INTENTIONAL

TORTS
Ms Gallop
INTENTIONAL TORTS
 As the name suggests an intentional tort occurs
when a person intends to cause the tort they
undertake (this may be seen as similar to the
concept of mens rea found in criminal law)
 This can be compared to most car accidents for
example, where neither party intends the accident
to happen and instead the tort is a negligent one
 An example of an intentional tort is trespass,
where the person intends to be on the land that
they are on. This will be an intentional tort even if
the person mistakenly believes that the land
belongs to them
THE HISTORY OF INTENTIONAL
TORTS
 Intentional Torts have been recognised in
English law from early as 1135ad.
 It is clear in any society that should a person
intentionally injure another person, or harm
their property then the claimant should be
permitted to claim damages – thus intentional
torts are found in almost every legal system
 Due to the malicious intention accompanying
such torts, damages awarded tend to be
broader and more generous than would be
awarded for torts of negligence
THE HISTORY OF INTENTIONAL
TORTS
 Prior to the codification of the tort law
system acts that injured another party
outside of a contractual relationship were
known as writs
 The Writ of Trespass (that is the writ that
acknowledged intentional harm) was
classified into three separate causes of
action which have survived into modern tort
law
THREE INTENTIONAL TORTS

1. Assault
2. Battery
3. False Imprisonment
INTENTION
THE CONCEPT OF INTENTION
 For intention to exist the defendant must
have intended the acts which constitute the
tort
 For example the defendant must have
intended to kick the claimant – it does not
matter that the resulting damage (e.g. a
broken leg) was not intended
 Thus we can see it is the intention of the
action, rather than the intention of the
injury, which constitutes ‘intention’ for the
intentional tort
THE CONCEPT OF INTENTION
 This principle can be found in the case of
Scott v Shepherd (1773) 2 Black W 892; 96 ER
525
 In this case the tortfeasor threw a firework
into a crowded market place as a practical
joke. As a result of his actions a person in
the crowd was injured. It was held that this
constituted the intentional tort of battery,
even though the tortfeasor did not intend his
actions to harm the individual.
WHAT IS SUFFICIENT TO
CONSTITUTE INTENTION ?
 In some cases intention will be obvious – for
example if I point a gun at you and shoot it then
it is obvious that I intended to harm you, as
such there will clearly be sufficient intention.
 A more complex scenario was considered in the
case of Gibbon v Pepper:
“If I ride upon a horse, and JS whips the
horse, so that he runs away with me and runs
over any other person , he who whipped the
horse is guilty of battery, and not me. But if I
was the cause of the accident, then I am
guilty”.
WHAT IS SUFFICIENT TO
CONSTITUTE INTENTION?
 The American Law Institute has described
intention in relation to intentional torts as
occurring when:
A. The Person has the purpose of producing
that consequence or
B. The person knows that to a substantial
certainty that the consequence will ensue
from the person’s conduct
So a man shooting a gun in a forest hoping to kill
a deer, not knowing anyone else is around,
who then shoots another person is has not
committed an intentional tort
WHAT IS SUFFICIENT TO
CONSTITUTE INTENTION?
 We can now consider the situation where A
intending to injure B, injures C – is there
intention?
 This problem arose in the American case of
Talmage v Smith where the defendant threw
a stick intending to hit one boy but ending up
hitting another boy. The Supreme Court of
Michigan held that given the fact that the
boy intended to harm one boy “the fact that
the injury resulted to another... does not
relieve the defendant from responsibility”.
WHAT IS SUFFICIENT TO
CONSTITUTE INTENTION?
 It is thus clear that in many cases intention
will not be a clear cut process
 For example it remains unclear whether
recklessness (that is when a person pursues a
course of action while consciously
disregarding the fact that the action gives
rise to a substantial and unjustifiable risk)
will be sufficient to constitute intention in
the context of intentional tort - the US
Restatement suggests it does not, but the
case of Scott v Shepherd suggests otherwise
WHAT IS SUFFICIENT TO
CONSTITUTE INTENTION
 In practise this may be of little relevance as
a individual who perpetrates such an act will
be guilty of negligence if they are not guilty
of an intentional tort, consequently the
claimant should be able to access remedies
easily enough
 However as damages for intentional torts
tend to be higher than those awarded for
negligent torts it is in the claimants interest
to succeed in the claim of an intentional tort
ASSAULT
WHAT CONSTITUTES ASSAULT?
 An assault in the tortuous context is defined
very differently from an assault in the
criminal context
 In the tortuous context an assault is the
threat of immediate battery
 Blackstone thus defines assault as the
“attempt to offer or beat another, without
touching him: as if one lifts up his cane or
stick, or his fist, in a threatening manner; or
strikes at him, and misses him”.
WHAT CONSTITUTES ASSAULT?

 Thus it is clear that is the threat of

injury, rather than that injury
actually occurring, which constitutes
a tort in the case of assault
PROXIMITY
 In the case of Stephen v Myers the defendant
was sat 6 or 7 seats away from the claimant
at a parish meeting. The claimant was the
chairperson of the meeting, and during the
meeting the defendant became so animated
and angry a motion was passed that he
should be expelled from the meeting. At this
the defendant advanced towards the
claimant with his fist clenched, but was
stopped by other members of the meeting.
PROXIMITY
 The defence contended that on the facts the
defendant could not have struck the
claimant and thus no assault had been
committed.
 This was rejected by CJ Tindal who stated
that the fact that the defendant was
advancing towards the claimant so
menacingly and was stopped by other, not of
his own accord, constituted an assault
 However, it is worth noting that the damages
awarded in this case were particularly low
ACTS CONSTITUTING ASSAULT

 In the case of R v Ireland the court

considered whether the maker of a number
of silent phone calls could be considered to
have committed the tort of assault
 In this case the court held that this could
amount to an assault. As Lord Steyn noted
the caller ‘intends by his silence to cause
fear and he is so understood’.
ACTS CONSTITUTING ASSAULT
 In the judgment it was also made clear that
words alone could amount to assault; as Lord
Steyn pointed out
“a man accosting a woman in a dark
alley saying ‘come with me or I will stab
you’”
clearly constitutes an example of assault
 Thus in the case of Read v Coker the
statement “I’m going to break your neck”
and the rolling up of sleeves constituted
assault
BATTERY
WHAT CONSTITUTES BATTERY?
 Battery involves the unlawful touching of one
person by another
 Battery can involve touching that is either
wilful or angry, although the law does not
distinguish between different degrees of
violence.
 Thus all acts of battery, from the slightest
intentional touching to aggressive physical
violence, are prohibited
INTENTIONAL BATTERY V
NEGLIGENCE

 In the past the distinction between

intentional battery and negligence was direct
and indirect injury
 Nowadays the case law distinguishes
between intentional conduct and non-
intentional conduct as constituting battery or
negligence
ACTS CONSTITUTING BATTERY
 Wilson v Pringle
In the case of Wilson v Pringle two
schoolboys were involved in an incident in
the school corridor, during which one was
injured and sued the other for trespass. The
defendant’s counsel alleged that all that had
occurred was horseplay, which failed to
amount to the requisite intention to inflict
injury required for the tort of battery.
 WILSON V PRINGLE CONT.
 It was thus held that battery was the
unlawful application of force by one person
to another
 Thus normal everyday touching, such as
moving past someone in a crowded area does
not amount to battery
RATIONALE FOR LIMITING ACTS
CONSTITUTING BATTERY
 So why do actions such as pushing past
someone on a crowded train or tapping them
to get their attention not constitute battery?
 In Collins v Wilcock Goff LJ suggested that
such an exclusion could be found as battery
could not constitute physical contact
acceptable in everyday life.
 This was rejected in Wilson v Pringle as
being impractical, where the concept of
‘implied consent’ excluded certain acts, but
‘hostile’ touching included others
RATIONALE FOR LIMITING ACTS
CONSTITUTING BATTERY
 However in Re F Lord Goff reiterated his
view and suggested that the hostility
requirement was difficult to reconcile with
the fact that the principle that the unlawful
touching of any kind of another’s body was
capable of amounting to battery
 Lord Goff also rejected the concept of
implied consent as it could not apply to cases
where the individual was incapable of giving
consent e.g. A mentally ill patient, a child
etc
RATIONALE FOR LIMITING ACTS
CONSTITUTING BATTERY
 The exact rationale for limiting acts
constituting battery remains, to a large
extent, somewhat unclear
 However the idea of hostility is very vague
 In Collins v Wilcock, for example, a
policewoman was questioning a woman he
suspected of solicitation when the woman
walked away. The policewoman put her hand
on the woman’s shoulder to stop her leaving.
The court held that this amounted to
battery, even though there was no hostility
RATIONALE FOR LIMITING ACTS
CONSTITUTING BATTERY

 Additionally the implied consent theory, as

demonstrated by Lord Goff, is flawed with
regards certain groups of people
 Thus it may be concluded that Lord Goff’s
rationale, that physical contact acceptable
in everyday life be exempt, is preferred
THE EXTENT OF THE CONCEPT OF
BATTERY – ACTION OR INACTION?
 In the case of Innes v Wylie the plaintiff was
a member of a society that had sought to
expel him. A policeman, on the instructions
of that society, stopped the plaintiff
entering a room where a societal meeting
was taking place
 The Court held that for battery to have
occurred the defendant must have taken a
positive action – thus if the policeman was
entirely passive he would not have been
guilty of battery
FAGAN V METROPOLITAN
POLICE COMMISSIONER
 However this concept was tested in the case
of Fagan
 Fagan was parking his car under the
instructions of a policeman when he
unknowingly ran over the policeman’s foot.
When he was told to move the car he turned
off the engine, before eventually complying.
 It was held that he was guilty of battery as his
act was a continuing one. As soon as Fagan had
notice that his car was on the policeman’s foot
and failed to act, the tort was complete.
 FALSE
IMPRISONMENT
FALSE IMPRISONMENT
 False imprisonment is the violation of the
right to personal liberty and occurs when a
person’s movement is restricted to a
confined area, so that they cannot leave that
area.
 In Bird v Jones it was held that should the
plaintiff be capable of leaving the area in
any direction (even though that may not be
the direction he would like to chose) then
this does not amount to false imprisonment
WHEN DOES FALSE
IMPRISONMENT OCCUR?

 It is not necessary for the claimant to be

aware of their false imprisonment for the
tort to have occurred
 In Murray v the Ministry of Defence the
House of Lords confirmed that this would
only be relevant in relation to the question
of damages
WHEN DOES FALSE
IMPRISONMENT OCCUR?
 For False Imprisonment to occur there must be
an intention to limit someone’s liberty
 Thus locking someone in a room if you do not
know that they are in there will not amount to
false imprisonment
 However intention is quite difficult to define in
this context – is intention of the acts leading to
imprisonment sufficient, or must the defendant
intend to imprison the claimant?
 However, as before, if there is not a remedy in
false imprisonment it is likely there will be one
for negligence
INTENTIONAL TORTS AND THE
TORT MAP
An example question:
A is upset to find that he has not been
accepted to play guitar for the XX, a local
band. He walks towards B, the lead singer,
and threatens to hit him, before he is
restrained by C, the drummer. A then tries to
hit C, but misses and hits D, the pianist, and
breaks D’s arm.
Can either D or B sue A for committing any
intentional torts?
THE TORT MAP

 Firstly identify the cases and parties  in

this case it will be D v A, and B v A, and A
will be the defendant in both cases.
 Address each case separately – it will make
your answers clearer.
THE TORT MAP

 The Things That Need to be Identified for an

Intentional Tort to have taken place:

1. Action
2. Intention
3. Causation
BVA
 B is suing A for the intentional tort of assault
 Action: A walked towards B and threatened
to hit him.
 Following the cases of Read v Coker, and
Stephen v Myers we can see A’s conduct
amounts to assault [list the facts and the
decisions in those cases] as A’s actions
caused B to fear immediate violence
BVA
 Intention: it is clear that A intended B to
fear immediate violence
 (see definition from the American Law
Institute)
 Causation: it is clear that A’s actions of
threatening B and walking towards him
caused B to fear immediate violence
DVA
 D is suing A for the intention tort of battery
 Action: A hit D and broke his arm

 It is clear from the case law of Collins v

Wilcocks that these actions are sufficient to
constitute the act of battery, as it amounts
to the harmful or offensive contact to the
D’s person
DVA
 Intent:A meant to hit C, but missed and hit D
 Noting the case of Talmage v Smith it can be
concluded that the defendant had the
necessary intent, and cannot be relieved
from responsibility
 Additionally following Scott v Shepherd it
does not matter that A did not intend to
injure D, he intended his actions and thus
has the requisite intention
 Causation: A hit D – he thus caused the
injuries
CONCLUSION
 It is thus likely that both B and D will be
successful in their actions against A for
assault and battery respectively.
READING

 Trindade ‘Intentional Torts: Some Thoughts

on Assault and Battery’ Oxford Journal of
Legal Studies 1982 2(2)
 Beever ‘The Form of Liability in the Tort of
Trespass’ Common Law World Review (2011)
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