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Page 1: Trespass to Person

TRESPASS TO PERSON TRESPASS TO PERSON BSS 411BSS 411

MARDIAH HAYATI BINTI ABU BAKARLAW FACULTY UiTM SHAH ALAM

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LEARNING OUTCOMELEARNING OUTCOME

Able to understand the elements of Able to understand the elements of assault, battery and false imprisonmentassault, battery and false imprisonment

Able to appreciate the defences for Able to appreciate the defences for assault, battery and false imprisonmentassault, battery and false imprisonment

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TRESPASS TO PERSONTRESPASS TO PERSONDirect invasion of a protected interest was Direct invasion of a protected interest was

actionable under trespassactionable under trespassThe tortfeasor (e.g thief, burglar) could be The tortfeasor (e.g thief, burglar) could be

sued by the writ of trespass.sued by the writ of trespass.Law protect the citizen’s interest in bodily Law protect the citizen’s interest in bodily

safety, security from attack, liberty of safety, security from attack, liberty of movement and possession of property.movement and possession of property.

Protection was provided if the invasion Protection was provided if the invasion resulted directly from a positive actresulted directly from a positive act

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TRESPASS TO PERSONTRESPASS TO PERSON

1)1) ASSAULTASSAULT

2)2) BATTERY BATTERY

3)3) FALSE IMPRISONMENTFALSE IMPRISONMENT

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ASSAULTASSAULT DefinitionDefinition- An intentional and direct act of the defendant An intentional and direct act of the defendant

which causes the plaintiff reasonable which causes the plaintiff reasonable apprehension of the immediate infliction of a apprehension of the immediate infliction of a force onto his person. (force onto his person. (Collins v Wilcock Collins v Wilcock [1984] 3 [1984] 3 All ER 374)All ER 374)

- Act of putting another person in reasonable fear Act of putting another person in reasonable fear or apprehension of an immediate battery by or apprehension of an immediate battery by means of an act amounting to an attempt or means of an act amounting to an attempt or threat to commit a battery. (Salmond and threat to commit a battery. (Salmond and Heuston)Heuston)

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ELEMENTS OF ASSAULTELEMENTS OF ASSAULT

1.1. Intention of the Defendant to do harm/act Intention of the Defendant to do harm/act onto the plaintiff;onto the plaintiff;

2.2. Effect on the Plaintiff’s mind/ reasonable Effect on the Plaintiff’s mind/ reasonable fear of harm;fear of harm;

3.3. Capability of the Defendant to carry out Capability of the Defendant to carry out the threat;the threat;

4.4. Bodily movement of the Defendant; Bodily movement of the Defendant; interception of blow.interception of blow.

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INTENTION OF THE INTENTION OF THE DEFENDANT TO DO HARMDEFENDANT TO DO HARM

- Mental state of the DefendantMental state of the Defendant- The Defendant must have the intention to The Defendant must have the intention to

do his act.do his act.- Tuberville v Savage [1669] 86 E.R 684, Tuberville v Savage [1669] 86 E.R 684,

the D told the P, “ if it were not assize-time, the D told the P, “ if it were not assize-time, I would not take such language from you”.I would not take such language from you”.

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Held : Held :

These words negatived the element of These words negatived the element of intention on the Defendant’s part to injure intention on the Defendant’s part to injure the Plaintiff and therefore assault was not the Plaintiff and therefore assault was not established.established.

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EFFECT ON THE PLAINTIFF’S EFFECT ON THE PLAINTIFF’S MIND/REASONABLE FEAR OF HARMMIND/REASONABLE FEAR OF HARM

The plaintiff must feel reasonable The plaintiff must feel reasonable apprehension that a force will be inflicted apprehension that a force will be inflicted upon him.upon him.

Objective test : would a reasonable man, Objective test : would a reasonable man, faced with the same situation that the faced with the same situation that the Plaintiff was in, feel apprehensive that a Plaintiff was in, feel apprehensive that a force would be committed upon him? force would be committed upon him?

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Only when the answer is ‘yes’ will this Only when the answer is ‘yes’ will this element be fulfilled. element be fulfilled.

Force means some form of violent contact Force means some form of violent contact that would put a reasonable man to be in that would put a reasonable man to be in reasonable fear of attack.reasonable fear of attack.

In In R v St George [1840] 9 C & P 626R v St George [1840] 9 C & P 626, it , it was held that pointing an unloaded gun at was held that pointing an unloaded gun at a person constituted as assault.a person constituted as assault.

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

The requirement is measured through the The requirement is measured through the eyes of the reasonable plaintiff.eyes of the reasonable plaintiff.

The test is objective: would a reasonable The test is objective: would a reasonable man, who is the plaintiff’s position, feel man, who is the plaintiff’s position, feel reasonable fear that there is a threat of reasonable fear that there is a threat of immediate force upon himself? In other immediate force upon himself? In other words, would the reasonable man believe words, would the reasonable man believe that the defendant will realise his threat? that the defendant will realise his threat?

This requirement will be fulfilled when the This requirement will be fulfilled when the answer is “yes”. answer is “yes”.

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

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

Even though assault involves no contact it is Even though assault involves no contact it is often said that some bodily movement is often said that some bodily movement is necessary.necessary.

Bodily movement means a positive act in the Bodily movement means a positive act in the circumstances, indicating that the defendant circumstances, indicating that the defendant will carry out his threat.will carry out his threat.

So bodily movement per se would not be So bodily movement per se would not be adequate, the movement must be such that it adequate, the movement must be such that it correspond with the probable infliction of correspond with the probable infliction of unwanted force onto the plaintiff.unwanted force onto the plaintiff.

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There must be bodily movement to indicate the threat There must be bodily movement to indicate the threat would be carried out.would be carried out.

In In Read v Coker (1853) 13 C.B. 850Read v Coker (1853) 13 C.B. 850, the plaintiff was a , the plaintiff was a paper-stainer in financial difficulties and in arrears with paper-stainer in financial difficulties and in arrears with his rent. The defendant purchased his equipment and his rent. The defendant purchased his equipment and paid the rent under an agreement which secured to paid the rent under an agreement which secured to the plaintiff a weekly allowance. One day, the the plaintiff a weekly allowance. One day, the defendant told the plaintiff to leave the premises but defendant told the plaintiff to leave the premises but he refused. The defendant collected some of his he refused. The defendant collected some of his workmen who clustered around the plaintiff, tucking off workmen who clustered around the plaintiff, tucking off their sleeves and threatened to break his neck if he did their sleeves and threatened to break his neck if he did not leave. The plaintiff left and brought an action of not leave. The plaintiff left and brought an action of trespass for assault.trespass for assault.

Held: the facts clearly showed the defendant was Held: the facts clearly showed the defendant was guilty of assault. There was a threat of violence guilty of assault. There was a threat of violence exhibiting an intention to assault and there was also exhibiting an intention to assault and there was also present an ability to carry the threat into execution.present an ability to carry the threat into execution.

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Passive inaction or mere words are Passive inaction or mere words are insufficient. insufficient.

The plaintiff must apprehend imminent The plaintiff must apprehend imminent physical contact. physical contact.

Words add colour to an act and words Words add colour to an act and words however can also nullify an assault.however can also nullify an assault.

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BATTERYBATTERY Defined as the intentional and direct Defined as the intentional and direct

application of force to another person without application of force to another person without the person’s consent.the person’s consent.

Battery is committed by intentionally bringing Battery is committed by intentionally bringing about a harmful or offensive contact with the about a harmful or offensive contact with the person of another.person of another.

Purpose of the action is to afford protection to Purpose of the action is to afford protection to the individual not only against bodily harm the individual not only against bodily harm but also against any interference with his but also against any interference with his person which is offensive to a reasonable person which is offensive to a reasonable sense of honour and dignity.sense of honour and dignity.

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Elements of battery are:-Elements of battery are:- (a) the intention of the defendant to apply (a) the intention of the defendant to apply

force/hostile intentforce/hostile intent (b) the act was under the defendant’s (b) the act was under the defendant’s

control and contact or application of force control and contact or application of force occursoccurs

(c) without plaintiff’s consent(c) without plaintiff’s consent

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(a) Intention of the Defendant to (a) Intention of the Defendant to Apply Force/ Hostile intentApply Force/ Hostile intent

Touching a person without consent has Touching a person without consent has traditionally been regarded as sufficient traditionally been regarded as sufficient battery even though without actual battery even though without actual physical harm.physical harm.

Case: Case: Cole v Turner (1704) 87 E.R. 907, Cole v Turner (1704) 87 E.R. 907, per Holt C.J.per Holt C.J.

““The least touching of a person in anger is a The least touching of a person in anger is a battery”battery”

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The defendant must have applied the force The defendant must have applied the force with intention.with intention.

Case: Case: Scott v Shepherd [1773] 2 Wm Bl Scott v Shepherd [1773] 2 Wm Bl 892892

Here, a lighted squib was thrown by the defendant Here, a lighted squib was thrown by the defendant into an open market area. A picked it up and threw it into an open market area. A picked it up and threw it upon B, who then picked it up and threw it away. The upon B, who then picked it up and threw it away. The squib hit the plaintiff whereupon it burst into flames. squib hit the plaintiff whereupon it burst into flames.

Court held: the defendant was liable for the tort of Court held: the defendant was liable for the tort of trespass to person although his initial gesture did not trespass to person although his initial gesture did not directly affect the plaintiff. According to the court A directly affect the plaintiff. According to the court A and B reacted for their own safety, and so they did not and B reacted for their own safety, and so they did not have the required ‘intention’ to commit the act.have the required ‘intention’ to commit the act.

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(b) The Act was under the (b) The Act was under the Defendant’s ControlDefendant’s Control

The defendant’s act must be done The defendant’s act must be done voluntarily.voluntarily.

Case: Case: Gibbons v pepper [1695] 2 Salk Gibbons v pepper [1695] 2 Salk 637637

The defendant was riding a horse when someone hit The defendant was riding a horse when someone hit the horse from behind., causing the horse to bolt. the horse from behind., causing the horse to bolt. The horse collided with the plaintiff, and in an action The horse collided with the plaintiff, and in an action against the defendant, the court found the defendant against the defendant, the court found the defendant not liable as the incident of the horse bolting and not liable as the incident of the horse bolting and colliding with the plaintiff was outside his control.colliding with the plaintiff was outside his control.

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Contact or Application of Force Contact or Application of Force OccursOccurs

In battery there must be intentional touching or In battery there must be intentional touching or hostile contact. hostile contact.

There will be no battery if there is no contact or There will be no battery if there is no contact or application of force on the plaintiff’s body or application of force on the plaintiff’s body or clothing.clothing.

Generally any physical contact with the body of Generally any physical contact with the body of the plaintiff or his clothing would be sufficient to the plaintiff or his clothing would be sufficient to constitute ‘force’ but it has been held that throwing constitute ‘force’ but it has been held that throwing water on the plaintiff might not necessarily be water on the plaintiff might not necessarily be battery. This case has been interpreted to mean battery. This case has been interpreted to mean that contact with things attached to the person will that contact with things attached to the person will only amount to a battery if there is a transmission only amount to a battery if there is a transmission of force to the body of the plaintiff. of force to the body of the plaintiff.

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Case: Case: Collins v Wilcock (1984) 3 All ER Collins v Wilcock (1984) 3 All ER 374374

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

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(c) Without Plaintiff’s Consent(c) Without Plaintiff’s Consent

One cannot touch another person without One cannot touch another person without his consent or without lawful justification. his consent or without lawful justification.

However, there are touching where it is However, there are touching where it is presumed implied consent exists, such as presumed implied consent exists, such as tapping a person’s shoulder in order to get tapping a person’s shoulder in order to get his attention, or touching that occurs while his attention, or touching that occurs while queuing to go on a bus.queuing to go on a bus.

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CaseCase: Nash v Sheen [1953] CLY 3726: Nash v Sheen [1953] CLY 3726The plaintiff went to a hairdressing salon where the The plaintiff went to a hairdressing salon where the

defendant used a tone-rinse without first obtaining defendant used a tone-rinse without first obtaining the plaintiff’s consent. The plaintiff unfortunately the plaintiff’s consent. The plaintiff unfortunately developed some skin complications due to an developed some skin complications due to an adverse reaction to the tone-rinse.adverse reaction to the tone-rinse.

Court held: the consent given by the plaintiff did Court held: the consent given by the plaintiff did not include the tone-rinse and its consequences. not include the tone-rinse and its consequences. Battery was established.Battery was established.

Case: Case: Tiong Pik Hiong v Wong Siew Tiong Pik Hiong v Wong Siew Gieu [1964] MLJ 181Gieu [1964] MLJ 181

The defendant was found liable in battery for The defendant was found liable in battery for scratching the plaintiff’s face and hitting the latter, scratching the plaintiff’s face and hitting the latter, due to her jealousy of the plaintiff’s friendship with due to her jealousy of the plaintiff’s friendship with her husband.her husband.

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FALSE IMPRISONMENTFALSE IMPRISONMENT

In In Termes de la LayTermes de la Lay, false imprisonment is , false imprisonment is defined as the restriction of a person’s defined as the restriction of a person’s freedom of movement.freedom of movement.

The person so restrained is ‘imprisoned’ The person so restrained is ‘imprisoned’ so long as he cannot move to another so long as he cannot move to another place in accordance with his wishes.place in accordance with his wishes.

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Elements of false imprisonment are:Elements of false imprisonment are: (a) intention of the defendant but (a) intention of the defendant but

knowledge of plaintiff is not essentialknowledge of plaintiff is not essential (b) the restrain must be a direct (b) the restrain must be a direct

consequences of the defendant’s actconsequences of the defendant’s act (c) the restrain must be complete(c) the restrain must be complete

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(a) Intention of the Defendant(a) Intention of the Defendant

There need be no actual imprisonment.There need be no actual imprisonment. It is enough if the person is deprived of his It is enough if the person is deprived of his

liberty however short. He may be unlawfully liberty however short. He may be unlawfully arrest, or is unlawfully prevented from leaving arrest, or is unlawfully prevented from leaving the place in which he is.the place in which he is.

The defendant must have committed the The defendant must have committed the restraint intentionally.restraint intentionally.

The defendant must intend to do an act which The defendant must intend to do an act which directly results in the confinement of the directly results in the confinement of the plaintiff. plaintiff.

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In In W Elphinstone v Lee Leng San [1938] W Elphinstone v Lee Leng San [1938] MLJ 130MLJ 130, it was held that false , it was held that false imprisonment cannot be established imprisonment cannot be established through negligence. Intention of the doer is through negligence. Intention of the doer is a prerequisite.a prerequisite.

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(b) The Restrain Must Be a Direct (b) The Restrain Must Be a Direct Consequences of the Consequences of the

Defendant’s ActDefendant’s ActOnly the person who directly causes the Only the person who directly causes the

confinement may be successfully sued for confinement may be successfully sued for false imprisonment.false imprisonment.

He may be liable either because he He may be liable either because he himself confined or imprisoned the plaintiff himself confined or imprisoned the plaintiff of that he had instigated another person to of that he had instigated another person to confine or imprison the plaintiff.confine or imprison the plaintiff.

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Case: Case: Harnett v Bond [1925] AC 669Harnett v Bond [1925] AC 669 the plaintiff live in asylum run by D2. the plaintiff was given a the plaintiff live in asylum run by D2. the plaintiff was given a

month’s leave but D2 was given the discretion to call the month’s leave but D2 was given the discretion to call the plaintiff back if he felt that the plaintiff could not look after plaintiff back if he felt that the plaintiff could not look after himself during that one month. On his second day out, the himself during that one month. On his second day out, the plaintiff went to an office to pay a visit to some people. D1 plaintiff went to an office to pay a visit to some people. D1 who was there, was of the opinion that the plaintiff was acting who was there, was of the opinion that the plaintiff was acting strangely. He called D2, who asked D1 to make sure that the strangely. He called D2, who asked D1 to make sure that the plaintiff stayed there, as D2 would send a car round to fetch plaintiff stayed there, as D2 would send a car round to fetch the plaintiff. The car arrived some three hours later and the the plaintiff. The car arrived some three hours later and the plaintiff was brought back to the asylum. D2 found the plaintiff was brought back to the asylum. D2 found the plaintiff to be insane and did not let him out. For 9 years plaintiff to be insane and did not let him out. For 9 years thereafter, the plaintiff was sent from one institution to thereafter, the plaintiff was sent from one institution to another. He was finally proven sane and released. The jury another. He was finally proven sane and released. The jury was of the opinion that the plaintiff was sane 9 years was of the opinion that the plaintiff was sane 9 years previously at the time of committal to the institution. The previously at the time of committal to the institution. The Court of Appeal found the D1 liable for false imprisonment Court of Appeal found the D1 liable for false imprisonment during the 3 hours’ restrain, and D2 for the 9 years’ restrain.during the 3 hours’ restrain, and D2 for the 9 years’ restrain.

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(c) The Restrain Must Be (c) The Restrain Must Be CompleteComplete

There is no false imprisonment if a There is no false imprisonment if a reasonable escape route is available to the reasonable escape route is available to the plaintiff. plaintiff.

The available means of escape must be The available means of escape must be reasonable without the risk of injury or reasonable without the risk of injury or serious inconvenience.serious inconvenience.

A person locked by the defendant in a room A person locked by the defendant in a room from which the only possibility of escape is by from which the only possibility of escape is by dangerous climbing down a drain-pipe, is dangerous climbing down a drain-pipe, is considered to be falsely imprisoned.considered to be falsely imprisoned.

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Case: Case: Wright v Wilson [1699] 1 Ld Raym Wright v Wilson [1699] 1 Ld Raym 739739

No false imprisonment arose when the plaintiff No false imprisonment arose when the plaintiff could have escaped from his confinement, could have escaped from his confinement, although it meant he would have trespassed on although it meant he would have trespassed on another’s land in order to regain his liberty.another’s land in order to regain his liberty.

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Knowledge of RestraintKnowledge of Restraint

The plaintiff does not need to know that he The plaintiff does not need to know that he has been restrained in order to succeed in his has been restrained in order to succeed in his action.action.

Case: Case: Meering v Graham White Aviation Meering v Graham White Aviation Ltd (1919) 122 LT 44Ltd (1919) 122 LT 44

The plaintiff was being questioned at the defendant’s The plaintiff was being questioned at the defendant’s factory in connection with certain thefts from the factory in connection with certain thefts from the defendant company. He did not know of the presence defendant company. He did not know of the presence of 2 works police outside the room, who would have of 2 works police outside the room, who would have prevented his leaving if necessary. The plaintiff prevented his leaving if necessary. The plaintiff succeeded in an action of false imprisonment against succeeded in an action of false imprisonment against the defendant.the defendant.

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DEFENCESDEFENCES (i) Self-defence(i) Self-defence

It is lawful for a person to use a reasonable It is lawful for a person to use a reasonable degree of force for the protection of himself or degree of force for the protection of himself or any person against any unlawful use of force.any person against any unlawful use of force.

The relationship of the parties to be protected The relationship of the parties to be protected may be relevant to the reasonableness of force may be relevant to the reasonableness of force used e.g. to protect his wife and children against used e.g. to protect his wife and children against terrorist.terrorist.

In In Chaplain of Gray’s Inn’s Case (1400) YB 2 Chaplain of Gray’s Inn’s Case (1400) YB 2 Hen. IV, fo. 8, pl. 40Hen. IV, fo. 8, pl. 40, held that person on whom , held that person on whom an assault is threatened or committed is not an assault is threatened or committed is not bound to adopt an attitude of passive defence. bound to adopt an attitude of passive defence. One should not wait to be punched by the One should not wait to be punched by the attacker.attacker.

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(ii) (ii) ConsentConsent Consent must be genuine, not obtained by force Consent must be genuine, not obtained by force

or threat.or threat. Case: Case: Hegarty v Shine (1878) 14 Cox CC 145Hegarty v Shine (1878) 14 Cox CC 145

The plaintiff cohabited with the defendant for 2 years The plaintiff cohabited with the defendant for 2 years and contracted venereal disease from him. She claimed and contracted venereal disease from him. She claimed he had been assaulting her since her consent was he had been assaulting her since her consent was vitiated by his failure to disclose his ailment, which he vitiated by his failure to disclose his ailment, which he was perfectly well aware. The trial judges was of the was perfectly well aware. The trial judges was of the view that “as a general rule, when the person view that “as a general rule, when the person consented to the act, there was no assault; but if the consented to the act, there was no assault; but if the consent was by fraud of the party committed the act, consent was by fraud of the party committed the act, the fraud vitiated the consent, and the act became in the fraud vitiated the consent, and the act became in view of the law an assault. Therefore, if the defendant view of the law an assault. Therefore, if the defendant knowing that he had venereal disease and fraudulently knowing that he had venereal disease and fraudulently concealed from the plaintiff his condition, and induced concealed from the plaintiff his condition, and induced her, and communicated to her such venereal disease, her, and communicated to her such venereal disease, he had committed assault.” the defendant appealed, he had committed assault.” the defendant appealed, and the Court of Appeal ordered a new trial.and the Court of Appeal ordered a new trial.

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(iii) (iii) SportsSportsThose who participated in sport consent to Those who participated in sport consent to

reasonable conduct within the rules of the reasonable conduct within the rules of the game. game.

However, actions for assault and battery have However, actions for assault and battery have succeeded when the game has involved succeeded when the game has involved considerable hostility and deliberate punches.considerable hostility and deliberate punches.

In In Pallante v Stadiums (No 1) (1976) VR Pallante v Stadiums (No 1) (1976) VR 331331, it was held that the boxers agree to , it was held that the boxers agree to violent bodily typical of the sport, but not to violent bodily typical of the sport, but not to deliberate foul play.deliberate foul play.

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(iv) (iv) Legal AuthorityLegal Authority For purposes of enforcement of criminal law, police For purposes of enforcement of criminal law, police

and private citizens have the right to make arrests and private citizens have the right to make arrests and thereby interfere with the rights of others.and thereby interfere with the rights of others.

It is preferable to obtain a warrant of arrest, but at It is preferable to obtain a warrant of arrest, but at time there is a need for speedier action of prevention. time there is a need for speedier action of prevention.

The powers to arrest and restraint by legal authorities The powers to arrest and restraint by legal authorities is provided under Article 5 of the FC.is provided under Article 5 of the FC.

Power of arrest by private citizen and penghulu are Power of arrest by private citizen and penghulu are provided in the Criminal Procedure Code.provided in the Criminal Procedure Code.

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The police can arrest on grounds of The police can arrest on grounds of “reasonable suspicion” even though no “reasonable suspicion” even though no offence had in fact been committed.offence had in fact been committed.

Suspicion can take into account matters Suspicion can take into account matters which could not be given in evidence at all. which could not be given in evidence at all. For example, previous convictions or for For example, previous convictions or for mere interrogation.mere interrogation.

Case: Case: Mohmood v Government of Mohmood v Government of Malaysia and Anor (1974) 1 MLJ 103Malaysia and Anor (1974) 1 MLJ 103

Held: in effecting an arrest arising from reasonable Held: in effecting an arrest arising from reasonable suspicions the police may first shots at a suspect if suspicions the police may first shots at a suspect if the latter tries to escape from the scene of crime.the latter tries to escape from the scene of crime.

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TRESPASS TO LANDTRESPASS TO LAND Trespass to land may be defined as the Trespass to land may be defined as the

unreasonable interference with another unreasonable interference with another possession of land. possession of land.

The tort may be committed only against a The tort may be committed only against a person who had possession of the land on person who had possession of the land on which the acts complained of are committed.which the acts complained of are committed.

The tort of trespass to land is actionable The tort of trespass to land is actionable per per se se without any proof of damage.without any proof of damage.

Therefore, a plaintiff in trespass is entitled Therefore, a plaintiff in trespass is entitled even though he has sustained no actual loss, even though he has sustained no actual loss, to recover damages. to recover damages.

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The interest that is protected under this The interest that is protected under this tort is that of ensuring that a person who tort is that of ensuring that a person who has possession of land would be has possession of land would be free from free from any physical interferenceany physical interference in respect of that in respect of that possession.possession.

The interest is jealousy guarded; thus the The interest is jealousy guarded; thus the English saying ‘A man’s home is his English saying ‘A man’s home is his castle.’ castle.’

This saying is partly true in Malaysia This saying is partly true in Malaysia insofar as the man has a valid legal insofar as the man has a valid legal interest over the land on which his castle interest over the land on which his castle stands.stands.

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Section 44(1)(a) of the National Land Section 44(1)(a) of the National Land Code 1965 (NLC) provides that:Code 1965 (NLC) provides that:

A person has the right to the exclusive use and A person has the right to the exclusive use and enjoyment of so much of the column of airspace enjoyment of so much of the column of airspace above the surface of the land and so much of the above the surface of the land and so much of the land below the surface as is reasonably necessary land below the surface as is reasonably necessary to the lawful use and enjoyment of the said land.to the lawful use and enjoyment of the said land.

Elements of trespass to land:Elements of trespass to land: (a) Intention of the defendant(a) Intention of the defendant (b) Interference(b) Interference

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(a) Intention of the Defendant(a) Intention of the Defendant The defendant must intend to do the act alleged The defendant must intend to do the act alleged

as trespass. For example, voluntarily entering land as trespass. For example, voluntarily entering land that is in the possession of another.that is in the possession of another.

This intention may be the intention to trespass, or This intention may be the intention to trespass, or although although there is no intentionthere is no intention to trespass, there to trespass, there must be a must be a voluntary act voluntary act in entering land that is in in entering land that is in the possession of another. the possession of another.

It is not necessary to prove that the defendant It is not necessary to prove that the defendant knew that he was trespassing. The court will also knew that he was trespassing. The court will also reject any argument by the defendant that he did reject any argument by the defendant that he did not know he had no right in law to be on that piece not know he had no right in law to be on that piece of land.of land.

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Case: Case: Basely v Clarkson [1682] 3 Lev 37Basely v Clarkson [1682] 3 Lev 37The defendant accidently mowed the plaintiff’s grass The defendant accidently mowed the plaintiff’s grass

whilst he was mowing his own grass. The court held the whilst he was mowing his own grass. The court held the defendant liable as the act of mowing the grass was a defendant liable as the act of mowing the grass was a voluntary act, and therefore done with intention. An act voluntary act, and therefore done with intention. An act done under a mistake is not necessarily an involuntarily done under a mistake is not necessarily an involuntarily act. A mistaken action may be a voluntary action and act. A mistaken action may be a voluntary action and therefore intentional.therefore intentional.

Case: Case: Conway v George Wimpey & Co Ltd Conway v George Wimpey & Co Ltd [1951] 2 QB 266[1951] 2 QB 266

The court stated that a deliberate entry onto the land is The court stated that a deliberate entry onto the land is sufficient. It is irrelevant that the defendant does not sufficient. It is irrelevant that the defendant does not know that he is entering the plaintiff’s land, or that he know that he is entering the plaintiff’s land, or that he believes the entry is authorised, or that he honestly and believes the entry is authorised, or that he honestly and reasonably believes that the land is his.reasonably believes that the land is his.

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(b) Interference(b) Interference

Interference must be a direct act.Interference must be a direct act. Case: Case: Gregory v Piper (1829) 9 B&C 591Gregory v Piper (1829) 9 B&C 591

Rubbish which was placed near the plaintiff’s land, Rubbish which was placed near the plaintiff’s land, rolled onto the plaintiff’s land upon drying. The rolled onto the plaintiff’s land upon drying. The defendant was held liable for trespass as it was a defendant was held liable for trespass as it was a probable and foreseeable result of the defendant’s act.probable and foreseeable result of the defendant’s act.

Interference can be in the form of entry, Interference can be in the form of entry, continuous remaining on the land after being continuous remaining on the land after being asked to leave, placing an object on the asked to leave, placing an object on the plaintiff land and/or interference with the plaintiff land and/or interference with the airspace of the land.airspace of the land.

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Case: Case: Tan Wee Choon v Ong Peck Seng & Tan Wee Choon v Ong Peck Seng & Anor (1986) 1 MLJ 322Anor (1986) 1 MLJ 322

The defendants had always used a path on the plaintiff’s The defendants had always used a path on the plaintiff’s land as access to their house. When the plaintiff bought the land as access to their house. When the plaintiff bought the land, he fenced the area and the defendant’s could not use land, he fenced the area and the defendant’s could not use the path. The defendant removed the fence. They were sued the path. The defendant removed the fence. They were sued for trespass and contended that they had used it for 40 for trespass and contended that they had used it for 40 years.years.

Court held: trespass to land is actionable per se and did not Court held: trespass to land is actionable per se and did not require proof of damage. Section 41 of the Specific Relief Act require proof of damage. Section 41 of the Specific Relief Act 1950 provides that any persons entitled to any property may 1950 provides that any persons entitled to any property may obtain a declaration against any person denying or interested obtain a declaration against any person denying or interested to deny, his title or his right, to his property. The defendant’s to deny, his title or his right, to his property. The defendant’s action of pulling down the fence and continuing use of the action of pulling down the fence and continuing use of the passage by driving their vehicles up and down the plaintiff’s passage by driving their vehicles up and down the plaintiff’s land amounted to a denial of the plaintiff’s indivisible right land amounted to a denial of the plaintiff’s indivisible right over his property. over his property.

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Case: Case: Tay Tua Kiat v Pritam Singh (1987_ Tay Tua Kiat v Pritam Singh (1987_ 1 MLJ 2761 MLJ 276

The defendant built a wall that encroached onto the The defendant built a wall that encroached onto the plaintiff’s land, the court held that there was plaintiff’s land, the court held that there was continuing trespass as long as the wall was not continuing trespass as long as the wall was not demolished.demolished.

Types of trespass to land:Types of trespass to land: (a) entering upon land in the possession of (a) entering upon land in the possession of

another;another; (b) continuous trespass or remaining upon (b) continuous trespass or remaining upon

such land; orsuch land; or (c) placing or projecting any object upon it.(c) placing or projecting any object upon it.

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(a) Entering Upon Land in the (a) Entering Upon Land in the Possession of AnotherPossession of Another

The commonest form of trespass consists The commonest form of trespass consists of personal entry by the defendant or of personal entry by the defendant or some other person or animal; through his some other person or animal; through his procurement into land or buildings procurement into land or buildings occupied by the plaintiff.occupied by the plaintiff.

The slightest crossing of the boundary is The slightest crossing of the boundary is sufficient for example put one’s hand sufficient for example put one’s hand through the window or sit on the fence.through the window or sit on the fence.

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To be actionable as trespass the To be actionable as trespass the defendant’s conduct must have consisted defendant’s conduct must have consisted of a voluntary and affirmative act.of a voluntary and affirmative act.

If A has a seizure and falls or is pushed If A has a seizure and falls or is pushed against his will by B onto the plaintiff’s against his will by B onto the plaintiff’s land, A is not liable but B is. Cutting down land, A is not liable but B is. Cutting down a tree so that it falls on the neighbouring a tree so that it falls on the neighbouring land is trespass.land is trespass.

Trespass may be committed not only by Trespass may be committed not only by entry in person but by propelling an object entry in person but by propelling an object or a third person onto the plaintiff’s land.or a third person onto the plaintiff’s land.

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Case: Case: Smith v Stone (1647) 82 ER 533Smith v Stone (1647) 82 ER 533The defendant was carried by The defendant was carried by force or violence onto the land of force or violence onto the land of plaintiff. The court held trespass plaintiff. The court held trespass was committed by the persons was committed by the persons who carried the defendant upon who carried the defendant upon the land.the land.

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(b) Continuous Trespass or (b) Continuous Trespass or Remaining Upon Such LandRemaining Upon Such Land

If a If a structure or other object structure or other object is placed on is placed on another’s land, the initial invasion is wrong another’s land, the initial invasion is wrong and failure to remove it is a continuing and failure to remove it is a continuing trespass so long as the object remains.trespass so long as the object remains.

Subsequent purchaser of the land may Subsequent purchaser of the land may sue and a purchaser of the offending may sue and a purchaser of the offending may be liable for actions de diem in diem.be liable for actions de diem in diem.

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Case: Case: Cheah Kim Tong v Taro Kaur Cheah Kim Tong v Taro Kaur (1989) 3 MLJ 252(1989) 3 MLJ 252

The defendant was holder of TOL issued by Land Office The defendant was holder of TOL issued by Land Office for Lots 777and 779, in the Mukim of Bidor. D was the for Lots 777and 779, in the Mukim of Bidor. D was the owner of a house built of wood and cement but owner of a house built of wood and cement but encroached Lot 781. Lot 781 was subsequently encroached Lot 781. Lot 781 was subsequently alienated to P by the state authority and become alienated to P by the state authority and become registered proprietors in 1980. P negotiated with D for registered proprietors in 1980. P negotiated with D for removal of the part of the house that encroached P’s removal of the part of the house that encroached P’s land. When negotiations failed, P sued D for trespass. D land. When negotiations failed, P sued D for trespass. D raised the defence of estoppel, acquiescence and laches raised the defence of estoppel, acquiescence and laches on part of P.on part of P.

The court allowed P’s application’s. P’s action was not The court allowed P’s application’s. P’s action was not time barred. As the trespass was a continuing one, a time barred. As the trespass was a continuing one, a fresh cause of action arises from day to day.fresh cause of action arises from day to day.

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(c) Placing or Projecting any (c) Placing or Projecting any Object Upon ItObject Upon It

In general he who own or possesses the surface In general he who own or possesses the surface of the land owns or possesses all the underlying of the land owns or possesses all the underlying strata.strata.

Any entry beneath the surface at whatever depth Any entry beneath the surface at whatever depth is an actionable trespass.is an actionable trespass.

The owner of land may cut and remove an The owner of land may cut and remove an authorised telegraphed or electric wire which authorised telegraphed or electric wire which stretched through the air above his land, whether stretched through the air above his land, whether he can show he suffer harm or inconvenience from he can show he suffer harm or inconvenience from it or not as in it or not as in Wandsworth Board of Works v Wandsworth Board of Works v United Telephoned Co (1884) 13 QB p.904. United Telephoned Co (1884) 13 QB p.904.

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Types of PossessionTypes of Possession

Possession generally denotes physical control or Possession generally denotes physical control or occupation of the land.occupation of the land.

If a person only uses the premises for a particular If a person only uses the premises for a particular purpose, or that he is the land owner but does not purpose, or that he is the land owner but does not stay on the land, he does not have possession. stay on the land, he does not have possession.

An owner does not have the right to claim if he An owner does not have the right to claim if he has rent out his land since his tenant had has rent out his land since his tenant had possession of that land. possession of that land.

Locking up premises to which a tenant has Locking up premises to which a tenant has exclusive possession amounts to a trespass by exclusive possession amounts to a trespass by the landlord.the landlord.

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The plaintiff must have exclusive possession of The plaintiff must have exclusive possession of the land in order to maintain an action in trespass.the land in order to maintain an action in trespass.

(i)(i) Possession in fact and jus tertiiPossession in fact and jus tertii Possession in fact exists when the plaintiff has a right Possession in fact exists when the plaintiff has a right

to use the land as well as the ability to exclude others.to use the land as well as the ability to exclude others. Case: Case: Senik v Hassan & Anor (1963) 29 MLJ 365Senik v Hassan & Anor (1963) 29 MLJ 365

The defendant planted rubber on state land in Kedah The defendant planted rubber on state land in Kedah without permission to cultivate the land and without without permission to cultivate the land and without having any title over the land. The defendant then let the having any title over the land. The defendant then let the plaintiff into possession of the land, as consideration for plaintiff into possession of the land, as consideration for a favour done by the plaintiff for him. 18 months later, the a favour done by the plaintiff for him. 18 months later, the defendant gives notice to the plaintiff to vacate and defendant gives notice to the plaintiff to vacate and disposes of the land before the expiration of notice. The disposes of the land before the expiration of notice. The plaintiff sued the defendant for trespass.plaintiff sued the defendant for trespass.

Court held: trespass is an injury to possessory right. Court held: trespass is an injury to possessory right. Since the defendant could not show that he has a better Since the defendant could not show that he has a better right to possession he was held to have trespassed the right to possession he was held to have trespassed the plaintiff land. plaintiff land.

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(ii) Co-ownership(ii) Co-ownership In In Ong Hoo Hong v Kong Yin Weng (1965) 2 MLJ Ong Hoo Hong v Kong Yin Weng (1965) 2 MLJ

97 97 it was held that one co-owner of land can only it was held that one co-owner of land can only bring an action of trespass against the other if he has bring an action of trespass against the other if he has been actually ousted or dispossessed of the land. been actually ousted or dispossessed of the land. Each co-owner is entitled to possession of the whole Each co-owner is entitled to possession of the whole land, so that if one turns the other off the land or part land, so that if one turns the other off the land or part of it, it is a trespass. of it, it is a trespass.

In this case the plaintiff, who owned 24/80In this case the plaintiff, who owned 24/80thth undivided undivided share in a piece of land claimed that the defendant, share in a piece of land claimed that the defendant, who owned 56/80who owned 56/80thth undivided share in the same piece undivided share in the same piece of land was in unlawful occupation and was therefore of land was in unlawful occupation and was therefore trespassing on his share of the landtrespassing on his share of the land. The court denied . The court denied the plaintiff’s claim as on the evidence the defendant the plaintiff’s claim as on the evidence the defendant did not prevent or exclude the plaintiff from entering did not prevent or exclude the plaintiff from entering the said land or any part thereof.the said land or any part thereof.

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(iii) Possession under Temporary (iii) Possession under Temporary Occupation Licence (TOL)Occupation Licence (TOL) In In Julaika Bini v Mydin (1961) 27 MLJ 310Julaika Bini v Mydin (1961) 27 MLJ 310, ,

there are 2 TOLs over a house on a piece of land. there are 2 TOLs over a house on a piece of land. The first licence which allowed the defendant to The first licence which allowed the defendant to stay on the land was revoked. The second stay on the land was revoked. The second licence also allowed the plaintiff to stay on the licence also allowed the plaintiff to stay on the land. When the plaintiff moved onto the land the land. When the plaintiff moved onto the land the defendant was still in occupation of the land. The defendant was still in occupation of the land. The plaintiff claimed that the defendant had plaintiff claimed that the defendant had trespassed. The court held the plaintiff had a right trespassed. The court held the plaintiff had a right to claim against the defendant since the first to claim against the defendant since the first licence had been revoked. A holder of a TOL may licence had been revoked. A holder of a TOL may maintain an action for ejectment in tort against a maintain an action for ejectment in tort against a trespasser.trespasser.

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DEFENCESDEFENCES

The defences available in an action for The defences available in an action for trespass to land are:trespass to land are: (a) Justification by law(a) Justification by law (b) Acquiescence/ License(b) Acquiescence/ License

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(a) Justification by law(a) Justification by law

A local authority may be authorised to A local authority may be authorised to carry out works under a statute which give carry out works under a statute which give rise to liability in trespass to land.rise to liability in trespass to land.

The local authority however may escape The local authority however may escape liability on the ground that it was carrying liability on the ground that it was carrying out its function under the relevant out its function under the relevant provision of the Statute.provision of the Statute.

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Case: Case: Azizah bt Zainal Abidin & Ors v Azizah bt Zainal Abidin & Ors v Dato’ Bandar Kuala Lumpur (1999) 2 Dato’ Bandar Kuala Lumpur (1999) 2 AMR 1779AMR 1779

The local authority undertook works to channel a The local authority undertook works to channel a river which ran along and inside the boundary of the river which ran along and inside the boundary of the land belonging to the plaintiffs. The works was to land belonging to the plaintiffs. The works was to avoid floods along the river. As a result of the work avoid floods along the river. As a result of the work the river was widened. The plaintiff claimed the river was widened. The plaintiff claimed damages for trespass to land by the defendant. The damages for trespass to land by the defendant. The court held that defendant entry onto the plaintiff land court held that defendant entry onto the plaintiff land was lawful by virtue of section 53(1) of the Street, was lawful by virtue of section 53(1) of the Street, Drainage and Building Act 1974 as they were Drainage and Building Act 1974 as they were carrying out their statutory duty of maintaining, carrying out their statutory duty of maintaining, repairing or improving any watercourses under their repairing or improving any watercourses under their control. control.

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(c) Acquiescence/ License(c) Acquiescence/ License

Acquiescence means agreement or Acquiescence means agreement or consent.consent.

To raise this defence successfully the To raise this defence successfully the defendant must show that the plaintiff had defendant must show that the plaintiff had knowledge of the state of affairs on the knowledge of the state of affairs on the land and had agreed or consented to such land and had agreed or consented to such state of affairs.state of affairs.

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REMEDYREMEDY

Re-entryRe-entry / self-help – The person entitled / self-help – The person entitled to possession can enter or re-enter the to possession can enter or re-enter the premises and may use necessary force.premises and may use necessary force.

Action for recovery of land – Land Action for recovery of land – Land recoveryrecovery

Mesne Profit- The recovery of injury that Mesne Profit- The recovery of injury that the Plaintif has suffered through having the Plaintif has suffered through having been out of possession of his land.been out of possession of his land.

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THE ENDTHE END