Top Left Background Top Right Background
Bottom Right Background

Trespass

Previous: Causation

Introduction

Trespass is the term given to a collection of torts, including assault, battery and false imprisonment. It may simply vindicate rights, as in Ashley v Sussex [2008], or it may compensate for damage. Damage is not required for trespass to be proven; it is actionable per se. However, for susbstantial damages, injury or damage to the claimant must result. Prior to Donoghue v Stevenson [1932], the main way to attain compensation in tort was through a claim in trespass.

A major difference between negligence and trespass claims is that negligence claims must be made within 3 years of the damage occurring, whereas trespass claims must be made in 6 years. In Letang v Cooper [1965], the claimant tried to bring what should have been a negligence claim in trespass (after the 3 year limitation period). The claim failed as its framing in trespass was ineffective. A second difference is that negligence is easier to prove than trespass, although damages in negligence are based on reasonable foreseeability. In trespass, damages are based on the ‘direct consequence’ test, which is much more rewarding for the claimant.

Battery

Collins v Wilcock [1984] said that battery is the,

“[A]ctual infliction of unlwful force on another person”

Battery requires an act of force which is direct, and unlawful.

An Act

Battery must be an act, not just an omission. In Innes v Wylie [1844], the claimant bounced off a police officer who was blocking a doorway. The police officer had not committed a battery as he had not acted, he simply omitted to move. However, in Fagan v Metropolitan Police Commissioner [1969], the defendant’s omission to move after parking on a police officer’s foot was classed as battery as it was part of a wider criminal act.

Force

Force must be applied for there to be a battery. In Cole v Turner [1704], it was said that “the least touching in anger” will amount to a battery. In F v West Berkshire AHA [1990], it was said that any touching could amount to a battery, and an unwanted kiss was said to amount to a battery in R v CC Devon, ex p Central Electricity Generating Board [1982].

Intent

In Fagan v Metropolitan Police Commissioner [1969], it was said that force must be intended for there to be a successful battery claim, though damage need not be intended. F v West Berkshire AHA [1990] said that intention is irrelevant and that a prank which gets out of hand may be classed as a battery. An older authority for this can be found in James v Campbell [1832] which involved the unitentional striking of a person. Livingstone v MoD [1984] said that if you aim for a target and miss, hitting another person, you will have committed a battery on the unintended target, and may have assaulted the target. Finally, in Bici v MoD [2004], soldiers were liable for battering and killing Bici, an unintentional target.

Direct

A battery must be direct; a ‘chain of causation’ must not be broken. In Scott v Shepherd [1773], the throwing on of a lit firework still constituted a direct application of force on the unfortunate claimant who was in possession of the the firework when it expoded. Furthermore, in Haystead v DPP [2000] it was said that a child was battered when dropped due to force being applied to the mother in the form of a punch. In DPP v K [1990], a battery was found in the placement of Hydrochloric Acid in a hand dryer, and in Dodwell v Burford [1670], it was found that one could use a horse to batter another.

Unlawful

In many cases, contact between individuals is lawful and therefore not classed as battery. Certainly, if there is express consent, such as in a handshake or a boxing match, there can be no battery. Initially, in Cole v Turner [1704], it was said that unlawful contact is distinguished by the presence of anger. Wilson v Pringle [1987] also attempted to draw this distinction. However, Lord Goff in Collins v Wilcock [1984] and then again F v West Bershire Health Authority [1990] ruled that the test is one of “general acceptance in the ordinary conduct of daily life”.

Multiple defendants

In Shah v Gale [2005], there were multiple gang members who battered the claimant. They were all liable.

Remedies

Damages are the usual remedy for battery claims, based on the ‘direct consequence’ test.

Assault

Again according to Collins v Wilcock [1984], assault is,

“An act which causes [the claimant] to apprehend the infliction of immediate and unlawful force on his person.”

A successful claim will therefore require an act where there was reasonable apprehension of immediate unlawful force.

An act

Initially, it was said that words could not amount to an assault in R v Meade and Bell [1823]. However, R v Ireland [1998] ruled that “A thing said is a thing done” and that silence can amount to assault if it causes a fear of the possibility of immediate personal violence.

Reasonable apprehension

The test here is whether a reasonable person in the claimant’s postion could have expected violence to immediate follow. In Dawish v Egyptair [2006], no assault was found in the pushing away of a chair and standing up, and in R v St George [1840], there was no assualt where a known fact would prevent violence from occurring (for example a gun not being loaded).

Immediate unlawful force

Assault requires the immediate possibility of a battery; though it does not require any physical contact. In Stephens v Myers [1830], it was said that advancement with threats does constitute assault; however, in Thomas v National Union of Miners [1986], no assault was found where a miner was protected in a minibus guarded by police officers. In R v Ireland [1998], it was said that a “I’ll be at your door in a minute or two” could constitute assault.

If there is no possibility of a battery, there can be no assault. In Mbasogo v Logo Ltd [2006], unarmed mercenaries were incapable of injuring a dictator, therefore no assault was found. Consideration should be given to the means of infliction of force, according to Read v Coker [1853], as a sword may not work through a fence, where a gun might. The ‘bodyguard question’ was answered in the afrementioned case of Stevenson v Myers [1830]. It was said that no bodyguard is perfect, therefore those with bodyguards can still make claims for assault. If words negate a potential battery, as was the case in Tuberville v Savage [1669], there can be no assault.

False Imprisonment

False imprisonment is simply improsonment which is unlawful. There must be restraint, the area of which is not significant, according to Bird v Jones [1859]; then there must be an act which is intentional and which completely restrains the claimant. The claimant need not have knowlegde of the imprisonment, and of course the imprisonment must be unlawful.

An act

In Innes v Wylie [1844], the police officer’s omission was again not an act, therefore he could not be falsely imprisoning in the claimant. Similarly, in Iqbal v Prison Officers’ Association [2009], omitting to unlock a cell during a strike action was not found to be false imprisonment. Although damages were awarded for a lack of freedom.

Intent

According to order xanax online from canada (No. 2) [2001]” href=”https://webstroke.co.uk/law/cases/r-v-governors-of-brockhill-prison-ex-p-evans-no-2-2001″>R v Governors of Brockhill Prison, ex p Evans (No. 2) [2001], it is not necessary to intend false imprisonment; although imprisonment itself must be intended. A prison guard refused to let a prisoner out of his cell.

Complete restraint

For there to be a successful false imprisonment claim, there must be complete restraint of the claimant. In Bird v Jones [1859], the claimant had the option to go back, therefore was not completely restrained. In Robinson v Balmain New Ferry [1910], false imprisonment was still not found where the defendants charged the claimant to exit. It was said in Burton v Davies [1953] that any means of escape must be reasonable: requiring the jumping out of a truck travelling at high speed was not reasonable and so constituted false imprisonment. In Talcott v National Exhibition Co [1911], false imprisonment was found where one exit was blocked and a second ‘impossible’ to find.

The case of McFadzean v CFEMU [2009] concerned a union preventing supplies and people from entering and exiting a protestors’ camp. In deciding whether there was complete restraint, the court considered the danger to the imprisoned and their property; distance, time and legality of the imprisonment, along with the physical capacities of the claimants; their fears and the need for unreasonable courage in escaping.

Knowledge of imprisonment

Meering v Grahame-White Aviation [1919] found that knowledge of false imprisonment was not required for a claim to be made; a point confirmed in Murray v MoD [1988]. However, if there is no knowlegede, substantial damages will not be awarded.

Lawfulness

The burden is on the defendant in any false imprisonment claim to show that the imprisonment was lawful. In the aforementioned case of Robinson v Balmain New Ferry [1910], it was said that a reasonable condition of escape may be imposed. As such, in Herd v Weardale Steel [1915], there was no false imprisonment in refusing to take an employee miner to the surface prior to the end of his shift such that he could effect strike action. In Sunbolf v Alford [1838], it was said  that ‘reasonable conditions’: must be in place before the imprisonment starts; must be capable of objective verification and must not be used to recover debts.

Wilkinson v Downton

Wilkinson v Downton [1897] was a case which concerned a practical joke played on an individual. It caused her to suffer significant mental injuries and it is arguable that a new tort was created by the case’s judgment. The Wilkinson v Downton tort is an intentional tort, but is not a tort of trespass: it is not actionable per se: damage is required. The tort was applied in the case of Janvier v Sweeney [1919] where the defendant dressed up as a police officer in order to extract information about a maid’s master from that maid. In Wainwright v Home Office [2004], a claim for mental injury following a strip search did not apply Wilkinson v Downton [1897].

Harassment

Harassment is defined in the Protection from Harassment Act 1997 as both a crime and a tort, requiring a course of conduct by the defendant which causes alarm and distress to the claimant. It must be beyond irritance. An example of harassment can be found in Ferguson v British Gas [2009], which involved British Gas chasing the claimant for money when her gas bills had been paid in full. The claimant in a harassment claim must be an individual, although the defendant need not be, it may be a company or a person. In Majrowski v Guy’s NHS [2006], it was said that a course of conduct must not be a one-off event, but need not be planned. It was also said that more frequent events need not be as serious.

Harrassment claims may use the defence of reasonableness, which was clarified in the case of Hayes v Willoughby [2013]. S 1(3)(a) of the 1997 Act provides that there is no harrassment in preventing or detecting crime, however the case said that rationality is required for a defence to succeed.

For a successful past harassment claim, damages will usually be awarded, along with an injunction if the course of conduct is still continuing.

Defences

There are a number of ways in which trespass claims may be defended.

Express consent is a complete defence to any trespass claim as long as the trespass cannot also be classed as a crime, as was the case in R v Brown [1997].

Implied consent may be given in “everyday life”, as said in Collins v Wilcock [1984], or it may be given in medical situations. The Mental Capacity Act 2005 allows consent to be found where the person (s 2) can’t make a decision, and (s 4) past decisions are taken into account where they do not include death wishes. Consent can be refused on any ground by a patient. Re M [2011] said that implied consent was a balancing exercise where the best interests of the partient should be examined. The defence of consent failed in ZH v Commissioner of Police of the Metropolis [2013] where the carer of an autistic child was restrained by police at the edge of a swimming pool.

Implied consent in sport, according to R v Barnes [2004], is given to a point which extends reasonably beyond the rules; however, acts far outside of the rules of the games may provide the grounds for a claim in trespass.

Lawful authority

There are many instances in which lawful authority provides a defence to trespass, the most obvious being powers of the police, provided in statute, such as s 24 of the Police and Criminal Evidence Act 1984. Lawful authority is also relevant where common law arrest is concerned, as held in Roberts v Latvin [1982]. In any case, according to Minio-Paluello v Commissioner of Police [2011], only proportionate force may be applied.

Contributory negligence

The Law Reform (Contributory Negligence) Act 1945 allows for reduced damages in negligence. Contributory negligence does not apply to trespass claims, a point confirmed in Pritchard v Co-op Group [2011].

Self defence

Ashley v Sussex [2008] ruled that self defence must involve the use of reasonable force only, although it may be pre-emptive. In criminal law, according to R v Williams [1923], there needs only to be an honest belief of self-defence, but in tort law, according to Cookcroft v Smith [1705], there needs to be and honest belief which is also reasonable. Being threatened by a small stick does not entitle you to stab someone with a sword.

Necessity

The defence of necessity still exists, but should not be used; the defence of consent will be more effective in all situations. F v West Berkshire [1990] said that best interests will overrule necessity. One limitation on the defence of necessity can be found in Southport Corp v Esso Petroleum [1953]: life if more important than property.

Illegality

If one commits a criminal act, acoording to Murphy v Culhane [1977], self defence may not be claimed where the victim fights back. Although there must be a causal connection between the crime and the damage caused.

Remedies

Tresoass is actionable per se, i.e. without damage. Williams v Humphrey [1975] said that damages are calculated in the same was as negligence, but using the direct consequence test, and Murphy v Culhane [1977] said that provocation will reduce the quantum of any damages awarded.

Next: Occupiers’ liability

Goto Top
Close Notification

Recent News

Other News