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LAW 245
INTRODUCTION
TO LAW OF TORTS
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LEARNING OUTCOMES
 Upon the completion of this chapter,
students should be able to:
 Explain the definition of assault, battery and
false imprisonment.
 Discussthe elements of assault, battery and
false imprisonment.
 Apply the legal principles.
 INTRODUCTION 3

•The word “tort” originates from

the Latin word, tortus which means
“twisted” or “wrung”.
•Thus, a “tort” simply means
“wrong”.

A tort may consist of either

a wrongful act or omission,
which is not authorised by
the law.
Introduction… 4

•Even though a “tort” is a “wrong”,

this does not mean that all “wrongs”
come within the purview of the law
of torts.
•Not all wrongful acts or omissions
are legal wrongs.
•E.g: If B were drowning and he
called out to A for help, and A failed
to come to B’s rescue, A would not
have committed any tort towards B.
A’s behaviour would be a moral
wrong, but it is not a tort, that is, a
legal wrong.
Introduction… 5

•Legal wrongs fall into 2 main categories, and they may

either be civil or criminal in nature.
•The law of torts is only one branch of the civil law.
•Winfield and Jolowicz in the Law of Tort (1994) states;
“tortious liberty” arises from breach of a duty
primarily fixed by law; this duty towards persons
generally and its breach is redressible by an action for
unliquidated damages.
Introduction… 6

(a) a wrongful act (b) causing

or unathorized act An act of tort
injury
or omission consists of:-

(c) The injured

party i.e the
victim has a right
to claim for
damages
Introduction… 7

Trespass to
Person

Nuisance
Law of
Negligence
Torts

Defamation
 TRESPASS 8

 Direct invasion of a protected interest was actionable under trespass.

 The highwayman, the kidnapper, the burglar and thief could be sued by the
writ of trespass.
 In sanctioning these wrongdoers, the law was protecting the citizen’s
interest in bodily safety, security from attack, liberty of movement and
possession of property.
 In Letang v Cooper [1964] 2 All ER 929, it was held that in the tort of
trespass there must exist intention at the time the defendant does his act. If
the defendant was careless in acting as he did, the cause of action would lie
in negligence and not in trespass. Therefore an important element in
establishing trespass is that the defendant must be proven to have acted
intentionally.
 TRESPASS TO PERSON 9

Trespass to Person Defences

Assault Self Defence

Battery Consent

False Legal
Imprisonment Authority
Trespass To Person… 10

 Trespass to person involves direct interference with a

person’s body or liberty.

3 Types of
Assault Trespass to Battery
Person

False
Imprisonment
 ASSAULT 11

 Defined as an intentional and direct act

of the defendant which causes the
plaintiff reasonable apprehension of the
immediate infliction of a force onto his
person.
 The tort of assault is concerned with the
protection of person’s mental well-being
against the unlawful act of another.
Assault… 12

Elements of assault:-

1) intention of the defendant to do harm onto

the plaintiff

2) effect on the plaintiff’s mind

3) capability of the defendant to carry out

the threat

4) bodily movement of the defendant.

Assault… 13

(a) Intention of the Defendant to do Harm

 The defendant must have the intention to do his act.
 In Tuberville v Savage (1669) 86 E.R. 684,
• The defendant lay his hand upon his sword and told the plaintiff
“if it were not assize-time, I would not take those words from
you”. The plaintiff sued defendant for assault
• The court held that these words negative the element of intention
on the defendant’s part to injure the plaintiff and therefore
assault was not established.
Assault… 14

(b) Effect on the Plaintiff’s Mind

 The plaintiff must feel reasonable apprehension that a force
will be inflicted upon him.
 Reasonable apprehension is measured through an objective
test, that is, would a reasonable man, faced with the same
situation that the plaintiff was in, feel apprehensive that a force
would be committed upon him?
 Only when the answer is ‘yes’ will this element be fulfilled.
 Force means some form of violent contact that would put a
reasonable man to be in reasonable fear of attack.
 In R v St George [1840] 9 C & P 626, it was held that pointing
an unloaded gun at a person constituted as assault.
Assault… 15

(c) Capability of the Defendant to Carry out the Threat

 The requirement is measured through the eyes of the reasonable plaintiff.
 The test is objective: would a reasonable man, who is in the plaintiff’s position,
feel reasonable fear that there is a threat of immediate force upon himself? In
other words, would the reasonable man believe that the defendant will realise
his threat?
 This requirement will be fulfilled when the answer is “yes”.
 In Stephen v Myers [1830] 4 C & P 349,
 the defendant threatened to hit the plaintiff and he advanced with clenched
fist upon the plaintiff. He was stopped by a 3rd party just before he could
reach the plaintiff.
 The court held that assault was established as there was capability to carry
out his threat, if he was not stopped by the 3rd party a mere few seconds
before he hit the plaintiff.
Assault… 16

(d) Bodily Movement of the Defendant

 Even though assault involves no contact it is often said that some bodily
movement is necessary.
 Bodily movement means a positive act in the circumstances, indicating that
the defendant will carry out his threat.
 So bodily movement per se would not be adequate, the movement must be
such that it correspond with the probable infliction of unwanted force onto
the plaintiff.
 There must be bodily movement to indicate the threat would be carried out.
 In Read v Coker (1853) 13 C.B. 850,
 The defendant together with his workmen, tucked off their sleeves and
threatened to break plaintiff’s neck.
 The court held that the assault was established.
Assault… 17

 Passive inaction or mere words are

insufficient.
 Theplaintiff must apprehend imminent
physical contact.
 BATTERY 18

• Defined as the intentional and direct

application of force to another
person without the person’s consent.
• Touching need not necessarily
involve violence.
• Battery is committed by intentionally
bringing about a harmful or
offensive contact with the person of
another.
• Purpose : to protect individual from
any interference onto his person,
thus preserving his dignity and
reputation.
Battery… 19
 Elements of battery are:-

(a) the intention of the defendant to

apply force

(b) the act was under the defendant’s

control

(c) contact or application of force

occurs

(d) without plaintiff’s consent

Battery… 20
(a) Intention of the Defendant to Apply Force
 Touching a person without consent has traditionally been regarded as sufficient
battery even though without actual physical harm.
 Case: Cole v Turner (1704) 87 E.R. 907, per Holt C.J.
 “The least touching of a person in anger is a battery”
 The defendant must have applied the force with intention.
 Case: Scott v Shepherd [1773] 2 Wm Bl 892
 a lighted squib was thrown by the defendant into an open market area. A picked
it up and threw it upon B, who then picked it up and threw it away. The squib
hit the plaintiff whereupon it burst into flames.
 Court held: the defendant was liable for the tort of trespass to person although
his initial gesture did not directly affect the plaintiff. According to the court, A
and B reacted for their own safety, and so they did not have the required
‘intention’ to commit the act.
Battery… 21

(b) The Act was under the Defendant’s Control

 The defendant’s act must be done voluntarily.
 Case: Gibbons v pepper [1695] 2 Salk 637
 The defendant was riding a horse when someone hit the horse from
behind, causing the horse to bolt. The horse collided with the plaintiff.
 The court found the defendant not liable as the incident of the horse
bolting and colliding with the plaintiff was outside his control.
Battery… 22
(c) Contact or Application of Force Occurs
 In battery there must be intentional touching or hostile
contact.
 There will be no battery if there is no contact or application
of force on the plaintiff’s body or clothing.
 Generally any physical contact with the body of the plaintiff
or his clothing would be sufficient to constitute ‘force’ but it
has been held that throwing water on the plaintiff might not
necessarily be battery. This case has been interpreted to mean
that contact with things attached to the person will only
amount to a battery if there is a transmission of force to the
body of the plaintiff.
Battery… 23
 Case: Collins v Wilcock (1984) 3 All ER 374
Facts : A woman police officer suspecting that a woman was soliciting
contrary to the Street Offences Act 1959, the police officer tried to
question her but the woman walked away. The police officer took her arm
in order to restrain her. The woman scratched the officer’s arm. The
woman was arrested and charged with assaulting an officer in the
execution of her duty and was convicted.
Held : Appeal was allowed, on the ground that the officer had gone
beyond the scope of her duty in detaining the woman in circumstances
short of arresting her. The officer has committed battery.
Battery… 24
(d) Without Plaintiff’s Consent
 One cannot touch another person without his consent or without lawful justification.
 However, there are touching where it is presumed implied consent exists, such as
tapping a person’s shoulder in order to get his attention, or touching that occurs
while queuing to go on a bus.
 Case: Nash v Sheen [1953] CLY 3726
 The plaintiff went to a hairdressing salon where the defendant used a tone-rinse
without first obtaining the plaintiff’s consent. The plaintiff unfortunately
developed some skin complications due to an adverse reaction to the tone-rinse.
 Court held: the consent given by the plaintiff did not include the tone-rinse and
its consequences. Battery was established.
 Case: Tiong Pik Hiong v Wong Siew Gieu [1964] MLJ 181
 The defendant was found liable in battery for scratching the plaintiff’s face and
hitting the latter, due to her jealousy of the plaintiff’s friendship with her
husband.
FALSE IMPRISONMENT 25

 In Termes de la Lay, false imprisonment is

defined as the restriction of a person’s
freedom of movement.
 The person so restrained is ‘imprisoned’ so
long as he cannot move to another place in
accordance with his wishes.
False Imprisonment… 26

 Elements of false imprisonment are:

(a) intention of the defendant

(b) the restrain must be a direct

consequences of the defendant’s act

(c) the restrain must be complete

False Imprisonment… 27

(a) Intention of the Defendant

 There need be no actual imprisonment.
 It is enough if the person is deprived of his liberty however short. He may
be unlawfully arrest, or is unlawfully prevented from leaving the place in
which he is.
 The defendant must have committed the restraint intentionally.
 The defendant must intend to do an act which directly results in the
confinement of the plaintiff.
 In W Elphinstone v Lee Leng San [1938] MLJ 130, it was held that false
imprisonment cannot be established through negligence. Intention of the
doer is a prerequisite.
False Imprisonment… 28

(b) The Restrain Must Be a Direct Consequences of the Defendant’s

Act
 Only the person who directly causes the confinement may be successfully
sued for false imprisonment.
 He may be liable either because he himself confined or imprisoned the
plaintiff of that he had instigated another person to confine or imprison the
plaintiff.
False Imprisonment… 29
 Case: Harnett v Bond [1925] AC 669
 The plaintiff live in asylum run by D2. the plaintiff was given a month’s leave
but D2 was given the discretion to call the plaintiff back if he felt that the
plaintiff could not look after himself during that one month. On his second day
out, the plaintiff went to an office to pay a visit to some people. D1 who was
there, was of the opinion that the plaintiff was acting strangely. He called D2,
who asked D1 to make sure that the plaintiff stayed there, as D2 would send a
car round to fetch the plaintiff. The car arrived some three hours later and the
plaintiff was brought back to the asylum. D2 found the plaintiff to be insane and
did not let him out. For 9 years thereafter, the plaintiff was sent from one
institution to another. He was finally proven sane and released. The jury was of
the opinion that the plaintiff was sane 9 years previously at the time of
committal to the institution.
 The Court of Appeal found the D1 liable for false imprisonment during the 3
hours’ restrain, and D2 for the 9 years’ restrain.
False Imprisonment… 30

(c) The Restrain Must Be Complete

 There is no false imprisonment if a reasonable escape route is
available to the plaintiff.
 The available means of escape must be reasonable without the risk
of injury or serious inconvenience.
 A person locked by the defendant in a room from which the only
possibility of escape is by dangerous climbing down a drain-pipe, is
considered to be falsely imprisoned.
 Case: Wright v Wilson [1699] 1 Ld Raym 739
 No false imprisonment arose when the plaintiff could have
escaped from his confinement, although it meant he would have
trespassed on another’s land in order to regain his liberty.
False Imprisonment… 31

 Other consideration: Knowledge of Restraint

 The plaintiff does not need to know that he has been restrained
in order to succeed in his action.
 Case: Meering v Graham White Aviation Ltd (1919) 122 LT
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The plaintiff was being questioned at the defendant’s
factory in connection with certain thefts from the defendant
company. He did not know of the presence of 2 works
police outside the room, who would have prevented his
leaving if necessary. The plaintiff succeeded in an action of
false imprisonment against the defendant.
 DEFENCES 32

(i) Self-defence
 It is lawful for a person to use a reasonable degree of force for the
protection of himself or any person against any unlawful use of force.
 The relationship of the parties to be protected may be relevant to the
reasonableness of force used e.g. to protect his wife and children
against terrorist.

 In Chaplain of Gray’s Inn’s (1400) YB 2 Hen. IV, fo. 8, pl. 40, held
that person on whom an assault is threatened or committed is not
bound to adopt an attitude of passive defence. One should not wait to
be punched by the attacker.
Defences… 33
(ii) Consent
 Consent must be genuine, not obtained by force or threat.
 Case: Hegarty v Shine (1878) 14 Cox CC 145
 The plaintiff cohabited with the defendant for 2 years and contracted
venereal disease from him. She claimed he had been assaulting her since
her consent was vitiated by his failure to disclose his ailment, which he
was perfectly well aware.
 The trial judges was of the view that “as a general rule, when the person
consented to the act, there was no assault; but if the consent was by fraud
of the party committed the act, the fraud vitiated the consent, and the act
became in view of the law an assault. Therefore, if the defendant knowing
that he had venereal disease and fraudulently concealed from the plaintiff
his condition, and induced her, and communicated to her such venereal
disease, he had committed assault.” the defendant appealed, and the Court
of Appeal ordered a new trial.
Defences… 34

(iii) Sports
 Those who participated in sport consent to reasonable conduct within
the rules of the game.
 However, actions for assault and battery have succeeded when the
game has involved considerable hostility and deliberate punches.
 In Pallante v Stadiums (No 1) (1976) VR 331, it was held that the
boxers agree to violent bodily typical of the sport, but not to deliberate
foul play.
Defences… 35

(iv) Legal Authority

 For purposes of enforcement of criminal law, police and private
citizens have the right to make arrests and thereby interfere with the
rights of others.
 It is preferable to obtain a warrant of arrest, but at time there is a need
for speedier action of prevention.
 The powers to arrest and restraint by legal authorities is provided under
Article 5 of the FC.
 Power of arrest by private citizen and penghulu are provided in the
Criminal Procedure Code.
Defences… 36
 The police can arrest on grounds of “reasonable suspicion” even though no
offence had in fact been committed.
 Suspicion can take into account matters which could not be given in
evidence at all. For example, previous convictions or for mere
interrogation.
 Case: Mohmood v Government of Malaysia and Anor (1974) 1 MLJ 103
 Held: in effecting an arrest arising from reasonable suspicions the
police may first shots at a suspect if the latter tries to escape from
the scene of crime.
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