Trespass to the Person

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Franklin French
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1 Trespass to the Person Trespass which got its start in England with the writ of trespass in 13 th century is parent of many torts developed there from. A trespass is an injury committed with violence, and this violence may be either actual or implied. In its widest sense, it signifies any transgression or offence against the law of nature, of society, of the country, whether relating to a man s person or to his property. The most obvious acts of trespass are following:- Trespass viet armies or Trespass to person. Trespass quare clausum fergit or Trespass to land Trespass de banis asportatis or Trespass to goods or chattels. Trespass to person The principle of trespass was that any direct invasion of a particular interest from positive act was actionable subject to justification. There are three torts which together make up trespass to the person. There are battery, assault and false imprisonment. The tort of assault, battery and false imprisonment were developed to serve the purpose of protecting a human being against bodily harm and against any interference with his person, which offends his honor and dignity. Assault Assault is defined by Underhill as an attempt or offer to apply force to the person of another directly or indirectly. It is an act of the defendant which causes to the plaintiff reasonable apprehension of the infliction of battery on him by the defendant. An assault is an attempt or a threat to the corporeal hurt to another, coupled with an apparent present ability and intention to the act. Section 351 of Indian Penal Code defines Assault Whoever makes a gesture or any preparation, intending or knowing it to be likely, that such gesture of preparation will cause any person to apprehended that he who make gesture of preparation is about to use criminal force to that person. The test for assault is whether an apprehension has been created in the plaintiff s mind that battery is going to be committed against him.

2 Ingredients of Assault- In order to succeed in an action for assault, the plaintiff has to prove that There was some gesture or bodily movement which constituted threat, hostility or likelihood of the use of force. It should create reasonable apprehension in the mind of the plaintiff that the defendant is going to use lawful force against him There must be ostensible ability on the part of defendant to carry out threat or capability of using force against the plaintiff. Assault is a form of trespass to person and being actionable per se, no harm or actual damage is necessary to have been caused to the plaintiff. A mere physical touch or contact with the body of the plaintiff or even his clothing will be sufficient to constitute force in context of tort of assault. In Tuberville vs. Savage (1669)1Mod3, defendant placing his hand upon his sword said to the plaintiff if it was not assize time, I would not have taken such words from you. This was not held to be actionable as an assault, since the words used by the defendants clearly indicated his inability to use force against the plaintiff. Therefore apprehension by the defendant is ill-founded. In another case Stephens vs. Myers (1830) 4 C&P349, Plaintiff was chairing the municipal meeting. Due to arrogance of the defendant in the meeting, a motion against him was carried by the majority that he should be turned out. Upon this, the defendant got enraged and moving towards the chair. He was however, stopped by the warden who was sitting by the side of chairman. Jury gave the verdict of the guilty for assault and fired the defendant to pay one Shilling to the chairman as damage. Tindal C.J. held that circumstances indicated the intention of the defendant of carrying the threat into effect and it amounts to assault. In Read vs. Coker (1853)138ER1437, defendant workers gathered around the plaintiff rolling up their sleeves and threatening to break his neck if he did not immediately leave the place. Held that it was assault as words characterized the aggressiveness of defendant. Thus where there is a mere apprehension of use of physical force or violence, it is assault but when the force is actually used unlawfully it becomes a tort of battery. For example, In Pursell vs.

3 Horn(1838)8A&E602, to throw water or anything against the person in anger or with hostility is an assault but if even a drop of water or piece of thing touches that person, it will be a tort of battery. Battery Battery requires an act of defendant which directly and intentionally brings about contact with the body of claimant, where the contact exceeds what is lawful. Use of force, however trivial is enough; physical hurt need not be there. It is an attempt and threat carried out into action. It consists in touching another s person hostilely or against his will however slightly. The trot of Battery resembles the offence of use of criminal force defined in section 350 of Indian penal code Essentials of Battery:- Use of force against the plaintiff Use of force intentional i.e. without lawful justification Use of force against the plaintiff- Pushing a person unlawfully or snatching papers from his hand or throwing water on him are the examples of battery. The touch if not hostile must be offensive which may amount to infringement of right of the plaintiff to be physically inviolate or to be let alone. Ion Nash vs. Shien(1953)C.L.Y. 3726, plaintiff a lady went to hair-dressing parlor for permanent wave and defendant without her consent, applied a tone-rinse which produced skin reaction and painful rash all over the body. Defendant was held liable for battery as the plaintiff had consented only for a permanent wave in her hair and not for dying with coloring matter which caused her rashes. In another case Hurt vs. Picture theatres Ltd (1915)1KB1, plaintiff who had purchased a ticked for seat at a cinema show, was forcibly turned out of his seat by the direction of the manager, who was acting under a mistaken belief that plaintiff had not paid for his seat, it was held that plaintiff was entitled to recover damages for battery and assault.

4 Defenses to the action for the assault and battery:- Self Defence- Reasonable force used to protect one s own person or property is justified in self defence. This had been technically termed as son assault demens which literally means that the act complained was the result of plaintiff s own aggression or attack. The term self-defence should not be confined to its liberal meaning to denote defence of own-self, but it extends to the protection of wife, children, parent, servants etc. Expulsion of Trespasser- Assault and Battery committed in course of ousting a trespasser is justified. In Timothy vs. Simpson (1835)1 CrM&R 757, where a customer in the shop insisted on having the goods sold to him at wrong price marked thereon, the shopkeeper justified to use force to expel him when on request the customer refused to leave. Recapture of goods- The rightful owner or his servant may justify use of force in order to retake or re-possess himself of land, good or any other cattle which are in wrongful possession of another and he refuses to deliver them upon request. Parental or quasi-parental authority- Any mild force used for the correction of child, apprentice etc. is justified Leave and License- Voluntary consent of plaintiff to the defendant s act of assault or battery will be good defence for defendant to insulate himself from liability. Legal Process- Any physical force used in exercise of some legal duty or performance of legitimate functions assigned to the defendant. Mayhem- An aggravated form of battery which means injuries to person short of death. False Imprisonment False imprisonment consists in total restraint for some period, however short, upon the liberty of another without sufficient lawful justification. In false imprisonment, the defendant unlawfully acts to intentionally cause confinement or restraint of the victim within a bounded area. Accidental confinement is not included and must be addressed under negligence or strict liability. It is generally held that the victim must be aware of the confinement at the time of

5 the restraint. False imprisonment compensates for psychological, physical and economic injury occasioned by the imprisonment. A recurring issue for courts is the often factually based distinction between wrongfully coerced confinement from confinement that is lawfully encouraged or persuaded. The restraint may be either physical or by mere show of authority. The tort of false imprisonment is, in essence only an infringement of person s right to freedom of movement granted by law which is prerequisite of all civilized living. This freedom is inherent in article 21 of the Indian Constitution which declares that No person shall be deprived of life or personal liberty except according to the procedure established by law. Article 22 made it obligatory that a person under arrest should know grounds of his arrest as soon as possible, and should be produced before the magistrate within twenty four hours. Indian constitution also provides for the writ of Habeous Corpus. Elements of False imprisonment:- There should be total restraint on plaintiff s liberty It should be intentional and without lawful justification. Restrain must be total or complete- If he is free to go to anyone or more direction it cannot be said to be total restraint. The victim must be confined within an area bounded in all directions. It is not false imprisonment if the victim is free to proceed in any direction, even though she is prevented from going in the direction she wants. The bounded area can be, however, a large area, even an entire city. A vehicle, although moving, can still constitute a bounded area. 57 Reasonable means of escape precludes liability for false imprisonment. The escape is not reasonable if it requires the victim to be heroic, endure excessive embarrassment or discomfort, or if the victim is unaware of the means of escape. In Bird vs. Jones (1845)7QB742, defendants wrongfully enclosed part of public footway on a river bridge and made seating arrangement for spectators of the boatrace on the river charging admission fees for entry into enclosure. Plaintiff insisted on passing along this part of footway and climbed over fence of the enclosure without paying charges. Defendants refused to allow him to go forward and asked him to go back and cross the other side of bridge if he so wished, but plaintiff declined to do so and remained in enclosure for about half an hour. When sued for false imprisonment the defendants were held not to have committed false imprisonment because restraint was only partial. In another case, Herring vs.

6 Boyle(1884)1M&R377, plaintiff a boy of ten years was a pupil in defendants school and his mother wanted to take boy home for few days to which the defendant refused and told her that boy will not be allowed to go unless school dues are paid. When defendant was sued for false imprisonment, it was held that there was no imprisonment as no restraint was placed on his will. The confinement should be intentional. In another case Kundan Lal vs. Dr. Des Raj (1954)Punj LR 331, plaintiff a surety applied for a bail bond. The Superintendent of Police refused bail bond and ordered rearrest of plaintiff and consequently plaintiff was rearrested by S.P. Power to refuse bail-bond and order re-arrest is exercised by magistrate under CrPC. Court held that there is no power to S.P. so he was held liable for false imprisonment. In another landmark judgment of Rudal Shah vs. State of Bihar AIR 1983SC1086, a Rudal Sah was arrested in 1953 on charges of murdering his wife. He was acquitted by an Additional Sessions Judge, in 1968, who directed his release from jail, pending further orders. Rudul Sah languished in jail for 14 years after his acquittal, until his plight was highlighted in the media in 1982 and led to the filing of the PIL on his behalf. By the time the PIL came up for hearing in Court, Rudul Sah had been released. However, he sought ancillary relief including payment for his rehabilitation, future medical expenses incurred, and compensation for his illegal incarceration from the State. The Court directed the State to show cause for the petitioner s detention in relation to his ancillary claims, and received a much delayed response in defence of the incarceration from a state jailor. The Court viewed the State response as a callous afterthought with no true basis in fact and thus held that the petitioner s detention was wholly unjustified. Next, the Court examined whether, under its remedial powers it could adjudicate the petitioner s claims for ancillary relief. The Court reasoned that Article 21 s guarantee of the right to life and personal liberty would be stripped of its significant content if the Court was limited to passing orders releasing individuals illegally detained. The Court held that the right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. Accordingly, the Court ordered the State to pay 30,000 rupees to the petitioner as an interim measure, in addition to the 5,000 already paid, noting that the judgment did not preclude the petitioner from bringing future lawsuits against the State and its officials for appropriate damages relating to his false imprisonment. In another landmark judgment of Bhim Singh vs. State of J&K AIR 1986SC494 Sh. Bhim Singh, a Member of the Legislative Assembly of Jammu & Kashmir incurred the wrath of the powers that be. They were bent upon preventing him from attending the session of the Legislative Assembly of Jammu & Kashmir,

7 which was to meet on 11th September, That appears to be the only inference that we can draw from the circumstances of the case to which we shall now refer. On August 17, 1985, the opening day of the Budget Session of the Legislative Assembly, Sh. Bhim Singh was suspended from the Assembly. He questioned the suspension in the High Court of Jammu & Kashmir. The order of suspension was stayed by the High Court on 9th September, On the intervening night of 9th- 10th September, 1985, he was proceeding from Jammu to Srinagar. En route, at about 3.00 AM (on 10th), he was arrested at a place called Qazi Kund about 70 kms. from Srinagar. He was taken away by the police. As it was not known where he had been taken away and as the efforts to trace him proved futile, his wife Smt. Jayamala, acting on his behalf, filed the present application for the issue of a writ to direct the respondents to produce Sh. Bhim Singh before the court, to declare his detention illegal and to set him at liberty. The Supreme Court held that this is a case of false imprisonment and awarded a compensation of 50,000. Means of Confinement or Restraint For false imprisonment to exist, the victim must be confined or restrained. The confinement may be accomplished by (1) physical barriers; (2) force or threat of immediate force against the victim, the victim s family or others in her immediate presence, or the victim s property; (3) omission where the defendant has a legal duty to act; or (4) improper assertion of legal authority. Physical Barrier, If physical barriers are utilized to restrain the victim, the barriers to constitute false imprisonment must surround the victim in all directions so that no reasonable means of escape exists. Force or Threat of Immediate Force, Force or threat of immediate force can also be utilized to restrain the victim. The force may be directed at the victim, her family, companions. False imprisonment can also result from a defendant s omission when the defendant had a legal duty to act. If A invites B out to his boat and promises to bring A ashore when requested, B s failure to do so constitutes false imprisonment. Since there is no general duty to act, the plaintiff must establish that the defendant, in the specific context, does have an obligation to act. The improper assertion of legal authority can unlawfully restrain a victim. This form of false imprisonment constitutes false arrest. The victim must submit to the arrest for it to constitute imprisonment. The arrest is improper if the actor imposing confinement is not privileged under the circumstances. The applicable privileges vary for police officers and private citizens. For example, if A fraudulently induces B into wrongfully believing A is a police officer and B submits to detention under circumstances where only a police officer is privileged to detain, A is liable for false arrest. False imprisonment covers even minimal lengths of detention. Thus if

8 A is detained by B for one minute, B is liable for false imprisonment. Obviously, however, the amount of the compensation awarded for false imprisonment will reflect the length of the detention. Remedies for false Imprisonment- There are three remedies for the false imprisonment i.e. Self help, writ of Habeous Corpus and action for damages. Self help- The person who is false restrained he can take the use of reasonable force or he can take help of his relatives of friends in order to get rid of false imprisonment. Writ of Habeas Corpus- Writ can be filed for the release of illegally detained person under article 32 and article 226 of Indian Constitution. Compensation and damages can be recovered if the person is falsely

TORT LAW NOTES. The case below demonstrates that fault is an essential element of liability in trespass to person.

TORT LAW NOTES. The case below demonstrates that fault is an essential element of liability in trespass to person. TORT LAW NOTES TRESPASS TO PERSON Traditionally, there were two types of actions that were concerned with the plaintiff s person. They were trespass and action on the case. The distinction between these