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

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For more information on:

  • Consent
  • Necessity
  • Self-defence
  • Defence for false imprisonment