TRANSCRIPTS
be used. Battery is the actual infliction of unlawful force on another person. False imprisonment is unlawfully constraining someone against their will in a particular place.
Let’s concentrate today on what this tort is and what the defences to it are.
Unit 3, Lesson 4, Exercise C 1.18 Part 2
In strict legal language, assault is causing the apprehension of the application of unlawful force. This means that someone intends to apply force to another person, and that person reasonably expects that this will happen. Let’s look at intention. If someone shakes their clenched fist at another person, but is stopped from hitting that person by the intervention of a third party, there will be a case as the person shaking the clenched fist intended to commit a violent act. However, the claimant must have reasonably expected an immediate battery. It has also been argued that words alone can constitute an assault.
OK. Now, battery involves the infliction of unlawful force. In theory, merely touching a person in anger could constitute battery. If you unintentionally touch someone on a crowded underground train, this is unlikely to amount to battery. However, if you deliberately push them out of the way in order to get to the train door before it closes, you might be liable.
False imprisonment is unlawfully constraining someone against their will in a particular place. For example, a customer hasn’t paid for some goods in a shop, and the shopkeeper detains them for quite a long period of time. This might be seen as false imprisonment.
Unit 3, Lesson 4, Exercise D 1.19 Part 3
What about the defences to trespass to the person? The first line of defence is consent. Consent can be given expressly by words or can be implied by the action a person takes. If you play a contact sport, such as football or rugby, you expect to have a degree of physical contact when, for example, you are tackled or jostling to get the ball. By taking part in the sport, you consent by implication to this physical contact. However, if you are punched in the face by an opponent, this is not part of the normal run of play. It isn’t, after
all, a boxing match! It would not be a defence that you consented to being punched just because you played in the game, as you couldn’t reasonably expect this to happen during or even after the game. It has been argued that in a sport such as ice hockey, punching other players, although against the rules, is all part of the game and therefore if you play ice hockey you might reasonably expect to be punched during the course of the game!
Lawful arrest is also a defence. If person A reasonably expects that person B is likely to commit a breach of the peace – that is to harm or threaten to harm someone – A has the right to prevent the breach of the peace from taking place by restraining B against B’s will. However, the police or the private citizen making the arrest must not act unlawfully.
Self-defence is a long-established defence under the common law. A person may use ‘reasonable force’ to protect himself, his property or his land from interference. The court has to decide on what reasonable force is. For example, it may decide that it is not reasonable force to fire a shotgun with live bullets at people trespassing on an owner’s land. However, what is reasonable will always depend on the exact circumstances.
Necessity is another line of defence. This defence is often used in cases involving medical treatment. If a doctor acts to preserve the life of a patient, even without the patient’s consent, it would not be trespass, provided that the doctor acted reasonably. If you see someone about to be run over by a car, you would immediately try to push them out of the way. You wouldn’t wait to ask their permission!
Unit 3, Lesson 4, Exercise E 1.20 Part 4
So, to recap, we are looking at the tort of trespass to the person. There are three types: assault, battery and false imprisonment. There is a range of defences available. These include consent, lawful arrest, self-defence and necessity.
The case law on trespass to the person is extensive. I would suggest you start your research with some of the 19th-century cases I’ve referenced on the PowerPoint slides.
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