TRESSPASS TO PERSONS.

The tort of trespass to person enshrines interference with the rights of an individual from freedom of
physical and mental harm. It usually takes up four forms that is assault, battery, false imprisonment and
malicious prosecution as seen below.

1. ASSAULT

An assault is an act which intentionally causes another person to apprehend the infliction of immediate,
unlawful force on his persona. It is an attempt or a threat to hurt another coupled with an apparent
present liability and intention to do the act.

In Assault, there is necessarily no actual contact. But it is not every threat, when actual personal
violence does not like that constitutes an Assault. In all cases, there must be the means of carrying the
threat into effect.

Assault can therefore be defined as the defendant's which causes the claimant reasonable apprehension
of the infliction of a battery on him by the defendant.

Examples of Assault

 Pointing a finger in anger to somebody

 Pointing a gun to a person in a threatening manner even though to the knowledge of the
defendant but not to the plaintiff it is unloaded
 Throwing water at a person which does not touch his body

Ingredients

For one to institute the Tort of Assault, the following ingredients must be proven

1. Intent

The defendant must have intended to cause fear or apprehension of an immediate threat.
Assault doesn't solely involve physical indications of violence thus words and silence can constitute
an assault as long as they fulfill relevant criteria. That is intent to cause apprehension of an
immediate threat. In R V Ireland1, The defendant made a series of silent phone calls to the 3
victims (in attempt to essentially manace them). It was argued by the defendant that this could not
1
(1908) AC 147.
 be considered an Assault since there was no active communication that took place. Court rejected
the argument. It held that silence was to constitute assault since the communication of silence had
the intention of causing fear on the victims, just as the communication of certain sentiment via
words or actions could.

2. Reasonable Apprehension

Apprehension can be understood as as a state of mind experienced when a person

anticipates immediate harmful or offensive physical contact.

If there is no reasonable apprehension or fear, there is no assault. Therefore, the claimant must have
reasonable beliefof fear that an unlawful force is about to be applied to them. This reasonableness will
be judged based on the facts which are available to the victim at the time of the assualt rather than the
objective reality of the situation.

The principle can be seen at work in R V St.George2 where the defendant had an argument with
the victim and took out a gun and pointed it at the victim. However, the gun was unloaded but it was
still an assault since the claimant apprehended being shot. Thus although there was no objective danger
to the victim, a reasonable person in his position would have thought there was danger and so it was
assault.

In Stephens V Myers (1830) 172 ER 735, the defendant made a violent gesture at the plaintiff by
waiving a clenched fist, but was prevented from reaching him by the intervention of third parties. The
defendant was liable for assualt because the plaintiff apprehended being hit.

3. Causation

The defendant’s act must be the proximate cause of the plaintiff’s reasonable apprehension. The threat
or act must be sufficiently immediate and direct to create fear. The causation must be direct and not too
remote.

Examples

 A person who threatens to hit another person in a reasonable and immediate manner may be
liable for assault.
 A person who threatens to hit another person in a remote or distant manner may not be liable.

2
(1840) 9 483.
The proximate cause is the legal cause of the injury or harm. The court will determine whether the
defendant’s act directly led to the plaintiff’s fear.

In Mbasogo V Logo Ltd No.1 (2005)3 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 one advance party of the plotters was caught inside
of the country. The claimant bought a case against the defendant for amongst other things assault since
in the time between the pelt being uncovered and the plotters being caught, he feared for both his life
and that of his family. This failed because the fear of violence was not held to be of immediate cause.

Defenses to Assault

Lawful Authority

Where the defendant is carrying out a lawful arrest, no tort is committed. Thus, under the Police
and Criminal Evidence Act 1984 the police can use reasonable force in order to arrest somebody.
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 was illustrated in the case of Collins
V Willock (1984)4 where 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, where upon the officer
grabbed her arm. In response, the defendant scratched the officer.

Consent

Consent is another defense that can be considered in the case of assault. Consent is when the
person voluntarily agrees to the intention of the defendant. Therefore, once a person’s consent has been
given to perform the act, it is not taken as an assault. This may include boxing, sporting event and
medical operations.

Self-defense

3
EWHC 2034
4
V 3 All ER 374
 Where reasonable force is used in defense of the claimant's person, property or another person, 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 was illustrated in the case of Collins v Wilcock5 where 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, where upon the officer grabbed her arm. In response, the defendant scratched the officer.
Defendant was charged with assaulting the officer during course of duty. But however, conviction was
quashed since her action was self-defense.

2. BATTERY

Definition

There are various definitions of Battery in different jurisdictions. Scholars have expressed their views
differently but maintaining the major elements of Battery

The Black’s Law dictionary6 defines Battery as “Any unlawful beating or any other wrongful physical
violence on constraint inflicted on a human being without consent”. Winfield and Jolowicz7 define
battery as “the intentional infliction of unlawful force on another person.”

Therefore, battery consists of touching another person in violent, angry, rude or insolent manner against
his will, however slight. This was stressed in the case of Cole v Turner8 where court held that the least
touching of another in anger is a battery primarily concerns protecting the individual’s bodily integrity
from unlawful interference.

EXAMPLES OF BATTERY

Battery can be committed in many different ways;

beating with a stick, pouring water on a person, shooting a person with a gun, knocking a person
down, running a person down with a motor vehicle, spitting on a person’s face or throwing stone at

5
V 3 All ER 374
6
8th edition, 2004 PP 458.
7
(Rogers, Winfield & Jolowicz on Tort, 15th edn, 1998, London: Sweet Maxwell,)
8
(1704) 6 Mod Rep 149.
 a person, removing a chair when a person is going to seat on it causing their fall, setting a dog to
attack a person

ELEMENTS OF BATTERY

Use of force

There must be force applied that causes the victim or the plaintiff to lose the sacred nature of their
comfort-ability and have injury or loss. The force applied however slight it is, it is sufficient in a claim
Battery. This was seen in the case of Cole v Turner9 where the plaintiffs were a husband and wife, who
alleged that the defendant, Turner, committed battery against them. The court held that; “The least
touching of another in anger is a battery.” This was however established after the court found the action
to be hostile.

Battery may be committed on an unconscious person; Battery may be committed not only when the
person is conscious but also when they are unconscious for example when a person is asleep or during
surgery. In Njareketa v Director of medical services,10 the appellant a 24-year-old patient had
malignant growth on his leg which was amputated when he was unconscious out of necessity to save
his life. He had at first consented but later withdrawn his consent. Court found the actions of the
defendant to amount to battery.

Intentional and reckless application of force.

The plaintiff in order to succeed for the claim of battery must establish that the intention, recklessness
or negligence of the defendant in applying the force. In Wilson v Pringle11, the defendant had
contended that his action was not intended to cause the harm but the horseplay of pulling the plaintiff’s
school bag making him fall, suffering a hip injury was considered as a battery. Croon-Johnson L.J
found that the actions were hostile and stated that it was the act not the injury that was intended.
Proving the intention to cause the harm is not necessary, for as long as there is intention to injure any
person other than the plaintiff, Battery is deemed present. An act of battery must be intentional,
reckless or negligent. Thus, not all acts of contact or touch are battery.

However, it may be battery, if a person uses violence to force his way through a crowd in a rude or
inordinate manner. To touch a person to attract his attention is not battery. The defendant must have

9
(1704) 6 Mod Rep 149.
10
Civil suit no. 21 of 2020.
11
1986, V 2 All ER 440
intended to make physical contact against the plaintiff. The intention must be proved and as soon as
it proved, the tort of Battery shall stand.

In Fowler v Lanning12, the defendant with a gun and he sued for personal injuries. The plaintiff did not
allege that the shooting was intentional or negligent but simply averred that the defendant on a certain
date and place shot him. The court held that the action must fail. An action for trespass to person
doesn’t lie if the trespass was neither intentional nor negligent

Direct Or Indirect Contact; Battery shall also require that there was physical contact between the
defendant and the plaintiff. The Plaintiff has to prove that there was indeed contact between him and
the defendant. The contact can be through a medium of some weapon, instrument, vehicle or
anything used or controlled. Nash v Sheen13 the plaintiff went to the defendant hair dresser and
requested for a perm. Instead, the defendant gave her an unwanted tone rinse of hair dye which
caused rashes on the head of the plaintiff. It was held that the defendant was liable for battery. This
follows the Minimum Contact Rule which dictates that the least touch or contact is sufficient to
constitute battery. In Cole v Turner14 'The least touching of another in anger is a battery'.

Involuntary contact; As a general rule, involuntary contact or infliction or infliction of force over
which a person has no control is not battery and may therefore be executed from liability. In Gibbons
v Pepper15 a man was riding a horse when it was frightened by something and it was disturbed
causing it to run out of control, the rider shouted for a man walking by cautioning him but he didn’t
get time to react and the horse hit him causing injuries. even though the rider didn’t intend to hurt
anyone, court held him to be liable for Battery. Court further explained that if it was another person
that had scared the horse on purpose, then they would be the ones to blame not the rider.

An Omission may amount to Battery; This is where one causes a tort by failing to do what is
needful for the particular situation. This may be caused where the person has a legal obligation to
fulfill that the moment and fails to do so causing the loss or injury or un-comfortability to the
complainant. This was seen in Fagan v Metropolitan Police Commissioner16 the defendant
accidentally drove over a police officer’s foot with his tire staying on it when he was asked to reverse

12
1959 V1 QB 426
13
1953 CLY 3726
14
(1704) 6 Mod Rep 149.

15
1695 91 Eng Rep 922.
16
(1969) 1 Q.B 439
 the car, he failed to do so. The court found him liable for battery because he failed to do the needful
causing harm to the police officer

Unauthorized Action (no consent); The tort of battery shall also stand where the victim did not
know about the actions planned by the accused. The battery is only committed when the victim had
no idea about the contact which was going to happen. The victim must not know about the action
which is planned by the accused. The battery is only committed when the victim had no idea about
the contact which was going to happen. For example, when surgeons steal organs from patients to sell
them will be considered as a battery. And when the doctor while doing a surgery finds that the
appendix in the body will cause some trouble during the surgery and the doctor informs the patient
that he is going to remove the appendix, in this situation, the doctor is not liable for the battery as
there was the consent of patient involved.

Defenses to 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 Wilcock17 where 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,
where upon the officer grabbed her arm. In response, the defendant scratched the officer.

Self-defense

It is a defense where reasonable force is used in defense of the claimant's person, property or another
person, 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 Revell v Newbury18. The defendant owned an
allotment and a shed, in which he had taken to keeping valuable items. The shed was frequently broken
17
Supra
18
(1999) 1 All ER 291.
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-defense.

What amounts to self-defense will be a question of fact in each case but the basic principle is that the
force used must be reasonable in proportion to the attack.

Contributory negligence

Prevention of trespass or ejection of a trespasser. It is lawful for any occupier of land, or for any other
person with the authority of the occupier, to use a reasonable degree of force in order to prevent a
trespasser from entering or his movements or to eject him after entry.

Consent

Consent can also be considered as a defense in the case of assault and battery. Consent is when the
person voluntarily agrees to the intention of the defendant. So, when the individual has given his
consent to perform the act, then that same act cannot be considered as a battery. But in situations when
the person exceeds the extent of the act, on those grounds the act can be considered as a battery.

Parental Authority

Whilst becoming increasingly unpopular, parents still have a right to use physical force to chastise a
child (often colloquialism as ‘smacking’.) This right has important limits, however. The level of force
inflicted must be proportional to the child’s behavior (and has, in any case, an upper limit), and if the
child does not understand the purpose of the punishment, the defense will fail. This can be seen in A v
UK19. ‘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.

REMEDIES TO BATTERY

Damages

19
1998 V2 FLR 959.
Damages are awarded to compensate the plaintiff for harm or injury suffered due to the defendant’s
wrongful act. And considers severalty of harm, the defendants conduct and the plaintiff’s
circumstance’s when determining the amount and type of damages to Award.

In Sekitoleko V Attorney General20, the plaintiff, a patient underwent surgery at a government

hospital. During the procedure, the medical team allegedly left a surgical instrument in the plaintiff’s
abdomen causing further harm and necessitating additional surgery. The plaintiff sued for battery. The
court ruled in favor of the plaintiff and awarded him damages in compensatory, punitive and
extemporary damages

Injunction.

The court may order the party to do or refrain from doing a specific act to prevent harm or injury to
another party purposely to stop wrongful act that may cause harm or injury to the plaintiff. In
Kwingira V Kanyankole, the plaintiff kwingira was a passenger on a bus owned and driven by the
defendant kanyankole on January 24th 1964, the bus was involved in an accident due to the defendant’s
negligence, Kwingira suffered personal injuries and property damage. Kwingira sued kanyankole for
damages. The Issue was whether kanyankole negligent in driving the bus. Whether kanyankole was
entitled from damages for personal injuries and property damage. The court held that kanyankole as the
bus driver and owner owed a duty of care to kwingira as a passenger and the court also granted an
injunction to stop the defendant.

3. MALICIOUS PROSECUTION

Malicious Prosecution is a tort in both criminal and civil law where one person causes another to be
prosecuted without reasonable cause and with malice. It protects individuals from the misuse of the
legal process. The tort of malicious prosecution is committed where the defendant without reasonable
and probable cause initiates against the plaintiff a criminal prosecution which terminates in the
plaintiffs favor and which results in damage of the plaintiff’s reputation, person or property. The
following essentials, according to Edrisa Semakula V AG21 constitute the elements of the Tort:

That the defendant instituted/instigated and continued a prosecution against the plaintiff.

The defendant must have played an active role in setting the law in motion. Just giving information is
not enough, unless it is proven that the person fabricated evidence or pressured authorities. In Gaya

20
Criminal Appeal No 2 0f 2007
21
High court civil suit No 237 of 2014
Prasad v. Bhagat Singh (1908)22 The defendant gave false information leading to the plaintiff's arrest
and prosecution. The court held that simply giving information to police is not enough unless the
person takes an active part in the prosecution. The court emphasized active involvement in setting the
criminal law in motion.

That the prosecution ended in the plaintiff’s favor.

The previous case must end in the plaintiff’s favour, either by acquittal, dismissal, or discharge. The
earlier prosecution must have ended in a manner that indicates the innocence of the plaintiff. In R.P.
Kapur v. State of Punjab23. The court held that the termination must be in such a way that it suggests
that the plaintiff was not guilty of the offence. In M.M. Singh v. Delhi24 If the plaintiff was discharged
or acquitted, and there was no appeal or the appeal failed, it constitutes a favorable termination.

That the defendant had no reasonable or probable cause.

The defendant must not have had a reasonable belief in the guilt of the plaintiff at the time of initiating
prosecution. In Bank of India v. Lakshmi Das25. The court held that reasonable and probable cause
means an honest belief based on reasonable grounds that the plaintiff was guilty. Mere suspicion or
mistaken belief does not amount to reasonable cause. In Radha Kishan v. Sharif Khan (AIR 1971
Raj 313), Malicious prosecution claim failed because the court found reasonable cause to believe the
plaintiff had committed an offence.

That the defendant acted with malice.

Malice means improper or indirect motive, not necessarily personal hatred. The prosecution must have
been motivated by something other than a desire to bring an offender to justice. In T. Takaram Rao v.
M.L. Nagaraj26 Court held that Malice can be inferred from the conduct and circumstances, such as
fabricating evidence or hiding facts.

That the plaintiff suffered damage to his reputation, person or property.

The plaintiff must prove they suffered injury to reputation, liberty, property, or mental/physical
suffering due to the prosecution.

4. FALSE IMPRISONMENT.
22
ILR 35 All 163.
23
(AIR 1960 SC 862)
24
(AIR 1984 Del 309)
25
(2000) 3 SCC 689
26
(AIR 1962 Mys 96),
In Serra v. Lappin27, the court stated that false imprisonment is the non-consensual, intentional
confinement of person, without lawful privilege, for an appreciable length of time, however short.
Generally, false imprisonment is accompanied by force or threat of force, and a consent obtained by
such force or threat of force is invalid.
In the case of Mugwanya Patrick vs Attorney General28 Justice Stephen Musota (as he then was)
stated that; “The civil tort of false imprisonment consists of unlawful detention of the plaintiff for any
length of time whereby he is deprived of his personal liberty. It must be total restraint…. where an
arrest is made on a valid warrant it is not false imprisonment; but where the warrant or imprisonment is
proved to have been affected in bad faith then it is false imprisonment.”
Therefore, a person commits false imprisonment when he commits an act of restraint on another person
which confines that person in a bounded area. An act of restraint can be physical barrier such as a
locked door, the use of physical force to restrain, a failure to release, or an invalid use of legal authority
for example arrest of a person without a warrant. In the case of Murray V Minister of Defense29, court
stated that It is not an essential element of the tort of false imprisonment that the victim should be
aware of the fact of denial of liberty. Where a person is detained by a police officer and knew that they
were being detained, that amounted to an arrest even though no formal words of arrest were spoken by
the officer. The rationale of the tort of false imprisonment is to protect the interest of liberty or freedom
from restraint as provided for under Article 2330. It is worth noting that the tort should be committed
directly and thus excludes negligent imprisonment of another as was held in the case of Sayers V
Harlow Urban DC31 where the plaintiff was accidently locked inside the defendant’s toilet due to the
negligent maintenance of the door lock by the defendant’s servants, an action for false imprisonment
would not have been available as there was no direct act of imprisonment. Thus, for the plaintiff to be
successfully the tort of defamation, he/she need to satisfy the following elements;
It must be an intentional act
There must have been a voluntary and conscious act made by the defendant and there must have been
substantial certainty his/her actions would lead to the claimant's confinement; the defendant will be
liable even if he/she mistakenly thought he had the lawful authority to detain as seen in R v Governor
of Brickhill Prison32 The court ruled that the defendant's actions must have been directed there must
have been no intervening voluntary act.
27
600 F.3d 1191 2010
28
Civil Suit No 154 of 2009
29
1988 V1 WLR 692
30
of the 1995 constitution as amended
31
1958 WLR 623 V1
32
Her Majesty’s Ex parte evans
There must be total restriction of the freedom of movement of the claimant.
Patterson J put it succinctly in Bird v Jones "imprisonment... is a total restraint of the liberty of the
person, for however short a time, and not a partial obstruction of his will".
There is no need for the claimant to be aware of their false imprisonment
At the time that he/she has been confined as was stated in the case of Meering v Grahame White
Aviation33. However, the claimant's awareness of their false imprisonment might affect the number of
damages they receive. In Murry v Minister of Defense,

The restraint must be unlawful

In Herd v Weardale Steel, Coal and Coke Co Ltd34

A coalminer, in breach of contract, refused to continue with his work and demanded to be taken to the
surface. His employers refused for some time. This was held not to be false imprisonment. The
miner had consented to remain underground until the end of his shift and was not entitled to be
taken to the surface until then.

TRESSPASS TO LAND.

Trespass to land is one of the oldest torts in the common law tradition. It protects the right of
possession of land against unlawful interference. According to Catherine Elliot and France Quin,35
trespass to land is an unjustifiable interference with land in the Immediate and exclusive possession of
another. Tus the tort of trespass to land is divided into trespass to highway, continuing trespass among
others. Trespass occurs when a person directly and intentionally enters, remains upon, or places
objects on another’s land without lawful justification or consent. It is actionable per se, meaning that
proof of actual damage is not required. In Uganda, the law of trespass is grounded in common law
principles but has been further developed through local jurisprudence. Courts consistently emphasize
that trespass protects possession rather than ownership, applied in decisions including Justine E.M.N.
Lutaaya v Sterling Civil Engineering36 To establish trespass to land, the claimant must prove the
following

1. Unlawful entry or interference

33
1984 V1 WLR 1172
34
[1915] AC 67

35
On the law of torts 15th edn, 1998, London: Sweet Maxwell
36
Civil suit No 494 of 1995
 It is to the effect that there is physical entry onto another’s land without consent or legal
authority. In Southport Corporation v Esso Petroleum37 In this case, a small oil tanker ran
aground due to carrying a heavy load and a steering fault in poor weather conditions. Oil
was discharged in order to free the tanker and it drifted onto the claimant’s land and a
marine lake. The claimant sued on grounds of trespass and it was held that the defendant
was not liable for trespass but rather negligence since the oil was not directly on the
foreshore.

2. Intentional act

Trespass is an intentional tort: the defendant must voluntarily do the act that causes entry.
However, the defendant need not intend to trespass specifically (e.g., entering by mistake is
still trespass). Accidental entry without negligence is not trespass. In the case of Smith v
Stone38 a stone was carried by force by others into smiths land and was not there on his own
volition. The court held that an involuntary trespass is not actionable but only the party that
forcefully carried stone to the land was actionable. The CJ stated that;

‘He who drives my cattle into another’s land is the trespasser against him and
not I whom the cattle belong to’
Possession of land

The right to sue lies with the person in possession, not necessarily the owner (e.g., a tenant
can sue). Ownership alone does not suffice if the claimant is not in possession. It is clearly
seen in the case of Lutembe Edward Ntege v Mukibi Katamba Fred and
commissioner39 where the respondent registered the land of the plaintiff as one of his. The
court examined whether a fraudulent registration could constitute trespass to land and
clarified the circumstances under which the commissioner was held liable for actions
affecting titles.

3. Knowledge of the act.

In Conway v George Whimpey & Co40. court held that a person could be liable for
trespass even if he is mistaken about the ownership of land or wrongly believes he or she

37
1954 v3 WLR 2000.
38
(1647) style 65
39
(civil suit No.1 of 2023
40
1951 V2 KB 266
 has permission to enter the land. It is not necessary to establish that the defendant caused
actual damage to the land or not.

FORMS OF TRESSPASS.

1. Entry by the defendant;

This involves physical entry upon the plaintiff’s land by the defendant without lawful
consent. In Entick v Carrington41 the King’s messengers entered the plaintiff’s house with
a general warrant and searched it. The court held that unlawful entry without legal authority
amounted to trespass. Government agents are not above the law
2. Remaining on the land after lawful entry.
It is pertinent to fathom that person who initially entered land lawfully can become a
trespasser if they remain there after their right of entry has ceased. This includes situations
where a license to be on the premises is properly terminated, and the person fails to leave
after a reasonable time and request. In the case of Jones v Chapman (1847) licensee refused
to leave after consent was withdrawn. The court held that staying after permission is
revoked becomes trespass
3. Placing or projecting objects onto land
Trespass to land also occurs when any physical object or noxious substance is placed upon,
or caused to cross the boundary of, the plaintiff’s land, or even comes into physical contact
with it without crossing the boundary. This can include items like a Virginia creeper
growing onto property, a ladder leaning against a wall, or piling rubbish against it. The
injury must be direct to be actionable as trespass, differentiating it from nuisance where the
entry of objects is merely a consequential result of an act.
In Kelsen v Imperial Tobacco Co42 The defendant erected an advertising sign that
projected 8 inches into plaintiff’s airspace. The court held that the projection was trespass,
even without physical damage.
4. Trespass above or below the surface
In the case of Bernstein v Sky views & General Ltd43 The Defendant flew over plaintiff’s
property and took aerial photos. The court held that there was no trespass. A landowner’s
rights in airspace extend only to such height as is necessary for ordinary enjoyment of land,
not unlimited upwards.
41
1765 V5 KB 98
42
1957 V2 QB 334
43
1978 QB 479
 DEFENSES TO TRESPASS.

Necessity.

This is applicable if the interference was reasonably necessary to protect persons or property
from the threat of real and imminent harm. It is not enough that the interference was a
convenient way of avoiding harm. The defendant must prove that such an urgent situation of
imminent peril existed actually, and not merely in the belief of the defendant. In the case of
London Borough of Southwark v Williams44, the defendants, who were two homeless
families, squatted in empty houses owned by the plaintiff. The plaintiff sought an order for
immediate possession and one of the defendant’s defenses was that of necessity. The issue
here was what constitutes the elements of the defense of necessity? The court noted that the
circumstances did constitute the sort of emergency to which the plea of necessity could
apply. Lord Denning stated that if homelessness were once admitted as a defense to trespass,
no one’s house could be safe. Necessity could open a door which no man could shut

Consent or License

There can be no trespass to land if there was consent to the interference. For instance, a contractual
license, where the contract expressly gives permission to be on land, for an express form of
consent. Conversely, implied consent would take the form for any member of the public to go upon
the path or driveway to the entrance of any dwelling for the purpose of lawful communication with
any person in the dwelling. For any potential customer to enter the premises of a firm for the bona
fide purpose of seeking information or doing business with it, no implied consent given to
investigative journalists to enter business premises to ask questions. A person who comes onto the
land of another with the latter’s consent can become a trespasser if the person remains on the land
after the permission to be on the land is effectively revoked and a reasonable period to withdraw
from the land has elapsed. In the case of Robson v Hallett45 the Police entered defendant’s
premises lawfully but were asked to leave; before leaving, they were assaulted. The court held that
initial entry was lawful (implied license to approach a house and knock), but once consent is
revoked, they must leave within a reasonable time.

44
[1971] 2 All ER 175
45
1967 V2 QB 939.