#15596 - Trespass To The Person - GDL Tort Law

Tort Law: Trespass to the Person

• Trespass to the person: these torts give a claimant protection from direct deliberate physical harm, unlawful contact, and unjustified restriction of liberty.

• Trespass covers, three/four torts to consider: (1) battery; (2) assault; (3) false imprisonment; (4) rule in Wilkinson v Downton.

• Most cases criminal, few modern tort cases because defendant unlikely to be insured.

• Only torts on syllabus which is actionable per se: they do not require proof of damage, have a right to sue just because it happened. (apart from rule in Wilkinson v Downton, not actionable per se). They require an act to be committed; not an omission.

• Relationship to with crime:

  • Crime to punish/deter; aim of tort to compensate victim.

  • Different courts—no juries in tort.

  • Crime has different offences depending on harm: in tort harm is irrelevant, only one tort, the tort of battery.

• Difference between battery and assault: Assault is the apprehension/threat, its not contact, it is someone fearing that they are about to make contact. In battery, there is physical contact.

• INTENTION: any trespass must be committed intentionally (CF tort of negligence, which doesn’t require intention). As tort of negligence has developed, the courts have insisted that intentional harm be dealt with as a battery; while negligently caused harm should be subject of an action in negligence. The act/omission must be intentional, but not the damage.

  • Fowler v Lanning [1959]: Lord Diplock: trespass to the person does not lie if the injury to the claimant, although the direct consequence of the act of the defendant, was caused unintentionally and without fault on the defendant’s part.

  • Letang v Cooper [1965]. Restricted trespass to intentional acts. Distinction between negligence and battery, need an intentional act.

• NB: the ‘unlawful’ element is a criteria for each of these trespasses: the way to establish if it’s unlawful, is to run through the defences. If any of the defences are available, then it is not unlawful

Assault

• Assault = an act which directly and intentionally causes the claimant to apprehend a battery or physical contact [i.e. it’s the apprehension of contact].

• Elements:

  • Intentional Act

  • What is meant by an ‘act’?

  • Words alone are sufficient as an ‘act’ for assault: R v Wilson (1955), Lord Goddard stated that the words would by themselves amount to an assault.

  • Tuberville v Savage (1669): a conditional threatening statement, without an imminent threat of harm, does not constitute an assault. The words negated the intention. The words and act cancelled each other out, said he wouldn’t hurt him (‘if it were not assize-time, I would not take such language from you’).

  • Read v Coker (1853): in certain conditions, conditional words/a threat is still sufficient to be an ‘intentional act’. In this case, the conditions attached to the threat was not enough to nullify it.

  • R v Ireland [1997]: Silence can amount to an assault and psychiatric injury can amount to bodily harm (defendant made a series of silent telephone calls).

  • Direct

  • Causes (‘reasonable’) apprehension of immediate battery or physical contact

  • ‘Apprehension’:

  • Immediate: a threat to harm in the future is unlikely to be an assault.

  • It has to be a reasonable apprehension.

    • Thomas v NUM (1986): court said his apprehension of harm was not reasonable, as there was a police presence and armoured vehicle

    • CF: R v St George (1840: gun wasn’t loaded, but claimant didn’t know that, so held to be a reasonable apprehension.

    • CF Stephens v Myers [1830]: defendant lunged at meeting, forcibly restrained by those close to claimant. HELD: there was assault, since threat was very much an immediate one.

    • See also Treadaway v Chief Constable of the West Midlands, The Independent, 23 Sep 1994.

  • ‘Immediate’:

  • Thomas v NUM-the threatening act had to give the claimant immediate fear of an attack.

  • R v Ireland [1998]: silent phone call, women felt threatened. Didn’t know where the caller was. But court said was reasonable to fear that they could be subject to ‘immediate’ battery, as the person could have been nearby.

  • Other problem is whether the test is based on what the actual claimant fear, or what a reasonable claimant would have apprehended in those circumstances. Tends to be the latter—so that blameless people do not find themselves tortfeasors because they happen to make an innocent gesture in front of a neurotic individual.

  • Unlawful

• Defences: see below for details.

  • Self-defence; consent; necessity; statutory authority; reasonable chastisement.

  • Hard to find examples of consent to assault.

• You would often look through lists for both assault and battery.

Battery:

• Battery = the direct and intentional application of force by the defendant to the claimant without lawful justification.

• When answering a question, you have to go through these elements to decide if batter, necessary and sufficient conditions. Go through every element, even if you can see one will fail:

• Elements of battery:

  • (1) Intentional act:

  • Innes v Wylie [1844]: has to be a positive act, cannot be an omission

  • Must be intentional: Letang v Cooper [1965]. Distinction between negligence and battery, need an intentional act.

  • What do you need to intend? Intention relations to the contact, not the level of harm actually sustained. Wilson v Pringle [1986]. See also Nash v Sheen: defendant must intend to carry out the act which constitutes trespass, but does not require the defendant to intend harm.

  • Doctrine of transferred malice applies: if you intend to contact A, but hit contact B instead, it still counts as an intentional act. As long as you intended to contact someone, it sounds. Livingstone v Ministry of Defence [1984].

  • (2) Direct:

  • Once proved it is intentional, we have to prove it is a ‘direct’ act. What does ‘direct’ mean? Direct = does not have to be defendant making direct contact with the claimant.

  • Reynolds v Clarke [1725]: must be a direct act for trespass. Also Scott v Shepherd [1773].

  • Dodwell v Burford (1670): direct act if defendant hit the horse, then C fell off. Doesn’t have to be direct contact between defendant and claimant.

  • Also in R v Cotesworth (1704), he spat at him, counted as ‘direct’.

  • Also on directness: Hopper v Reeve (1817).

  • What is an ‘act’? Fagan v Met Police Commissioner [1969]: no contact between defendant and claimant, only contact via car (man had parked his car on a policeman’s foot and refused to move), but was held to be a ‘direct’ act, not a mere omission, and a battery had occurred.

  • DPP v K [1990]: schoolboy hid acid in handryer, some time later another boy came along to use the handryer and got harmed by acid. But still counted as ‘direct’.

  • (3) Application of force:

  • What do we mean by force? All you need for battery is touching, any physical contact will constitute force. No need for actual damage. Trespass actionable per se.

  • Cole v Turner [1704]: the least touching of another in anger is force, counted as battery.

  • R v Cotesworth [1704]: spitting counted as force, held to be a battery.

  • Nash v Sheen [1953].

  • (courts some add another requirement) Extra requirement of Hostility (which basically mean no consent, express or implied):

  • Not every touching will be a battery—depends on circumstances.

  • (1)—hostile intent as additional requirement: Wilson v Pringle [1986]: brings in hostile intent as an additional requirement for battery. Court of Appeal described battery as an intentional touching accompanied by hostility. [NB: this was undermined by R v F, Lord Goff ‘doubts’ whether the requirement to show hostility is correct, says this is ‘difficult to reconcile with the principle that any touching of another’s body is, in the absence of lawful excuse, capable of amounting to a battery and a trespass’.].

  • (court sometimes add) Consent

  • Consent is an important potential defence.

  • Re F [1990]: lawful for the doctors to operate without her consent.

  • (2) many acts will be expressly or impliedly consent in, in which case no battery committed. Also in Wilson v Pringle, held that there would be no battery if the touching could have been expressly or impliedly consent to.

  • In medical treatment, consent may negative a battery (Chatterton v Gerson; Airedale NHS Trust v Bland). And same in sporting occasions.

  • Chatterton v Gerson: doctor did not inform her of the risk of operation, but held that C’s consent was valid because she had consented to the broad nature of the procedure. Physicians may be sued for battery when the procedure consent to was completely different from the procedure carried out.

  • Whether possible to consent to battery outside of medical treatment and lawful sport is open to question:

    • Criminal case of R v Brown [1992]: if actual bodily harm was suffered then it is immaterial that there was consent. This followed R v Donovan [1934].

    • See also ADC v United Kingdom, The Times, 8 August 2000.

    • NB: Brown is an unusual case, how generally it can be applied is open to question. Indeed, in R v Wilson, Brown was distinguished and held not to be open to general application.

  • Medical law: you have right to refuse treatment, and if a medical professional gives you treatment you didn’t consent to, the right to claim is battery. But sometimes difficult to claim that the doctor has hostile intent (eg he is desperate to save your life). So Wilson v Pringle ruling made this difficult to claim battery in medical law.

  • F v West Berkshire HA [1989]: by ‘hostile intent’, they mean you might contact someone without their consent. So this case made it easy to prove hostility.

  • Must be Unlawful

• Defences: see below.

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