Trespass in English law is an area of tort law broadly divided into three
groups: trespass to the person, trespass to goods and trespass to land.
Trespass to the person comes in three variants: assault, which is "to act in
such a way that the claimant believes he is about to be attacked"; battery, "the
intentional and direct application of force to another person"; and false
imprisonment, "depriving the claimant of freedom of movement, without a lawful
justification for doing so". All three require that the act be a direct and
intentional act, with indirect or unintentional acts falling under the
tort of negligence. Battery and assault require the claimant to establish that
the defendant intended to act, while false imprisonment is a tort of strict
liability. The guiding principle behind all three is based on the statement of
Goff, LJ, who stated in Collins v Wilcock that "any person's body is
inviolate", excepting normal, day-to-day physical contact.
Trespass to goods is defined as "wrongful physical interference with
goods that are in the possession of another", and is covered not only by the
common law, but also by the Torts Act 1977. The "trespass" can be as little as
touching or moving the goods, given the right circumstances. It is unknown
whether intention is required for a claim under trespass to goods, as the
matter has never gone to court; the courts have confirmed that for damages
to be awarded for harm suffered, the harm must have been reasonably
foreseeable. Trespass to land involves the
"unjustifiable interference with land which is in the immediate and exclusive
possession of another"; it is both a tort and, in certain circumstances, a
crime under the Criminal Justice and Public Order Act 1994. It is not
necessary to prove that harm was suffered to bring a claim, and is
instead actionable per se. While most trespasses to land are intentional, the
courts have decided that it could also be committed negligently. Accidental
trespass also incurs liability. Trespass to the person
The general principle is that a trespass to the person must be a direct and
intentional act, while if it was indirect or unintentional the tort of
negligence is more appropriate, as established in Letang v Cooper. The tort
of trespass to the person contains three possible types; assault, battery and
false imprisonment. = Assault =
In English law, an assault means to act in such a way that the claimant or
victim apprehends the application of immediate unlawful force upon
themselves. The key elements of the tort are therefore that the defendant acts,
and does so in such a way that the claimant is put in fear of "immediate
physical violence". There is no requirement that actual damage be
caused. In R v Costanza, the courts held that threats made by a stalker could be
assault, while in R v Ireland, the House of Lords said that in the right
situation silence could be enough. In some situations an act which would
otherwise be assault can be mitigated by the language used. In Tuberville v
Savage, the defendant reached for his sword and told the claimant that "if it
were not [court] time, I would not take such language from you"; it was held
that despite the threatening gesture, this meant the claimant was not in
immediate danger. The actions must give the claimant reasonable expectation that
the defendant is going to use violence; if a fist was raised in front of the
claimant, it could be enough. If the fist was raised from inside a police van
following arrest, it would not. = Battery =
Battery is defined as "the intentional and direct application of force to
another person", and has three elements; force, direct application and intent.
The courts have also added a requirement of "hostility" or lack of consent in
many cases. As with assault, there is no need to show that damage was caused. Any
application of physical contact, regardless of harm caused, can
constitute force. In Collins v Wilcock, a female police officer took hold of a
woman's arm, intending to talk to her on suspicion of soliciting contrary to the
Street Offences Act 1959. The woman scratched the female police officer's
arm. As the female police officer had gone beyond her duties in grabbing the
woman it was held that this constituted "force". Goff LJ wrote that the
fundamental principle is that any person's body is inviolate, except in
situations where the bodily contact "[falls] within a general exception
embracing all physical contact which is generally acceptable in the ordinary
conduct of daily life". The defendant must intend to carry out
the act which constitutes trespass for it to be valid. This does not require
the defendant to intend harm; in Nash v Sheen, a hairdresser who put a tone
rinse on the claimant was found liable in battery after it caused a rash. In
Livingstone v Ministry of Defence, the defendant, a soldier, had intended to
shoot someone with a baton round, which went wide and hit the claimant. Even
though he had not intended to hit the claimant, it was held that because he
had intended to fire the baton round in the first place, he was liable. The
final element occasionally added to the tort is the hostility of the action; in
Wilson v Pringle, it was decided that the onus is on the claimant to show that
the force was hostile, except in such situations where it is self-evident.
This was undermined by R v F, in which Goff wrote that he "respectfully doubts
whether [the requirement to show hostility] is correct", in line with his
comment in Collins. An extension to battery was given in
Wilkinson v Downton, where emotional distress was considered a possible
battery despite no physical force being used. The defendant told the claimant
that her husband had been seriously injured. As a result the claimant
suffered a nervous disorder and was thought to be suicidal for a time. It
was held that such an action will be valid under battery where it is
calculated to cause physical damage and does so. The principle was extended by
Khorasandjian v Bush, in 1993, where there was a risk that the defendant's
actions would cause physical or psychiatric damage. The tort set down in
Wilkinson is normally considered a separate tort of intentional infliction
of emotional distress. = False imprisonment =
False imprisonment is defined as "depriving the claimant of freedom of
movement, without a lawful justification for doing so". Unlike assault and
battery, false imprisonment is a tort of strict liability: no intention on the
behalf of the defendant is needed, but the imprisonment must be caused by a
deliberate act and must be unlawful. The imprisonment of a lawfully convicted
criminal is not false, nor is the arrest of a suspect if done in line with the
Serious Organised Crime and Police Act 2005 and Police and Criminal Evidence
Act 1984. Imprisonment is considered any restraint
on the freedom of movement, for however short a time. In Austin and another v
Metropolitan Police Commissioner, seven hours was considered a sufficient period
of time to constitute false imprisonment. The requirement is
complete restraint; in Bird v Jones, the defendant fenced off part of a footpath
for use as a viewing point for a boat race. The claimant, accustomed to
walking across it, climbed into the enclosure; the defendants refused to let
him pass. They were found not liable for false imprisonment, as another way
across existed. There is on the other hand no requirement that the claimant
actually attempt to leave, as in Grainger v Hill, or even that he knows
he is being prevented from leaving, as in Meering v Graham-White Aviation Co
Ltd. = Defences =
There are many defences to trespasses against the person; the stranger are the
right of parents to commit assault and battery against their children for
"chastisement" under the Children and Young Persons Act 1933, and the right of
the captain of a ship to discipline his crew, as in Hook v Cunard Steamship Co
Ltd. There is also a right to eject a trespasser to land using reasonable
force, and a defendant is also not liable for "inevitable accidents", as in
Stanley v Powell, where a ricocheting pellet was ruled to be accidental.
Individuals and bodies will not be liable for imprisonment, battery or
assault if doing so in line with statutory authorities, such as the
Criminal Law Act 1967. A commonly used defence for the torts of
trespass against the person is that of volenti non fit injuria, or consent. If
a claimant participates in a sporting activity in which physical contact is
ordinary conduct, such as rugby, they are considered to have consented. This
is not the case if the physical contact went beyond what could be expected, as
in R v Billinghurst, or where the injuries were suffered not from the
claimant's participation in the sport but inadequate safety measures taken, as
in Watson v British Boxing Board of Control. The same general rule applies
to people who voluntarily take part in fights, although only if the injuries
caused are proportionate, as in Lane v Holloway. If the claimant is informed by
a doctor of the broad risks of a medical procedure, there will be no claim under
trespass against the person for resulting harm caused; the claimant's
agreement constitutes "real consent", as in Chatterton v Gerson. Consent for
medical procedures is different in cases where the claimant does not have the
mental capacity to consent. In F v West Berkshire Health Authority, it was held
that in such situations the requirements are that there "must be a necessity to
act when it is not practical to communicate with the assisted person ...
[and] the action taken must be such as a reasonable person would in all the
circumstances take, acting in the best interests of the assisted person".
Self-defence is also a valid defence to trespasses against the person, assuming
that it constituted the use of "reasonable force which they honestly
and reasonably believe is necessary to protect themselves or someone else, or
property". The force used must be proportionate to the threat, as ruled in
Cockroft v Smith. If the action is undertaken to prevent a crime, Section 3
of the Criminal Law Act 1967 permits it assuming that it is "reasonable under
the circumstances". Trespass to goods
Trespass to goods is defined as "wrongful physical interference with
goods that are in the possession of another". It is covered not only by the
common law, but also by the Torts Act 1977, which was written to clear up the
confusing rules on trespass to goods which had evolved over the centuries. It
is similar to the tort of conversion, which covers the interference with goods
in a way which is inconsistent with the rights of the owner. "Physical
interference" is usually the taking or destroying of goods, but can be as minor
as touching or moving them in the right circumstances. In Kirk v Gregory, the
defendant moved jewellery from one room to another, where it was stolen. The
deceased owner's executor successfully sued her for trespass to goods. Goods
cover almost any physical object, including animals, as in Slater v Swann,
but not organs, as in AB & Ors v Leeds Teaching Hospital NHS Trust.
"Possession" has the standard legal meaning, referring to the claimant's
right to use, control or deal with the item. This can include owners, but also
bailees. It is unknown what mental element is
expected in cases of trespass to goods; while trespass to the person requires
intent, the requirements for trespass to goods have never been tested in court.
The common remedy is damages, which may be awarded regardless of if any actual
harm is suffered; where there is damage, the defendant will only be liable if he
could have reasonably foreseen it, as in Kuwait Airways Corporation v Iraqi
Airways Co. Valid defences are those of statutory authority, consent, where it
is necessary to interfere with the goods, or jus tertii.
Trespass to land In English law, trespass to land
involves the "unjustifiable interference with land which is in the immediate and
exclusive possession of another". It is not necessary to prove that harm was
suffered to bring a claim, and is instead actionable per se. While most
trespasses to land are intentional, in League Against Cruel Sports v Scott, the
courts decided that it could also be committed negligently. Accidental
trespass also incurs liability, with an exception for entering land adjoining a
road unintentionally, as in River Wear Commissioners v Adamson. Although
previously a pure tort, the Criminal Justice and Public Order Act 1994
created some circumstances in which trespass to land can also be a crime.
Land is defined as the surface, subsoil, airspace and anything permanently
attached to the land, such as houses. The rights of landowners over airspace
are not unlimited; in Bernstein of Leigh v Skyviews & General Ltd, the action for
trespass failed because the violation of airspace took place several hundred
metres above the land. This was backed up by the Civil Aviation Act 1982, which
provides that it is not trespass if the aircraft is flying at a reasonable
height. An overhanging crane can constitute trespass, as in Woolerton v
Costain, as can an advertising sign, as in Kelsen v Imperial Tobacco Co.
Possession does not necessarily mean the ownership of land, but the right to
eject or exclude others from it. = Interference =
The main element of the tort is "interference". This must be both direct
and physical, with indirect interference instead being covered by negligence or
nuisance. "Interference" covers any physical entry to land, as well as the
abuse of a right of entry. If the person has the right to enter the land but
remains after this right expires, this is also trespass. It is also a trespass
to throw anything on the land. For the purposes of trespass, the person who
owns the land on which a road rests is treated as the owner; it is not,
however, a trespass to use that road if public. In Hickman v Maisey, it was
established that any use of a road that went beyond using it for its normal
purpose could constitute a trespass, but this was altered by DPP v Jones. Lord
Irvine, giving the leading judgment, said that "the public highway is a
public place which the public may enjoy for any reasonable purpose, providing
that the activity in question does not amount to a public or private nuisance
and does not obstruct the highway by reasonably impeding the primary right of
the public to pass and repass; within these qualifications there is a public
right of peaceful assembly on the highway".
= Defences = There are several defences to trespass
to land; licence, justification by law, necessity and jus tertii. Licence is
express or implied permission, given by the possessor of land, to be on that
land. These licences are irrevocable unless there is a flaw in the agreement
or it is given by a contract. Once revoked, a licence-holder becomes a
trespasser if they remain on the land. Justification by law refers to those
situations in which there is statutory authority permitting a person to go onto
land, such as the Police and Criminal Evidence Act 1984, which allows the
police to enter land for the purposes of carrying out an arrest. Jus tertii is
where the defendant can prove that the land is not possessed by the claimant,
but by a third party, as in Doe d Carter v Barnard. The exception to this defence
is if the claimant is a tenant and the defendant a landlord who had no right to
give the claimant his lease. Necessity is the situation in which it is vital to
commit the trespass; in Esso Petroleum Co v Southport Corporation, the captain
of a ship committed trespass by allowing oil to flood a shoreline. This was
necessary to protect his ship and crew, however, and the defence of necessity
was accepted. Notes
References Bibliography
Bermingham, Vera; Brennan, Carol. Tort Law. Oxford University Press. ISBN
978-0-19-922798-3. Elliott, Catherine; Quinn, Francis. Tort
Law. Longman. ISBN 978-1-4058-4672-1. Smith, Kenneth; Keenan, Denis J..
English Law. Pearson Education Ltd. ISBN 0-582-82291-2.