Topic 2: Trespass to Person

General Rules: Trespass

1. Trespass – direct interference with a person’s body or liberty - intention

2. Letang v Cooper
a. The Plaintiff was sunbathing in the car park, D reversed his car and hit the P.
3-year pass, no sue for negligence (time limit to sue for negligence is within
three years)
b. Sue D for trespass to person (battery), it is clearly negligence, no intention to
cause harm
c. If the defendant were careless in acting as he did, the cause of action would lie
in negligence and not in trespass
3. General element
a. Positive act, not an omission
b. Direct act of the D to P
c. Actionable per se (no need to prove any damage)
4. Trespass v Negligence

Trespass Negligence
D must have intention Intention No need for intention.
Careless or lack or
reasonable care
Actionable per se Proof of Damage Must be proven
C must show they suffered
damage as a result of the
negligence

Trespass to Person

1. Trespass to person:
a. Assault
b. Battery
c. False Imprisonment
d. Harassment
Assault

1. Assault – intentionally cause a person to apprehend (expect) the infliction of

immediate, unlawful force on himself (battery)
2. Collins v Wilcock
a. A police officer wished to question a woman in relation to her alleged activity
as a prostitute. The woman decided to walk away, but the police officer
grabbed her arm to stop her. The woman struggled and scratched him.
b. Distinguish what is assault and battery
i. Assault – person intentionally or recklessly harms someone indirectly
without consent
ii. Battery – person intentionally and recklessly harms someone directly
without consent (can be implied)

Elements of Assault

1. Mental state of D - Intention to cause P to apprehend a battery

a. Tuberville v Savage
i. P threatens D. D places his hand on the sword and threaten back
ii. Although the act was threatening, there is no intention – “if it were not
assize-time”
2. Effect on P - Reasonable apprehension of such battery
a. Objective test: Would a reasonable man feel apprehensive that a battery/force
be inflicted upon him?
b. Force – puts him in reasonable fear of immediate physical contact placed upon
his body
c. Argument between P and D. D pointed out the unloaded gun to P. P believe the
gun is loaded, scared, it is a reasonable apprehension.
iii. Blake v Barnard
1. Since the D held an unloaded gun, there should be no
reasonable apprehension
iv. R v St George (preferred view)
1. Despite the gun is unloaded, if P believe, and there should be
had a reasonable apprehension
3. Capability to carry out the threat (must be immediate)
 a. Objective test: would a reasonable man, feel reasonable fear that there is a
threat of immediate force upon himself?
b. Thomas v National Union of Mineworkers
i. Picketing miners threaten other miners who did not join the picketing.
The work miners were brought to work in a vehicle, and the picketing
miners were observed and controlled by the police.
ii. There was no assault, because there was no capability to carry out the
threat (one on bus one held back by police)
c. If the defendant makes an immediate threat towards the claimant, but cannot
carry out the action due to a third party stepping in as a barrier, the
defendant may still be liable for assault.
d. Stephen v Myers
i. The defendant threatened to hit the plaintiff and advance with clench
fist. However, he was stop by the third party, just one or two seconds,
before reaching the P.
ii. Assault was established. If he had not been stopped by the third party,
he could have carried out the threat.
4. Act, not omission - Positive act
a. Innes v Wylie
i. A policeman stood at the door of a building and his body blocked the
claimant from entering
ii. Held: no move no assault
b. if a defendant is active, and threatening, the act can be counted as an assault
c. Read v Coker
i. The claimant owed rent money to the defendant. When the claimant
refused to leave the house. The defendant asked three employees to see
him off the premises. They surrounded the claimant, rolled up their
sleeves and said if he did not leave, they would break his neck
ii. Positive act, threaten carry out

Can words or silence constitute an assault

1. General Rule: Mere words cannot constitute an assault

 o R v Meade & Belt
 The defendants surrounded the victim's house singing threatening and
menacing songs
 "no words or singing are equivalent to an assault"
2. Words can be an assault
o R v Wilson
 The defendant shouted 'get out the knives' a physical fight developed
 Court comment that: words would by themselves amount to an assault.
3. Silence is also an assault
o R v Ireland
 The defendant had made silent calls to women. There were no words,
just heavy breathing
 Held: since instilling fear of the possibility of immediate violence,
assault was established

Battery

1. Battery - Intentional and direct application of force to another person, without

consent - No need to involve violence
2. Collins v Wilcock
a. A police officer wished to question a woman in relation to her alleged activity
as a prostitute. The woman decided to walk away, but the police officer
grabbed her arm to stop her. The woman struggled and scratched him.
b. Distinguish what is assault and battery:
i. Assault – person intentionally or recklessly harms someone indirectly
without consent
ii. Battery – person intentionally and recklessly harms someone directly
without consent (can be implied)

Elements of Battery

1. The mental state of the defendant - Intention, related to the direct act
a. Letang v Cooper
 i. The Plaintiff was sunbathing in the car park, D reversed his car and hit
the P. 3-year pass, no sue for negligence (time limit to sue for
negligence is within three years)
ii. Sue D for trespass to person (battery), it is clearly negligence, no
intention to cause harm
b. Doctrine of transferred intent (intention, but not towards a specific person)
i. Scott v Shepherd
1. The D threw a lighted squib in a market area. A picked up the
squib and threw it to B. B picked up the squib and threw it to P
and burst. (act not freely, compulsive necessity)
2. Held: D is liable for trespass, although his initial act is not the
target plaintiff (doctrine of transferred intent)
2. The defendant’s act was under his control
a. Voluntarily
b. Gibbons v Pepper
i. D riding horse and someone hit the horse from behind, cause the horse
to bolt and collide with P
ii. Action not in the D’s control, not voluntarily, no intention
c. if A takes the hand of B and with it strikes C, A is the trespasser, and not B
3. Contact.
a. Physical contact = force, not necessarily be violent
b. Not necessarily between body and body, can be an object
c. But must be sufficiently direct
i. Scott v Stepherd
1. The D threw a lighted squib in a market area. A picked up the
squib and threw it to B. B picked up the squib and threw it to P
and burst. (act not freely, compulsive necessity)
2. Contact between the squib (throw by D) and P, direct
d. But sometimes not necessarily be direct enough
i. Pursell v Horn
1. P’s clothes got covered in water thrown by D
2. Even only get wet and clothes damage, battery
e. Do touching really need to be “hostile”? And what is “hostile”?
i. Cole v Turner (Yes, hostile is “anger”)
 1. P are married couples, alleged suffered battery by the D
2. Held: “anger” is necessary; accidental touching does not
amount to battery. But a light touch with anger also amounts to
battery.
ii. Wilson v Pringles (Yes, question of fact and circumstances)
1. D pulls the claimant’s school bag, causing the claimant to fall
over and suffer injuries.
2. Held: Must have “hostile” touching. To determine whether
“hostile” is a question of fact and circumstances. As long as D
understands that he’s doing something P may object to, then is
“hostile”
iii. Street: hostile should not be equated with ill-will or malevolence.
defendant understands that he is doing something that plaintiff may
object to
iv. Collins v Wilcock (yes, unacceptable conduct)
1. Hostile = unacceptable conduct, differs from one society to
another and from one generation to another, and different
circumstances
2. Police grab a woman without the power of arrest is “hostile”
touching
f. Battery in Medical Treatment
i. F v West Berkshire Health Authority
1. a woman who had a learning disability and had become
pregnant as a result of a voluntary sexual relationship with a
male patient at the facility. Doctor want to sterilize the woman,
as the pregnancy would have serious negative consequences for
the woman
2. Hostile is not necessary. It is in the best interest of the patient
rather than hostility
ii. Muhammad Muhaimin Bin Yauza & Ors v JK Maizatulniza Mat Jais
1. The student received the vaccine in school without the consent
of her parents, resulting in her paralyse.
2. Held: it is a battery. Medical treatment (vaccination) without
consent is battery.
 4. express and implied consent
a. Nash v Sheen
i. P went for a permanent wave and ended up with a tone rinse (without
consent). Cause her suffers complications. Had battery
b. Tiong Pik Hiong v Wong Siew Gieu
i. Scratching the plaintiff's face and hitting her due to jealousy of P’s
friendship with her husband, is battery
c. Asiah bte Kamsah v Dr Rajinder Singh & Ors
i. Patient suffered injuries after surgery. Written consent exists before the
operation. Element not fulfilled, no battery

False Imprisonment

1. False Imprisonment: Restriction of a person's freedom of movement/ wrongful

deprivation of personal liberty in any form
2. Not necessary to be lock in a room

Elements of False Imprisonment

1. The mental state of the defendant

a. W Elphinstone v Lee Leng San
i. The plaintiff was arrested by the police at the entrance of the court on a
charge of driving a lorry with inefficient brakes. The plaintiff argued
that the police officer had negligently arrested him.
ii. Cannot established through negligence, must have intention
2. Act, not omission
a. Iqbal v Prison Officers Association
i. The prison officers had merely failed to show up to work rather than
imprisoning the plaintiff.
ii. Since there is no duty of care between the prison officers and P, this
omission is not actionable, so no action, no false imprisonment
3. The restraint must be a direct consequence of the defendant’s act;
a. Harnett v Bond
 i. P live in an asylum, P met the 2nd D at his office, and the 2nd D claimed
that the P was acting strangely, 2nd D call the 1st D to take P. The 2nd D
make sure that the P didn’t leave his office for 3 hours.
ii. 1st D claims that the P is insane and for 9y the P was sent to one
institution to another.
iii. Held: Only 2nd D is liable for detaining the P for 3hrs, and 1st D was
protected under statutory authority. 2nd D detain P for 3hrs is the start
of why P detain in different asylums for 9 years (directly caused the
confinement.)
4. The restraint must be complete.
a. No way out - reasonable way out
b. Bird v Jones
i. The plaintiff insisted on passing through the fenced part. The defendant
stopped the plaintiff and directed him to take another route in order to
proceed to the other side of the bridge. The plaintiff refused and
remained there for half an hour.
ii. Alternative reasonable way out, no false imprisonment
c. Wright v Wilson
i. There was a reasonable way out but the P need trespass to another
person’s land
ii. Reasonable way out even needs to trespass, so no false imprisonment
d. But if such a route of escape has the risk of injury to himself, then it's not a
reasonable way out
e. Also had situation that the restraint is unclear
i. R v Bournewood Community and Mental Health NHS Trust, ex p L
1. P was taken to a hospital after harming himself. He stayed in an
unlocked ward, did not object, and never tried to leave. The
hospital later admitted that if he had tried to leave, they would
have stopped him and detained him under the law.
2. majority of the House of Lords held that this was only a
potential restraint, not an actual one. Since the hospital never
actually stopped him or detained him, there was no false
imprisonment.
 3. The minority disagreed, saying it was unrealistic to think he
was truly free to leave, so they felt false imprisonment had
occurred.

Other consideration

1. The knowledge of the plaintiff

a. Herring v Boyle (need to have knowledge)
i. A school boy was detained at school, when his mother was to fetch
him, his school fees was not paid, hence the school refused to release
him. But that boy had no idea he was being detained
ii. Held: since the boy didn’t know, school was not liable
b. Meering v Grahame-White Aviation Co Ltd (no need knowledge)
i. P was suspected of stealing varnish from him workplace at the D’s
premises. D call the police, and told the police, not to allow the P to
leave the office area. P didn’t know he was not allowed to leave. After
investigation, turn out P is innocent
ii. Held: can be imprison without his knowledge, he can be imprison
while he is asleep, drunk, unconscious, lunatic…
c. Murray v Ministry of Defence
i. Knowledge is not an essential element for false imprisonment
2. Entering premises under a contract
a. Cannot leaving the premis is not a false imprisonment if it is the term of
contract (e.g. work from 9-5, if not allow leave office at 4, it is not false
imprisonment)
b. Robinson v Balmain
i. The plaintiff wants to cross a river on the defendant ferry, there was a
notice stating that 1 pen must be paid while trip and upon leaving the
ferry. The Plaintiff give 1 pen and enter the ferry, and after a while he
change his mind, and wanted to leave. He was restrained because he
didn’t want to pay another penny
ii. Held: P was restrained because he breach the rules (contract), so he’s
act is reasonable
c. Herd v Weardale Steel
 i. A mine worker (P) only brought up from mine at 1.30 p.m even though
the 'cage' which transported the miners could have been used to bring
the plaintiff up at 1.10 p.m.
ii. Held: No false imprisonment, he should only have been brought up at
4.00 p.m. pursuant to the agreement between the parties
3. Remedies
a. Remedy for false imprisonment is not freedom, is damages (money
compensation)

Arrest and restraint by the authorities

1. Habeas Corpus itself indicates that the detention is wrongful (false imprisonment)
2. Burden of proof lie on detainee (authorities)
3. Art 5 (1)
4. Two types: with judicial authority, without judicial authority.

Arrest without judicial authority

1. Police detained must under CPC, Section 23 of CPC

a. Shaaban & Ors v Chong Fook Kam & Anor
i. Arrested and detained for a suspicion of causing death through reckless
driving (seizable offence). Two detain, one at the coffee shop
(questioned), one at the police station (suspicious and detain).
ii. Held: First detained is unlawful (false imprisonment), no reasonable
suspicion under S23 (1)(a) of CPC (can arrest under reasonable
complain with a seizable offence). Second is lawful as the suspicious is
due to P may reckless driving lorry causing death.
2. Must inform the grounds, or else is false imprisonment
a. Abd Malek bin Husin v Borhan b Hj Daud
i. P arrest by special branch officers without D inform the grounds of the
arrest for 19 days
ii. False imprisonment
3. A private person arrest must handed detainee to police in reasonable time, or else is
false imprisonment.
a. John Lewis Co Ltd v Tims
 i. The plaintiff’s daughter stole items from two shops. After leaving the
second shop, a detective from the first shop stopped them, took them
back, and kept them there until the manager heard what happened and
chose to call the police.

Arrest with judicial authority

1. As long as there is warrant from court, it is not a false imprisonment

a. Ketua Police Daerah Johor Bahru, Johor v Ngui Tek Choi
i. Detain the P for the investigation of the theft of a car, and obtain the
remand order from the magistrate.
ii. Since the remand order is a judicial act, detaintion is lawful
2. But if it involves police beating and assault, even there is a warrant, it will be false
imprisonment
a. Hassan bin Marsom v Mohd Hady bin Ya’akop
i. Police obtain a remand order on the suspicion that the plaintiff had
been involved in a fight (with a warrant). During detention, P was
assaulted by the police and hospitalised
ii. If police obtained remand orders and not provided the Magistrate with
sufficient information (e.g. not at the scene), cannot rely at this remand
immunity.

Tort in Wilkinson v Downton (all category cannot fulfilled)

1. Wilkinson v Downton
a. Mr Downton decided to play a practical joke
b. Tell Mrs Wilkinson that her husband get into an accident and broke both of his
legs. Mrs Wilkinson, suffered nervous shock, hair turn white and causing her
to vomit
c. If D intentional to cause harm, and this harm occurred (nervous shock)
2. Janvier v Sweeney
a. D lie and threaten P, cause her ill due to nervous shock
b. Get remedy
3. Mohd Ridzwan bin Abdul Razak v Asmah binti Hj Mohd Noor
a. Employee sexual harassment by the manager
 b. Elements:
i. defendant’s words or actions must be directed at the plaintiff without
any valid reason
ii. Intention to cause harm (physical or mental)
iii. Not actionable per se (proof of physical harm or a recognised
psychiatric illness)

Harassment

1. unreasonable conduct that causes alarm, fear or distress

2. No requirement of physical contact, injury, confinement or psychiatric illness.
3. Elements (Mohd Ridzwan bin Abdul Razak v Asmah binti Hj Mohd Noor)
a. There must be a course of conduct by the defendant;
b. The course of conduct must be unreasonable and oppressive;
c. The conduct must be calculated to cause alarm, fear or distress
i. Objective test
1. D reasonably to know that the conduct would cause alarm, fear
or distress
d. The plaintiff must have cause alarm, fear or stress