TRESPASS TO THE PERSON
This is interference with the body of a person. Every person has a right to non-interference with his body. The law of torts evolved 3 torts to protect these right or interest namely; assault, battery and false imprisonment
This is an act of the defendant which causes the plaintiff reasonable apprehension of the infliction of a battery on him the defendant. It is an act of the defendant which directly and either intentionally or negligently causes the plaintiff immediately to apprehend a contact with the body of the defendant. This tort protects a person from mental anxiety.
Rules of the Tort
1. There must be some apprehension of contact
2. There must be a means of carrying out the threat the defendant
3. The tort is actionable per se.
4. The tort is generally associated with battery
5. Mere words without body movement do not constitute assault.
Assault is constituted by:-
i. A display or show of force
ii. Pointing of a loaded gun
iii. Cursing in a threatening manner
This is the intentional and direct application of force to another person. It has been defi ned as any act of the defendant which directly and either intentionally or negligently causes some physical contact with the person or body of the plaintiff without his consent.
As a general rule battery is based on an intentional act and is both a crime and a tort.
Meaning of Force
Any physical contact with the body of the plaintiff or with his clothing is sufficient to amount to force. There is battery where the defendant shoots the plaintiff from a distance just as much as when he strikes him with his fist. Mere passive obstruction is however not battery.
In the technical sense however, no physical hurt is necessary, for all forms of trespass are actionable per se i.e. without prove of damage.
Where there is express or implied consent to contact the plaintiff can’t sue. Life would be difficult if all bodily contact was actionable and courts have struggled to fi nd some further ingredient to distinguish battery from legally unobjectionable conduct.
In Collins v. Wilcock (1984) Goff L J stated that apart from specific defenses such as lawful authority in effecting an arrest or prevention of crime, bodily contact was not actionable if it was generally acceptable in the ordinary conduct of daily life.
However, the court of appeal in Wilson v. Prigle while not wholly rejecting this approach has laid down that battery involves a ‘hostile’ touching the defendant i.e. where he wilfully interferes with the plaintiff inn a way to which he is known to object.
Touching another person in the course of a conversation in or to draw his attention to something is not battery but „an unwanted kiss is as much actionable as a blow’. (Per Lord Holt C J) in ColeTurner 1704
For battery there must be a voluntary act the defendant intended to bring about the contact with the plaintiff. The battery need not be committed with the person of the person of the defendant.
It is battery to strike the plaintiff throwing a stone at him. Provided the force used has its effect on the person of the plaintiff’s person must be intended the defendant e.g. it is battery to remove a chair on which the plaintiff is about to sit as a result of which he falls on the ground.
In Fagan v. Metropolitan Commissioner of Police (1969), the defendant accidentally drove his car on the foot of a police constable. He then delayed in reversing the car thus preventing the constable from escaping and knowing that the constable’s foot was trapped. It was held that he was liable for criminal assault
Where however words take a form of a continuing threat e.g. your money or your life, this seemingly constitutes an assault.
In Police v. Greaves, the defendant’s threat of committing a knife attack on certain policemen if they should uproot a plot near him or did not leave his premises immediately was held to be assault.
Assault is committed where the plaintiff apprehends the commission of a battery on his person. If the defendant does not intent to commit a battery but induced a belief in the plaintiff’s mind that he is about to do so, he is nevertheless liable for assault.
Pointing a loaded gun at a person is of course an assault but if the gun is unloaded it is still assault unless the person at whom it is pointed knows this.
Suppose the plaintiff is an unusually fearful person in whom the defendant can induce the fear of an imminent battery though a reasonable man would not have fear in those circumstances, does the defendant commit assault?
The better view is that the test is based upon the subjective intention of both parties thus there is battery if the defendant intends to create fear of commission of a battery whether or not he knows the plaintiff to be a fearful person and the plaintiff actually has this fear.
In Smith vs. Superintendent of Working Police Station (1983), the defendant was convicted of criminal assault when he entered the grounds of a private house and stood at the window seriously frightening its occupant who was getting ready for bed.
The plaintiff must however apprehend a battery thus it is not assault to stand still at the door of a room barring the plaintiff’s entry. It would also not be assault to falsely cry, fire in a crowded place.
MUST DAMAGES BE PROVED?
Both torts of assault and battery are actionable per se. Where the defendant’s act has caused no damage the courts may award only nominal damage but the court may also award aggravated damages because of the injury to the feelings of the plaintiff arising from the circumstances of the commission of the tort.
RULES OF BATTERY
1. Absence of the plaintiff’s consent
2. The act is based on an act of the defendant mere obstruction is not battery
3. A contact caused an accident over which the defendant has no control is not battery
4. There must be contact with the person of the plaintiff it has been observed The least touching of another person in anger is battery
5. Battery must be direct and the conduct must follow from the defendant’s act
6. The tort is actionable per se. The essence of battery is to protect a person from un-permitted contacts with his body. The principal remedy is monetary award in damages.
This is the infliction of bodily restraint which is not expressly authorized law. It’s an act which is directly and either intentionally or negligently causes the confinement of the plaintiff within an area limited the defendant.
This tort protects a person’s freedom making unlawful confinement actionable.
It is possible to commit the tort without imprisonment of a person in the common acceptance of the tort. In fact neither physical contact nor anything resembling prison is necessary.
If a lecturer locks his students in a lecture room after the usual time of dismissal that is false imprisonment. So also is the case where a person is restrained from leaving his own house or part of it or even forcibly detained in a public street. A person is said to be a prisoner if he has no liberty to go freely at all times to all places that he would like to go.
It has been held in Grainger v. Hill that imprisonment is possible even if the plaintiff is too ill to move in the absence of restraint.
MAIN INGREDIENTS OF THE TORT
(a)Knowledge of the plaintiff
Knowledge of the restraint is not necessary but may affect the quantum of damages.
In Meeting v. Graham White Aviation Co the plaintiff was being questioned at the
defendants company in connection with certain thefts from the defendants company.
He did not know of the presence of two works police outside the room who would have
prevented his leaving if necessary.
Held; the defendant was liable for false imprisonment. Arcing L J said
“it appears to me that a person can be imprisoned without his knowing. I think a person
can be imprisoned while he is asleep or in a state of drunkenness, while unconscious or
while he is a lunatic. Of course the damages might be diminished and would be affected
the question whether he was conscious or not‟
(b) Intention and directness
The tort is defined to exclude negligent imprisonment of another person. The tort must be intentional and should be committed directly. Where for reason of lack of intention or directness the plaintiff cannot establish false imprisonment an action in negligence may still be available.
In Sayers v. Badour U.D.C the plaintiff became imprisoned inside the defendant’s toilet because of negligent maintenance of the door lock the defendant’s servants.
In trying to climb out of the toilet she fell and was injured. She recovered damages from the defendant because it was a reasonable act on her part to escape from a situation in which the defendant his negligence had placed her.
An action for false imprisonment would not have been available because there was no direct act of imprisonment.
(c) The restraint must be complete
There must be a total restraint placed upon the plaintiff’s freedom of action In Bird v Jones the defendant closed off the public footpath over one side of a bridge. The plaintiff wishing to use the footpath was prevented the defendant. In the plaintiffs action one of the questions that was necessary to decide was whether the defendant’s act amounted to false imprisonment.
Held: It did not since the defendant has not placed a total restraint on the plaintiff. The blocking of a part of a public highway might be a public nuisance for which the plaintiff could bring an action in tort if he could show special damage arising from. Provided the area of restraint is total it does not seem to matter that it is very large.
There has been a difference of opinion between the court of appeal and the lower court the circumstances in which a person already the lawfully imprisoned in a prison may be regarded as falsely imprisoned.
In R v. Deputy Governor of Prison, there was an agreement that imprisonment under intolerable conditions would amount to false imprisonment. The Court Of Appeal however required knowledge of those conditions the defendant but the lower courts thought that a defense would exist here under the provisions of the prisons Act.
There is of course false imprisonment where a prisoner is detained beyond the legal date of his release. (Cowell v. Corrective Services Commissioner)
RULES OF THE TORT
1. The tort must be intentional
2. It is immaterial that the defendant acted maliciously
3. The restraint or confinement must be total. However, it need not take place in an enclosed environment
4. It has been observed every confinement of a person is an imprisonment whether it be in a common prison, private house or in the stocks or even forcibly detaining one in the public
5. The boundary of the area of confinement is fixed the defendant. The barriers need not be physical. A restraint affected the assertion of authority is sufficient.
6. The imprisonment must be direct and the plaintiff need not have been aware of the restraint
7. The tort is actionable per se.
8. The principal remedy is a monetary award in damages.