Tort of Trespass to the Person
Trespass to person
 Protects right to physical integrity, dignity, inviolability, sanctity of person
 Interference must be international (not intention to harm, intention to commit requisite interference)
 Battery – distinction b/w direct, intentional and unintentional (negligence) Letang v Cooper Fowler v Lanning
o Assault, battery, false imprison actionable per se (injuria sine damno), no proof of damage
o Wilkinson v Downtown rule on recklessness, not actionable per se, must prove damage
Assault Collins v Wilcock: act causes another to apprehend infliction of immediate, unlawful force
 Assault: P must show reasonable apprehension of an immediate battery (reasonable person test)
 Irrelevant whether P afraid or scared (test is what would reasonable person do in situation)
 Tort does not exist is battery likely to occur in future, however once there is apprehension of immediate battery,
does not matter if battery never occurs Stephens v Myers
 If there is no means of putting threats into effect, no assault Thomas v NUM
 Words constitute assault (if reasonable person would apprehend fear) (circumstances: could P see speaker,
nature of words, identity of speaker, accompanying gestures, tone of words, etc.) i.e. “your money or your life
in dark alley” Constanza – apprehension is relevant factor
 Silent telephone calls – “a thing said is a thing done” Burstow & Ireland
 Words sanitize assault Tuberville v Savage – question of fact, circumstances
 Conditional threats constitute assault (“get out or I’ll hurt you”) – person may block exit – test is would
reasonable person apprehend immediate violence
 Word and actions Read v Coker, Stephens v Myers
 Scott v Shepard continuous actions constitute tort (lighted squib case)
Battery Collins v Wilcock: actual infliction of unlawful force on anther person
 Force may be in any form Cole v Turner: “least touching in anger is a battery”
 Protect against physical molestation, i.e. unwanted kiss – essence is that P does not consent to force
 Everyone consents to being touched in crowd, implied consent Wilson v Pringle, part of general life
 Element of hostility Wilson v Pringle – question of fact – if acting unlawfully act with hostility
 Hostility present if not consent F v West Berkshire Health Authority inviolability of person
 Hostile if unwanted, w/out lawful excuse, not generally conduct of daily life Mepstead v DPP
Recklessness Wilkinson v Downton: willfully done act calculated to cause physical harm, does harm
 Infringe right to personal safety, physical integrity that operates on sense, right to mental security
 Not battery (no force), nor assault (no intent to cause apprehension of force), but should be actionable
 If intentional act causes apprehension of fear is wrong, then plainly act that actually causes harm should
likewise be wrong – ought to be tortuous, remain actionable
 Upheld Janvier v Sweeney
 Not actionable per se must prove damage Burnett v George, Khoransandjian v Bush, Hunter v Cancery,
damage not too remote; defines psychiatric damage R v Chanfwok palpitations, sleepless, anxiety (clinical), not
fear, distress, panic
Defense to assault and battery
 Consent: P must establish he/she did not consent
o Sports does not assume any and all risk, players not rendered immune from liability Colby Schmidt
o Consent must be freely given, not coerced, not under duress or undue influence Re T
o Minors may consent if fully understand consequence of act Gillick v West Norfolk & Wisbech HA
o Medical consent: as long as P understands broad nature of procedure Chatterton v Gerson
o Consent limited to doing act consented to Re T boy admitted for tonsillectomy, circumcised instead
o Cannot consent to harm R v Brown
 Self-defense: person may use reasonable force; proportionate, preventative, not retaliatory Revill v Newberry
 Provocation: no defense as to extinguish liability, only reduce damages Lane v Holloway
 Contributory negligence: P partly to blame Lane v Holloway, Barnes v Nayer
 Ex turpi causa: “no one can profit from a wrong” Murphy v Culhane
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Parental authority: parent or person acting in loco parentis Mayers v AG of Barbados
Statutory authority: laws grant permission
Necessity: actions taken to preserve life F v West Berks Health Authority, Leigh v Gladstone
False Imprisonment: unlawful imposition of restraint on person’s freedom of movement in particular place
 Not need for actual imprisonment or force “stone walls do not a prison make” – false means wrongful
 Debate whether protects freedom of movement or simply (does obstruction amount to false imprisonment)
 Restraint must be total Bird v Jones if P has alternative means, that is reasonable no false imprisonment
 P does not have to accommodate specific mode of departure Robinson v Balmain New Ferry
 Contract out freedom, D not liable is not w/in agreement Herd v Weardale Steel, Coal, Coke Co
 Law places supreme importance on liberty, if P unaware expect nominal damages
o Contrast Meering, Herring v Boyle, and Murray v Min of Defense
 Can be imprisoned by show of authority, force Clarke v Davis, Chong v Miller, no physical restraint needed
 Alternatives must be practical – contrast Mcollin v DaCosta & Musson Ltd with Bustien reputation diminished
 Prisoner not entitled to residual freedom R v Deputy Governor of Parkhurst Prison
 If P authorized constable Hughes v Mc Clean
 FI excess detention Olotu v Home Office
Defenses to FI: Lawful arrest: police may arrest with warrant, private citizen can arrest for breach of peace being
or about to be committed (once breach no longer likely no power to arrest) – all have stake in peace
 Lawful arrest R v Self, Walters v Smith guilty of FI b/c no offense proved
 Police, private citizen can arrest when there is reasonable suspicion of crime; for private citizen crime must
have been committed, even if not by suspect, no defense D reasonable though person guilty
o Contrast R v Shelf, v Roland v Wiggins, and Walters v Smith
 Cumming v Demas could not arrest person for obstructing arrest of another b/c no crime had been committed
 Banyasz v K-Mart Canada security guard treated as private citizen
 Jango v Gomez statute gave estate constables “all right, powers… privileges, immunities…” as police
 Must be told plainly ground for arrest R v Smart unless ground obvious or person’s conduct prevents
 Dallison v Caffery police officer not private citizen can do reasonable investigation, before going to station
 Must be intentional Sayers v Harlow unintentionally struck in toilet, succeeded in negligence not in FI
 D must be brought before magistrate as soon as possible Davis v Renford