Trespass to the Person - Tort Law UK
Trespass to the person is the name given to the group of three very straightforward torts:
- Assault - performing a positive act that makes another apprehend that someone is going to imminently, voluntarily and directly applying force to his body.
- Battery - directly and voluntarily applying force to another's body.
- False imprisonment - performing a positive, voluntary act that directly results in another's freedom to move being restricted to a defined area.
There are two defences one can raise to overcome committing these torts:
- Consent - if the claimant consented to the trespass to his person then he has no claim.
- Necessity - if the defendant trespassed the claimant's person in the best interest of the claimant himself or a third party, there is no claim.
What follows is a list of relevant case law and statutory provisions for each tort. The relatively new tort of harassment is also detailed as this too protects the person.
Intentional Interference with the Person: Trespass to the Person
- Tuberville v Savage (1669)
Here a man drew his sword and said to another 'if it were not assize time I would not take such language from you'. This was held not to be an assault because it was assize time and so the defendant could not have thought he was in imminent danger of being attacked.
- R v Ireland 
Here a man made calls to women only to remain silent in order to frighten them. It was held that this amounted to an assault as the women were afraid that they might be in imminent danger of being attacked. This is an interesting case because it suggests that a small time interval before being attacked is acceptable for the purpose of being 'imminent' - the man calling not being near the women at the time of calling.
- Scott v Shepherd
Here a lit firework was thrown into a marketplace - the workers at the stalls through it from stall to stall until it exploded damaging the claimant. This was held to be a battery and thus the requirement of 'force' can be achieved by throwing something at another.
- Wilson v Pringle
Authority for the idea that the unlawful touching must be hostile in nature.
- Collins v Wilcock
Authority for the idea that people are expected to put up with a small degree of 'every day' touching but any more and there will be an actionable battery.
- Letang v Cooper
Authority for the idea that although battery cannot be made out unless the defendant makes an intentional positive act that results in unlawful touching, a claimant can still be compensated under negligence if the defendant's negligence resulted in the unlawful touching.
- Bird v Jones
A man was refused access to a particular route leading to his destination. Held: this was not a case of false imprisonment since he was free to turn around and take another route.
- Davidson v CC of North Wales
A defendant informed the police that he thought the claimant was stealing from his store. The police arrested the claimant but it turned out he was innocent. Held: the defendant had not committed false imprisonment. Stands as authority for the proposition that merely giving relevant information to another which then might lead to the imprisonment of someone else is not enough to satisfy the 'directness' element of false imprisonment.
- Iqbal v Prisoner Officers Association
Here workers at a prison chose not to go in to work with the effect that many prisoners were not let out of their prison cells. Held not to be false imprisonment because omitting to attend work is not a positive act. Note: in this case the workers were in breach of contract but it seems strange to rely on contract law to protect peoples' rights in this way. Indeed, as is clear from this case, the fear of breaching one's contract is sometimes not enough.
- Murray v MoD
Authority for: a person is still falsely imprisoned even if he didn't realise that he was so imprisoned and could not leave (for example if he didn't want to leave anyway but later found out that he wouldn't have been able to if he tried).
- Robinson v Balmain Ferry
Authority for: if the claimant agreed to reasonable conditions and then refuses with the result he is falsely imprisoned, there will be no actionable false imprisonment.
Here the claimant agreed to pay a penny when he left a ferry, but refused to pay anything when he left with the result that he was imprisoned on the boat. His claim failed because the conditions he agreed to were reasonable.
Defences - Consent
- Chatterton v Gerson
The claimant had an operation in which she was not informed about a particular risk of having it. Held that the lack of knowledge about just one particular risk did not vitiate her consent to the operation, she knew the nature of it and this was enough.
- Blake v Galloway
Stands as authority for the consent to risk of being harmed being just as valid as consent to actually being harmed. Here a group of 15 year olds were throwing twigs about at each other until one was injured in the eye. It was held that such a risk was consented to as part of the dangers of the activity they all consensually participated in.
Defences - Necessity
- Cross v Kirkby
A farmer was violently attacked by the claimant but managed to disarm his baseball bat and then deliver a single powerful blow to his head. Held: the defendant had applied reasonable force in the circumstances as it was solely for the purpose of preventing further damage being done to him.
- Re F
The doctors and mother of a patient with a mental age of below 5 wished to have her sterilised as the consequences of her becoming pregnant (she understood little about the concept) would be dire to her. Held: the doctors were permitted to proceed without the patient's consent as she was incapable of giving it.
Mental Capacity Act 2005
The decision of Re F has been given a statutory footing in the Mental Capacity Act 2005 which provides useful details on how to apply the rules governing consent.
- s 1(2) A person is assumed to have capacity until otherwise established
- s 1(3) A person is not to be said to be unable to make decisions unless all steps to help him do so have been taken
- s 1(4) A person is not said to be unable to make decisions merely because he makes an unwise decision
- s 2(1) A person lacks capacity in relation to a matter if at the time he suffers from an impairment in the functioning of the mind
- s3(1) A person is unable to make a decision if he is unable (a) to understand, (b) retain and (c) weigh the information relevant to the decision or (d) communicate his decision.
When assessing the best interests of C, D must consider:
- s4(3)(a) Whether it is likely that the person will at some time have capacity in relation to the matter in question.
- s4(6)(a) The person's past and present wishes and feelings (in particular relevant written statements made when he had capacity).
- s4(6)(b) The beliefs and values that would be likely to influence his decision is he had capacity.
D is not liable for acting without C's consent if:
- s5 (a) Before doing the act, D takes reasonable steps to establish whether C lacks capacity
- s5(b)(i) D reasonably believes C lacked capacity
- s5(b)(ii) D reasonably believes the act was in C's interest
Advance Decisions to Refuse Treatment
- Definition: decision must be made after person has reached 18, and has capacity
- s24(3) C may withdraw or alter an advance decision at any time when he has capacity to do so
- s24(4) A withdrawal need not be in writing, s24(5) Nor does an alteration
- s25(1) An advance decision does not affect the liability which a person may incur for carrying out or continuing a treatment in relation to C unless the decision is at the material time (a) valid and (b) applicable to the treatment
- s25(2) An advance decision is not valid if C (a) has withdrawn the decision at a time he had the capacity to do so, (c) has done anything else clearly inconsistent with the advance decision remaining his fixed decision.
- s25(3) An advance decision is not applicable to the treatment in question if at the material time C has capacity to give or refuse consent to it.
- s25(4) Nor applicable if (a) the treatment is not the one specified in the advance decision (b) any circumstances specified in the advanced decision are absent (c) reasonable grounds exist to believe that C did not anticipate any circumstances which would have affected his decision had he known of them.
- s26(1) If C made an advance decision which is (a) valid and (b) applicable to a treatment, the decision has effect as if he had made it, and had had capacity to make it, at the time when the question arises whether the treatment should be carried out or continued.
- s26(2) A person does not incur liability for carrying out or continuing the treatment unless, at the time, he is satisfied that an advance decision exists which is valid and applicable to the treatment.
Interference Based on the Public Interest
Many situations exist where it is in the public interest that interference with another's person should go without punishment.
- Prisons Act 1952, s 12(1)
A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison.'
- Hague v Deputy Governor of Parkhurst Prison
Here a prisoner was detained in isolation for 28 days contrary to the Prison Rules 1964. The court held that there was no limit on a governor's power under s 12(1) of the Prisons Act 1952 but made it clear that anyone else e.g. another prisoner or an employee of a prison acting without the authority of the governor, cannot imprison another without facing liability for false imprisonment.
- Lumba v Secretary of State of the Home Department
The Home Office implemented a secret policy meaning that any foreign national prisoner who needed to be deported would be detained immediately after leaving prison. Lumba was a prisoner detained under this secret policy. Held: the Home Office had falsely imprisoned Lumba.
- 3 (out of 9) of the Lords held that it was unlawful to detain Lumba on the basis that their actions were contrary to the public law principle of transparent detention. In other words, since the secret policy was invalid so was the detention made under it. It was held not to matter that the Home Office could easily have detained Lumba under their official policy.
- Ashley v CC of Sussex Police
During a raid a policeman shoots a man dead on the honest belief that he was in danger. He was acquitted of the criminal charge because of this belief. His family successfully sued him, however, as a belief of being in danger is not enough to escape liability in tort.
- Protection from Harassment Act 1997, s 1(1)
'A person must not pursue a course of conduct (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of another.'
- s 7(2)
'References to harassing a person include alarming the person or causing the person distress.'
- Equality Act 2010, s 26.
Harassment involves performing:
(a) Unwanted conduct related to a relevant protected characteristic: age, disability, gender reassignment, race, religion or belief, sex or sexual orientation, or
(b) Unwanted conduct of a sexual nature, or
(c) Unwanted conduct of a sexual nature related to gender reassignment or sex resulting in A treating B less favourably because B rejected or submitted to that conduct,
(2) For the purpose or effect of (a) violating B's dignity or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
- Thomas v News Group Newspapers
Here Lord Phillips suggested that harassment must be calculated to cause the claimant alarm or distress, but this cannot be the case since the Harassment Act 1997 specifically states that harassment can occur even if the defendant only ought to have known that it was harassment.
- Majrowski v Guy's and St Thomas' NHS Trust
Sets out the concept of 'threshold of seriousness'. Mere annoyances are not sufficient to amount to harassment. The conduct must be 'oppressive and unacceptable'.
- Ferguson v British Gas
Establishes that when deciding whether a company committed harassment or not, it is not just the actions of the 'directing mind or will' of the company that are capable of raising liability; rather, it is the actions of any employee (at any level) that acts on behalf of the company.
Wilkinson v Downton
Here the defendant deliberately lied to the the claimant and told her that her husband was severely injured, with the result that the claimant was severely distressed.
Held: this amounted to a tort (known as the 'tort in Wilkinson v Downton') and so intentionally causing pure distress can be seen as its own separate trespass to the person.