Trespass to Person: Assault, Battery and False Imprisonment

Trespass to Person: Assault, Battery and False Imprisonment | Overview

• Trespass to person
• Principle
• Fowler v. Lanning
• Letang v. Cooper
• Forms of Intentional Trespass
• Assault
• Important case laws
• Battery
• Wilson v. Pringle
• False imprisonment
• Arrest by a public officer
• Arrest by a private person

This article deals with assault, battery, and false imprisonment which constitute the action of trespass to the person who has survived to the present day torts.

Trespass to person

Principle:

The positive act which directly invades any of the protected interest of an individual is actionable, subject to justification.

If the invasion was indirect though foreseeable or if the invasion was from an omission as distinguished from a positive act, there will still be no liability in trespass though the wrongdoer might be liable in some other form of action.

Through subsequent developments, its scope was further limited.

The principle used today is that,

if the invasion is unintended, though direct and resulting from a positive act, there would be no liability if the conduct of the defendant was reasonable, or even if the invasion was unreasonable, if the invasion was an unforeseeable consequence. In other words, if the action is unintended and the invasion was unforeseeable irrespective of being a direct invasion resulting from a positive act there would be no liability.

Thus, it is clear from the above principle that intention and foreseeability play a vital role in determining the liability. Trespass to a person falls under the category of intentional torts.

Reference in this context is necessary to two decisions namely,

1. Fowler v. Lanning
2. Letang v. Cooper

1. Fowler v. Lanning[1]

Facts: The plaintiff claimed damages for trespass to the person and the statement of claim alleged laconically that “the defendant shot the plaintiff” on a particular date and at a particular place.

Holding:

Diplock, J. held that trespass to person does not lie if the injury to the plaintiff although the direct consequence of the act of the defendant was caused unintentionally and without negligence on his part, that the onus of proving intention or negligence lies on the plaintiff and that he must allege either intention on the part of the defendant, or, if he relies upon negligence, he must state the facts which he alleges constitute negligence.

2. Letang v. Cooper[2]

Facts: Plaintiff got injured while she was sunbathing because of the negligent driving by the defendant. After 3 years of the incident, the plaintiff brought an action against the defendant for damages for loss and injury caused by,

1. Negligence of the defendant in driving the motor car
2. The commission by the defendant of a trespass to the person.

The claim for negligence was admittedly barred by the statute after three years and the question before the court of Appeal was,

Issue: Whether the plaintiff could succeed in an action for trespass.

Holding:

Lord Denning in deciding against the plaintiff held that,

“When the injury is not inflicted intentionally but negligently, the only cause of action is negligence and not trespass. The unintended invasions have thus been completely eclipsed by the tort of negligence and what survive now under trespass are intended invasions.”

Thus, the important rules in trespass:

1. It is for the defendant to plead and prove justifications and not for the plaintiff to show that the defendant’s conduct was unreasonable
2. Damage is not an essential element and need not be proved by the plaintiff.

The principal use today of these torts relates not so much to the recovery of compensation but rather to the establishment of a right, or a recognition that the defendant acted unlawfully. Acts of trespass to the person are generally crimes as well as torts. This article is confined to intentional trespass to the person, the three chief forms of which are assault, battery, and false imprisonment. It is generally used for the protection of one’s liberty and vindication of constitutional rights.

Forms of Intentional Trespass

I. Assault

Definition: Assault is an attempt or a threat to do corporeal hurt to another, coupled with an apparent present ability which gives a reasonable apprehension in the mind of another person that force may be used against him.

Essentials:

1. Attempt or a threat to do corporeal hurt
2. Intention
3. Apparent presentability
4. Reasonable apprehension of force.

Explanation: The threat must be a real threat (actual in nature), which should create apprehension in a person that force would be used against him.

In A. C. Cama v. H. F. Morgan[3], it was held that,

“Any gesture calculated to excite in the party threatened a reasonable apprehension that the party threatening intends immediately to offer violence, or in the language of the Indian Penal Code, is ‘about to use criminal force’ to the person threatened, constitute, if coupled with a present ability to carry such intention in execution, an assault in law.”

Mere words do not amount to an assault. But the words which the party threatening uses at the time may either give to his gestures such a meaning as may make them amount to an assault. The intention as well as the act makes an assault.[4] The words used and the gestures should not be contradicting.

Illustration:

A laid his hands on his sword, and said to Z, “if it were not assize time I would not take such language from you,” This was held not to be an assault.

Reason: A didn’t intend to immediately offer violence to Z (i.e. not about to use criminal force). There is no reasonable apprehension that the person threatening was really then and there about to use violence.[5]

Assault does not require contact. Its essence is conduct which leads the plaintiff to apprehend the application of force. In majority cases assault proceeds battery.

Important case laws:

1. Stephen v. Myers[6]

Facts: The plaintiff was a chairman of a parish meeting. The defendant having been very vociferous, a motion was made and carried by a large majority that he should be turned out. Upon this the defendant said that he would rather pull the chairman out of his chair than be turned out of the room, and immediately advanced with his fist clenched towards him; but he was stopped by one of them in the room.

Holding:

It was held that it is not every threat when there is no actual personal violence that constitutes an assault. There must be the means of carrying the threat into effect (i.e., present ability). The question I shall leave to you will be, whether the defendant was advancing at the time in a threatening attitude, to strike the chairman, if he had not been stopped by the person in the room; then though he was not near enough at the time to have struck him, yet if he was advancing with that intent, I think it amounts to an assault in law. The jury found for the plaintiff with one shilling damage.

2. R v. Ireland; R v. Burstow[7]

Facts:

In this case, the defendant had repeatedly called three different women for a period of three months. He did not speak during this call but he has breathed on the line heavily. He was later prosecuted and convicted for assault causing actual bodily harm contrary to section 47 of the offenses against the Person act of 1861. He has been convicted on the grounds of the psychiatric injury suffered by the victims. The defendant appealed his conviction on the ground that the mere silence would not amount to assault and further that the psychiatric harm suffered by the victim is not bodily harm.

Issue: Whether mere silence would cause an assault?

Holding:

The court here, has answered in an affirmative that mere silence can cause assault. Silence could be a threat when it has been done in a way that could induce fear in the victim. Where the victim is in fear that the threat will be acted on in the near future, which could amount to an assault. It has been ruled out by the court that repeated phone calls of this nature could be expected to cause a victim to apprehend immediate and unlawful violence.

Hence, threats on the telephone may be an assault provided the claimant has reason to believe that they may be carried out in the sufficiently near future to qualify as “immediate”.

II. Battery

Definition: A battery is the intentional and direct application of any physical force to another person. It is the actual striking or even touching of another person in a rude, angry, revengeful, or insolent manner.

Battery is also defined as “an intentional physical contact which is not generally acceptable in the ordinary conduct of daily life.”[8]

Essential ingredients of battery:

1. Intention
2. Direct application of physical force
3. Contact with the body of the plaintiff

Explanation: Battery is the intentional application of force to a person without lawful justification. A battery includes an assault which is briefly stated is an overt act, evidencing an immediate intention to commit a battery. Physical contact is necessary to accomplish a battery.[9]

In an action for battery the plaintiff must prove, first the use of force to him. It may be directed to his body, e.g., slapping, pushing, bringing an object in contact like, setting a dog or throwing a stone at him. It may also be to objects in contact with him, eg. touching his coat, upsetting the carriage on which he is seated, or whipping a horse on which he is riding causing it to throw him off. [10]

Battery requires actual contact with the body of another person, so seizing and laying hold of a person so as to restrain him,[11] taking a person by his collar,[12] causing another to be medically examined against his/her will[13] are held to amount to battery.

A physical contact with the body of the person or his clothing is sufficient to amount to ‘force’. There is battery if the defendant shoots the plaintiff from a distance just as much as when he strikes him with his fist. Similar is the case when the defendant deliberately runs into the car in which the plaintiff is sitting, shaking him up. [14]

The use of force must be intentional and without lawful justification. Jostling another unintentionally in a crowd is not, but doing it deliberately will amount to battery.[15] Throwing water on another is assault, and falling a drop upon him, will make it battery[16].

In the words of HOLT, C J, the least touching of another in anger is battery[17].However, hostility as a test to distinguish battery from a legally unobjectionable contact will be too narrow. ROBERT GOFF L.J. said in Collin’s case that, quite apart from specific defenses such as lawful authority, bodily contact was not actionable if it was generally acceptable, in the ordinary conduct of everyday life.

It was held that the battery involves a ‘hostile’ touching. The central idea is that the interference must be ‘offensive’ in the sense that, it infringes the claimant’s right to be physically inviolate, to be ‘let alone’.

Wilson v. Pringle[18]

Facts:

The plaintiff and the defendant were two schoolboys involved in an incident in a school corridor as the result of which the plaintiff fell and suffered injuries. The plaintiff issued a writ claiming damages and alleging that the defendant had committed a trespass to the person of the plaintiff. The defendant contended that the essential ingredients of trespass to the person were a deliberate touching, hostility, and an intention to inflict injury, and therefore if there was no intention to inflict injury, that could not amount to a trespass to the person. The plaintiff contended that there merely had to be an intentional application of force, regardless of whether it was intended to cause injury.

Holding:

An intention to injure was not an essential ingredient of an action for trespass to the person, since it was the mere trespass by itself which was the offense, and therefore, it was the act rather than the injury which had to be intentional.

However, the intentional act, in the form of an intentional touching or contact in some form, had to be proved to be a hostile touching, and hostility could not be equated with ill-will or malevolence or governed by the obvious intention shown in acts like punching, stabbing or shooting or solely by an expressed intention, although that could be strong evidence. Whether there was hostility was a question of fact in every case.

Conviction in Criminal court – no bar to civil remedy:

A civil action lies for an assault, and criminal proceedings may also be taken against the wrongdoer. The fact that the wrongdoer has been fined by a criminal court for assault is no bar to a civil action against him for damages.[19] The previous conviction for assault in the criminal court is no evidence of an assault. The factum of the assault must be tried in the civil court, which is not bound by conviction or acquittal in criminal proceedings.[20]

The torts of assault and battery (together with false imprisonment) not only provide compensation for the victims of these torts but they also have an important role to play in the vindication of constitutional rights.[21] The compensatory function of these torts may be of slightly less significance today, in view of certain recent developments in compensating victims of crime, but the other function continues to be of considerable importance. The traditional torts of assault and battery adapted to meet the changing needs of our time are therefore worthy of our consideration and it is well to dispel such ignorance as there is, about them.

III. False imprisonment

False imprisonment is a total restraint of the liberty of the person for a however short time, without lawful excuse[22]. The word false means ‘erroneous’ or ‘wrong’. False imprisonment is a tort of strict liability and there is no necessity for the plaintiff to prove fault on the part of the defendant[23].

The necessary components to constitute false imprisonment are as follows:-

1. The liberty of the person must be totally restrained. The detention of the person may be either actual, that is, physical or constructive, by merely showing the authority.
2. The detention must be unlawful.

The period of detention is totally irrelevant. But if it is lawful it is not false imprisonment[24]. Each and every confinement of the person is an imprisonment, whether it is in a private house, or in a common prison, or in the stocks, or even by detaining forcibly in the public streets.

“A prison may have its boundary large or narrow, visible and tangible, or, though real, still in the conception only, it may itself be moveable or fixed: but a boundary it must have; and that boundary the party imprisoned must be prevented from passing.”[25]

Imprisonment is a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will whatever inconvenience it may bring[26]. If any person compels the other to be in a particular place which is completely against the will of the person, it is imprisonment which is just as much as if he has locked him up in the room.

Also forcing a man to go in a particular direction will also amount to false imprisonment. But it is not false imprisonment if one man merely obstructs the way of another in a particular direction, whether by the threat of violence or otherwise, leaving him at liberty to stay where he is or to go in any other direction he pleases, he can’t be said thereby to imprison him.

It is important to note that the use of physical force is not important in case of false imprisonment. Also, in case of false imprisonment, knowledge of the plaintiff that he has been imprisoned is not required.

“A person can be in the state of drunkenness, maybe asleep or unconscious or lunatic at the time of imprisonment. Those are situations where the person might properly complain if he were imprisoned, though the imprisonment began and ceased while he was in that state. But the damages might be diminished and would be affected by the question whether he was conscious of it or not”[27]. “A person who is unaware of the fact that he has been imprisoned and who has suffered no harm can normally expect to recover nominal damages only”[28]

A person may be liable for false imprisonment not only in cases where he arrests or detains the prisoners directly but also in cases where he has been “active in promoting or causing” the arrest or detention.[29]

Arrest by a public officer:

Section 41(1) of the Code of Criminal Procedure, 1973 provides that a Police Officer may arrest a person

“who has been concerned in any cognizable offense, against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists of having been so concerned”.

The existence of a reasonable suspicion that the person to be arrested is concerned in cognizable offense is the minimum requirement before an arrest can be made by a police officer[30]. No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice[31].

Even a person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate and no such person shall be detained in custody beyond the period without the authority of a Magistrate.[32]

An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when by words of conduct he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go.[33] Since arrest involves trespass to the person, the onus lies on the arrestor to justify e trespass by establishing that the arrest was lawful and was made at least on reasonable suspicion.

A law enforcement officer arresting a person bona fide on reasonable suspicion for commission of an offense under a law is not guilty of false imprisonment if the law is later declared invalid although the person arrested cannot be convicted because of such a declaration.[34]

Arrest by a private person:

Section 43 of the Code of Criminal Procedure, 1973 provides that a private person may arrest any person who in his view has committed a non-bailable and cognizable offense or is a proclaimed offender.

After making the arrest the person arresting may take the person arrested to a police officer of the nearest police station. It is essential that a private individual, in whose presence a non-bailable and cognizable offense is committed, should himself physically arrest the offender. He may cause such an offender to be arrested by another person.[35]

1. Bird v. Jones:

Facts: – In Bird v. Jones a part of a bridge, generally used as a footway, was appropriated for seats to view a boat-race. The plaintiff insisted upon passing along the part so appropriated and attempted to climb over the enclosure. The defendant pulled him back but the plaintiff succeeded in climbing the enclosure.

Two policemen were then stationed by the defendant to prevent him from passing onwards in the direction in which he wished to go. The plaintiff was told to go back into the carriageway and proceed to the other side of the bridge if he pleased. But the plaintiff refused to do so and remained where he was so obstructed for about half an hour.

Decision: – The court ruled out that it is false imprisonment for a person to be forced to stay in a place just as much as locking them in a room. There need not be any touch. However, in this case, it can’t be false imprisonment to prevent a person from moving forward but allowing them to return in the way they came even that is unlawful to stop them. It is no doubt that the person commits a wrong but it is not false imprisonment, maybe assault or battery.

2. Bhim Singh v. State of Jammu and Kashmir:

Facts: – In this case petitioner was an M.L.A. Of Jammu and Kashmir. While he was going to attend the assembly session he was retained by some police officer and they did not allow him to go and he was going for a session at the session assembly which was met on 11th September 1985. There was also a voting session at the assembly and he was not able to vote as he was not allowed to go.

Mr. Bhim Singh was arrested and was not presented before the magistrate for four days and was kept in some hidden place. He was going to the assembly where his vote was very crucial and the person to whom he wanted to give the vote won but his right to vote was infringed. When he was not satisfied with the judgment of the high court then he went to the Supreme Court by filing the writ petition under Article 32 of the Indian constitution.

Decision: In this case the court ruled out that the petitioner was detained unlawfully when he was going to attend the assembly session at the parliament. Article 21 of the Indian constitution has been deprived of him and also many other fundamental rights were also deprived. The count awarded him 50,000/ compensation on account of the infringement of his Fundamental Rights.

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References:

Trindade, F. A. “Intentional Torts: Some Thoughts on Assault and Battery.” Oxford Journal of Legal Studies, vol. 2, no. 2, 1982, pp. 211–237. JSTOR, www.jstor.org/stable/764278. Accessed 25 May 2020.

Hall, Jerome. “Interrelations of Criminal Law and Torts: I.” Columbia Law Review, vol. 43, no. 6, 1943, pp. 753–779. JSTOR, www.jstor.org/stable/1117150. Accessed 25 May 2020.

[1] (1959) 1 Q.B. 426

[2] (1965) Q.B. 232

[3] (1864) 1 BHC 205, 206

[4] Tuberville v. Savage, (1669) 1 Mod 3.

[5] Tuberville v. Savage, (1669) 1 Mod 3.

[6] (1830) 172 ER 735

[7] (1998) AC 147.

[8] Collins v. Wilcock, (1984) 3 All ER 374, p. 378.

[9] Justice G. P.Singh (ed.), Ratanlal & Dhirajlal on Law Of Tort, (26th ed.2012) at 256-275

[10] Justice G. P.Singh (ed.), Ratanlal & Dhirajlal on Law Of Tort, (26th ed.2012) at 256-275

[11] Rawling v.Tull (1837) 3 M KW 28

[12] Wiffin v. Kincaid (1807) 2 B & PNR 471

[13] Latter v. Braddell (1881) 28 WR (Eng) 239

[14] Clark v. State ,746 So 2d 1237 (Fla.1999)

[15] Cole v. Turner (1704) 6 Mod 149

[16] Justice G. P.Singh (ed.), Ratanlal & Dhirajlal on Law Of Tort, (26th ed.2012) at 256-275

[17] Cole v. Turner (1704) 6 Mod 149

[18] (1987) Q.B. 237

[19] Akhil Chandra Biwas v. Akhil Chandra Dey, (1902) 6 CWN 915.

[20] Jagga Rao, In re, (1935) 68 MLJ 660

[21] Weir, A Casebook on Tort 3rd ed (1974) 256.

[22] Bird v. Jones, (1845)7 QB 742

[23] R v. Governor of Brockhill Prison, (2000) 4 All ER 15

[24] Henderson v. Preston, (1888) 21 QBD 362

[25] Bird v. Jones, (1845)7 QB 742

[26] Warner v. Riddiford, (1858) 4 CBNS 180.

[27] Meering v. Graham White Aviation Company Limited, (1919) 122 LT 44

[28] R v. Bournewood NHS Trust, (1998) 1 AII ER 634

[29] Aitken v. Bedwell, (1827) Mood & M 68.

[30] Gulabchand Kannoolal v. State of M.P., 1982 MPLJ 7 (17).

[31] Article 22 (1), Constitution of India.

[32] Article 22(2), Constitution of India.

[33] Shaban Bin Hussain v. Chong Fook Kam, (1969) 3 AII ER (PC)

[34] Perry v. Hall, (1996) 4 AII ER 523.

[35] Gouri Prasad Dey v. Chartered Bank of India, Australia and China, (1925)ILR 52 Cal 615.

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