Chapter 11 Podcast Transcript

Trespass is one of the oldest torts, which developed before the existence of a police force to give protection against physical interference with person or property. Traditionally, one of the main functions of trespass was to vindicate rights and to act as a deterrent, protecting against invasion of a citizen’s interests in land, person, or property.

Trespass takes three forms: trespass to the person, trespass to land, and trespass to goods, all of which are actionable per se, which means that a claimant does not need to prove damage to bring an action in trespass. In effect, the tort of trespass protects civil rights. It is one of the areas of tort which overlaps with criminal law. At this stage, it is important to note that all forms of trespass require a direct and intentional interference, such as hitting a person or entering the land of another.

The focus of this chapter is on trespass to the person, trespass to land and, briefly the tort known as the tort in Wilkinson v Downton, which concerns the intentional infliction of harm without a direct interference.

Trespass to the person consists of assault, battery and false imprisonment. Assault requires no physical contact; it is essentially conduct which causes the claimant a reasonable apprehension of an immediate application of force which constitutes a battery. Case law such as Thomas v National Union of Mineworkers illustrate that there must be a real threat of immediate battery. Battery is the actual infliction of unlawful force on another person. The application of any physical contact, no matter how trivial, is sufficient ‘force’; it is not necessary that injury be caused; see for instance Collins v Wilcock. There is a general exception embracing all physical contact which is ‘generally acceptable in the ordinary conduct of daily life’. It is no longer the case that the touching be with ‘hostile intent’. False imprisonment is the unlawful constraint on the freedom of movement of another, which does not require incarceration or the use of force. Reasonable or lawful restriction is not included and it is not necessary that the claimant knows of their restraint. A number of false imprisonment cases concern detention by the state which exceeds legality, and unlawful detention during the course of protest. Human rights and civil liberties are therefore important policy elements of this tort. Consent is a major defence to trespass to the person.

Trespass to land, similarly to trespass to the person, must be direct and intentional; the tort can occur even if the defendant mistakenly believes that the relevant land belongs to him. It is also actionable per se (although only nominal damages will be awarded without proof of loss). Another relevant remedy may be an injunction.

According to the tort in Wilkinson v Downton, established in 1897, liability can arise where words calculated to cause physical injury (including psychiatric harm) are spoken, such as in the case itself, where the defendant, as a practical joke, told a woman that her husband had been seriously injured in an accident, leading her to suffer serious physical injury as a result. It must be considered in relation to the Protection from Harassment Act 1997.