Trespass to the Person, Land and Goods Lecture

Trespass to the Person

Whilst the criminal law has developed its own framework to combat injurious actions against the individual, it concentrates on punishing the defendant, rather than aiding the victim. Tort law has therefore developed its own framework for claims against defendants who have acted to infringe personal rights. This includes the torts of battery, assault, false imprisonment and harassment.

It should be noted that these torts have fallen out of use in favour of the use of negligence, but they nonetheless remain part of the law. They are particularly useful in cases in which the claimant suffers no harm or injury since in contrast to negligence, the tort of personal trespass does not require demonstrable harm to be actionable.

Battery

Battery simply involves the intentional and direct application of force to another person (either to their body or via their clothing). It is essential to note that it does not require injury or objective harm - an individual has a straightforward right to not be physically touched or moved by another person.

Intention

The key feature of battery is intention - else every busy street would result in a litany of cases. The intention requirement be seen operating in Letang v Cooper.

Direct Application

Direct application of force is also a requirement of battery. This requirement should not be taken literally - a defendant can use a tool to inflict battery. This is logical given that the reasoning behind battery is to protect individuals’ personal rights: it would not matter to the individual whether they’re being poked with a finger, a baseball bat, or hit with a thrown baseball - the nature of the interference is essentially the same.

Indirect contact can still fulfil the ‘direct application’ requirement. This can be seen in Pursell v Horn [1838] 112 ER 966. The defendant threw boiling water over the claimant. Despite this not being a direct form of contact, it was still held to be a direct application of force, and thus the components of battery were in place.

Contact by a third party can also fulfil this requirement, given that the contract is instigated by the defendant. The key example here is Scott v Shepherd [1773] 96 ER 525 (discussed too in causation.) The defendant threw a small explosive into a crowded market. It landed next to a market-trader, who threw it onwards. This happened once more again, until the explosive blew up, blinding the eventual victim in one eye. Despite the intervention of the third parties, this was held to constitute the direct application of force. It wouldn’t do for a defendant to be able to place someone else in a position where they unwittingly harm another and escape liability, and thus the law recognises these sort of situations as battery.

The criminal law concept of transferred malice means that a defendant who intends direct contact with one party but instead hits another will be held liable for the contact with the ‘wrong’ victim. This can be seen in Livingstone v Ministry of Defence [1984] NI 356. A solider in the employ of the defendant fired his gun at a rioter. He missed the rioter and hit the claimant. Under the doctrine of transferred malice, he was held to have committed battery against the claimant.

Whilst injury is not a prerequisite, the courts will distinguish between hostile and unhostile contact. This is why, quite reasonably, one person can tap another on the shoulder to get their attention without a claim in battery arising. As per Cole v Turner [1704] 6 Mod Rep 149, the “least touching in anger is a battery.” Whilst hostility is usually accompanied by a lack of consent on the part of the victim, non-consent will not always indicate hostile intent. In F v West Berkshire Health Authority [1989] 2 AC 1, the concept of battery came under close scrutiny when doctors came to the courts seeking permission to sterilise a seriously mentally disabled, but sexually active patient, in order to avoid the trauma that an unintended pregnancy would cause to her. This was ruled to be a lawful practice, and in giving his judgement Lord Goff (at 564) alluded to an alternative situation of non-consensual, but necessary forceful contact: “….a man who seizes another and forcibly drags him from the path of an oncoming vehicle, thereby saving him from injury or even death, commits no wrong.”

Assault

Not to be confused with the everyday meaning of assault (as in attack), assault in criminal and tort law refers to situations in which an individual “causes another person to apprehend the infliction of immediate, unlawful force on his person”, as per Collins v Wilcock [1984] 1 WLR 1172. It often goes hand-in-hand with battery, since there will often be a moment before a battery occurs in which the victim can see what is about to happen.

Intention and Form

Assault does not solely involve physical indications of violence - it is now the case that words and threats can constitute assault, as long as they fulfil the relevant criteria. Since assault is based around communication, even silence can constitute an assault. The issues of both words as assault and silence as assault appear in R v Ireland.

It should be noted that, as with battery, intention is a necessary component of assault. Thus, somebody who unwittingly acts in a way which causes another to apprehend an attack will not be liable - else someone walking down the street towards a baseball game holding a bat might find themselves in significant trouble.

Reasonableness of Fear

The fear of the victim must be reasonable. This reasonableness will be judged based on the facts which are available to the victim at the time of the assault, rather than the objective reality of the situation. This principle can be seen at work in R v St George [1840] 9 C&P 483. The defendant had an argument with the victim, and took out a gun and pointed it at him. The gun was unloaded. This was still assault - the victim still apprehended being shot. Thus, although there was no objective danger to the victim, a reasonable person in his position would have thought that there was danger, and so it was assault.

It is a requirement of assault that the apprehended danger be of an immediate nature - so a threat to take a violent act in a month will not constitute assault (this constitutes a different criminal act.) This principle can be seen in Mbasogo v Logo Ltd (No. 1) [2005] EWHC 2034. The claimant was the President of Equatorial Guinea. A group of insurgents planned to stage a coup of the country, which would have involved forcibly (and probably violently) removing the claimant from power. The coup failed, and some of the plotters were caught outside of Equatorial Guinea. In the following days, an advance party of the plotters was caught inside of the country. The claimant brought a case against the defendant for, amongst other things, assault - since in the time between the plot being uncovered and the plotters being caught, he feared for both his life and that of his family. The claim for assault failed - whilst the claimant certainly reasonably feared violence, this violence was not held to be immediate.

Since assault is a matter of what the victim believes can happen in the immediate future, a threat the victim knows the defendant cannot carry out will not constitute assault. This can be seen in Thomas v National Union of Mineworkers [1986] Ch 20. The defendants and the claimant were all miners, embroiled in the miners’ strikes of the mid-80s. The defendants were striking, and on the picket line being held back by the police. The claimant, along with a number of other workers, was being bussed to the mine, and the defendants yelled threats of violence towards him. Since the defendants could not have possibly reached the bus to carry out their threats, this did not constitute assault, and the claim thus failed.

Defences to Assault and Battery

Lawful Authority

Those with lawful authority will be protected from being held liable of either assault or battery. Thus, under the Police and Criminal Evidence Act 1984 the police can use reasonable force in order to arrest somebody (amongst other activities). Similarly, medical professionals can use reasonable force within certain situations specified by the Mental Health Act 1983. It is important to note that people with lawful authority do not have the authority to do as they will - they still have to act reasonably. This can be seen in Collins v Wilcock [1984] 3 All ER 374. A police woman stopped in her police car to speak with the defendant - she was under the impression that the defendant might have been soliciting for the purposes of prostitution. She asked the defendant to get into her car. The defendant refused and went to leave, whereupon the officer grabbed her arm. In response, the defendant scratched the officer. The defendant was charged with assaulting a police officer in the course of duty. Upon appeal however, the conviction was quashed - the defendant was not under arrest, and so the officer’s action amounted to battery. The defendants action was thus in self-defence.

Self-Defence

As can be seen in Collins, an individual can use reasonable force to protect themselves against either an actual or perceived threat of harm against themselves or another person. The force must be proportionate to the threat - since the purpose of the force is to repel to threat, it must be no more substantive than is necessary to do that. This principle can be seen in Revill v Newbury [1996] 2 WLR 239. The defendant owned an allotment and a shed, in which he had taken to keeping valuable items. The shed was frequently broken into, and thus the defendant had begun to sleep in it, armed with a shotgun. The claimant came along at 2am to break into the shed. The defendant awoke and shot through a hole in the shed, shooting the claimant in the arm and torso. Both parties were held criminally liable for their respective actions, and then the claimant brought a claim in tort against the defendant, who argued self-defence. The claim succeeded - the defendant’s actions were far in excess of what was required to repel the threat of the burglars. The claimant’s damages were reduced by 2/3rds on the basis of contributory negligence.

Parental Authority

Whilst becoming increasingly unpopular, parents still have a right to use physical force to chastise a child (often colloquialised as ‘smacking’.) This right has important limits, however. The level of force inflicted must be proportional to the child’s behaviour (and has, in any case, an upper limit), and if the child does not understand the purpose of the punishment, the defence will fail. This can be seen in A v UK [1998] 2 FLR 959. ‘A’ was an eight year old whose doctor notified the authorities when he noticed that the boy had several marks indicative of beating with a cane. Whilst the jury acquitted the boy’s step-father, a case was brought against the UK in the European Court of Human Rights, alleging that there had been a failure in law to protect the boy’s Article 3 right to avoid inhumane or degrading punishment. This was successful.

Necessity

If interference with another (i.e. battery) will protect them from a greater evil, then this will form a valid defence against battery. This is the essence of the ‘pushing someone from the path of a car’ discussed in F v West Berkshire Health Authority above.

Consent and Contributory Negligence

As with other torts, consent and contributory negligence form an absolute and partial defence respectively, to the torts of assault and battery. There is a limit to the bounds of consent - see R v Brown [1993] 2 All ER 75 (and other criminal cases related to it). However, this limit tends to only be approached once behaviour moves into actual bodily harm territory, rather than simple battery.

False Imprisonment

False imprisonment is restraint without lawful authorisation. It is essentially the tort of either directly holding a victim in one place (in which case it will overlap with battery), or else creating a set of circumstances that prevents the victim from leaving. Like assault and battery, no harm is required before this tort becomes actionable. Indeed, as long as the circumstances of false imprisonment exist, the victim does not need to even be aware that they are being falsely imprisoned before a case can be brought. This can be seen in Murray v Ministry of Defence.

Thus, whilst finding out that you’re locked in a room is more troubling than finding out that you were locked in a room, the same wrong has still be committed in both cases. Furthermore, consider a situation in which, for nefarious purposes, it was necessary to keep an individual from leaving their home for an hour. Just because the victim happened to not try to leave their home for that period does not change the nature of the wrong which has been committed. The tort of false imprisonment can thus be thought of as involving the creation of an illegitimate situation, even if that situation doesn’t result in an active harm.

It is important to note that whilst being locked in room or held onto by another are both forms of false imprisonment, the restraint needn’t be physical - so, as in Murray, the simple implication that the claimant was under arrest (when she was not) was enough to constitute false imprisonment.

Total Loss of Freedom

The key element of false imprisonment is that it must involve a total loss of freedom - it will not arise in situations where the victim is merely prevented from proceeding in a particular direction. This can be seen in Bird v Jones [1845] 7 QB 742 - the claimant attempted to cross a bridge which was closed during a sailing regatta. He claimed that this limitation on his freedom of movement constituted false imprisonment. The claim however, failed: whilst he was prevented from moving forwards, he was free to go back the way he had come. Thus, because he was only partially restrained, false imprisonment did not occur.

Defences to False Imprisonment

Reasonable Condition of Release

If the claimant is being detained on the basis that they need to meet a reasonable condition, then this will form a defence to a claim of false imprisonment. This can be seen in Robinson v Balmain New Ferry Co. Ltd [1910] AC 295. The claimant paid a penny to enter a wharf via a turnstile so that he could board a ferry. He then decided to not wait for the ferry, and attempted to go back through the turnstile. However, as noted by a sign on both sides of the turnstile, there was a charge of a penny to both enter and exit the wharf. A similar fee would have been payable at the wharf on the other end of the ferry journey. The claimant refused to pay the exit fee, and so was prevented from leaving. He later brought a claim in false imprisonment. The claim failed - he was aware of the fee before he entered the wharf, and furthermore he had the exit of the ferry journey available to him. This case is also cited as a matter of consent - the claimant was aware of the conditions of his release when he entered the wharf.

Assuming the surrounding circumstances are reasonable, a claimant who has to wait a reasonable period of time for ‘release’ will not be considered as being falsely imprisoned. This can be seen in Herd v Weardale Steel, Coal and Coke Co Ltd. [1915] AC 67. The claimant was a miner who descended in a lift to the bottom of a pit. When he arrived, he decided not to work, and asked to be returned to the surface in an empty lift. The defendants refused, and told him that he had to wait until the end of the previous shift, some twenty minutes later. He brought a claim in false imprisonment which failed. The courts regarded this as a matter of consent, but again, this can be thought of as a matter of reasonable condition of release - the claimant had a right to leave, but not to the extent that the defendants had a duty to act immediately to realise it.

Lawful Authority

As with assault and battery, the police have a reasonable right to restrain individuals in particular circumstances. However, if these circumstances are not in place, then cases can be brought against them for false imprisonment. This is usually based on the concept of reasonable belief on the part of the police officer involved that the claimant has committed, or is about to commit an offence. This is a significant area of liability for the police, and so is covered in greater detail in policing law resources.

Mental health professionals also have a similar ability. It is also possible to lawfully detain an individual if they have a particular contagious disease, as per the Public Health (Control of Disease) Act 1984.

Consent and Contributory Negligence

As noted above, individuals can explicitly or impliedly consent to temporary imprisonment of some kind, as in Robinson. It is also feasible that an individual might contribute to their own detention - someone who pretends to shoplift and is then kept for longer than necessary by a security guard, for example, will reasonably be regarded as having contributed to the situation.

Wilkinson v Downton and Indirect Trespass

Although largely subsumed by the torts of negligence and harassment, the case of Wilkinson v Downton provides an action based on the infliction of indirect harm on another.

This is essentially the tort of communicating information designed and intended to harm the well-being of an individual. The elements of liability were more recently laid out in Wong v Parkside NHS Trust [2001] EWCA Civ 1721. The claimant was subject to a campaign of workplace harassment and bullying from the defendant, eventually culminating in a physical attack. As a result, the claimant suffered from a variety of physical and psychiatric injuries. The defendant was prosecuted for the assault, but the claim on the basis of Wilkinson was struck out. The court identified three elements of the tort - actual harm in the form of physical or psychiatric injury, there must be intention, and the conduct must be of such a degree and such a nature that it was intended to cause harm. It was this third ground that Wong failed to meet.

Now that harassment law is firmly in place Wilkinson is rarely utilised - indeed, in the time since the original case, it has only been successfully employed twice in Janvier v Sweeney [1919] 2 KB 216 and Khorasandjian v Bush [1993] QB 727. In the former, private detectives threatened to out the claimant’s fiancé, who was imprisoned by Germany at the time, as a spy (a dangerous allegation, given the year.) In the latter, a series of threatening calls were made to the claimant, and the case was used as the basis for an injunction. Nevertheless, Wilkinson remains good law, despite its function being overtaken by legislation.

Harassment

Thanks to the Harassment Act 1997, the tort of harassment now has a statutory definition. Its three elements are mentioned in s.1 of the act: “a course of conduct that the defendant knows or ought to know amounts to harassment of another.”

Course of Conduct

As per s.7(3), this refers to conduct on two or more occasions - so one off instances are not covered. This can be seen as a reference to concerted intention: a one-off occasion of nastiness is regrettable, but potentially eccentric. Two occasions, however, indicates a pattern, and a failure to self-modulate on the part of the defendant. Conduct includes speech, as per s.7(4).

That Amounts to Harassment

As per s.7(2) harassment is that which causes alarm or distress in the victim. Notably, this is subjective on the part of the victim. This makes sense - what alarms and distress one person might be a hugely comical joke for another.

In combination with the ‘two occasion’ rule, this also allows a defendant a chance to understand the effect of their conduct - since harassment depends on subjectively on the victim’s response, a defendant cannot be expected to know the victim’s subjective response before the first time the conduct occurs.

The Defendant Knows (Or Ought to Know) That It Amounts to Harassment

Knowledge is either subjective on the part of the defendant, or otherwise objective if, as per s.1(2), a reasonable person who has the same knowledge as the defendant would consider it harassment.

Examples include a campaign of threats against the employees and business partners of an medical animal research laboratory, in Daiichi v Stop Huntingdon Animal Cruelty [2004] 1 WLR 1503, workplace bullying in Majrowski v Guy’s and St. Thomas’s NHS Trust [2006] 2 WLR 125 (which recognised vicarious liability for the tort) and aggressively intrusive police questioning, in KD v Chief Constable of Hampshire [2005] EWHC 2550.

Trespass to Land

Trespass to land is the unjustified interference with the possession of land. This interference might take the form of someone refusing to leave land or property when asked by the legal possessor, or the dumping of an unwanted fridge on the lawn of a neighbour. The process whereby an authorised visitor can become a trespasser is discussed in detail in the chapter on occupiers’ liability.

Whilst both trespass of land and goods (discussed below) are torts, they are primarily a matter of property rights. Thus more information on either can be found in property law resources.

There are four elements of the tort which need clarification: there must be direct interference, and that interference must be voluntary, but there is no need for awareness that trespassing is occurring, and there is no need for harm (it is actionable per se).

Direct Interference

There must essentially be some purposiveness to the interference with the land. Consider an aging tree on the edge of a neighbour’s property. If the tree’s owner pushes it or cuts it so that falls onto the neighbour’s land, then this would be direct interference. In contrast, if the tree simply falls from old age onto the neighbour’s land, this will not be the tort of trespass - instead, it will likely be negligence or nuisance.

This interference needn’t be particularly egregious. This can be seen in Gregory v Piper.

Voluntariness

The interference must be voluntary - so if party A pushes party B onto the claimant’s land, party B will not be liable for trespass. Party A, however, will - they have interfered with the claimant’s land, having pushed something onto it, like the tree owner above. Thus, in Stone v Smith [1947] Style 65, the defendant was brought onto the claimant’s land against his will. This was not trespass.

Awareness is not Necessary

Trespass caused by a mistake is still actionable - thus someone who dumps a fridge onto their neighbour’s land, whilst thinking they are dumping it onto their own land, will still be committing a tort. Similarly, someone who is mistaken as to their permission to enter onto land will still be committing a tort, as per Conway v George Wimpey & Co Ltd [1951] 2 KB 266.

No Harm Needed

Trespass to land, much like trespass to the person, is a matter of protecting rights, rather than preventing harm. Because of this, no harm need be shown before a trespass is actionable. Thus someone who builds a house on a piece of land the owner wasn’t intending to use will still be committing a tort.

Further Trespass Rules

There are three particulars of trespass which bear mentioning. Firstly, ‘land’ should be given its proper property law definition - it includes the air above a piece of property and the soil below. Essentially, land rights can be pictured not as a 2D plane on a map, but rather as a 3D ‘cube’ that the owner gets to enjoy the rights to. There is an upper and lower height limit to this cube, however, as seen in Bernstein v Skyviews and General Ltd [1978] QB 479. The defendant took aerial photos of houses and then offered them to the owners. The claimant argued that the defendant had trespassed into his airspace to take the photograph, and had thus trespassed. The claim however, failed, the airspace rights only extended up as far “as is necessary for the ordinary use and enjoyment of land”.

Only those who have exclusive possession of a piece of land can sue for trespass - this means that tenants, guests, visitors or lodgers cannot.

The rule of trespass ab initio states that where a defendant abuses their permission to enter a piece of land, then they will be treated as having trespassed from the moment they entered the land, as per The Six Carpenters Case [1572] EngR 452.

Thus someone who enters a petting farm with permission and then as a prank decides to fire a shotgun into the air to scare the animals, will have committed trespass from the moment they entered, not just from the moment they overstepped the bounds of their permission.

A Note on Trespass

It should be noted that this tort is one which is important for the functioning of property rights, but which at the same time is rarely applied in all possible eventualities. Someone throwing a cigarette butt onto your land is technically trespass, but a court wouldn’t be likely to give you the time of day if you sought to bring an action. At the same time, the right to prevent trespass allows the application of injunctions to remove squatters and the fining of companies for fly tipping.

Trespass to Goods

Just as a right exists to prevent interference with land rights, there also exists an action in tort to deal with unwarranted inference with personal property - the tort of trespass to goods. This is covered in the Torts (Interference with Goods) Act 1977. The elements are largely the same as for trespass to land - direct interference with goods belonging to another.

Direct Interference

As with land, the tort is of direct interference. This essentially means an object must be physically affected - so moved or damaged. In contrast, unauthorised observation is not trespass, so in Malone v Metropolitan Police Commissioner [1979] Ch 344 it was held that reading another’s mail or listening to a private conversation was not trespass of goods.

Awareness

As long as the defendant knows they are interfering with the object, then the fact that they did not know they were committing trespass will not form a defence.

This can be seen in Wilson v Lombank.

However, if the defendant mistakenly interferes with an object but doesn’t know that they are doing so, then this will form a defence, as in National Coal Board v JE Evans & Co (Cardiff) Ltd [1951] 2 KB 861. The defendant damaged a cable belonging the claimant, which ran through ground belonging to the local council. He had no way of knowing the cable was there - it had been laid without knowledge of the landowner. The claim thus failed.

It can therefore be seen that liability is strict when the trespassed object is known to the defendant, but fault based (like negligence) when they have no knowledge of it.

Harm is Not Necessary (Most of the Time)

When the interference is deliberate - so moving a car that doesn’t belong to you, then trespass is actionable per se - without damage (as per Transco Plc v United Utilities Water Plc [2005] EWHC 2784.) In contrast, if the interference is done unknowingly (so mistakenly hitting a hidden cable) then damage is necessary (as per Everitt v Martin [1953] NZLR 298).

Possession

Trespass is a matter of interfering with possession, rather than ownership. It is thus possible for a possessor who is not an owner to bring an action for trespass, such as in the case of trustees, executors or administrators.

However, as per s.8 of the 1977 Act, a defendant can argue a defence if jus tertii (third party rights) - essentially, that a person other than the claimant has a greater right to the property, and thus that they are the proper claimant of the case. If this is the case, that third party will become a joint-claimant. This will occur rarely, however, since claimants are obliged to give full details of the nature of their ownership before the claim reaches court.

Defences to Trespass to Land and Goods

Under the Police and Criminal Evidence Act 1984, those with lawful authority can interfere with property and land within certain parameters - to execute a warrant, for example.

Consent and contributory negligence are available for trespass to land. Consent can operate within the trespass of goods, but as per s.11 of the Act, contributory negligence is not a defence where interference goods is intentional.

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