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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE:
Trespass to Person

SUBJECT:
Law of Torts

NAME OF THE FACULTY:

Dr. Sri Devi

Name of the Candidate: Syed Owais Talib

Roll No.: 2016107
Semester: 1st semester
Acknowledgement
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Firstly, I would like to express my sincere gratitude to my respected Law of Torts

professor, Dr.Sri Devi for giving me a golden opportunity to take up this project regarding
Trespass to person and sincere thanks for the continuous support of my study and related
research, for her patience, motivation, and immense knowledge. Her guidance helped me in
all the time of research. I could not have imagined having a better advisor and mentor for my
research.

Contents
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1. Objectives of the study.4

2. Significance of the study..4
3. Scope of study..4
4. Review of literature..4
5. Research methodology.4
6. Introduction..5
7. Relevance of intention in trespass to person6
8. Assault..7
a. Assault..7
b. Essential ingredients of assault.8
c. Cases of assault.8
9. Battery...10
a. Battery...10
b. Essential ingredients of battery.10
c. Cases of Battery.10
10. Defenses to Assault and Battery12
11. False Imprisonment13
a. False Imprisonment13
b. Essential ingredients of False Imprisonment..13
c. Cases of False Imprisonment .13
d. False Imprisonment and Constitution of India16
e. Defences..18
f. Remedies.19
12. Conclusion...20
13. Bibliography21

Objectives of the study

This studies aims at studying the trespass to person with all its types, defences and remedies.
It studies the evolution of the law of trespass to person It also studies the cases laws of the
trespass to person.

Significance of study
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This study signifies the law of trespass to person. It helps us to know more about the laws and
principles of trespass to person.

Scope of study
The study of the tort of trespass with special reference to trespass to person.

Review of Literature
The data collected for this study is obtained through Primary sources i.e. Books and Journals
and Secondary sources i.e. Websites

Research methodology
This project is purely doctrinal type and the material and literature is collected from both on
primary and secondary sources such as websites, books, journals and internet sources. This
Research process deals with collecting and analyzing information to answer questions. The
Research is purely descriptive in its boundaries of the topic.

Body of the project

Introduction

Under the law of torts, trespass is classified into three categories; namely:
Trespass to land
Trespass to goods
Trespass to person
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The acts of trespass to person attracts the liability under the tort law as well as the criminal
law. The trespass to person in criminal law in India is well defined in the IPC.1

Trespass to the person historically involved six separate trespasses: threats, assault, battery,
wounding, mayhem, and maiming. Through the evolution of the common law in various
jurisdictions, and the codification of common law torts, most jurisdictions now broadly
recognize three trespasses to the person, Assault, Battery and False imprisonment.

All three require that the act be a direct and intentional act, with indirect or unintentional acts
falling under the tort of negligence. Battery and assault require the claimant to establish that
the defendant intended to act, while false imprisonment is a tort of strict liability. The guiding
principle behind all three is based on the statement of Goff, L.J., who stated in Collins v
Wilcock that "any person's body is inviolate", excepting normal, day-to-day physical contact.

Relevance of intention in trespass to person:

As per the old law, whenever an injury was caused to others by a person by direct and
immediate use of force, the plaintiff can sue the defendant in trespass to person, without
alleging the tort of negligence, whereas if the injury was only consequential he had to sue in
the case of negligence.

Instead of dividing action for personal injuries into trespass or negligence the cause of action
itself is divided. The thing which is taken into account is whether the act was done with any
intention or not.

1 Indian Penal Code,1860

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Thus a person in order to establish a case of trespass to person does not need to prove
whether there was an intention to commit the trespass or not.

In Fowler v. Lanning2, Diplock J. equated the burden of proof in cases of unintentional

trespass with that in those of negligence.

Lord Denning in Letang v. Cooper3 has recognized the importance of intention in trespass to
person.
Facts
Mr. Cooper negligently drove over Mrs. Letang in his car while she was sunbathing on a
piece of grass where the cars were parked. Letang filed a claim of trespass to the person,
because the claim under the tort of negligence was time-barred. Trespass to the person is a
tort involving wrongful direct interference with another person and traditionally includes both
intentional and negligent act.

Judgment
The Court of Appeal, the bench containing of Lord Denning MR, Diplock LJ and Danckwerts
LJ, unanimously held that since Cooper's actions were negligent rather than intentional, the
statute of limitations barring the claims and actions for damage caused by negligence applied.
Letang failed to recover her damages because her claim was too late.

Effect
The effect of this case is that an action for the tort of trespass to the person can only be
brought for intentional torts, such as assault, battery, false imprisonment, trespass to land and
goods, etc. Plaintiff wishing to recover damage to his person or property that was caused by
the defendant's negligent action needs to prove all the ingredients of negligence.

In this project the focus will be on the trespass to person. The trespass to person can be again
classified in to three types:
1. Assault

2 In Fowler v. Lanning [1959] 1QB 426

3 Letang v Cooper [1964] EWCA Civ 5

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2. Battery
3. False Imprisonment

Assault:

Assault is an intentional act by one person that puts another person in apprehension of
imminent harmful or wrongful contact. The assault is a crime in India under section 351 of
the IPC. An assault is carried out by a threat of bodily harm coupled with apparent and
present ability to cause harm. There must be intention as well as act done for an assault to
occur. Only words used does not amount to assault. But the words which a party uses
threateningly at the time may or give gestures such a meaning as may make them amount to
assault. In most of the cases, battery is preceded by assault but it is not always necessary that
assault precede battery. It can happen that someone hits a person from behind his back, in this
case assault did not precede battery. It was earlier said that assault requires some bodily
movements and threating words would not constitute assault. It was later rejected by the
House of Lords in the cases of R v. Ireland4 where it was stated that only words can constitute
assault provided the plaintiff has reason to believe that they may be carried out in the near
future to qualify as immediate threat. This was also upheld by the Court of Appeal in the
case of R v. Constanza.5

Essential ingredients of assault:

Intent
Apparent ability to carry it our
Apprehension
Knowledge of threat

Cases of Assault:

Stephen v Myers (1830)

4 R v Ireland [1997] 4 All ER 225

5 R v Constanza [1997] Crim LR 576

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Facts
The Plaintiff who was a chairman at a meeting sat at a table where the defendant was sat.
There were six people between the plaintiff and defendant. The defendant who was disruptive
and subsequently motion was passed that the defendant should leave the room. The defendant
said he would rather pull the plaintiff out of his chair and immediately advanced with his fist
clenched towards the chairman but was stopped by the man sat next to the plaintiff. It seemed
that his intention was to hit the plaintiff. The defendant argued that no assault took place as
defendant did not have power of carrying out his threat as there were people in between them.

Judgement
The court stated that not every threat is an assault. There needs to be a means of carrying out
the threat. The judge directed the jury that if the defendant could have reached the chairman
and hit him there would have been an assault. But if the defendant did not have any intention
of hitting the plaintiff, or it was unrealistic that he could reach the plaintiff, then there will be
no act of assault.

Bavisetti Venkat Surya Rao v. Nandipati Muthayya:

Facts
In this case, the plaintiff, who was a well to do agriculturist, was in arrears of land revenue.
The village revenue collector, who had duty to collect revenue, went to the plaintiffs
residence to collect the amount. When the defendant demanded to pay, the plaintiff pleaded
his inability to pay the revenue as his wife had locked the house and gone out for a few days.
The defendant insisted to have the payment as the very day was the last day of the year for
collection of the revenue. The plaintiff was told that on his failure to pay, his movable
property will be seized. Since the plaintiffs house was locked and no other movables were
readily available to seize, the defendant told him that the earrings which the plaintiff was
wearing will be seized. The village gold smith was called and on his arrival, one person who
was present there paid off the due amount owed by plaintiff by borrowing the same from
another person. The plaintiff sued the village revenue collector stating that apart from other
wrongs the defendant had also committed the tort of assault.

Judgment:
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It was held by the court that since the defendants, after the arrival of the gold smith said
nothing and the threat of using force by the gold smith was too remote possibility to have put
the plaintiff in fear of immediate violence. Hence, there was no assault.

Battery:
Battery is an act of intentionally applying force on another person without any lawful
justification. There must be physical contact in order to constitute battery. Without physical
contact there cannot be battery. The physical contact need not be direct contact even the harm
caused by other means such as use of water, light and heat can also amount to battery. Battery
is different from assault in the sense that assault is a mere threat of causing harm but in
battery the actual bodily injury or harm is caused to the victim. The awareness of the victim
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of someone committing battery on him is not required. Even without the knowledge of the
victim, the act can amount to battery.

Essential ingredients of battery:

There should be a physical touch (directly or indirectly).

Intention must be present.
The physical contact must be without lawful justification.
Use of force
Battery must be voluntary

Cases of battery:

Wilson v. Pringle:
Facts
The plaintiff and defendant both were schoolboys involved in an incident in a school corridor
which resulted in the plaintiff falling and being injured. The Defendant argued that there was
no battery as this involves deliberate touching with hostility and the intent to inflict injury
and horseplay did not involve such intent. The Claimant argued that there merely had to be an
intentional touching.

Judgement
The court held that battery involved an intentional touching, but no intention to cause injury.
The court considered whether a better test would be implied consent or a test based on how
common the actions are in daily life. These will be useful considerations but ultimately the
touching must be 'hostile'.

Pratap Daji v. B.B. And C.I. Ryl.6

Facts

6 (1875) 1 BOM. 52
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The plaintiff entered a carriage on the defendants railway but by oversight failed to purchase
a ticket for his travel. At an intermediate station he asked for the ticket but the same was
refused, at another place, he was asked to get out of the carriage since he didnt have a ticket.
On his refusal to get out, force was used to make him get out of the carriage. In an action by
him for his forcible removal.

Judgement

It was held that the use of force was justified as he, being without a ticket was a trespasser.
The defendants were therefore, not liable.

Stanley v. Powell7

Facts

Powell who was a member of a shooting party, fired at a pheasant but the pellet glanced off a
tree and accidently injured Stanley who was another member of the shooting party. Stanley
sued Powell for committing battery.

Judgement

it was held by the court that Mr. Powell was not liable. If act is done wilfully or negligently,
then the defendant would have been liable.

Defences for assault and battery

Assault and battery may be justified in the following cases

7 (1891) 1 Q.B. 86
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i) Self-defence: The act done was can be justified if it was done in the self-defence
of himself or anyone. The use of force in self-defence is only justifiable only
when it was necessary and it was not disproportionate to the evil to be prevented.
ii) Defence of property or goods: If a person enters the house of another with force
and violence, in defence of the possession of the property or goods, the owner is
justified in turning him out.
iii) Retaking of goods: The rightful owner can justify an assault in order to repossess
himself of land or goods which are wrongfully in the possession of another, who
refuses to deliver them on request, so long as no unnecessary violence is used
iv) Consent: A man cannot complain of harm to which he has exposed himself with
knowledge.
v) Preservation of public peace: A person who disturbs public meeting or lawful
game maybe lawfully removed. Here the force used should not be more than what
is necessary.
vi) Legal process: Assault maybe justified on the ground that it was done in serving
legal process, including search by law.
vii) Necessity: This defence is applicable in cases which the action in question was in
response to threat of a greater harm.

False Imprisonment:

False imprisonment in the imposition of total restraint for some period, even a short period,
upon liberty of another, without sufficient lawful justification.8

8 Bird v. Jones, (1845) 7 Q.B. 742

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To constitute the wrong of false imprisonment, imprisoning someone in an ordinary is not

required. When a person is deprived of his personal liberty, by preventing him from moving
outside the place where he is, also constitutes false imprisonment.

As stated by Coleridge, J. in Bird v. Jones, A person may have its boundary large or narrow,
visible and tangible or though rea; still in the conception only: it may itself be movable,
fixed: but a boundary it must have; and that boundary the party imprisoned must be prevented
from passing; he must be prevented from leaving the place, within the ambit of which the
party imprisoning would confine him, except by prison breach.

Essentials of false imprisonment

There should be total restraint on the liberty of a person.

It should be without any lawful justification

Cases of false imprisonment:

Meering v. Grahame-white Aviation Co.9

Facts

The plaintiff, an employee of the defendant company was suspected of having stolen the
companys property. He was called to the companys office and was asked to stay in the
waiting room. He was told that his presence there was required for the investigation in
connection to the companys property which was stolen. Two employees remained outside the
room where the plaintiff was made to sit. In the meantime the police was called and the
plaintiff was arrested on the charge of theft. Later he was acquitted and then he sued the
defendant for false imprisonment.

Judgement

It was held that the policemen were not acting as the companys agents and arrest made was
not wrongful as it was made on sufficient reasonable grounds of suspecting theft. It was,

9 (1920) 121 L.T. 44

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however, also held that the detention of the plaintiff by the officers before the police arrived
was wrongful and amounted to false imprisonment. The fact that, while the plaintiff was in
waiting-room, he did not make much difference because when a person is detained, those
detaining him may be anxious to make hi believe that he is not in being imprisoned, and at
the same time, his captors outside the room may be boasting to persons that he is
imprisoned.10

Bhim singh v. State of Jammu & Kashmir11

Facts

Bhim Singh, who was a MLA of the legislative assembly of Jammu and Kashmir, was not
allowed to attend the assembly session. He was arrested and kept in jail for several days at an
undisclosed location without any notice to his family. His family searched for him and later
moved to the court. After the court gave direction to the police he was presented before the
magistrate. Bhim Singh filed a case of false imprisonment against the police.

Judgement

The Court held the policemen liable for false imprisonment and directed the state to pay
Bhim Singh Rs 50,000/- as compensation.

Rudul shah v. State of Bihar12

Facts

10 122 L.T. at 53-54, per Atkin L.J.

11 A.I.R. 1986 S.C. 494

12 A.I.R. 1983 S.C. 1086

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The petitioner was acquitted by the court in 1968 but was released from jail in 1982 i.e.
14years thereafter. The state tried to justify the detention by pleading that the detention was
for medical treatment of the petitioner for his mental imbalance.13

Judgement

The plea was rejected. As an ancillary relief, in a writ of habeas corpus by the petitioner, a
sum of Rs. 35,000/- was granted as compensation as interim measure by the Supreme Court,
without precluding the petitioner from claiming further compensation.14

False Imprisonment And The Constitution Of India15

13 Bangia R.K., Law of Torts twenty-first edition, Allahabad Law Agency, 2011, pg.no. 180

14 Bangia R.K., Law of Torts twenty-first edition, Allahabad Law Agency, 2011, pg.no. 180

15 http://www.lawteacher.net/free-law-essays/jurisprudence/trespass-to-person.php, Last accessed:

20/10/2016
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The Constitution of India envisages certain provisions exclusive to the interests of the
individuals especially with regard to their personal freedom and infringement on it. The
mandate of the Constitution awards gravity to the entire spectre of rights relating to an
individual's personal freedom. It is under this ambit that the aspect of false imprisonment can
be located.

Right to life and personal liberty read through the Article 21 into the Constitution of India is a
crucial provision. The intention is to protect the life and liberty of the people from the wishful
acts of the Executive. The imprisonment of a person cannot be ordered by anyone in the
position of power and authority to do so if there is no law providing for the same. Article 22
derives basically from the principles of the Article 21 and deals specifically with the aspect of
manner of arrest and imprisonment. While the latter says that, No person shall be deprived
of his life or liberty except by procedure established by law. The former Article says that a
person who is arrested should be informed regarding the grounds of his arrest. At the same
time, he should be permitted to seek the services of his lawyer. And he should be produced
before the nearest magistrate within 24 hours of his arrest. An indirect echo of the above
rights is also observed in the Article 20, which provides for protection against ex-post-facto
laws and double jeopardy.

In case of violation of any of these rights, a citizen of India is free to move to the Supreme
Court or the High Court under the writ petitions (Article 32 and Article 226 respectively).
Such petitions may be moved under the heads of certiorari, quo-warranto and prohibition.
The only exception to the above Fundamental Rights arise with regard to the defence and
security concerns of the nation. The Rudul Shah case assumes special significance in this
discussion on state liability for false imprisonment. In the present case the Supreme Court
ordered the award of compensation of Rs. 35,000/- apart from the release of the person who
had been illegally detained for a period of 14 years. This was a landmark as it was the first
instance of the Supreme Court linked the constitutional provision of Habeas Corpus with the
principle of compensation.

Besides, as is the standard practice, any law in contravention to the fundamental Rights
guaranteed under the Constitution of India stands void; therefore, any legislation by the State
or Union Legislatures running in contradiction to the above Fundamental Rights with regard
to personal liberty shall stand void. The right to freedom of personal liberty has certain
defences against it, which is basically envisaged keeping in mind the need of the public
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authorities to act in the interest of public law and order in particular and the security of the
nation in general.

The judiciary is shielded from the consequences of their actions vide the Judicial Officers
Protection Act, 1850. This protection is available basically against the judgments passed by
the judges or in the exercise of their judicial powers in any other manner. However, the above
act is not without its own limitations such that in character and function it doesn't become
absolute.

It is clearly observed that the standards laid down by the Supreme Court are strict when it
comes to safeguarding citizens against the malice of false imprisonment.

To quote:

No arrest should be made without a reasonable satisfaction reached after some investigation
into the genuineness and bonafides of a complaint and reasonable belief as to the person's
complicity and even so as to need to effect arrest, arrest must be avoided if a police officer
issues a notice to the person to attend the station house and not to leave station without
permission to do so. The remedy available under the Constitution is the writ of Habeas
Corpus, which is available not just against any government authority but also against any
other instance of unlawful detention. In the words of Dr. B.R. Ambedkar : If I was asked to
name any particular article in this constitution as the most important -an article without which
this Constitution would be a nullity- I could not refer to any other article except this one. It is
the very soul of the Constitution and the very heart of it.16

16 http://www.lawteacher.net/free-law-essays/jurisprudence/trespass-to-person.php, Last accessed:

20/10/2016
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Defences

Lawful authority

There is no liability where detention is in accordance with the Criminal Procedure Code and
subsequent formalities are also observed. When a person is detained on a reasonable
suspicion, it must exist at the time of arrest. The officer should act in good faith in
furtherance of the object of the authorising statute. The detainee must be informed of the
ground of arrest. He should be produced before a Magistrate within 24 hours and further
detention should be under magisterial orders.

Arrest by a private person

Section 43 of the Criminal Procedure Code, 1973 authorises private arrest of a person who
has committed a non-bailable cognizable offence. There is no liability if the person is
promptly handed over to authorities.

Necessity

Necessity could also amount to defence to a claim for false imprisonment. The test for
deciding whether measures falling short of arrest could lawfully be taken against individuals
was whether there was a reasonable suspicion that that individual was presenting a particular
threat. The burden of proof was on the claimant to show that the exercise of discretion to
detain was unreasonable.17

17 http://www.legalservicesindia.com/article/article/concept-of-trespass-to-person-1073-1.html, Last
accessed: 20/10/2016
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Remedies

a. Action for damages: Whenever the plaintiff has been wrongfully detained, he can
always bring an action to claim damages. Compensation may be claimed not only for
injury to the liberty but also for disgrace and humiliation caused thereby.
b. Self-help: This is the remedy which is available to a person while he is still under
detention. A person is authorized to use reasonable force in order to escape from
detention instead of waiting for a legal action and procuring his release.
c. Habeas Corpus: It is a speedier remedy for procuring the release of a person
wrongfully detained. Such a writ may be issued either by the Supreme Court under
Article 32 or by a High Court under Article 226 of the Constitution. By this writ, the
person is required to produce the detained person before court and justify the
detention. If the Court finds that detention is made without any reasonable ground, it
will order that the person detained must be released immediately.18

Conclusion

18 Bangia R.K., Law of Torts, Twenty-third edition, Allahabad Law Agency, Faridabad, 2013, pg. no.
145
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There are three types of trespass in torts, namely:

1) Trespass to person
2) Trespass to goods
3) Trespass to land

The evolution of law of trespass to person has taken place. In Fowler v. Lanning, Diplock J.
equated the burden of proof in cases of unintentional trespass with that in those of negligence.
Lord Denning in Letang v. Cooper has recognized the importance of intention in trespass to
person.

The trespass to person is of three types, namely:

1. Assault
2. Battery
3. False Imprisonment

These have their own remedies and defences such as self-defence, necessity, lawful authority
and so on.

Bibliography
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Books

Law of Torts, twenty-first edition by R.K. Bangia

Law of Torts, twenty-third edition by R.K. Bangia

Websites

http://www.lawteacher.net/free-law-essays/jurisprudence/trespass-to-person.php

http://www.legalservicesindia.com/article/article/concept-of-trespass-to-person-1073-1.html