TRESPASS TO PERSONS

INTRODUCTION
Tort is a civil wrong for which the remedy is a common law action for un liquidated damages
and which is not exclusively the breach of contract or the breach of trust or other equitable
obligation

Wrongs affecting personal safety and freedom are often termed as “trespass to person”.
Trespass to person as a matter of history, might be committed negligently as well as
intentionally, and this is still true today. In view of recent developments, however, the
availability of trespass to the person in a case of negligent injury is of little more than academic
interest1.
The origin and character of trespass

The writ of trespass was introduced towards the end of the 19 century and was the foundation of
all torts and was both civil and criminal in nature as it would end up in punishment of the
defendant as well as compensation of the victim. It was designed to address serious forcible
breaches of peace in a direct manner henceforth drawing a conclusion that there ought to be
these actions for trespass to occur;
 Direct
The traditional explanation of the word is that injury must follow so close on the act that
it can be seen as part of the act as it was illustrated in the case of letang v copper [1964]
by lord dinning who said “we divide the causes of action now according as the defendant
did the injury intentionally or unintentionally. If one man intentionally applies force
directly to another, the plaintiff has a cause of action in ….. trespass to the person….if he
does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of
action in trespass. His only cause of action is negligence.”
 Forcible
The word itself conjures up a picture of force which causes or is capable of causing
physical injury, in reality the law uses the term to describe any form of threatened or
actual physical interfearance with the person of another. See the case of R v Chief
constable of devon & cornwall.
 Injury
Forcible comes as no surprise to learn that injury is interpreted widely and can include
any infSringement of personal dignity or bodily integrity.
Actual physical harm is not an essential ingredient of trespass to the person although in
many cases it might have occurred. The tort is actionable per se. in other words it not
necessary to prove actual damage. It is only necessary to prove that the action of the
defendant fulfill the requisite criteria.
We shall, therefore, confine our discussion to intentional trespass to the person, of which there
are four components: Assault, Battery, Mayhem and false imprisonment. These can occur
together or separately, giving rise to a cause of action.
ASSAULT
Assault may be defined as an act of putting another
person in reasonable fear or apprehension of immediate
violence by means of an act amounting to an attempt or
threat to commit violence. The essence of the tort of
assault is “putting a man in present fear of violence”. A
beautiful illustration on this point is the leading case of
Stephens v. Myers.1

The facts briefly were that the plaintiff was the chairman
of a parish meeting. The defendant having been very
vociferous, a motion was made and carried by a large
majority that he should be turned out. Upon this the
defendant said that he would rather pull the chairman
out of the chair than be turned out of the room.
Immediately he advanced with fist clinched towards the
plaintiff, but was stopped by the church warden who sat
next to the plaintiff. Holding him liable for assault,
Tindal, C.J. remarked:

“It is not every threat, when there is no actual personal

violence, that constitutes an assault. There must in all
cases, be the means of carrying the threat into effect.
The question I shall leave to you will be whether the
defendant was advancing at the time in a threatening
attitude, to strike the chairman, so that his blow would
almost immediately have reached to the chairman, if he
had not been stopped; then though he was not near
enough, at the time to have struck him, yet if he was
advancing with that intent. I think it amounts to an
assault in law. If he was so advancing, that, within a
second or two he would have reached the plaintiff, it
seems to me it is an assault in law.”

It has been seen that immediate intention to carry out his threat into effect is the most
important factor. Physical touching or impact is not needed in the case of assault. The thing
which is needed is that there must be a reasonable apprehension of immediate injury or
violence to the plaintiff. Thus, a conditional threat is no assault nor is a mere verbal threat

1
(1830) 4 C & P 349
unless there is an immediate intention and a present ability to do the act. A case worth
mentioning on this point is of Bavisetti Venkata Surya Rao v. Nandipati Muthayya.2
The plaintiff, a rich agriculturist, was in arrear of land revenue amounting to Rs. 11.60. The
village Musnif went to his residence to collect the land revenue. On demand the plaintiff pleaded
his inability to pay. He then told the plaintiff that his ear-rings would be destrained for default in
the payment of land revenue, and called a goldsmith to take out plaintiff’s ear rings. On arrival
of the goldsmith, another person who was standing there, paid off the amount of arrears of the
plaintiff to the village Musnif. The Court held that it was not the case of assault since, after
arrival of the goldsmith, the defendant said nothing and did nothing and that the threat of use of
force by the goldsmith to the plaintiff was too remote a possibility to have put the plaintiff in fear
of immediate or instant violence.
The other case is of Birbal Khalifa v. The Crown,3 where the accused was a registered as a bad
character. A sub-inspector paid him a domiciliary visit in order to ascertain if he was home.
After calling him out, he wished to take an impression of his thumb. The accused objected to it
and instead of extending his hand, he went inside the house and brought a lathi and said that he
would break the head of anyone who asked for this thumb impression. It was held by the Court
that the threat being conditional; did not amount to an assault.

Pointing a Pistol- Pointing a loaded pistol or gun at a person is an assault, but what would be
the case if the pistol is unloaded? The premier case on this question is of Blake v. Barnard,
where Lord A binger held that “if the pistol was not loaded it would be no assault.” But it is
submitted that this decision is not intellectually satisfying either on principle or common sense.
Actually, assault involves reasonable apprehension of impact of something on one’s body, and
that is exactly what occurs when a firearm is pointed at one by an offender. It, therefore ought to
be an assault whether it is loaded or unloaded, unless the person at whom it is pointed knows it
to be unloaded, or unless his distance from the weapon was so great that any reasonable and
prudent person would have believed that he was out of range.
From the above cases it appears necessary that the plaintiff, in order to succeed in an action for
assault, must prove that (a) there was some gesture or preparation, which constituted a threat or
force; (b) the gesture or preparation was such as to cause a reasonable apprehension of force;
and (c) there was a present ostensible ability on the defendant’s part to carry out a threat into
execution immediately.
The following are the Ingredients of assault which can be direct and intention

The conduct of the defendant

Conduct in this context amount to something which threatens the use of unlawful force.

2
AIR 38 AP
3
1902
An obvious example is shaking a feast under someone’s nose causing them to fear that they are
about to be punched. In most cases it may be true that the assailant’s actions clearly convey the
necessary threat, but this not always so.
In the modern world threats can be conveyed in many ways. Apart from physical action, the most
obvious way is by means of verbal threat. Traditionally, the use of threatening words alone
would not amount to an assault as it was illustrated of R v meade & belt[1823] here the
defendants surrounded the victim’s house singing threatening songs and court held that there
was no assault committed. This may have been satisfactory in 1823 but in the 21 st century there
are other means of communication for example telephones and emails through which one can
make verbal threats which can amount to assault as seen in the case of R v Ireland [1997]4 ALL
ER 225 where the house of the lords held that silent telephone calls sometimes accompanied by
heavy breathing would amount to criminal assault. When lord steyn, rejecting the proposition in
R v meade & Belt, said:
“the preposition that words can never suffice, is unrealistic and indefensible. There is no reason
why something said should be incapable of causing an apprehension of immediate fear of
personal violence…. Take now the case of the silent caller. He intends by his silence to cause
fear and he is saw understood the victim is assailed by uncertainty about his intention. Fear
may dorminate her emotions….she may fear the possibility of immediate personal violence. As
matter of law the caller may be guilty of an assault.
Words can have the opposite effect by making it clear that the assailant does not intend to
carry out the threat as it was in the case of Turberville v Savage [1669] 1 Mod Rep 3 where the
assailant put his hand on his sword and said “ if it were not assize time, I would not take such
language from you.” The victim alleged that he had been in fear that he was about to be
attacked however court held that this cannot amount to an assault.
Therefore important to note is that words can amount to assault provided they amount to one
apprehending personal violence.

Reasonable fear
The victim’s fear that the threat is likely to be carried out must be reasonable. This depends on
a subjective test which looks at the victim’s perspective of the situation as seen in the case of R v
st George, where the defendant got into an argument with the victim and during the course of the argument,
the defendant took the gun and pointed it at the victim (Mr. Durant) in fact the gun was not loaded though the
defendant was prevented from taking further action by a third party. The defendant was prosecuted for assault.
Court held that it is an assault to point a weapon at a person though not loaded, provided it caused reasonable
fear of injury to the victim.

The victims in such cases fears perfectly reasonably that they are about to be shoot if, however,
the victims new that the gun was unloaded, any fear would likely be held to be unreasonable.
This follows that the threat must be capable of being carried out at the time it was made as held
by house of lords in R v Ireland.
Important to note is the case of R v constanza [1997]crimLR 576 where a man having
constantly followed the woman home from work, made numerous
phone calls, wrote to her over 800 letters, drove past her house,
visited her house without consent, wrote offensive words on her house
door three times which accelerated into a woman being diagnosed by
A doctor as suffering from clinical depression and anxiety due to
apprehended fear caused by the man’s actions and letters. He was
convicted of assault and It was held that if one cause the victim to
apprehend a fear of immediate violence made it sufficient to prove an
assault thus reasonable fear being a key element to prove an assault.

Defenses to assault
1. lawful authority
If a person committing assault has legal authority for the action, there can be no liability for
that act. Statutes may give two groups such authority. Who include,
 police officers
the powers of police officers are found in statute such as the police Act where an
office acts within the scope of his powers there can be no complaint for trespass to
the person, however if the action goes beyond what is permitted the police may be
liable in the civil courts the same way as any other person. This was elaborated the
case of Collins v wilcock[1984]3ALLER 374 where a police officer needed to obtain
a woman’s in order to quotion her for soliciting for the purpose of prostitution. The
officer detained the woman by holding her by the elbow. The woman scratch the
police officer and was charged with assaulting the constable in execution of her
duty. The question was whether the police office was acting lawfully when she held
the woman’s elbow to detain her. It was held that the police officer was acting
unlawfully during the detaining of the woman and therefore liable for battery and
assault.

2 Consent
If the claimant consents to the actions of the defendant, the claimant has no cause
of action. Consent may be expressed or implied. It can be argued that there is
implied consent to jostling which occurs in a packed train during the rash hour.
Examples activities that involves assault with consent include
 Sports
 A person who takes part in a contact sport such rugby, comedy or boxing consents to
the touching and assaults involving the sports according to the rules. However, one
who acts beyond the scope of the rules is liable for assault.
 Medical treatment
For consent to be infective in relieving the defendant of liability, it must be rape. The
victim must understand what it is they are consenting and the consent must be freely
given as it was illustrated in the case of Jcardoza schlendorff v Society of new York
Hospital where one of the judges stated that “ every human being of adult years and
sound has a right to determine what shall be done with his own body, and a surgeon
who performs an operation without his patients consent ,commits an assault.”

3 Necessity
Necessity can be seen in medical to justify treatment of a person without
capacity. Where a health professional is entitled to do all that is necessary to
deal with an emergency. The defendant must prove that he acted to prevent the
greater.
4 parental authority
parent is not liable when he or she is punishing a child for the immediate cause.
However a parent has to punish in a reasonable manner.
5 self defense
This is where reasonable force is used in defense of the claimant’s person, property or
another person. The basic principle is that force used must be reasonable in proportion
to the attack. Where it is contrary one cannot allege self defense. In the case of
Cockcroft v smith [1705]11Mod 43 there was scuffle in court between a lawyer and a
clerk. The clerk thrust his fingers towards the lawyers eyes, the lawyer promptly bit off
one of the clerks fingers. This was held not to be a propriety response to the threat.
Note the use of force in response to words is unlikely to reasonable unless the words
convey an immediate and real threat of the use of force.

INCONCLUSION therefore a tort of trespass to a person can be direct, intentional amounting

to injuries whose consequences are derived from the general rule for remoteness of damages on
trespass to the person which is that the assailant is liable for all the direct consequences of the
trespass .