Law of Tort - Trespass to the Person
Trespass to the person encompasses the three torts of battery, assault and false imprisonment. The torts under trespass to the person have certain features which distinguishes them from other torts. Below are three common elements of the three torts under trespass to the person.
1. INTENTION
All the torts under trespass to the person require the element of intention. To be regarded as a trespass, the defendant's act must have been deliberate. An act that is negligent rather than deliberate may fall under the tort of negligence rather than trespass to the person. In Letang v Cooper [1965 1 QB 232] the defendant negligently drove his car over the plaintiff's foot. The Limitation Act barred a person's right to sue under negligence after three years from the time the incidence occurred while it allowed for a person to bring an action in trespass within to six years. The plaintiff who decided to sue after more than three years could not sue in negligence and thus sued in trespass. It was held that since the act of the defendant was negligent, the plaintiff's claim could not succeed as the requisite element in trespass is intention.
2. DIRECT INTEFERENCE
The classical illustration that helps to understand what amounts to direct Interference is the illustration of a person who throws a tree log into a busy highway. If the log hits someone when thrown, that would be regarded as direct Interference and thus a trespass to the person. However, if the log lands on the road and eventually causes someone to trip and fall, that would be an indirect interference. Thus what constitutes as direct Interference depends on time as a link between the defendant's act and the interference to the plaintiff. The interference to the plaintiff must immediately flow from the defendant act. In Scott v Shepherd [1773 2 W Bl 892] the defendant threw a lighted firework into a busy and crowded market. Various marketers threw it onwards to prevent injury to themselves. It eventually exploded in the defendant's face and caused injury. It was held that the act of the defendant was sufficiently direct to constitute a trespass.
3. ACTIONABLE PER SE
The torts under trespass to the person do not require proof of damage. They are thus said to be actionable per se. The torts are not merely aimed at protecting a person against injury but also to protect a person's integrity. Thus actions such as throwing water on someone or a mere slap may amount to a battery even if the plaintiff has not suffered any damage.
TORTS UNDER TRESPASS TO THE PERSON
1. BATTERY
Battery may be defined as the direct and intentional application of unlawful force on another person. As provided in the definition, the tort of battery has three requisite elements.
A) UNLAWFUL FORCE
Any amount of force no matter how trivial is sufficient to constitute a battery. This is to ensure that the integrity of the person is respected. In Collins v Wilcock [1984 1 W.L.R 1172] this broad rule was subjected to a broad exception, other than the already established justifications such as self-defense and consent, it was established that all physical contact which is generally acceptable in the ordinary conduct of daily life should be regarded as falling under a general exception. Thus physical contact resulting from jostling in a busy market or tapping someone's shoulder to grab their attention should be regarded as falling under a general exception to the broad rule that the slightest touching amounts to a battery. This general exception was confirmed in F v West Birkshire Health Authority [1969 2 W.L.R 1025 HL] in which the element of hostility was rejected on grounds that it is not applicable in all instances. For example, a doctor who performs an operation on a patient who did not give consent commits a battery even though there is no evidence of hostility. Thus any amount of force applied that does not fall under the general exception nor supported by any justification is unlawful.
B) DIRECT APPLICATION OF FORCE
Direct application of force refers to the application of force immediately flowing from the defendant's act. Objects may be used provided the force immediately flows from the defendant's act. In Dodwell v Burford [1669 1 Mod. 24] the defendant struck the claimant’s horse with the result that it bolted and the claimant was thrown from the horse. It was held that the defendant was liable for battery.
C) INTENTION
The case of Letang v Cooper established the need for intention as an element of battery. In Wilson v Pringle [1987 Q.B. 237] it was established that the requisite intention is to apply unlawful force rather than to cause injury. Provided the application of unlawful force was intended, the defendant need not intend the resulting injury.
2. ASSAULT
Contrary to the assault in criminal law which involves hitting someone, the assault in torts is simply a threat to someone which puts them in fear of being hit. It is an intentional act by the defendant that causes the claimant to reasonably apprehend the immediate infliction of unlawful force. An assault is usually present before a battery is inflicted. For example, a person who violently shakes their fists and shouts threats before hitting someone may be liable for both assault and battery.
A) REASONABLE APPRENSION OF IMMEDIATE FORCE
Apprehension is used in the sense of "to expect". To amount to a reasonable expectation of immediate force, the question is asked as to whether the reasonable person in the defendant's shoes would have expected an immediate force on their person. Where the defendant does not have the capacity to carry out the threat of immediate force, then the expectation of immediate force will be regarded as unreasonable. In Thomas v National Union of Mine Workers [1985 2 W.L.R 1081 Ch D] miners who were on strike made threatening remarks and gestures to their colleagues who had decided to work. The threats had been made while the working miners were being transported by bus with police protection. When an action of assault was brought by Mr. Thomas, it was held that the expectation of immediate force was unreasonable as the striking miners did not have the capacity to immediately carry out their threat.
WORDS CAN ALSO CONSTITUTE AN ASSAULT
This was established in the criminal case of R v Ireland [1997 3 W.R.L 534 HL] in which a stalker made calls to three women and breathed heavily during the calls without saying a thing. By the defendant's silence and heavy breathing, it was held that he conveyed a message of the infliction of force in the immediate future. Thus it was held that words can constitute an assault.
WORDS CAN ALSO NEGATE AN ASSAULT
Other than constituting an assault, words may also negate an assault. In Tuberville v Savage [1669 1 Mod Rep 3] the plaintiff placed his hand on his sword and told the defendant something to the effect that he would have used his sword if it were not for the fact that he would be taken to court. His words negated the action of placing his hands on his sword, as his words simply told the claimant that ‘I will not hurt you because I fear being taken to court.’ Therefore, the claimants could not have reasonably apprehended immediate application of violence on them.
3. FALSE IMPRISONMENT
False imprisonment refers to a person's deprivation of freedom of movement without justification. Prison bars are not needed to constitute false imprisonment as any restraint on a person's freedom without any lawful justification amounts to false imprisonment. The rationale for false imprisonment is to; on one hand protect the liberty of the person and on the other to compensate for any physical and economic injury occasioned by the imprisonment.
A) A POSITIVE ACT
To be liable under force imprisonment, the defendant must perform a positive act. In Iqbal v Prison Officers Association, prison officers went on a strike which resulted in the plaintiff prisoner not being let out for his daily routine. It was held that there was no false imprisonment due to the lack of a positive act on the part of the prison officers. An omission does not constitute false imprisonment.
B) THE RESTRAINT MUST BE TOTAL
In Bird v Jones [1845 7 Q.B. 742] the plaintiff was prevented from a using a public footpath along a bridge which had been turned into a temporary sitting area for the spectators of a boat race. The defendant was told to make a payment to have access to the area or use an alternative path on the bridge. He however insisted on being let through and later brought an action in false imprisonment. It was held that the plaintiff was not completely blocked as he had an alternative path and thus the restraint was not complete.
C) KNOWLEDGE OF IMPRISONMENT
The defendant need not know of their imprisonment. Thus it is possible to imprison a person who is asleep or unconscious. In Meering v Grahame- White Aviation [1919 122 LT 44] The claimant was suspected of theft by his employer. He was taken to a waiting room by two policemen and agreed to stay. He was questioned for an hour but unknown to him the two policemen stayed outside the room to stop him leaving. It was held that it did not matter that he was oblivious of his Imprisonment.
D) REASONABLE CONDITION
It will not amount to false imprisonment if the owner of a premise requests the fulfilment of a reasonable condition by the plaintiff. In Robinson v Balmain Ferry Co Ltd [1910 A.C 295] the plaintiff entered the defendant's wharf to board a boat. The only entrance through the wharf was through a turnstile which one would pass through after the payment of a penny. The plaintiff who had made the payment to enter the wharf missed his boat. The defendant requested for another payment to exit the wharf through the turnstile. The plaintiff refused and sued in false imprisonment. It was held that there was a reasonable condition upon which the plaintiff could exit the wharf and thus there was no false imprisonment.
DEFENSES TO FALSE IMPRISONMENT
1) REASONABLE CONDITION
As stated above, a reasonable condition is a defense to false imprisonment.
2) LAWFUL IMPRISONMENT
A lawful arrest is a defense to false imprisonment. In Fred Chitengi Chitongole v The Attorney General [2013/HP/0959] the court held that the arrest was lawful as there was a reasonable or probable cause to believe that an offence had been committed. The Court was also satisfied that the arrest was made according to the provisions of the law.
3) CONSENT
In Herd v Weardale Steel, Coke and Coal Co [1915 AC 67] the claimant miner refused to work in the mine on grounds that it was dangerous and demanded to be taken to the surface. The defendants delayed in taking the claimant to the surface and he thus sued under false imprisonment. It was held that there was no false imprisonment as the claimant voluntarily accepted a restriction upon his liberty by entering into the contract to work as a miner.
DEFENSES TO BATTERY AND ASSAULT
1) CONSENT
Consent is an applicable defense to all trespasses and it may either be given expressly or impliedly. Once clear consent has been given, the plaintiff cannot be held liable. In Chatterton v Gerson, the claimant who was a patient of the defendant sued in battery on the basis that she was not informed of the associated risks of the spinal injections she was given which rendered her right leg numb. It was held that regardless of the failure to disclose the associated risks, the defendant doctor could not be held liable in battery as the plaintiff had given consent.
2) SELF-DEFENSE
In Cockroft v Smith, the defendant bit off the finger of the plaintiff during a scuffle in Court. The court established Three facts that must be established in order to rely on the defense of self-defense:
1. Force was used in self-defense and not retaliation
2. Force must be reasonable
3. Force must be proportionate to that used/threatened by ‘victim’ (Plaintiff)
3) NECCESITY
A defendant will rely on the defense of necessity if they acted as they did to prevent greater harm either to the claimant or to a third party. The giving of emergency treatment to a person who is unable to consent may be justified on the ground of necessity as was established in R v West Berkshire Health Authority.
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