Trespass to the person

What is trespass to the person?

Trespass to the person is a tort which involves wrongs being done to an individual. It can arise even if the victim suffers no physical harm. 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. Trespass to the person is a civil wrong and not a criminal wrong; a person liable in tort for assault, battery or false imprisonment, therefore, will not face a custodial sentence, but will instead be ordered to pay damages to their victim.

Assault

In everyday parlance assault is taken to mean physical contact. In tort, however, an assault occurs when a person apprehends immediate and unlawful physical contact due to the intentional actions of another. Fearing you are about to be physically attacked, therefore, 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 – for example, a person waving a stick and chasing 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, 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 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 for a short time. This includes being intimidated or ordered to stay somewhere. A person can also be falsely imprisoned even if they have a means of escape but it is unreasonable for them to take it; for example, if 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 they are being restrained, but it must be a fact that they are being restrained.

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 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 defend themselves, another person, or their property from attack. 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 for false imprisonment

If the victim was restrained under legal authority or justification, or if the perpetrator was exercising their legal rights or duties, there is a complete defence to false imprisonment. This would include the powers of arrest, exercisable by a constable or a private citizen, under the Police and Criminal Evidence Act 1984.

The suspect must be informed as soon as possible that they are under arrest and the grounds for their arrest. Only reasonable force may be used to carry out the arrest and, in the case of a citizen’s arrest, the arrested person must be handed over to the police as soon as is practicable.