TRESPASS TO THE PERSON

By Chad Rattray
 Discussion

1. What is “Trespass to the Person”

2. Why is this element of law important
in the Caribbean Society?
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 Trespass to the person means a direct or an
intentional interference with a person’s bodily
integrity or legal rights and liberty. An
individual has a right to freedom from interference
with his body or his right to personal liberty.
There are four main forms of trespass to a person,
Introduction namely,
 Assault
 Battery
 False imprisonment
 Malicious prosecution
 Assault is the direct threat
of violence which is
Assault:
calculated to put the
Definition
claimant in reasonable fear
of immediate physical
contact with his person
 Stephens v Myers
Ratio: In a turbulent parish council meeting, the
meeting voted to have the defendant ejected. He
refused, and advanced toward the chairman waving
his clenched fist and saying he would rather throw
Assault: him from the chair. He was stopped before getting
- The Use of within striking distance, but the chairman sued for
Threats assault.
- Does every Held: The claim succeeded. Tindal CJ said: ‘It is
threat constitute not every threat, when there is no actual personal
Assault? violence, that constitutes an assault, there must, in
all cases, be the means of carrying the threat into
effect.’
 In determining whether the
claimant was put in reasonable
Assault: fear, the court applies an
What is “objective test”, that is whether
a person of ordinary courage
“reasonable
would have been afraid in the
fear?” circumstances.
 Innes v Wylie (1844)
 The claimant tried to enter a room in a hotel to attend a
society’s meeting. The defendant, wrongly believing the
claimant to have been expelled from the society for
threatening behaviour, instructed a policeman to block his
path. When the claimant tried to force his way past the
Assault: policeman, the policeman pushed him back. The claimant
sued the defendant for instructing the policeman
What is to assault him.
 The judge instructed the jury that if the policeman had
“reasonable actively pushed the claimant, there was an assault. If, on

fear?” the other hand, the policeman had acted as a

passive obstacle, akin to a door or wall, there would
be no assault. The jury held that there had been an
assault.
 The judge’s directions to the jury in this case indicate that
it is not possible to commit assault or battery purely by
omission.
 Smith v Chief Superintendent,
Woking Police Station (1983)
The victim was at home in her ground-floor flat
Assault: dressed in her nightdress. She was terrified when
she suddenly saw the defendant standing in her
What is garden staring at her through the window.
“reasonable
fear?” The court held that he was liable for assault, on
After Innes v the grounds that the victim feared immediate
Whylie (!834) infliction of force, even though she was safely
locked inside the building and with the
defendant merely standing
  Battery is an act whereby something is
intentionally bought into contact with the
plaintiff’s body, without his consent, e.g. a
slap, a punch, throwing an object or water,
spitting, knocking over his chair, setting a dog
on him, unwanted kissing, etc.
Batter  The amount of harm inflicted is relevant to
the amount of damages awarded, but not to
y the determination of liability
 Jostling or pushing in a crowd, or tapping
on the arm to draw attention, are ‘contacts
conforming with accepted usage of daily life
and are not actionable
 A battery is the unwanted contact
or the infliction of unlawful force
by one person upon another,
Battery: without his consent, e.g. a slap, a
Definition punch, throwing an object or water,
spitting, knocking over his chair,
setting a dog on him, unwanted
kissing, etc.
 Wilson v Pringle [1986] 2 All ER 440

The plaintiff and the defendant were two schoolboys of the

same age and attended school together. The defendant, as an
act of horseplay, pulled the plaintiff’s bag off the plaintiff’s
shoulder causing the plaintiff to fall and injure his hip. The
defendant was held liable for battery.
Battery
Intentional vs. The defendant appealed to the Court of Appeal, contending
that the essential ingredients of trespass to the person were a
Playful/ deliberate touching, hostility and an intention to inflict injury,
Accidental and therefore horseplay in which there was no intention to
inflict injury could not amount to a trespass to the person.
Force?
The plaintiff contended that there merely had to be an
intentional application of force, such as horseplay involved,
regardless of whether it was intended to cause injury.
 Wilson v Pringle [1986] 2 All ER 440

Held - An intention to injure was

not an essential ingredient of an
Battery action for trespass to the person,
Wilson v since it was the mere trespass by
Pringle itself which was the offence and
(1986) therefore it was the act rather
than the injury which had to be
intentional.
 In Nash v Sheen (1953) the plaintiff went to a
hairdressing saloon where the defendant used a
tone rinse without first obtaining the plaintiff’s
consent. The plaintiff developed some skin
complication due to adverse reaction to the tone
Battery rinse.
The Need for Held : the consent given by the plaintiff did not
Consent include tone rinse and its consequences, thus
Nash v battery was established.
Sheen(1953)
 Consent may be given expressly by words or
be implied from conduct. Consent should not
be influenced by duress, fraud etc.

Defenses to
assault and
battery:
Consent A person is deemed to consent to a
reasonable degree of physical contact as a
result of social interaction. For eg. in Wilson v
Pringle [1986] it was said that “everyone is
taken to consent to being touched in a crowd
or to contact generally acceptable in the
conduct of daily life”.
 Let’s Discuss

Tony as a Lacrosse athlete made a

foul that resulted in Tyler-Dane
Defenses to being hit by his stick but did not

assault and suffer any injury.

battery:
Tyler-Dane takes his stick and then
Consent slaps Tony in his back.

Examine Tony and Tyler-Dane’s

Liability
 Those who take part in sports
also consent to a reasonable
degree of physical contact during
Defenses to the course of play, ie within the
assault and rules, even to the risk of being
battery: unintentionally injured.
Consent However, there can be no
consent to deliberate acts of
violence.
 Colby v Schmidt [1986]

• The parties were players in an amateur game of rugby.

The defendant stuck the plaintiff on the jaw with his
elbow, fracturing it in three places and causing
extensive dental damage. The plaintiff sued for batter
Defenses to and the defendant pleaded consent in that the plaintiff
had assumed the risks of injury inherent in the game.
assault and
• The defendant was held liable: According to Oppal, J.
battery: “It cannot be said that because the plaintiff played
rugby that he consented to that type of conduct and
Consent actions exhibited by the defendant. By playing a
sport which involves physical contact, a player does
not assume any and all risks. There must be a
realistic limit as to that risk. Similarly, a person who
engages in a sport in which violence and injuries
prevail is not rendered immune from legal liability.
 It has long been an
established rule of the
common law that a person
may use reasonable force
Defenses to to defend himself,
assault and another person, or his
battery: property from attack.
Self Defence
What is reasonable force is
a question of fact in each
case
 Defenses to Assault and Battery:
Necessity
Lord Goff stated: "There is,
however, a third group of
cases, which is also
properly described as
founded upon the principle
In F v West Berks Health of necessity and which is
Authority [1989] it was more pertinent to the
proposed to sterilize F. F resolution of the problem in
It was held that the
was an adult with a mental the present case. These
operation was in F’s best
capacity so restricted it was cases are concerned with
interests and could
impossible for her to action taken as a matter of
therefore be lawfully
consent to the operation. It necessity to assist another
performed on her despite
was agreed that the person without his consent.
her inability to consent to
operation was in her best To give a simple example, a
it.
interests. The issue was man who seizes another
whether such operation and forcibly drags him from
would be an unlawful act. the path of an oncoming
vehicle, thereby saving him
from injury or even death,
commits no wrong". Carson
Hamilton – CAPE Law Page
33
 Defenses to Assault and Battery:
Necessity

The basic requirements, applicable in these cases of necessity,

were not only that there must there be a necessity to act when
it is not practicable to communicate with the assisted person,
but also that the action taken must be such as a reasonable
person would in all circumstances take, acting in the best
interests of the assisted person.

Emergency and necessity is not the same thing. There can be

an emergency but the action taken is not one of necessity. The
test therefore is whether the act was necessary
 In the Caribbean, most actions for assault and
battery are brought against police officers and the
Attorney General as the representative of the
government. There is a rule of law laid down by
the House of Lords in Rookes v Bernard (1964)
Assessment that where a government servant commits an
of damage arbitrary, oppressive or unconstitutional act
against a member of the public, exemplary
(punitive) damages that is damages that are
intended to punish the defendant and to deter
similar acts in the future, may be awarded by the
court, in addition to the normal compensatory
damages. Police officers are government
servants
 This is committed where a person is wrongfully deprived
of his liberty. In the Caribbean, this most often occurs
where police officers arrest or detain persons without
lawful justification. Any physical restrain is sufficient, and
it is not necessary that physical force should have been
used. Thus police officers may be liable where they order a
False person, without physically holding him, to accompany
them to the police station, and that person, submits to the
Imprisonmen ‘show of authority’.

t Similarly, a security guard at a store may be liable for false

imprisonment where he ‘requests’ that a suspected
shoplifter accompany him to the store office, and that
person complies in order to avoid an embarrassing scene in
a public place.
 C came under suspicion by the police who were
investigating certain irregularities at the Public Works
Department. On pay day, C was allowed to draw his
money and then he was immediately accosted by a
uniformed constable and accused of having drawn pay
without having worked for it. He was then invited to
Clarke v show the police where he had done the work, and later
to accompany them to the barracks at Lucea to make a
Davis (1964) statement. At no time was C physically manhandled or
restrained. On the issue of whether C was under restraint
sufficient to ground an action for false imprisonment,
Lewis J.A., in the Jamaican Court of Appeal, said:
Assuming that he was invited to show the police where
he had done this work, the question arises whether in the
circumstances he could have reasonably refused to go
. In my view, in those circumstances the appellant could
have done nothing other than to go with the police, and he
went with them...In the face of this situation, his salary
having been taken from him under circumstances of an
implied accusation, the fact that he was in a police car
surrounded by three police officers, was his agreement to
go to [the barracks at] Lucea, as the police say, a true
consent or was it merely a submission to circumstances of
authority against which he could not resist? He said in
evidence that he considered himself to be under arrest. I am
clearly of opinion that in those circumstances the appellant
was under restraint and was bound to submit to the wishes
of the police officers.
After making the statement, C’s money was returned to him
and he was allowed to go. The police officers were held
liable for false imprisonment as they had no reasonable
cause for detaining C, and the defence under s. 39 of the
Constabulary Force Law was not therefore available to
them.
 Part of a public road had been closed for
spectators of a boat race. Bird (P) wanted
to enter but he was prevented by Jones (D)
and other policemen because he had not
Bird v Jones paid the admission fee. Bird was able to
enter the enclosure by other means but
was unable to go where he wanted to go.
The policemen refused access to where he
wanted to go but allowed him to remain
where he was and would have allowed
him to leave. P remained within the
enclosure and refused to leave. Bird sued
Jones for false imprisonment.
 The plaintiff entered DaCosta’s department store in
Bridgetown shortly before closing time and selected an item.
The cashier’s till had already been closed for the day. The
plaintiff therefore paid the exact purchase price to the cashier,
but she could not be given a receipt. The cashier omitted to
McCollin v remove the electronic tag from the item, which she wrapped
in the store’s bag and handed to the plaintiff. As the plaintiff
DaCosta and walked through the exit an alarm sounded and the fourth
defendant, a security guard employed by Brink’s Barbados
Musson Ltd., the third defendant, stepped across to the plaintiff and
asked her if she had purchased anything from the store. The
Limited (1982) second defendant, an employee of DaCosta’s, suggested that
the plaintiff should return to the cashier for the tag to be
removed. The plaintiff protested but handed the bag to the
second defendant who took it to the cashier for the tag to be
removed from the item.
The second defendant apologized to the plaintiff
for any inconvenience that had been caused to
her, and the plaintiff left the store. The plaintiff
claimed damages for false imprisonment.

Held, the actions of the fourth and second

defendants amounted to a detention of the
plaintiff against her will and all four defendants
were liable for false imprisonment.
Ward v City of Vancouver (2007)
INVESTIGATIVE DETENTION MUST BE BRIEF. POLICE DO
NOT HAVE LEGAL AUTHORITY TO DETAIN A PLAINTIFF FOR
MORE THAN A BRIEF TIME IF THEY LACK REASONABLE
AND PROBABLE GROUNDS FOR FULL ARREST.
Cameron Ward, high-profile civil rights lawyer, attended visit by PM
Chretien in Chinatown. Police alerted of pie-thrower, and Ward
somewhat matched description of the pie-throwing suspect. And
officer observed Ward moving quickly through the crowds > detained
him. Ward started screaming to attract attention of nearby media.
Ward arrested for breach of peace, and placed under investigative
detention for assault/attempted assault with pie > taken to jail. Ward
held in jail for approx 4 hours after PM left the area. Court found
Ward was falsely imprisoned by police from the time PM left area to
the time he was released from jail > the police had lawful authority to
arrest Ward for breach of peace and detain him until PM left, but the
police did not have authority to detain him for 4 hrs after PM left
because they lacked reasonable and probable grounds for full arrest
(investigative detention for assault was not brief, therefore unlawful).
[BCSC]
  NO FALSE IMPRISONMENT IF PLAINTIFF
CONSENTED TO RESTRAINT (E.G. WORKING IN
MINE, FLYING ON PLANE).
Herd worked in mine owned by the Respondent.

Herd v Herd claimed falsely imprisonment when employer

prevented him from using cage elevator to leave the
mine before the end of his shift. Court found that
Weardale she consented to restraint in mine until the end of
his shift. [House of Lords]
Steel
Defence The main defence to liability for false imprisonment is
lawful arrest. Police officers and, to a lesser extent,
private individuals, have statutory and common law
powers to arrest suspected offenders.
Arrest may also lawfully be carried out under a valid
Defences warrant obtained from a magistrate. For example
statutory power of arrest
Many statutes give power to arrest ‘on reasonable
suspicion’ that the arrestee has committed an offence.
It is for arresting officer to prove that he did have
reasonable and probable cause to suspect that the
arrestee had committed the offence for which he was
arrested.
It is important that the proper procedure should be
followed during and after an arrest. In particular,
the arrestee at the time of the arrest must be told the
reason for the arrest, unless he must have been
aware of the reason (for example, where he was
caught ‘red handed’ in the commission of an
offence) or he made it impossible for the arresting
officer to tell him the reason e.g. where the counter-
attacked or ran away) These principles were
established in the case of Christie v Leachinsky
(1947) and support the principle that a person has a
constitutional right to know why he is being
detained, so that he will be in a position to know
whether to resist the arrest. See also Jamaican
Constitution s. 15(2)
 The plaintiff was a vendor in the San Fernando Central Market.
Two other vendors in the market reported to the defendant
constable (S) that they had lost a bag of oranges which they said
they had seen at the plaintiff’s stall. As a consequence, (S) arrested
the plaintiff and later the same day handed him over to another
police officer (F) who preferred charges of larceny of the oranges
against the plaintiff and locked him in a police cell. Before and
Sibbon v Sandy after his arrest, the plaintiff had insisted that he had bought the
oranges from an Indian boy who would be returning to the market
(1983)and the following Tuesday. The plaintiff subsequently appeared before
the magistrate and the charge of larceny of oranges was dismissed.
Cummings v Held: the arrest was unlawful as S and F had no reasonable and
probable cause to suspect that the plaintiff had stolen the oranges,
Demas and they were liable for false imprisonment.
EDOO J. The questions which must be considered are: (i) Whether
Sandy and Fortune had reasonable and probable cause for
suspecting that the plaintiff had stolen the oranges. (ii) Whether
they were justified in arresting and imprisoning him without a
warrant.
 On August 31, 1942, the plaintiffs, who were Liverpool police
constables, arrested the defendant at his warehouse in Liverpool,
without a warrant. At the time they suspected and had reasonable
grounds for suspecting that he had stolen or feloniously received at
Leicester a bale of fabric then in the warehouse, but they did not
give this as the ground of the arrest, professing instead to arrest him
on a charge of “unlawful possession” under the Liverpool
Christie v Corporation Act, 1921, though in the circumstances the Act
admittedly gave them no power to arrest without warrant. The
Leachinsky defendant was taken to the police station and there detained in
custody until the following day, when he was brought before the
magistrate on the charge of “unlawful possession,” being by him
remanded in custody for a week, and subsequently, further remanded
on bail on September 8, for a further week. In an action for false
imprisonment the appellants sought to justify the arrest and
detention from August 31 to September 1 on the common law
ground:

Held (affirming the judgment of the Court of Appeal), an arrest

without warrant can be justified only if it is an arrest on a charge
made known to the person arrested, and the appeal of justification
It is important that proper procedure should be
followed during and after an arrest.
After an arrest, the arrestee must be brought before
a magistrate as soon as reasonably practicable
through a police officer may make reasonable
further investigations before charging the arrestee
such as taking him to his home or place of work to
search for evidence or putting him on an
identification parade.
  A person may be liable for false imprisonment
through he does not himself carry out the actual
arrest. He will be liable where he authorizes or
directs a ministerial officer such as a constable to
make the arrest. He will be liable where he
authorizes or directs as a ‘ministerial officer’
Arrest 
such as a constable to
Mullings v Murrell make the arrest.
through an
agent
But where a person merely makes a report to a
police who in the exercise of their own independent
discretion make an arrest, the informant cannot be
liable for false imprisonment
 As in the case of assault and battery, exemplary, in
addition to compensation, damages may be
awarded against the Attorney General for any
oppressive, arbitrary or unconstitutional act by a
government servant, such as a police officer.

Assessment
of damages
for false
imprisonment
  2016 Carla, a lawyer, is late for court and takes a
chance to drive along the priority bust route even
though she has forgotten her pass at home. She
is driving within the speed limit and upon arriving
at Pacro Town junction she is stopped by
Inspector Showoffe who searches her car and
Evaluation 1 arrested her despite her explanation that she has
to be in court by 9.00 am. Inspector Showoffe
orders Carla to accompany him to the police
station for questioning and she obeys. Carla is
detained at the police station overnight and
released the next morning. Inspector Showoffe
charges Carla for dangerous driving but the case
is dismissed
  Carla comes to you for advice on whether she
can succeed in an action against Inspector
Showoffe.
 (a) Define EACH of the following:
 (i) False imprisonment

Past –paper 

(ii) Malicious prosecution (4 marks)
With reference to THREE decided cases, explain
question whether Carla can succeed in an action against
Inspector Showoffe for false imprisonment and
malicious prosecution