Trespass to the Person

Trespass to the person involves the wrongful invasion of a persons’ right to freedom from interference with his body or his right to personal liberty. This is in contrast to trespass to land that involves the wrongful invasion of another’s premises.

In modern times, trespass to the person has been replaced by the three (3) separate torts of:1. False Imprisonment2. Assault3. Battery

False imprisonment, assault and battery involve the wrongful invasion of a persons right to freedom and liberty. They all comprise a category of tort law known as trespass to the person. All three torts are derived from the old common law ‘writ of trespass’ and are actionable per se which means that lawsuits may commence without the need to prove actual harm or damage.

Assault and battery cases are often brought against police officers and the Attorney General. ROOKES v BARNARD held that where a government servant commits an arbitrary, oppressive or unconstitutional act against a member of the public. Punitive damages may be awarded in addition to compensatory damages.

FALSE IMPRISONMENT

This is the wrongful or unreasonable restraint of an individual’s liberty [without lawful justification]. There is NO need to show damages. For example, police officers may arrest or detain individual without legal justification.

One’s liberty cannot be restrained without authority in law or following reasonable conditions. For example, an exception to this principle would be the implied acknowledgement or compliance of passengers on trains or airplanes with conditions of travel that restrict movement and freedom. Therefore, false imprisonment is not to be narrowly interpreted to include only prisons or jails.

False imprisonment deals with:1. Inconvenience sustained by the

intentional restriction of movement;2. Total restraint by external limits or

powers, even if it is temporary;3. Compelled or confined to stay in one

place, against one’s will for which there is a complete loss of freedom

However, an important point to note is that violence or the actual expression of force is NOT necessary to commit false imprisonment. In addition, partial restraint, obstruction or detention would not be subject to a successful cause of action for false imprisonment. The boundary preventing one from passing can be large, narrow, moveable or fixed.

LAWFUL JUSTIFICATION

The defence for false imprisonment is lawful justification, such as a lawful arrest. However, an unlawful arrest by a police officer may result in a cause of action for false imprisonment, as would battery.

CLARKE v DAVIS held that police officers may be liable where they order a person, without physically holding him, to accompany them to the police station, and that person submits to the show of authority.

Moreover a security guard at a store may be liable for false imprisonment where there is a request that a suspected shoplifter accompany him to the store office, and that person complies in order to avoid an embarrassing scene in a public place

QUASHIE v AG held that punitive damages as well as compensatory damages may be awarded against the Attorney General for any oppressive, arbitrary or unconstitutional act by a government servant, such as a police officer.

In ROBINSON v BALMAIN FERRY COMPANY LIMITED it was held that the operator of a ferry that charged a fee to enter and exit the ferry was not guilty of false imprisonment to refuse the plaintiff from leaving until the fee was paid because the refusal was reasonable.

LEBRUN v HIGH-LOW FOODS LIMITED held that a person may be liable for false imprisonment though he does not limit himself carry out the actual arrest. He will be able liable where he authorizes or direct an officer to make the arrest, which does not apply to one who merely makes a report to the police, who exercise discretion to make an arrest.

TORTIOUS ASSAULT

Tortious assault is the calculated threat of violence which causes reasonable fear of immediate physical contact. Assault entails conduct reasonably leading to battery, such as:• Intimidation,• Apprehension of harm,• Unlawful contact,• Manifestation of violent propensities, and • Threats

The test for whether an assault has been committed is whether a reasonable person would have to fear that violence is immediate or about to be committed in the circumstances to constitute assault. [notwithstanding the type of object or subjective motive of the perpetrator]

For example, the intimidating use of a toy gun against one who believes the toy to be real may constitute tortious assault.

Tortious assault is distinguished from actual tortious battery which is the physical contact that may occur subsequent to tortious assault. In other words, tortious assault is the fear of the battery that may or may not subsequently occur.

For example a clenched fist would constitute the assault, while the punch is the battery. Individuals do not have the right to give conditional threats or demands without lawful authorization.

However, assault cannot be words alone. There must be some action or words accompanying action that leads to the apprehension of physical harm through unlawful contact. Damages include physical as well as injury to dignity, humiliation or mental suffering.

In STEPHENS v MYERS, an altercation took place between the plaintiff and the defendant at a parish council meeting. The defendant approached the plaintiff with a clenched fist but his blow was intercepted by a third party and the defendant successfully sued for assault.

In HULL v ELLIS the defendant held the revolver in her hand and accosted the plaintiff while riding his donkey on a public road an inquired the source of wood he was carrying. It was held that she committed assault.