Trespass TO Person PDF

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TRESPASS TO PERSONASSAULTD EFINITION OF ASSAULTAssault is an intentional and direct act of the defendant that causes the plaintiff reasonable apprehension of the immediate infliction of a force onto his person. Assault is concerned with the protection of the mental well-being of an individual agains...

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TRESPASS TO PERSON ASSAULT DEFINITION OF ASSAULT Assault is an intentional and direct act of the defendant that causes the plaintiff reasonable apprehension of the immediate infliction of a force onto his person. Assault is concerned with the protection of the mental well-being of an individual against the unlawful act of another individual. ELEMENTS OF ASSAULT Assault is established when the 4 elements are fulfilled. (a) The mental state of the defendant  The defendant must have the intention to perform his act.  In the case of Tuberville v Savage, the defendant told the plaintiff that, “if it were not assize-time, I would not take those words from you.” The court ruled that such words negatived the element of intention on the defendant’s part to injure the plaintiff. Therefore, there was no assault in this case as there was no intention to injure.  In the case of Stephen v Myers, where the defendant made a threatening gesture to the plaintiff by waving a clenched fist again him, but was stopped by a third party before reaching him. The court held that the defendant was capable of carrying out his threat if he had not been stopped by the others a mere few seconds just before he hit the plaintiff. It was stated that clenched fist was considered as an assault despite the intervention of a third party. Thus, the defendant was found liable for assault. (b) The effect on the plaintiff  The plaintiff must feel reasonable apprehension that a force is being inflicted upon him. Reasonable apprehension can be determined by the objective test, which is, would a reasonable man encountered the same circumstance in which the plaintiff was in, he might feel apprehensive that a force would be inflicted upon him. If yes, this element is fulfilled. Force is being defined as some forms of violent contact which will put a reasonable man to be in reasonable fear of attack.  In the case of R v St George, it was held that pointing someone with an unloaded gun constituted an assault and thus, the defendant was found to be guilty of an assault.  However, in the case of Blake v Barnard , the court held that the gun had to be loaded before an assault could be established. (c) Capability to carry out the threat  This element is determined by the eyes of reasonable plaintiff. The objective test is that would a reasonable man, who is in the position of the plaintiff, 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 realize his threat? If yes, this element is fulfilled. Therefore, what must be apprehended is actual physical contact.  In the case of Stephen v Myers, where the defendant made a threatening gesture to the

plaintiff by waving a clenched fist again him, but was stopped by a third party before reaching him. The court held that the defendant was capable of carrying out his threat if he had not been stopped by the others a mere few seconds just before he hit the plaintiff. It was stated that clenched fist was considered as an assault despite the intervention of a third party. Thus, the defendant was found liable for assault.  However, in the case of Thomas v National Union of Mineworkers (South Wales Area), where the picketing miners threatened the other miners who did not join in the picketing. In fact, the picketing miners were controlled and observed by the police. It was held that the threat which was issued by the picketing miners did not constitute an assault because there was no capability on the picketing miners’ part to commit any form of physical contact with the other miners. (d) Bodily movement  Although assault involves no contact, some bodily movement is often said to be required. Bodily movement can be defined as a positive act in the circumstances, which implies that the defendant will carry out his threat. Bodily movement per se would not be sufficient, the movement must correspond with the probable infliction of unwanted force onto the plaintiff.  In the case of Innes v Wylie, the plaintiff was stopped from entering a room by a police officer who was acting under an instruction. It was held that it would not be an assault if the police officer was completely passive and merely obstructed the plaintiff’s entry. The issue that arose in this case was whether the police officer took active steps to prevent the plaintiff from entering the room, or whether he just stood passively in the doorway and did not move at all. The court ruled that there was no assault on the part of the plaintiff because there was no positive act of obstruction from the police officer. (e) Can words constitute an assault?  The general principle is that mere words cannot amount to an assault.  This principle had been lied down in the case of R v Meade & Belt. In this case, the defendant surrounded the victim’s house singing threatening and menacing songs. The court ruled that no words or singing are equivalent to an assault.  In the case of R v Constanza, the defendant had launched a campaign of hate against an ex-work colleague over a period of 20 months. He sent many threatening letters to her, followed her home, wrote insulting and offensive words on her door, and even stole her items. This caused the plaintiff to have suffered from depression. The defendant was charged with Actual Bodily Harm (ABH) in accordance with Section 47 of Offences Against the Person Act 1861. The defendant argued that the words alone could not constitute an assault and also the threatening letters could not constitute an assault because there was no immediacy. The jury was entitled in the circumstances in order to find out that there was immediacy and that the words could constitute an assault. Therefore, the defendant was found liable as he had committed assault.  The case of R v Wilson can be used in order to establish that the words do amount to an assault. In this case, the defendant yelled “get out your knives”and a physical fight arose and the defendant was charged under Section 47 of Offences Against the Person Act

1861. Lord Goddard mentioned that words alone would amount to an assault. The words had to be seen in the sense that they were spoken or written in order to amount to an assault. It is also important to consider the tone of voice, facial expression, gesticulation and the surrounding circumstances in order to determine the existence of assault. It is a significant factor for the defendant to be in a position to realize his threat in order to determine the existence of assault.  Furthermore, the principle in the case of R v Ireland stated that words that instill a reasonable fear of physical violence that is illegal and immediate constitute assault. In this case, the defendant made a series of silent phone calls to 3 different women for 3 months. The defendant was charged under Section 47 of Offences Against the Person Act 1861. He appealed to the court, arguing that silence cannot constitute an assault and that psychiatric injury is not bodily harm. The court upheld the defendant’s conviction. Silence can constitute an assault and psychiatric injury can constitute bodily harm. The Counsel contended that an assault cannot be committed by words alone and thus it cannot be committed by silence. BATTERY DEFINITION OF BATTERY Battery is an intentional and direct application of force to another person without the consent of that person. It is an actual application of physical force with no legal justification. This touching does not necessarily need to involve violence. The tort of battery protects a person from any interference onto his person, therefore it preserves the dignity of the person and also his reputation. ELEMENTS OF BATTERY Battery is established when the 4 elements are fulfilled. (a) The mental state of the defendant  The defendant shall have the intention to apply the force. The intention that is needed in battery is not the intention to hurt the claimant, but the intention to apply physical force to the claimant. The merest touching is enough to constitute a battery. Where a battery causes harm to the plaintiff, the defendant has to intend the application of force, but need not intend the harm as the tort is actionable per se. The requirement of ‘intention’ or mental state of the defendant can be discussed together with the element of ‘direct application of force’ because both are interrelated.  The general rule is that the intention is related to the direct act of defendant. In the case of Scott v Shepherd, the defendant threw a lighted squib into a crowded market place. A picked it up and threw it upon B. B then picked it up and threw it away. The squib hit the plaintiff and it burst into flames. The defendant was found liable for the injuries to the plaintiff because there was a result of the direct act of the defendant, even though the initial gesture of the defendant did not directly affect the plaintiff. The act of throwing the squib did not break the connection between the act of the defendant and the injury suffered by the plaintiff, because it was instinctive. The court stated that A and B reacted for their own safety, and thus they did not have the intention to carry out the act.

(b) The defendant’s act was under his control  The act of the defendant must be done voluntarily. No battery is committed if an incident involving contact over in which defendant has no control over the act.  In the case of Gibbons v Pepper, the defendant was riding a horse when someone hit the horse from behind and this caused the horse to bolt. The horse collided with the plaintiff and caused the plaintiff to suffer from injury. The plaintiff brought an action against the defendant. The court held that the defendant was not liable for battery as the incident was out of his control. (c) Contact  In order for a battery to be established, there must be a contact or application of force on the body or clothing of the plaintiff. Any physical contact with the plaintiff’s body or clothing is enough to constitute “force”, and not necessarily violence. For instance, throwing water on the plaintiff may amount to a battery but throwing water on the plaintiff’s clothes may not necessarily amount to battery. Contact with things which are attached to the person will only constitute a battery if there is a transmission of force to the body of the plaintiff. The contact has to give rise to an insult or indignity which arises from the touching, however trivial it might be.  In the case of Cole v Turner, it claimed that the least touching of another in anger is battery and if 2 or more people meet in a narrow passage, and without any violence, the person touches the other gently, it will not amount to battery.  Obviously, deliberate verbal and physical violence as well as conduct resulting in moral degradation is a case of touching “in anger” and constitutes an assault and a battery.  In Wilson v Pringle, the court ruled that hostile touching is required before it can constitute a battery. Hostile touching should not be equated with malevolence or ill-will. Hostile touching will be established as long as the defendant knows that he is doing something which the plaintiff may object to.  Acceptable conduct varies from one society to another and from one generation to another, and in various circumstances. Therefore, what amounts to hostile touching will depend on the facts and circumstances of each particular case.  In Collins v Wilcock, a policeman arrested a woman with the intention of detaining her temporarily. The issue that arose in this case was whether a touching must be hostile for the purpose of battery. It was ruled that the contact was hostile touching because the policeman had no authority to detain her.  In the case of F v West Berkshire Health Authority, the judge questioned that whether a touching had to be hostile for the purpose of battery. It was mentioned that the contact between the defendant and the plaintiff is necessary. However, ordinary contacts that are part of the everyday life are not considered as trespass. They fall under a general exception which accepts every physical contact that is usually appropriate in the ordinary conduct of daily life. Contact between people ranges from violent assaults through accidental bumps in crowded streets. The act of touching one’s body without legal excuse amounts to battery.

(d) Without the plaintiff’s consent  The touching has to be without the consent of the plaintiff. A person cannot touch the other person without the consent of that person or without legal justification. Nevertheless, there are touchings where an implied consent is believed to occur, such as tapping an individual’s shoulder to gain his attention or touching which happens when waiting to go on a bus.  In Nash v Sheen, the plaintiff went to a hair salon and the defendant used a tone-rinse without obtaining the consent of the plaintiff. Unfortunately, the plaintiff experienced some skin problems due to an adverse effect of the tone-rinse. It was held that the plaintiff’s consent did not include the tone-rinse and its implications. Thus, battery was established in this case.  It should be understood that if the plaintiff specifically and explicitly withholds his consent to any contact, then it must be respected and also upheld by the law. Nevertheless, if the plaintiff does not have the chance to express his choice before the contact happened, he cannot take advantage of the law by subsequently arguing that the contact is without his consent. The court should examine the possibility of implied consent by using the standard of “what is usually an appropriate and acceptable conduct”. The act of touching the body of another person without his or her consent will generally amount to a battery.  In Tiong Pik Hiong v Wong Siew Gieu, where the defendant was found guilty of a battery as she scratched the face of the plaintiff and also hit the latter because of her jealousy of the friendship between the plaintiff with her husband. DIFFERENCES BETWEEN ASSAULT AND BATTERY ASSAULT The issue of consent does not arise.

BATTERY The act of the defendant is done without the consent of the plaintiff. The plaintiff experiences reasonable There is a physical contact or direct apprehension of an immediate infliction of transmission of force between the defendant and the plaintiff. force upon his person. The tort protects one from the threat of any The tort protects one from physical contact, physical violence, as well as to maintain the violent or otherwise, as long as it is an unnecessary and an unauthorized contact. mental well-being of a person. FALSE IMPRISONMENT DEFINITION OF FALSE IMPRISONMENT False imprisonment is being defined as the restriction of a person’s freedom of movement or the wrongful deprivation of personal liberty in any form. The person so restrained is “imprisoned” so long as the person cannot move to the other places as he wants. Therefore, false imprisonment is the infliction of bodily restraint that causes the confinement of the plaintiff within an area determined by the defendant, that is not authorized by law. For instance, if a person wrongfully prevents another person from leaving a room or vehicle when

that person wishes to leave, it constitutes false imprisonment. The interest which is protected is that of the freedom from confinement. It serves to maintain the liberty of a person to unrestricted movement. ELEMENTS OF FALSE IMPRISONMENT False imprisonment is established when the three elements are fulfilled. (a) The mental state of the defendant  In order for false imprisonment to be established, the intention of the doer is important. The defendant must commit the restraint intentionally. The defendant must intend to carry out an act that directly contributes to the confinement of the plaintiff.  Even though it was suggested that negligence would suffice, in the case of W Elphinstone v Lee Leng San, the court ruled that false imprisonment cannot be established through negligence.  Therefore, regardless of the circumstances of the case, the intention of the wrongdoer is important. (b) The restraint must be a direct consequence of the Defendant’s act  Only the person who directly causes the confinement may be successfully sued for false imprisonment. He can be liable either because he confined or imprisoned the plaintiff or that he has instigated another person to confine or imprison the plaintiff.  In the case of Harnett v Bond, the plaintiff lived in an asylum which was run by the second defendant (D2). The plaintiff was granted a month’s leave but the D2 was given the direction to call the plaintiff back if he felt that the plaintiff could not take care of himself during that month. The plaintiff went to an office on his second day out to visit some people. The first defendant (D1) who was there, was of the opinion that the plaintiff was behaving strangely. He called D2, who told D1 to ensure that the plaintiff remained there because D2 would send a car round to fetch the plaintiff. The car arrived some 3 hours later and the plaintiff was brought back to the asylum. D2 found the plaintiff to be insane and did not allow him to go out. For 9 years thereafter, the plaintiff was sent from one institution to another institution. He was finally being proven sane and released. The jury was of the view that the plaintiff was sane 9 years previously at the time of committal to the institution. The court held that D1 was found liable for false imprisonment during the 3 hours’ restraint, and D2 for the 9 years’ restraint.  Thus, it is not false imprisonment if the confinement or imprisonment arises as a result of the act of another. The defendant may have committed a separate tort, either negligence or that of intentionally causing physical harm. (c) The restraint must be complete (there must be no way out)  The restraint must be complete and total loss of freedom which means that there are no alternative ways to go out or any tools to ask help from other people such as handphone.  In the case of Bird v Jones , a part of a bridge was appropriated for seats for a regatta. The plaintiff insisted on passing along the part so appropriated. The defendant stopped the plaintiff and told him to take another route to proceed to the another side of the

bridge. The plaintiff rejected and stayed there for half an hour. The court ruled that there was no false imprisonment because the restraint was not complete. However, Lord Denman held that if a person is prohibited from doing what he is entitled to do, it does not matter that he is allowed to do something else.  The general principle is that if there is another route to use, there is no false imprisonment. If there is a reasonable way out, it must be used and the plaintiff cannot, under such circumstances, claim that his liberty has been restrained or limited.  When a person is partially restrained but can only escape at the risk of injury to himself, then the escape route cannot be a reasonable way out. Usually, what amounts to “reasonable” will depend on the facts and circumstances of the case.  For instance, in the case of Wright v Wilson, the court held that there was no false imprisonment because the plaintiff could have escaped from confinement, even though it meant that he would have trespassed on another’s land to regain his freedom. OTHER CONSIDERATIONS OF FALSE IMPRISONMENT (a) The knowledge on the part of the plaintiff  In the past, the knowledge of plaintiff was required. The plaintiff must know that he or she has been imprisoned. Then, knowledge on the part of the plaintiff is no longer necessary.  In Herring v Boyle, a schoolboy was detained at school when his mother came to fetch him as the school fees were not paid. The court ruled that the school authorities were not liable for false imprisonment as the schoolboy did not realize that he was being falsely imprisoned.  By contrast, in Meering v Grahame-White Aviation Co Ltd, the plaintiff had been suspected of stealing varnish from his workplace, the defendant’s premises. The defendant called the police to bring the plaintiff into the defendant’s office. The defendant told the police to stay in the office and not to allow the plaintiff to leave the scene. The plaintiff w...