DEFENCES:

The defences which may apply in case of trespass to the person are:

1.​ Volenti, consent

Volenti (consent):

●​ If the claimant agrees to what defendant does, there is no liability for trespass, in some circumstances,
consent can be given explicitly, for example by signing a form agreeing to have an operation, or by
behavior. (NASH v SHEEN)
●​ In HERD v WEARDALE STEEL COKE AND COAL CO, a miner was part way through a shift when he
was asked to do some work he considered dangerous. He refused, and asked to be taken back to the
surface, but was kept waiting for 20 minutes. He sued for false imprisonment, but the claim refused on
the grounds that he had been given implied consent to stay underground for the length of the shift.

Self-defence:

●​ Under common law, a person is protected by this defence when they commit a trespass against the
person as a result of using reasonable force which they honestly and reasonably believe is necessary to
protect themselves or someone else, or property. What degree of force is reasonable will depend on the
situation, but the basic principle is that the amount and type of force must be balanced against the need
for protection. In LANE v HOLLOWAY concerned a dispute between neighbors’. The claimant had been
drinking, and got into argument with the defendant’s wife, during which he called a ‘monkey faced tart’.
Hearing this, the defendant came out and said he wanted to see the claimant alone. Believing he was
about to be hit, the claimant smacked the defendant on the shoulder. The defendant responded by
punching him on the eye, causing a wound which needed 19 stitches. The claimant sued for battery.
The court accepted that the defendant had reasonable grounds to believe he needed to defend himself,
but said that his blow was out of proportion to the danger, so he was not covered by self-defence.

Statutory authority:

●​ There are a number of statutes which authorize trespass to the person in particular circumstances. One
of the most important is the Criminal Law Act 1967, which in s.3(1) provides that no trespass to the
person is committed when a reasonable amount of force is used to lawfully arrest a person, prevent a
crime or assist in the lawful detention of a person unlawfully at large. A sentence for imprisonment
passed by a court provides a complete defence to an action for false imprisonment.
●​ Statutes also authorize certain medical examinations tests, such as the breathalyzer test under the
Road Traffic Act 1988, and blood tests under The Family Law Reform Act 1969. If taken without
consent, any of these tests would normally amount to battery, but statutory authority provides a defence.

Inevitable accident:

●​ A defendant will not be liable in trespass to the person for an event over which they had no control, and
could not have avoided by using even the greatest care and skill. (STANLEY v POWELL)

Ejection of a trespasser:
 ●​ An occupier of land, or anyone with the authority of the occupier, may use reasonable force to prevent a
trespasser from entering, or, after entry, to control their movements or eject them.

Limitation period:

●​ Both trespass to the person and negligence can result in personal injury, but, until recently, they were
subject to completely different limitation period. Claims for personal injury caused by trespass to the
person, on the other hand, were covered by s.2 of the Limitation Act, which provided a non-extendable
limitation period for 6 years.
●​ In more practical terms, the limitation period for trespass caused particular problems in cases of sexual
assault, which often took place when the victim was young, and where it might take many more years
than six for the victim to realise the damage had been done, and summon the courage to sue the person
who assaulted them. This was raised in the case of STUBBINGS v WEBB, brought by a woman who
had been sexually abused 20 years earlier by her father and brother, but the House of Lords at that time
insisted that the limitation period for assault could not be extended.
●​ Cases of personal injury caused by trespass to the person are now covered by s. 11 of the Limitation
Act 1980, which provides for a three year limitation period, which can be extended at the courts
discretion. (A v HOARE AND OTHERS)

OTHER PROTECTIONS FROM PHYSICAL HARM:

●​ There are two further torts concerned with causing intentional harm to the person, the first is a common
law tort, defined in the case of WILKINSON v DOWNTON and second is the statutory tort of
harassment created in the Protection from Harassment Act 1997.

The tort in WILKINSON v DOWNTON:

●​ In the case of WILKINSON v DOWNTON, the defendant, who clearly had a sense of humour, had
played what she saw as a practical joke on the claimant, by telling her that her husband had been
seriously injured in an accident. The claimant believed her and suffered serious psychiatric illness as a
result. The defendant could not be liable for the trespass to the person, as there was no direct
interference with the claimant’s person. However, the court found that she was nevertheless liable in
tort. The judge explained the basis for the ruling as:

‘The defendant has….. Willfully done act calculated to cause physical harm to the plaintiff …and
has in fact caused physical harm to her….’

●​ In the case of JANVIER v SWEENEY the claimant was engaged to a German, and the defendants
threatened that, unless she stole a particular letter from her employer and gave it to them, they would
tell the authorities that her fiancé was a spy. Although that was not true, the political climate at the time,
just after the end of the First World War, made this a frightening threat, and she suffered a nervous
illness as a result. The Court of Appeal held that the defendants’ behavior fell within the tort explained in
WILKINSON v DOWNTON.

Elements of the tort:

●​ Hence in WILKINSON that there must be harm to the claimant, so the tort is not actionable per se, but
the issues open to question concern the defendant’s behavior, the kind of harm caused to the claimant,
and the mental state of the defendant.

The defendant’s behavior:

●​ As far as the first issue, the defendant’s behavior, is concerned, threats and false statements fall within
the tort.
Type of harm:

●​ In WONG v PARKSIDE HEALTH NHS TRUST, it was stated that the required damage for liability under
WILKINSON v DOWNTON was ‘physical harm or recognized psychiatric illness’ and not merely
‘distress, inconvenience or discomfort’. The case concerned an employee who said she had been
subjected to a sustained campaign of harassment by three fellow employees.

The mental element:

●​ The term used for the mental element in WILKINSON that the behavior must be ‘intentional’.
●​ The definition was provided by HALE LJ in WONG, Beginning from the standpoint that the defendant’s
conduct must have caused physical harm or recognized psychiatric illness.
●​ The issue was re-examined in C v D, where Field J stated that there were three states of mind which
could lead to liability, first, where the defendant’s acts were ‘calculated to cause psychiatric harm, and
done with the knowledge that such harm was the likely result, secondly, where psychiatric injury was so
likely to result from the defendant’s acts that they could not reasonably claim that they did not mean to
cause harm: and. Thirdly, where the defendant was reckless as to whether psychiatric harm was caused
by their acts. In C v D, the judge found that psychiatric injury was not foreseeable as a likely
consequence of what the defendant did, but that he was reckless as to whether he caused psychiatric
injury, and was therefore liable.

The PROTECTION FROM HARASSMENT ACT 1997

●​ This Act was passed following public concern over the problem of ‘stalkers’. It imposes both criminal and
civil sanctions for ‘harassment’. Civil remedies allowed under the Act include injunctions and damages;
damages can be claimed for mental distress.

What is harassment?

●​ The Act does not specifically define harassment, but says that it can include alarming someone or
causing them distress, by conduct which can include mere speech. Section 1 states that the offence
consists of pursing a ‘course of conduct’ which amounts to harassment, and which the defendant knows
or ‘ought to know’ amounts to harassment.
●​ In PRATT v DPP, the course of conduct complained of was by husband to his wife, and covered two
occasions, on the first occasion, he had a row with his wife which ended with him throwing a mug of
water at her. Three months later, he lost his temper and chased his wife through the house, shouting,
swearing and repeatedly questioning her. He was convicted by magistrates for harassment, and
appealed, on the grounds that this did not amount to a ‘course of conduct’. The Court of Appeal held
that it did, but only just. They said it was close to the borderline and recommended that prosecuting
authorities should be hesitant about a charge of harassment under the Act where the number of
incidents complained of was small.
●​ In SINGH v BHAKAR the claimant moved into her in-laws house, after an arranged marriage. Her
mother-in-law treated her like a slave, making her do housework until her hands became infected. She
also restricted her contact with her own family, made her cut her hair, which was against her religious
beliefs, and forced her to wear amulet from another religion. After 4 months, the claimant left, by which
time she was suffering from depression. She successfully sued her for depression.
●​ In HOWLETT v HOLDING, the claimant had been a local councillor and, as a part of her duties, had
heard an application for planning permission from the defendant, which she opposed. The defendant
was so angry that he subjected Ms Howlett to a campaign of victimization, following her to shops and
restaurants, and even flying aircraft over her home, with banners alleging that she was a thief and unfit
to hold public office. Ms Howlett twice sued successfully for defamation over the banners, but the
campaign continued, and so she sued for harassment. Mr. Holding said that he was exercising his right
to freedom of expression under Art 10 of the ECHR, but the judge rejected the argument and granted an
injunction.