Law of Tresspass

LAW OF TORT LAW2002-N 20011/12 Lectures 3 and 4: Trespass to the Person Lectures 5 – 12:Negligence TRESPASS TO THE PERSON Reading: Steele Chap 2 to page 81; Street Chap 3; Winfield Chap 4. ASSAULT AND BATTERY Introduction Battery: intentional application of force to another person. Assault: act of the defendant which causes to the claimant reasonable apprehension of the infliction of an immediate battery on him by the defendant. Battery 1. The character of the act of D a)It must be a positive act. b)D must have control over what he is doing. c)There must be force and contact. Collins v Wilcock [1984] All ER 374Wilson v Pringle [1987] QB 237. In Re F (Mental Patient: Sterilization) [1990] 2 AC 1 2. State of Mind ie. the relationship between trespass and negligence. Letang v Cooper [1965] 1 QB 232; [1964] 3 WLR 573; [1964] 2 All ER 929; [1964] 2 Lloyd's Rep. 339. Note that since Fowler v Lanning [1959] 1 QB 426; [1959] 2 WLR 241; [1959] 1 All ER 290. C must prove that D acted in tentionally or negligently. 3. Livingstone v Ministry of Defence (1984) 15 NIJB – transferred malice 4. No consent by C and the burden is on C to prove it. Freeman v Home Office (No 2) [1984] QB 524 5. No damage need be proved. Assault 1.This means the act of putting another person in reasonable fear or apprehension of immediate battery. eg. pointing loaded gun shaking one's fist under C's nose. But not shaking fist from window of departing train. Thomas v NUM [1985] 2 All ER 1, 24 2. Mere words are not assault however menacing: there must be threatening acts Meade's Case (1823) 1 Lew CC 184 â€Å"No words or singing are equivalent to assault†. cf. R v Wilson [1955] 1 WLR 493 However a)There is no clear authority on this rule. b)In the nature of things threatening words are usually accompanied by threatening gestures. c)Words accompanying a menacing gesture may negative ts being an assault. Turbervell v Savadge (1669) 1 Mod. Rep. 3; 2 Keb 545; NoteStreet says that it i s preferable to treat this statement as merely an illustration of the principle that D must have caused C to apprehend an immediate contact rather than to make it a separate rule. A case to be distinguished is where there is a conditional threat: Ansell v Thomas [1974] Crim LR 31 See also Read v Coker (1853) 13 C. B. 850 3. Pointing a loaded pistol is obviously an assault. What if it is unloaded but C does not know this? There is one criminal case where it was the ratio that to point an unloaded gun at P is an assaultR v St George (1840) 9 C&P 483, 492. 4. If D's blow is intercepted by a third party this will still be an assault. Stephens v Myers (1830) 4 C 349; 34 R. R. 811. 5. The act of D need not produce actual fear just reasonable apprehension. 6. There can be battery without assault. FALSE IMPRISONMENT Definition:The infliction of bodily restraint which is not expressly or impliedly authorised by the law. – Winfield. State of Mind This tort normally involves an intentio nal act in the sense that D must intend to do act which is at least substantially certain to effect the confinement.It is, however, a tort of strict liability in that there need be no intention to act unlawfully – R v Governors of Brockhill Prison ex parte Evans No. 2 [2001] 2 A. C. 19 Malice is irrelevant. On principle negligence ought to be enough. â€Å"Accordingly, if a person locks a door being negligently unaware of the presence of somebody in the room, this should be false imprisonment. †: Street â€Å"False† – wrongful. â€Å"Imprisonment† – â€Å"Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets† – Blackstone.The character of D's act 1. There need be no actual incarceration. 2. Physical force is not necessary. Meering v Graham – White Aviation Co 122 LT 44 3. The area of confinemen t may be very large. 4. Restraint must be complete. Bird v Jones (1845) 7 QB 742; 9 Jur 87; 66 RR 564. 5. If a person has the means of escape, but does not know it, it is submitted by Winfield that his detention is nevertheless false imprisonment unless any reasonable man would have realised that he had an available outlet. 6. Act must be direct. 7. There must normally be a positive act rather than an omission.Herd v Weardale Steel, Coke and Coal Co [1915] AC 67; 111 LT 660. Knowledge of C Herring v Boyle (1834) 1 CM&R; 6 Car&P; 4 Tyr 801; 3 LJ Ex 344 cfMeering v Grahame – White Aviation Co (Supra) Murray v Minister of Defence [1985] 1 WLR 692 No proof of actual damage is necessary. INTENTIONAL PHYSICAL HARM OTHER THAN TRESPASS TO THE PERSON: The Rule in Wilkinson v Downton An act wilfully done which is calculated to cause, and does cause, physical harm to a person is a tort, although it may not be trespass to the person or other specific tort. This principle was laid down by WRIGHT, J. in Wilkinson v Downton [1897] 2 QB 57; 76 LT 493.Upheld by C. A in Janvier v Sweeney [1919] 2 KB 316; 121 LT 179. In Wainwright v Home Office [2002] 3 WLR all three judges in CA held the view that either actual intention or objective recklessness would suffice. Protection from Harassment Act 1997 But see also Hunter v Canary Wharf [1997] AC 655 DEFENCES TO AN ACTION FOR TRESPASS TO THE PERSON Self Defence Main question is whether force used by D was reasonable in the circumstances. Prevention of trespass to land or ejection of trespassers from land Note that unless the trespasser is entering by force, D must ask him to leave before using force against him.Volenti Burden is on C to establish lack of consent. Parental or other authority Inevitable accident Not relevant as a defence. Since Fowler v Lanning (supra) the burden has been on C to prove that D's act was intentional or negligent. Failure by C to fulfil a reasonable condition This is a defence to false imprisonment . Note:Robinson v Balmain Ferry [1910] AC 295 Herd v Weardale (supra) D acting in support of the law Dallison v Caffery [1965] 1 QB 348; [1964] 3 WLR 385; [1964] 2 All E 610 cfHogg v Ward (1858) 27 LJ Ex 443.