Trespass to the Person

What is Trespass to the Person?

Trespass to the person is an element of tort law which covers wrongs done to an individual.  Its origins lie in criminal law, but trespass to the person can exist even if the victim suffers no physical harm.  Consequently, trespass to the person has as much of a deterrent nature as a compensatory one.  It can also be seen as the basis for many civil rights, as the law here aims to protect an individual’s rights as much as prevent damage occurring.

What Constitutes Trespass to the Person?

There are three main wrongs which fall under the umbrella of trespass to the person: assault, battery and false imprisonment.  They are intentional torts, meaning they cannot be committed by accident.  Although these descriptions sound like they are crimes, and indeed do share their names with some crimes, it is important to remember that these are civil wrongs and not criminal wrongs.  A person liable in tort for assault, battery or false imprisonment will not face a custodial sentence.  Instead, they will be ordered to pay damages to their victim.

Assault

In everyday parlance assault is taken to mean physical contact.  But in tort, an assault occurs when a person apprehends immediate and unlawful physical contact.  In other words, fearing that you are about to be physically attacked makes you the victim of an assault.  It is also necessary that an attack can actually take place.  If an attack is impossible, then despite a person’s apprehension of physical contact there can be no assault.  So a person waving a stick and chasing after another person who is driving away in a car would not be an assault.  It is also generally thought that words alone cannot constitute an assault, but if accompanied by threatening behaviour the tort may have been committed.  

Battery

If the physical contact that is apprehended in an assault actually takes place, then the tort of battery has been committed.  It is not necessary for the physical contact to cause any injury or permanent damage to the victim, or even be intended to do so.  The only intention required is that of making physical contact.  It is also not necessary for the tortfeasor, that is, the wrongdoer, to actually touch the victim, so battery may be committed by throwing stones at someone or spitting on them.   

False Imprisonment

False imprisonment is the unlawful restraint of a person which restricts that person’s freedom of movement.  The victim need not be physically restrained from moving.  It is sufficient if they are prevented from choosing to go where they please, even if only for a short time.  This includes being intimidated or ordered to stay somewhere.  A person can also be restrained even if they have a means of escape but it is unreasonable for them to take it, for example, if they have no clothes or they are in a first floor room with only a window as a way out.  False imprisonment can also be committed if the victim is unaware that they are being restrained, but it must be a fact that they are being restrained.

Some Defences to Trespass to the Person

Consent

If a person consents to being physically contacted, then no tort of battery exists.  Consent may be given expressly by words or implied from conduct.  A patient can give express medical consent to their doctor before undergoing an operation which in other circumstances might amount to a battery.  Similarly, certain sports, such as rugby, on the face of it comprise a continuous series of assaults and batteries.  Clearly it would be absurd if the law allowed a rugby player to sue the opposing team for trespass to the person.  So a person who consents to being physically contacted within the rules of a particular game is not a victim of a tort.  Deliberate acts of violence on the playing field, though, do not fall within this defence.

Necessity

A wrongdoer may have a successful defence if they can show that it was necessary to act in the way they did.  In other words, there must be a sound justification for breaking the law.  A person who grabs another and drags them by force from the path of an oncoming vehicle, and who by doing so prevents them from serious injury or death, is not liable in tort.  Similarly, a doctor who performs emergency surgery on an unconscious patient, who naturally cannot consent, in order to save their life, may successfully argue that the battery was necessary if the surgery performed was limited to that which was required to save the patient’s life.

Self-Defence

The defence of self-defence will only succeed if the force used was not excessive and was reasonable and necessary in the circumstances to prevent personal injury.  Each case must be considered on its own facts.  For example, if a person is attacked with a knife it may be reasonable for them to defend themselves also with a knife, but not necessarily with an automatic pistol.  It will be for the courts to decide what is reasonable. 

Defence of Others

Similarly to self-defence, a wrongdoer may successfully argue that their actions were justified in order to assist a third party who they reasonably believe is in immediate danger of being attacked.  Most commonly this occurs when a parent is protecting a child or one spouse is protecting another. 

Defence for False Imprisonment

If the victim was restrained under legal authority or justification, or if the perpetrator was exercising their legal rights or duties, then there is a complete defence to false imprisonment.