT TO DO HARM-

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Mental state of the Defendant The Defendant must have the intention to do his act. Tuberville v Savage [1669] 86 E.R 684, the D told the P, if it were not assizetime, I would not take such language from you.UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

Held : These words negatived the element of intention on the Defendants part to injure the Plaintiff and therefore assault was not established.

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

EFFECT ON THE PLAINTIFFS MIND/REASONABLE FEAR OF HARMThe plaintiff must feel reasonable apprehension that a force will be inflicted upon him. Objective test : would a reasonable man, faced with the same situation that the Plaintiff was in, feel apprehensive that a force would be committed upon him?

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

Only when the answer is yes will this element be fulfilled. Force means some form of violent contact that would put a reasonable man to be in reasonable fear of attack. In R v St George [1840] 9 C & P 626, it was held that pointing an unloaded gun at a person constituted as assault.

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

(c) Capability of the Defendant to Carry out the Threat

The requirement is measured through the eyes of the reasonable plaintiff. The test is objective: would a reasonable man, who is the plaintiffs position, feel reasonable fear that there is a threat of immediate force upon himself? In other words, would the reasonable man believe that the defendant will realise his threat? This requirement will be fulfilled when the answer is yes.UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

In Stephen v Myers [1830] 4 C & P 349, the defendant threatened to hit the plaintiff and he advanced with clenched fist upon the plaintiff. He was stopped by a third party just before he could reach the plaintiff. The court held that assault was established as there was capability to carry out his threat, if he was not stopped by the third party a mere few seconds before he hit the plaintiff.

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

(d) Bodily Movement of the Defendant/ Interception of Blow

Even though assault involves no contact it is often said that some bodily movement is necessary. Bodily movement means a positive act in the circumstances, indicating that the defendant will carry out his threat. So bodily movement per se would not be adequate, the movement must be such that it correspond with the probable infliction of unwanted force onto the plaintiff.UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

There must be bodily movement to indicate the threat would be carried out. In Read v Coker (1853) 13 C.B. 850, the plaintiff was a paper-stainer in financial difficulties and in arrears with his rent. The defendant purchased his equipment and paid the rent under an agreement which secured to the plaintiff a weekly allowance. One day, the defendant told the plaintiff to leave the premises but he refused. The defendant collected some of his workmen who clustered around the plaintiff, tucking off their sleeves and threatened to break his neck if he did not leave. The plaintiff left and brought an action of trespass for assault. Held: the facts clearly showed the defendant was guilty of assault. There was a threat of violence exhibiting an intention to assault and there was also present an ability to carry the threat into execution.UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

Passive inaction or mere words are insufficient. The plaintiff must apprehend imminent physical contact. Words add colour to an act and words however can also nullify an assault.

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

BATTERY

Defined as the intentional and direct application of force to another person without the persons consent. Battery is committed by intentionally bringing about a harmful or offensive contact with the person of another. Purpose of the action is to afford protection to the individual not only against bodily harm but also against any interference with his person which is offensive to a reasonable sense of honour and dignity.UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

Elements of battery are: (a) the intention of the defendant to apply force/hostile intent (b) the act was under the defendants control and contact or application of force occurs (c) without plaintiffs consent

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

(a) Intention of the Defendant to Apply Force/ Hostile intentTouching a person without consent has traditionally been regarded as sufficient battery even though without actual physical harm. Case: Cole v Turner (1704) 87 E.R. 907, per Holt C.J. The

least touching of a person in anger is a battery

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

The defendant must have applied the force with intention. Case: Scott v Shepherd [1773] 2 Wm Bl 892 Here,

a lighted squib was thrown by the defendant into an open market area. A picked it up and threw it upon B, who then picked it up and threw it away. The squib hit the plaintiff whereupon it burst into flames. Court held: the defendant was liable for the tort of trespass to person although his initial gesture did not directly affect the plaintiff. According to the court A and B reacted for their own safety, and so they did not have the required intention to commit the act.UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

(b) The Act was under the Defendants ControlThe defendants act must be done voluntarily. Case: Gibbons v pepper [1695] 2 Salk 637 The

defendant was riding a horse when someone hit the horse from behind., causing the horse to bolt. The horse collided with the plaintiff, and in an action against the defendant, the court found the defendant not liable as the incident of the horse bolting and colliding with the plaintiff was outside his control.UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

Contact or Application of Force Occurs

In battery there must be intentional touching or hostile contact. There will be no battery if there is no contact or application of force on the plaintiffs body or clothing. Generally any physical contact with the body of the plaintiff or his clothing would be sufficient to constitute force but it has been held that throwing water on the plaintiff might not necessarily be battery. This case has been interpreted to mean that contact with things attached to the person will only amount to a battery if there is a transmission of force to the body of the plaintiff.UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

Case: Collins v Wilcock (1984) 3 All ER 374A

woman police officer suspecting that a woman was soliciting contrary to the Street Offences Act 1959, the police officer tried to question her but the woman walked away. The police officer took her arm in order to restrain her. The woman scratched the officers arm. The woman was arrested and charged with assaulting an officer in the execution of her duty and was convicted. On appeal by case stated, appeal was allowed, on the ground that the officer had gone beyond the scope of her duty in detaining the woman in circumstances short of arresting her. The officer has committed battery.UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

(c) Without Plaintiffs ConsentOne cannot touch another person without his consent or without lawful justification. However, there are touching where it is presumed implied consent exists, such as tapping a persons shoulder in order to get his attention, or touching that occurs while queuing to go on a bus.

UiTM Shah Alam - LAW 245 - Mardiah Hayati Abu Bakar

Case: Nash v Sheen [1953] CLY 3726 The

plaintiff went to a hairdressing salon where the defendant used a tone-rinse without first obtaining the plaintiffs consent. The plaintiff unfortunately developed some skin complications due to an adverse reaction to the tone-rinse. Court held: the consent given by the plain