Trespass to the person

Trespass to the Person

8.1 Assault

8.1.1 Definitions

1.  The old view was that assault was an incomplete battery.

2.  Modern definition is intentionally and directly causing a person to fear being victim of an imminent battery (Letang v Cooper (1965)).

8.1.2 Ingredients of the Tort

1.  Assault is free-standing, so intention refers to the impression it will produce in claimant, not as to what defendant intends to do. Compare R v St. George (1840) with Blake v Barnard (1840).

2.  No harm or contact is required (I de S et Ux v W de S (1348)).

3.  Requires active behaviour, so merely barring entry is no assault (Innes v Wylie (1844)).

4.  However, threatening behaviour can be assault (Read v Coker (1853)).

5.  An attempt to commit a battery which is thwarted is still an assault (Stephens v Myers (1830)).

6.  Traditionally words alone were not an assault:

   but could disprove an assault (Tuberville v Savage (1669));

   and a threat on its own can be assault (Read v Coker);

   and in contract law, words can amount to duress if the threat is sufficiently serious (Barton v Armstrong (1969));

   more recently, in crime, words alone and even silence have been accepted as assault (R v Ireland; R v Burstow (1998)).

7.  The claimant must be fearful of an impending battery. Compare Smith v Superintendent of Woking (1983) with R v Martin (1881).

8.1.3 Defences

1.  Consent (as in sports).

2.  Self-defence (e.g. threatening an attacker).

3.  Necessity (frightening people away from possible harm).

8.2 Battery

8.2.1 Definitions

There are a number of possible definitions:

   the defendant intentionally and directly applies unlawful force to claimant’s body – but force is irrelevant in, for example, medicine;

   the defendant, intending the result, does an act which directly and physically affects the claimant, but still implies damage;

   has been said to include the ‘ordinary collisions of life’, but this is very unlikely (Wilson v Pringle (1987)).

8.2.2 Ingredients of the Tort

1.  Intention is a fairly recent requirement – without it an action should be brought in negligence (Fowler v Lanning (1959)).

2.  Traditional distinction was between direct and indirect contact:

   but now between intention and negligence (Letang v Cooper (1965));

   although in traditional cases indirect damage was often accepted (Gibbons v Pepper (1695));

   often where negligence might have seemed more appropriate (Nash v Sheen (1953));

   and even where other parties have actually caused the harm (Scott v Shepherd (1773)).

3.  Usually no liability for omissions in trespass, only positive acts (Fagan v Metropolitan Police Commissioner(1969)).

4.  Hostility is a recent requirement, with traditional foundations:

   Lord Holt CJ in Cole v Turner (1704) suggested that ‘the least touching of another in anger is a battery …’;

   restated in Wilson v Pringle (1987);

   but conflicting with Lord Goff’s test in Collins v Wilcock (1987) of whether the contact is acceptable in the conduct of daily life.

5.  Medical treatment without consent has always been battery: