11. Trespass to the person and to land PDF

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11. Trespass to the person and to land

Trespass is one of the oldest torts. Traditionally, one of the main functions of trespass was to vindicate rights and to act as a deterrent to protect against invasion of a citizen’s interests in land, person, or property.

Trespass takes three forms: trespass to the person, trespass to land, and trespass to goods, all of which are actionable per se, which means that a claimant does not need to prove damage to bring an action in trespass. In effect, the tort of trespass protects civil rights and in many cases an infringement of these rights will not cause physical damage but may, nevertheless, lead to a loss of dignity.

You will see that many modern cases of trespass to the person are taken against the police or other public officials; in some of these cases the main reason for taking the action is to vindicate the claimant’s rights rather than to obtain an award of damages in compensation. At this stage it is important to note that all forms of trespass require a direct and intentional interference, such as hitting a person or entering the land of another. The torts of negligence and nuisance cover unintentional or negligent conduct and indirect interferences, such as noise or fumes emanating from land which interfere with the use or enjoyment of land of another.

Trespass to the person

The ancient tort of trespass distinguished between direct and indirect interferences; direct interferences were protected by trespass but where the interference was indirect the action had to be taken just in ‘case’, from which the tort of negligence developed.

Stanley v Powell (1891)

The defendant fired a shot in circumstances where he had acted neither intentionally nor negligently. In a freak accident, the shot he fired had ricocheted off a tree and hit the plaintiff. In holding that trespass was not actionable in the absence of intention or negligence the court confirmed that trespass to the person is a fault-based tort. It was further held that the burden of proof in negligence was on the plaintiff but in trespass the burden of disproving fault was on the defendant.

Direct and intentional acts

The general principle is that direct intentional acts of interference are dealt with by the tort of trespass but where acts are unintentional and indirect the action lies in negligence.

Letang v Cooper (1965)

The plaintiff suffered injury when the defendant negligently drove his car over her legs as she was sunbathing in a hotel car park. It was more than three years later that the plaintiff sued the defendant for her injury but because (under the Limitation Act 1980) personal injury actions for ‘negligence, nuisance or breach of duty’ must be brought within three years and other tort actions are barred only after six years, in an effort to prevent her action from being statute barred, the plaintiff sued in trespass. In the Court of Appeal, Lord Denning, with whom Danckwerts LJ agreed, held that actions for personal injuries should no longer be divided into trespass (where the harm is direct) and case (where indirect harm is suffered) but according to the nature of the defendant’s conduct. If the conduct was intentional, it was trespass; where the conduct was negligent, the cause of action is in negligence and not trespass.

Assault

The tort of trespass to the person has three elements: assault, battery, and false imprisonment.

It is important to note that an assault requires no physical contact; it is essentially conduct which causes the claimant a reasonable apprehension of an immediate application of force which constitutes a battery.

However, where the plaintiff has no reasonable belief that the defendant has the intention or the ability to carry out the threat immediately, no assault is committed.

Thomas v National Union of Mineworkers (1986)

Where picketing miners made violent threats and gestures at working miners who were being taken into the colliery in buses. There was no liability in assault because there was no danger of an immediate battery since the working miners were safely in vehicles protected by police barricades.

Battery

A battery is the actual infliction of unlawful force on another person. As well as bodily integrity, the tort of battery protects the claimant’s dignity. An action can be brought where there is

indignity without suffering physical injury but where the claimant’s rights have been infringed. An example of such an indignity could be unlawfully taking a person’s fingerprints or wrongfully seizing a person’s arm to detain him in a shop on suspicion of shoplifting. In these cases, the claimant may only want to establish a principle, rather than seek compensation and because of this they sue in trespass rather than negligence. Trespass, as we have seen, is actionable per se (it is not necessary to prove damage) but in order to succeed in negligence the claimant must show that damage or harm has been suffered.

Collins v Wilcock (1984)

A woman police officer tried to question a woman whom she suspected of soliciting contrary to the Street Offences Act 1959. When she took hold of the woman’s arm in order to detain her and administer a caution the woman scratched the police officer’s arm. On appeal against her conviction for assaulting a police officer in the execution of her duty, the question to be decided was whether the police officer had gone beyond the scope of her duty in detaining the woman in circumstances short of arresting her. It was held that the officer had gone beyond the scope of her duty and, without exercising powers of arrest, the officer’s action in touching the woman amounted to a battery. You should note that a distinction is made between a restraint in these circumstances and a touching to attract a person’s attention or in the ordinary conduct incidental in everyday life.

The intention required in battery is that the defendant must have intended to commit the act that constitutes the trespass.

Nash v Sheen (1953)

The defendant hairdresser was liable in battery when a tone rinse which

caused a rash was given to a plaintiff who had requested a permanent wave.

Livingstone v Ministry of Defence (1984)

The defendant soldier in Northern Ireland intended to hit someone other than the victim when he fired a baton round. However, because his action in firing the baton was intentional, even though he was aiming at a rioter when he fired, the soldier was found liable in battery when he missed his target and struck the plaintiff.

Wilson v Pringle (1987)

A 13-year-old schoolboy, admitted that as an act of ordinary horseplay in a school corridor he pulled the plaintiff’s schoolbag from his shoulder. This caused the plaintiff to fall and suffer a hip injury and he applied for a summary judgment on the ground that the defendant’s admission of horseplay amounted to a clear case of battery to which there was no defence. The trial judge accepted this view and granted summary judgment. The defendant appealed against this decision to the Court of Appeal, which held the trial judge had been wrong to grant summary judgment as the admitted facts did not automatically amount to a battery.

In R (1990), Lord Goff defined battery as any intentional physical contact which was not ‘generally acceptable in the ordinary conduct of daily life’ and he doubted whether it is correct to say that the touching must be hostile for the purpose of battery.

Emotional distress: conduct ‘calculated to cause harm’

Wilkinson v Downton (1897)

The conduct which could amount to a battery was extended to include situations where no contact or physical force is used. Liability can arise where words calculated to cause physical injury (including psychiatric harm) are spoken, such as in this case where the defendant, as a practical joke, told the plaintiff that her husband had been seriously injured in an accident. As a result of hearing this information, the plaintiff suffered a severe nervous disorder and for a time her life was thought to be in danger. At the time this case was decided, however, there was: (1) no recovery in negligence for psychiatric harm; and (2) the specific requirements for assault and battery—the application, or threat, of force—were not present, so the claimant could not claim in trespass to the person. On the particular facts of the case, the court distinguished Wilkinson v Downton from trespass to the person and found the defendant liable for wrongful interference. The conduct was not merely negligent but was intended to cause harm.

Rhodes v OPO (2015)

The son, an 11-year-old, suffered from symptoms of Asperger’s syndrome and a number of learning disabilities; his mother, divorced from his father and living in another jurisdiction, claimed that if their son were to read his father’s account of the sexual abuse he suffered in childhood and his subsequent mental health difficulties, it was likely to have an adverse effect on the boy, possibly resulting in ‘enduring psychological harm’.

Acting on behalf of the son, the mother claimed an injunction to prevent the book’s full publication on the ground that it would cause intentional harm to him according to the principle in Wilkinson v Downton. She also claimed that because both parents had agreed ‘to use their best endeavours to protect the boy from any information concerning the previous history of either parent which would have a detrimental effect on the child’s well-being’ the father was

under a duty of care to the boy, which publication of the book would breach. In rejecting all claims, the negligence action was dismissed on the grounds of lack of duty of care.

The Court of Appeal (discussed below) approached the question of duty of care by applying the ‘three-part test’ in Caparo Industries plc v Dickman: though the requirements of foreseeability and proximity were satisfied, it would not be ‘fair just and reasonable’ to impose a blanket duty of care upon the parental role.

According to Lady Hale:

A person who has suffered in the way that the father has suffered, and has struggled to cope with the consequences of his suffering in the way that he has struggled, has the right to tell the world about it. And there is a corresponding public interest in others being able to listen to his life story in all its searing detail. Of course vulnerable children need to be protected as far as reasonably practicable from exposure to material which would harm them, but the right way of doing so is not to expand Wilkinson v Downton.

The father in this case did not have the necessary intention to cause psychiatric harm or severe mental or emotional distress to his son.

Khorasandjian v Bush (1993);

A case involving intentional harassment by telephone calls by a former boyfriend of the plaintiff. There was a risk that the cumulative effect of the unrestrained telephone calls would cause the plaintiff physical or psychiatric damage and she therefore succeeded in her action.

Situations involving a ‘course of conduct’

Majrowski v Guy’s and St Thomas’s NHS Trust (2006)

It was held that an employer could be vicariously liable under the Act for harassment committed by one of its employees in the course of employment.

Emotional distress alone not enough to establish liability

In cases where no contact or physical force is used, emotional distress is not enough to establish liability for intentionally inflicted bodily harm.

Wainwright v Home Office (2004)

A mother went to visit her son who was in prison on remand. She was accompanied on the visit by another son but because the prison governor suspected that the prisoner in question was dealing in drugs in prison he gave instructions that anyone who wanted to visit him had to consent to be strip-searched. Although the mother and son agreed to be strip-searched, the mother was emotionally distressed and the son, who had physical and learning difficulties, suffered post-traumatic stress disorder as a result of the search.

The manner in which the prison officers carried out the strip-searches breached the Prison Service Rules and both the mother and son claimed damages for an invasion of their privacy

and the intentional infliction ofThe manner in which the prison officers carried out the stripsearches breached the Prison Service Rules and both the mother and son claimed damages for an invasion of their privacy and the intentional infliction of harm which amounted to trespass to the person.

False imprisonment

False imprisonment is the unlawful constraint on the freedom of movement of another, but it does not require incarceration or the use of force. However, the unlawful constraint on freedom of movement must be total and if there is any reasonable means of escape then there is no false imprisonment.

R v Bournewood Community and Mental Health NHS Trust (1998)

An autistic man (known as HL) who was unable to speak and had limited understanding. HL had been discharged from a psychiatric hospital into the home of paid carers with whom he had lived for three years. On one occasion at the day-care centre he attended on a weekly basis, HL’s condition deteriorated and he became particularly agitated. Staff were unable to contact HL’s carers on that day, so he was given sedatives and taken to hospital where the psychiatrist diagnosed him as requiring in-patient treatment. For three months HL was denied contact with his carers.

The responsible medical officer considered HL was ‘compliant’ in his admission. He had not resisted admission or tried to run away so the hospital claimed that he not been ‘detained’ but lawfully admitted as an informal patient. By a majority of the House of Lords held that a patient in an open, unlocked ward was not, in fact, detained. Although the reality was that HL was sedated and if he had attempted to leave the medical staff would have prevented him from

doing so by detaining him compulsorily under the Mental Health Act 1983, he was still no ‘detained’. The House of Lords had considered the issue of unlawful detention under English common law so HL’s carers decided to take a human rights claim to the European Court of Human Rights (the Human Rights Act 1998 was not yet in force). The question was whether HL’s detention was a deprivation of liberty under Article 5. Under the European Convention on Human Rights (ECHR) it was held that HL’s inability to challenge the detention and the absence.

Reasonable restriction is not false imprisonment

Where a plaintiff’s liberty is subject to a reasonable condition it is not false imprisonment to restrain the claimant until that condition is fulfilled.

Robinson v Balmain Ferry Co Ltd (1910)

The plaintiff was a lawyer who missed a ferry and decided that he could not wait twenty minutes for the next boat. He was directed to the turnstile which was at the exit and when he refused to pay the one penny exit charge at the turnstile the defendant’s employee refused to let him through. It was held that there was no false imprisonment because the condition of paying a penny to leave was a reasonable one in the circumstances and the condition had been brought to the plaintiff’s attention. There is no false imprisonment where the plaintiff consents to the confinement.

Knowledge of the restraint not necessary

In order to succeed in an action for false imprisonment it is not necessary to have knowledge of the restraint at the time.

Herring v Boyle (1834)

Because of unpaid school fees, the headmaster refused to allow a mother to take her son home for the Christmas holidays. It was held that, since the boy was unaware of the detention, there was no false imprisonment.

Murray v Ministry of Defence (1988)

The House of Lords disapproved of Herring and approved Meering and ruled that knowledge of the restraint of freedom of movement was not necessary to establish false imprisonment. However, their Lordships noted that a person who is unaware that he has been falsely detained and has suffered no harm can only expect to obtain nominal damages. There must, however, be an actual detention.

Detention by an order of the court

There is no action for false imprisonment where the detention is carried out under an order of the court and until such an order is set aside the detention is legally justified.

Relevant intention is intention to detain

The relevant intention is the intention to detain the prisoner and because false imprisonment is a tort of strict liability, where a prison governor has authority to release the prisoner without an order of the court to terminate the period of custody, there may be liability.

Kambadzi v Secretary of State for the Home Department (2011)

A Zimbabwean national, entered the United Kingdom lawfully, but remained here after his leave to remain expired. He was subsequently convicted of assault and sexual assault and sentenced to one year’s imprisonment. Prior to his being released from prison, the Secretary of State decided to make a deportation order against him and he was detained for this purpose under the Immigration Act 1971. However, during the period of his immigration detention proper reviews of that detention were not conducted in line with the written detention policy. The issue here was whether the Secretary of State’s failure to comply with a procedural requirement in state policy relating to the detention of foreign national prisoners results in their detention being unlawful, so as to allow the detainee to make a claim in tort for false imprisonment. In finding the failure to conduct the relevant reviews made the detention unlawful, the question of entitlement to damages in tort for false imprisonment was considered.

Deprivation of liberty (‘kettling’)

Austin and others v United Kingdom (2012)

Police intelligence identified that the protest would create one of the most serious threats to public order ever seen in the city, with a real risk of serious injury and even death, as well as damage to property. The crowd-control strategy adopted by the police— kettling—was imposed to create an absolute cordon to restrict movement around specific areas.

The appellants, not themselves protestors, were contained within the cordon for up to seven hours during the afternoon and into the evening. They argued that the containment within the cordon amounted to deprivation of liberty within the meaning of Article 5(1) of the ECHR.

The Court ruled that based on the specific and exceptional facts of this case, the kettling did not amount to a deprivation of liberty so Article 5 was inapplicable.

Defences to trespass to the person

A number of statutes authorize conduct that would, under different conditions, amount to trespass to the person: the Police and Criminal Evidence Act 1984 provides police with a defence to what might otherwise constitute false imprisonment or battery; the Mental Health Act 1983 makes provision for the compulsory admission to hospital and treatment in relation to mental health; under the Children and Young Persons Act 1933 parents can justify an assault and battery by way of chastisement of their children.

Implied consent: participants in sporting activities

Implied consent to battery most frequently arises in the case of participants in sporting activities who are implied to consent to the physical contact that occurs within the ordinary conduct of a game or sport.

R v Billinghurst (1978)
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