Defences to Trespass to the Person

Statutory Authorization:

Certain statutes provide defenses against claims of trespass to the person, like the Police and
Criminal Evidence Act 1984 and the Mental Health Act 1983.

Consent:

Valid in cases like Nash v Sheen, where deviation from consented procedure can lead to
trespass.

In medical contexts, consent must be informed (Chatterton v Gerson), but failure to disclose
risks doesn't necessarily invalidate consent.

Sports participants are deemed to consent to physical contact inherent in the sport.

Necessity:

Used to avoid greater harm, allowing for medical interventions in emergencies or for those
unable to consent (Re F [1990], Bolam v Friern Hospital).

Self-Defence:

Justifiable if the force used is reasonable and proportionate to the threat, as illustrated in
Cockroft v Smith and Ashley v Chief Constable of Sussex Police.

Mistaken belief in the necessity of self-defence must be reasonable to be valid.

In summary, these cases and legal principles illustrate the complex interplay between individual
rights, public safety, and legal defenses in the context of false imprisonment and trespass to the
person. The rulings underscore the importance of balancing individual liberties with broader
societal needs, as well as the nuances involved in determining what constitutes consent,
necessity, and reasonable force in different scenarios.

Intentional and indirect infliction of physical harm or psychological injury – the tort in
Wilkinson v Downton

The case of Wilkinson v Downton [1897] 2 QB 57 is a seminal case in tort law, particularly in the
context of intentional infliction of emotional distress. This case established a principle for
liability when an act intentionally causes physical or psychological harm, even in the absence of
physical contact or force. Let's delve into the details and implications of this case:
Wilkinson v Downton [1897]

Facts: In this case, the defendant, as a practical joke, falsely informed the plaintiff that her
husband had been seriously injured in an accident.

Outcome: The plaintiff suffered a severe nervous disorder as a result of this false information.

Legal Ruling: The court found the defendant liable for wrongful interference. This was not a
case of trespass to the person (which typically involves direct physical contact or threat), nor
was it a case of negligence. The court recognized a new kind of liability for intentional infliction
of emotional distress.

Key Legal Principles Established

Intentional Infliction of Harm: Liability arises when an act is willfully calculated to cause
physical or psychiatric harm, and it does indeed cause such harm.

Beyond Physical Contact: This case extended the understanding of battery to include situations
where harm is caused without physical contact.

Intention vs. Recklessness: The degree to which the defendant must have intended the harm
has been a subject of legal debate.

Subsequent Developments

Wainwright v Home Office [2003] UKHL 53:

The House of Lords suggested that recklessness regarding the outcome might be sufficient for
liability.

This expanded the scope slightly, indicating that a defendant might be liable even if they did not
specifically intend to cause harm, but were reckless as to whether their actions might do so.

Rhodes v OPO [2015] UKSC 32:

The Supreme Court disagreed with the notion that recklessness sufficed.

In this case, it was about preventing the publication of a memoir thought to cause distress to
the author’s son.

The court held that Wilkinson v Downton did not apply here because it couldn't be inferred that
the defendant intended to cause severe mental or emotional distress.

Conclusion
The Wilkinson v Downton principle marked a significant development in tort law by
acknowledging liability for intentional infliction of emotional distress, even in the absence of
physical contact. It highlights the legal system's recognition of psychological harm as a
legitimate form of injury. However, subsequent cases have shown that the application of this
principle can be complex, particularly when determining the extent of intention or recklessness
in the infliction of such harm.

3.3 Protection from Harassment Act 1997

a piece of legislation that was enacted to address issues such as stalking and serious press
intrusion. This law provides both civil and criminal remedies for behaviors that constitute
harassment. Let's break down the key points:

Key Aspects of the Legislation

Definition of Harassment:

Section 1(1) of the law defines harassment as a course of conduct that amounts to harassment
of another and is known, or ought to be known, by the perpetrator as such.

A "course of conduct" involves two or more instances.

Harassment includes actions that alarm the person or cause them distress.

Civil Remedies:

Under Section 3, individuals who have been harassed can bring civil proceedings.

They can seek damages (financial compensation) and/or an injunction (a court order restraining
the harasser from continuing their behavior).

Implications

Awareness of Impact:

The legislation acknowledges the serious impacts of behaviors like stalking and invasive actions
by the press.

It reflects a societal understanding of the importance of protecting individuals from persistent

and unwanted attention or intimidation.

Scope of Harassment:

Harassment is broadly defined to include various forms of alarming or distressing behavior.

This broad definition ensures comprehensive protection for individuals.

Civil vs. Criminal Remedies:

The law provides avenues for both civil and criminal action.

This dual approach allows victims to seek not only legal retribution but also compensation for
the harm suffered.

Tress pass to Land

overview of the legal concept of trespass to land, a key aspect of tort law. Here's a breakdown
of the main points:

Trespass to Land: Definition and Essentials

Purpose: Trespass to land aims to protect the interests in land.

Nature of Interference: The interference with land must be direct and intentional.

Actionable Per Se: Trespass to land is actionable without the need to prove loss, although only
nominal damages may be awarded if there's no proof of actual loss.

Intentionality in Trespass

Intention to Enter, Not to Trespass: Liability arises from the intention to enter the land, not
necessarily an intention to trespass. For example, a person entering land under a mistaken
belief about ownership can still be liable for trespass.

Case Illustration: Basely v Clarkson (1681) highlights that an unintentional boundary crossing
during an intentional act (like mowing) can constitute trespass.

Scope of Trespass

Direct Interferences: This includes entering a house, walking on land, leaning against a fence, or
sitting on a wall.

Indirect Interferences: These are covered by the tort of nuisance, not trespass. Examples
include smells, smoke, or noise.

Land Definition: 'Land' encompasses the surface, anything permanently attached to it (like
buildings or crops), subsoil, and airspace up to a reasonable height or depth.

Examples of Trespass to Land

Gregory v Piper [1829]: Collapse of rubbish from one property onto another was considered
trespass.

Kelsen v Imperial Tobacco Co [1957]: An advertising sign extending into airspace over someone
else's land was trespass.

Woolerton and Wilson v Richard Costain [1970]: A crane overhanging another's land
constituted trespass.

Bernstein v Skyviews [1978]: Aerial photography from a high altitude was not trespass as the
airspace at that height had no reasonable use to the landowner.

Who Can Sue for Trespass to Land?

Exclusive Possession: Only a person with exclusive possession of the land can sue for trespass.
This excludes landlords of leased premises, lodgers, or guests.

Remedies for Trespass to Land

Primary Remedies: Damages and injunctions.

Other Remedies: Self-help and orders for possession of land in some cases.

In summary, trespass to land is a fundamental aspect of property law, emphasizing the

protection of a person's right to enjoy their land without unwarranted interference. The law
distinguishes between direct and indirect interferences and covers a broad range of activities
that can constitute trespass, from physical entry to overhanging structures or encroachments in
airspace. The remedies available reflect the law's emphasis on protecting property rights and
maintaining order in land use and possession.

Defenses

outlines key aspects of trespass to land, explaining its nature, specific cases, and legal defenses.
Let's break it down for clarity:

Trespass to Land: Overview

Nature: Trespass to land involves unlawful, direct, and intentional interference with land. It's
actionable per se, meaning legal action can be taken even without proof of actual loss, though
only nominal damages may be awarded in such cases.

Intention Requirement: Liability for trespass does not require the intention to trespass but
rather the intention to enter the land. This means that even mistaken entry onto someone
else's land can constitute trespass.
Examples of Trespass: Entering a house, walking on land, leaning against a fence, or sitting on a
wall are direct interferences. In contrast, indirect interferences like smells or noise are covered
under the tort of nuisance.

Key Cases and Principles

Basely v Clarkson (1681): Illustrates that mistake about land boundaries does not excuse
trespass if the act (like mowing) is intentional.

Gregory v Piper (1829): A pile of rubbish collapsing onto a neighbor's property was considered
trespass due to its direct interference.

Kelsen v Imperial Tobacco Co (1957): An advertising sign protruding into airspace over
someone's land was ruled as trespass.

Bernstein v Skyviews (1978): Highlighted the limits of airspace rights; aerial photography from a
great height was not considered trespass.

Who Can Sue for Trespass?

The right to sue for trespass to land is reserved for those with exclusive possession of the land,
like a property owner or tenant. Landlords, lodgers, or guests typically cannot bring such an
action.

Remedies

Remedies include damages, injunctions, self-help, and orders for possession of land.

Defenses to Trespass

Permission or Licence:

Express or implied permission, like the presumed permission to approach a front door, is a key
defense.

Trespass occurs when permission is explicitly denied (e.g., 'do not enter' signs) or withdrawn,
and the trespasser does not leave promptly.

Wood v Leadbitter (1845):

A case where a ticket-holder at a race track became a trespasser after permission was
withdrawn and they refused to leave.

Legal Justification:
Certain statutes may provide legal justification for entry, such as police warrants.

Necessity:

A narrow defense requiring no reasonable alternative and usually applicable only in response to
serious, immediate danger.

Southwark London Borough Council v Williams (1971) and Monsanto plc v Tilly (2000)
demonstrate the limitations of this defense.

In summary, trespass to land is a fundamental aspect of property law, emphasizing the rights of
land possessors against unauthorized intrusions. The cases illustrate the nuances of what
constitutes trespass and the legal responses available, while the defenses highlight the
circumstances under which entry onto another's land may be legally permissible.

Activity 3.1: Ashley v CC Sussex [2008] UKHL 25

a. Possible Grounds of Liability for the Defendants

The main grounds of liability were negligence and battery. Negligence would involve proving
that the police acted without reasonable care, while battery would require showing that the
force used was unlawful and intentional.

b. Why Claimants Proceeded with One Ground to the House of Lords

The claimants were particularly concerned with proceeding on the ground of battery. This is
likely because battery, as a form of trespass to the person, does not require proof of damage
for a claim to succeed, and can result in more straightforward liability than negligence.

c. Difference Between Functions of Criminal Law and Civil Law; Significance for Defences

Criminal law is primarily concerned with punishing offenders and deterring criminal behavior,
focusing on societal interests. Civil law, on the other hand, is concerned with resolving disputes
between individuals and providing compensation to victims.

This difference is significant when considering defences, as a defence acceptable in criminal law
(like a genuine but mistaken belief in the need for self-defence) may not be sufficient in civil
law, where the belief must also be reasonable.

d. Summary of Decision by Law Lords

The Law Lords' decision in Ashley v CC Sussex emphasized the distinction between criminal and
civil standards for self-defence. They held that for self-defence to be a valid defence in a civil
case of battery, the belief in the need for self-defence must be both genuine and reasonable.
Activity 3.2: Wilkinson v Downton Revisited

a. Why Action in OPO v Rhodes [2015] UKSC 32 Not Brought in

i. Negligence?

Likely because it would be difficult to establish a duty of care in the context of writing and
publishing a book. ii. Defamation?

The contents of the book might not have been defamatory as they possibly did not lower the
claimant in the estimation of right-thinking members of society.

b. Three Components for Action in Wilkinson v Downton

Conduct: An act calculated to cause physical harm or severe emotional distress.

Mens rea (Mental Element): Intention to cause such harm or recklessness as to the
consequences.

Consequences: Actual physical harm or severe psychiatric harm resulting from the act.

c. Supreme Court Conclusion on ‘Conduct’ Issue

The Supreme Court likely concluded that the conduct in question (the publication of the book)
was not calculated to cause severe mental or emotional distress, or that such distress was not a
foreseeable consequence of the publication.

d. Intention Required to Found Liability

The intention now required for liability in Wilkinson v Downton is an actual intention to cause
harm or recklessness as to causing severe distress or harm.

e. Current State of 'Imputing Intention as a Matter of Law'

‘Imputing intention as a matter of law’ is a complex concept. It involves attributing an intention

to a defendant based on the nature of their actions and the foreseeable consequences, rather
than their actual subjective state of mind.

f. Advice to the Claimant

The claimant should focus on proving the defendant's intention or recklessness to cause harm,
and the direct link between the defendant's actions and the claimant's harm.

g. Effect of Decision in OPO on Future Litigation

The decision in OPO v Rhodes might narrow the scope of actions under Wilkinson v Downton,
emphasizing the necessity of proving a clear intention to harm or recklessness. It could lead to
more stringent assessments of mental elements in similar cases.

These analyses are based on the principles of tort law as per the University of London and the
details of the specific cases mentioned.