UNIT II: Intentional interference with person

 Definition of trespass to person.

 Letang v. Cooper [1964] 2 All ER 929
o Facts: In the summer of 1957, the claimant was sunbathing outside on a piece of
land which ordinarily served as a car park. While she was sunbathing, the
Defendant reversed over her legs with his car, causing her injury. The defendant
did not do it intentionally, however the claimant had the option of claiming in
negligence. She did not, immediately, choose to do so. By 1961 she had decided
to start a claim, but as a claim of negligence had limitation period of three years
(as per the Limitation Act 1939 2 & 3 Geo.6 c.21 as amended by section 2 of the
Law Reform (Limitation of Actions, etc.) Act, 1954) she made a claim under
trespass to the person.
o Issues: The issue in this case was whether it was possible to make a claim under
trespass to the person if the action was negligent rather than intentional as until
then the tort of trespass to the person had been applied to both types of situation.
o Decision/Outcome: Adopting the approach from Kruber v Grzesiak ([1963] VR
621) the court held that where the damage was caused by an action which was not
intentional, then the proper action is one in negligence and not in trespass to the
person. For the claimant, this meant that she could not start the action she had
(based on trespass) and that her only available action was time barred. In terms of
the law, the judgement of the court meant that a distinction was established
between the torts of negligence and the trespass to the person based on intent. In
effect, this meant that the law on trespass to the person has been narrowed
o Difference between negligence and trespass to person: INTENTIONALITY. If
act intentional then trespass to person. If NOT intentional then negligence.
o Types of trespass to person:
o Battery
o Assault
o False imprisonment
 BATTERY:
o The application of force to the person of another without lawful justification,
amounts to the wrong of battery. It has to be any touching which is beyond
 what is generally acceptable. (Lord Goff, F. v. West Berkshire Health
Authority)
o No matter how trivial the amount or nature of force is and even though it
neither does nor is intended nor is likely or able to do any manner of harm.
o Example, touching someone without their consent, without lawful
justification. Even taking someone’s fingerprints without observing statutory
requirements.
o Consent implied for physical contact reasonable in daily social life.
o Intentionally bringing any material object into contact with another’s person is
sufficient to mconstitute a tort of battery. Eg. Throwing water on a person
(when water touches then battery), pulling out a chair from under a person
(battery when they hit the ground).
o It is battery to take from someone a object they hold/wear.
o It is also battery to project heat, light, noise or vapours onto another person in
such a way as to cause physical injury or discomfort.
o BUT personal injuries resulting from medical treatment is not trespass to
person but negligence.
o Meaning of force.
o Any physical contact with the body of the plaintiff (or clothing) = force.
o Mere passive obstruction may not be battery.
o If there is ‘force’ in technical sense, no physical hurt is necessary, for all terms
of trespass are actionable per se.
o Where there is consent, there is no battery. But if plaintiff does not actually
consent, but conducts himself in a way that leads defendant to believe that
consent exists, no battery.
o Other than lawful authority such as power of arrest, person has full authority
over their own body and can refuse treatment even in cases of life and death,
and even refuse food even when it might lead to suicide.
o For battery there must be a voluntary act by the defendant, intended to bring
about the contact with the plaintiff. I do not commit battery against you if X
seizes my arm and uses it like a club. Here X alone is liable.
o But the acts needs to be intentional ONLY AS TO THE CONTACT and
intention to bring about harmful consequence is not required.
o Hostile intent?
 Wilson v. Pringie court held that for a touch to be a battery, it has to be
proved to be hostile. Hostility is not malevolence or ill will.
 Lord Goff in F. v. West bErkshire Authority [1990]:
 Use of term hostility incompatible.
 Boundaries of battery: any physical contact imposed on the
plaintiff in excess of that ‘generally acceptable in every day
life’.
o Absence of consent: The exception to the general prohibition on non-
consensual touching within the limits of generally acceptable in everyday life
has been rationalized as derived from the implicit consent of the plaintiff to
inevitable and mundane bodily contacts. (Lord Goff in Collins v. Wilcock and
then in F. v. West Berkshire Health Authority.)
 Where the relevant consent is clearly not consented to, nor covered
within the ambit of general practice in everyday life, the burden of
proving other lawful excuse lies on the defendant.
 Surgery on an unconscious patient is justifiable not on the basis of any
tacit consent but by invoking the defence of necessity.
o Consent or lawful excuse:
 Lord Goff in F. v. West bErkshire Authority [1990]:
 Treatment of a person unable to consent to treatment on his own behalf
was justified on the grounds of necessity providing what was done was
in his best interest. Lord Goff made it clear that such a defence of
necessity to an act which would otherwise constitute battery was not
confined to health professional. If a person is lying unconscious in the
street and a passer-by seeks to administer first aid, or a mentally
incapacitated person is endangering his own safety and a neighbour
restrains him, no battery is committed.
 Fagan v. Metropolitan Police Commissioner (1968) All ER 443
 Facts: Fagan was sat in his car when he was approached by a police
officer who told him to move the vehicle. Fagan did so, reversed his
car and rolled it on to the foot of the police officer. The officer
forcefully told him to move the car off his foot at which point Fagan
 swore at him and refused to move vehicle and turned the engine off.
Fagan was convicted of assaulting a police officer in the execution of
his duty. Fagan subsequently appealed the decision.
 Issues: Fagan appealed on the basis that there cannot be an offence in
assault in omitting to act and that driving on to the officer’s foot was
accidental, meaning that he was lacking mens rea when the act causing
damage had occurred. The legal issue here was whether the
prosecution had proven facts which had amounted to an assault. For an
assault to be committed both actus reus and mens rea must be
established at the same time.
 Decision/Outcome:It was agreed that an omission cannot establish an
assault. The court held that: ‘Although assault is an independent crime
and is to be treated as such, for practical purposes today, assault is
generally synonymous with battery.’ (at page 433). On this basis, it
was held that Fagan’s crime was not the refusal to move the car but
that having driven on to the foot of the officer and decided not to cease
the act, he had established a continual act of battery. This meant that
actus reus and mens rea were present and as such, an assault was
committed. Fagan’s conviction was upheld.
 Where an assault involved a battery, it does not matter whether the
battery is inflicted directly by the body of the offender or through the
medium of some weapon or instrument controlled by the action of the
offender.
 For assault, actus reus and mens reus have to be present at the same
time. It is not necessary that mens rea should be present at the
inception of the actus reus.
 The conduct of Fagan cannot be regarded as mere omission or
inactivity. There was an act constituting a battery which at its
inception was not criminal because there was no element of intention.
but which became criminal from the moment the intention was
formed to produce the apprehension which was flowing from the
continuing act.
 This case is not same as motorist running over a person’s foot
o Collins v. Wilcock (1984) 3 All ER 374
 Facts: A police officer wished to question a woman in relation to her
alleged activity as a prostitute. The woman decided to walk away, but
the police officer was intent on stopping her and in order to do so,
grabbed her left arm in order to prevent her from walking away. Under
the Street Offences Act 1959 c.57, the police officer had no power to
detain the woman. The woman struggled with the police officer and
scratched her. She was charged with assaulting a police office in the
course of her duty.

 Issues: The issue in this case was whether the conviction for assaulting
a police officer was lawful given the lack of legal authority on the part
of the police office to restrain the woman.

 Decision/Outcome: It was held that the police officer was acting

outside the scope of her powers as she had no power to arrest the
woman in that situation and therefore, was acting outside of the scope
of her duties as a police officer. There was no question therefore of
assaulting a police officer in the course of her duty. It was held further
that the grabbing on the part of the police officer, without the power to
make an arrest, amounted to an unlawful assault (a battery). The
woman had been entitled to resist as an action of self-defence. Her
conviction was therefore quashed. The court took the opportunity to
clarify the meaning of battery as a touching of another with hostile
intent or in other words any intentional touching outside of the scope
of what normally acceptable.

 Lord Goff:

 “In each case, the test must be whether the physical contact so
persisted in has in the circumstances gone beyond generally acceptable
standards of conduct; and the answer to that question will depend upon
the facts of the particular case.”

 An assault is an act which causes another person to apprehend the

infliction of immediate, unlawful, force on his person; a battery is
the actual infliction of unlawful force on another person. Both assault
and battery are forms of trespass to the person. Another form of
 trespass to the person is false imprisonment, which is the
unlawful imposition of constraint on another's freedom of
movement from a particular place. The requisite mental element is
of no relevance in the present case.
 The fundamental principle, plain and incontestable, is that every
person's body is inviolate. People are allowed to use self-defense to
protect body.
 Nobody can complain of the jostling which is inevitable from his
presence in, for example, a supermarket, an underground station
or a busy street; nor can a person who attends a party complain if his
hand is seized in friendship, or even if his back is (within reason)
slapped (see Tubervitle v Suvage (1669) 1 Mod Rep 3, 86 ER 684)
 A police officer may touch person (even reasonably repeatedly) to get
their attention and ask questions as it is his duty. But if his use of
physical contact in the face of non co-operation persists beyond
generally acceptable standards of conduct, his action will become
unlawful; and if a police officer restrains a man, for example by
gripping his arm or his shoulder, then his action will also be unlawful,
unless he is lawfully exercising his power of arrest. A police officer
has no power to require a man to answer him, though he has the
advantage of authority, enhanced as it is by the uniform which the state
provides and requires him to wear, in seeking a response to his
inquiry.
 Can’t stop and detain women for ‘cautioning’. Using unreasonable
force in instances other than power of arrest is unlawful.
 POLICE OFFICER COMMITTED A BATTERY.
o Wilson v. Pringle (1986) All ER 440
 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. In his defence the defendant admitted that he had indulged
in horseplay with the plaintiff and on the basis of that admission the
 plaintiff applied for summary judgment under RSC Ord 14. The
registrar refused to enter judgment but on appeal by the plaintiff the
judge held that the defendant had admitted that his act had caused the
plaintiff to fall and in the absence of any allegation of express or
implied consent the defence amounted to an admission of battery and
consequently an unjustified trespass to the person. He accordingly gave
the plaintiff leave to enter Judgment. The defendant appealed to the
Court of Appeal, contending that the essential ingredients of trespass to
the person were a deliberate touching, hostility and an intention to
inflict injury, and therefore horseplay in which there was no intention
to inflict injury could not amount to a trespass to the person. The
plaintiff contended that there merely had to be an intentional
application of force, such as horseplay involved, regardless of whether
it was intended to cause injury.
 Held – 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 offence 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. Since the defence did not
admit a hostile act on the part of the defendant there were liable to
judicial trial issues which prevented the entry of summary judgment.
The appeal would therefore be allowed, and the defendants given
unconditional leave to defend.
 Per Curiam. Where the immediate act of touching does not of itself
demonstrate hostility the plaintiff should plead the facts alleged to do
so
 Distinction between negligence and trespass to person.
 The first distinction between the two causes of action where there is
personal injury is the clement of contact between the plaintiff and
 defendant, that is a touching of some sort. In the action for negligence
the physical contact (where it takes place at all) is normally though by
no means always unintended. In the action for trespass, to constitute a
battery, it is deliberate. Even so it is not every intended contact which
is tortious. Apart from special justifications (such as acting in self-
defence) there are many examples in everyday life where an intended
contact or touch is not actionable as a Trespass.
 Another element in tort of trespass to peron is hostility.
 It is the act of touching which should be intentiona, not the injury for
tort of trespass to person. AN INTENTION TO INJURE IS NOT
ESSENTIAL to an action for trespass to person. It is the mere trespass
by itself which is the offence.
 WHAT TURNS A FRIENDLY TOUCH (WHICH IS NOT
ACTIONABLE) INTO AN UNFRIENDLY ONE (WHICH IS
ACTIONABLE)? HOSTILE TOUCHING. Hostility cannot be
equaled with ill-will or malevolence, it cannot be governed by the
obvious intention shown in acts like punching, stabbing or shooting. It
cannot be solely governed by expressed intention, although that may
be strong evidence. But the element of hostility is a question of fact
which is to be decided by courts.
 ASSAULT
o The act of putting another person in reasonable fear or apprehension of
an immediate battery  by means of an act amounting to an attempt or
threat to commit a battery amounts to an actionable tort of assault.
o The tort is remarkable, for it ”remains the only instance in English
jurisprudence of a mere offensive sensation unaccompanied by any untoward'
psychosomatic symptoms, let alone external trauma, giving a cause of action
for damages.
o Probably mere words do not constitute an assault, however insulting or
even menacing; the intent to do violence must be expressed in threatening
acts, not merely in threatening speech.
o There need be actual intention or power, to use violence, for it is enough if the
plaintiff on reasonable grounds believes that he is in danger of it. Thus it is
 actionable to point a gun at a man in a threatening manner, even though to the
knowledge of the defendant, but, not to that of the plaintiff, it is unloaded.
But if there is no reasonable fear there is no assault: as, for example, when a
gun is pointed at a man behind his back. Mere passive obstruction does not
constitute an assault, although if the plaintiff is thereby hindered from going
about his lawful occasions, he may use reasonable force by way of self-help.
o THERE SHOULD BE KNOWLEDGE. SUPER IMPORTANT.
o NO CONTACT, for assault.
o In most cases, assault precedes a battery. But there can be battery without
assault. There can also be assault without battery.
o The plaintiff must have reason to apprehend (expect) that the defendant has
capacity to carry out the threat IMMEDIATELY.
o threats on the telephone may be an assault provided the plaintiff has reason to
believe that they may be carried out in the sufficiently near future to qualify
as "immediate".
o
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o