Revision Hub / Module 6 · Intentional Torts

Trespass to the Person

Lecture L16 Intentional torts Reading: Horsey & Rackley ch 14

Snapshot

"Trespass to the person" covers three ancient intentional torts — battery, assault and false imprisonment — plus the rule in Wilkinson v Downton (intentional infliction of physical or psychiatric harm by words) and the statutory action under the Protection from Harassment Act 1997. The trespass torts share three features: the conduct must be (i) intentional, (ii) direct and immediate, and (iii) actionable per se. Since Letang v Cooper [1965] 1 QB 232 the boundary with negligence is firm: carelessly inflicted injury sounds in negligence, not trespass.

1. Battery

Battery is "the actual infliction of unlawful force on another person" (Collins v Wilcock, per Goff LJ). The elements are: (i) a positive act by D; (ii) producing direct contact with C; (iii) which is unwanted (no consent / no lawful excuse); and (iv) which D intended or was reckless as to. The contact need not be hostile in any aggressive sense: the law protects bodily integrity from any unwanted touching beyond the generally acceptable contact of everyday life. An unwanted kiss is a battery although D's intention may be amiable.

Letang v Cooper [1965] 1 QB 232 (CA)

Facts: D negligently drove over C's legs as she sunbathed; the negligence limitation period had expired so C framed the claim as trespass.
Holding: Lord Denning MR: "when the injury is not inflicted intentionally, but negligently, … the only cause of action is negligence and not trespass."
Why it matters: Cements the modern division of labour: trespass is reserved for intentional wrongs; carelessly inflicted injury sounds in negligence.

Collins v Wilcock [1984] 1 WLR 1172 (DC)

Facts: A police officer with no power of arrest took hold of C's arm to detain her on suspicion of soliciting.
Holding: The hold was a battery: it exceeded the generally acceptable contact of ordinary life. Goff LJ: any non-consensual touching is a battery unless within implied consent to "the exigencies of everyday life" or otherwise lawful.
Why it matters: The leading modern definition; dispenses with any free-standing requirement of "force" or "anger".

Wilson v Pringle [1987] QB 237 (CA)

Holding: Battery requires "hostile" touching, defined broadly to include any touching D has no right to inflict.
Why it matters: The "hostility" gloss has been criticised — Lord Goff in F v West Berkshire HA doubted it added anything. Modern textbooks treat it as absorbed into the requirement that the contact be unwanted / unjustified.

F v West Berkshire Health Authority [1990] 2 AC 1 (HL)

Facts: F, a woman lacking capacity, was sterilised on her carers' application; the question was whether this amounted to a battery.
Holding: Treatment of an incapacitated adult is lawful where in the patient's best interests, on the principle of necessity.
Why it matters: Necessity is the principal common-law defence to medical battery; now substantially codified in the Mental Capacity Act 2005, ss 1–5.

Transferred intent applies (Livingstone v Ministry of Defence [1984]). Throwing an object suffices for "directness" (Hopper v Reeve (1817)). Recklessness satisfies the mental element; carelessness does not.

2. Assault

Assault is "an act which causes another person to apprehend the infliction of immediate, unlawful force on his person" (Collins v Wilcock). No contact is required — that is battery. The protected interest is freedom from apprehension of imminent unlawful contact, judged objectively, and D must appear to have the means to carry the threat out (Stephens v Myers (1830)).

R v Ireland; R v Burstow [1998] AC 147 (HL)

Facts: Ireland made repeated silent telephone calls causing the recipients psychiatric illness.
Holding: Silent calls can amount to assault where they cause the victim to apprehend immediate violence. Lord Steyn: "a thing said is also a thing done"; words or pointed silence may be as menacing as a raised fist.
Why it matters: The reasoning has been imported into the tort. Words alone, and silence, may be assault; "immediacy" is contextual.

Words may also negative a threatening gesture. In Tuberville v Savage (1669) D placed his hand on his sword saying "if it were not assize-time, I would not take such words from you" — no assault, because the conditional words made clear no immediate force would follow. Conditional threats do amount to assault where C is not bound to comply: in Read v Coker (1853) workers surrounded C and threatened to break his neck if he did not leave premises he was lawfully on — assault.

3. False imprisonment

False imprisonment is the unlawful imposition of complete restraint on C's freedom of movement. Elements: (i) a positive act by D; (ii) total restraint; (iii) unlawfulness; (iv) intent or recklessness. C need not be aware of the imprisonment at the time (Murray v Ministry of Defence [1988]).

Bird v Jones (1845) 7 QB 742

Facts: D fenced off part of Hammersmith Bridge for a regatta. C was prevented from walking through but could have turned back and crossed by another route.
Holding: No false imprisonment. Patteson J: the tort requires "a total restraint of the liberty of the person … not a partial obstruction of his will." A reasonable means of escape defeats the claim.
Why it matters: The bedrock totality requirement. Followed in Robinson v Balmain New Ferry Co [1910] AC 295 (PC): keeping a passenger on the wharf until he paid the lawful exit penny was not imprisonment.

Iqbal v Prison Officers Association [2009] EWCA Civ 1312

Facts: Prison officers staged an unlawful one-day strike, leaving prisoners locked in their cells without association.
Holding: No false imprisonment: the strike was an omission, not a positive act of restraint. Smith LJ: "an act of negligence will not suffice".
Why it matters: Confirms two boundary lines: act vs omission, and the trespass / negligence frontier.

R v Bournewood Community NHS Trust, ex p L [1999] 1 AC 458 (HL)

Facts: L, a profoundly autistic adult lacking capacity, was kept in an unlocked psychiatric ward as an informal patient.
Holding: No false imprisonment because L had not attempted to leave; necessity justified his admission.
Why it matters: Strasbourg later held in HL v UK (2004) that the de facto control breached Article 5 ECHR — prompting the Mental Capacity Act 2005's deprivation-of-liberty safeguards.

Walker v Commissioner of Police [2014] EWCA Civ 897 shows how little is required: a police officer briefly blocking a doorway sufficed for total restraint.

4. Defences

The principal defences are consent (express, implied — including Collins v Wilcock's implied consent to everyday touching, and consent in sport), lawful authority (PACE 1984 s 24 — general power of arrest by a constable; s 24A — citizen's arrest; Mental Health Act 1983; judicial orders), self-defence (in the civil action, D's belief that force is necessary must be honest and reasonable: Ashley v Chief Constable of Sussex [2008] UKHL 25), and necessity (F v West Berkshire HA; MCA 2005). Illegality (Patel v Mirza [2016] UKSC 42) rarely bites in trespass.

Crucially, contributory negligence is not generally a defence to trespass to the person: in Co-operative Group Ltd v Pritchard [2011] EWCA Civ 329 the Court of Appeal held that the Law Reform (Contributory Negligence) Act 1945 does not apportion damages for intentional wrongdoing.

5. The rule in Wilkinson v Downton

In Wilkinson v Downton [1897] 2 QB 57, D told Mrs Wilkinson as a practical joke that her husband had been badly injured; the shock made her physically ill. Trespass would not lie (no direct force) and no negligence-based remedy for nervous shock yet existed. Wright J recognised a freestanding action: D had "wilfully done an act calculated to cause physical harm" and had caused it. Intention was imputed from the natural consequence of the deliberate words. The modern law has been re-set in two cases.

Wainwright v Home Office [2003] UKHL 53

Facts: A mother and her son visiting a relative in prison were strip-searched in breach of prison rules; the son developed PTSD.
Holding: No actionable Wilkinson claim. Lord Hoffmann: the rule does not create a free-standing tort of intentional infliction of distress; "imputed" intention "will not do". Actual intention to cause physical or psychiatric harm is required; ordinary unkindness does not generate civil liability.
Why it matters: Drastically narrowed the rule and rejected calls to derive a privacy tort from it.

O (a child) v Rhodes [2015] UKSC 32

Facts: The pianist James Rhodes wrote a memoir graphically describing the sexual abuse he had suffered. His ex-wife sought to enjoin publication, fearing psychiatric harm to their vulnerable son.
Holding: Injunction refused. Three elements: (a) conduct — words or acts directed at C without justification or excuse; (b) mental — D must actually intend to cause severe mental or emotional distress; (c) consequence — physical harm or recognised psychiatric illness in fact. Recklessness and imputed intention are rejected.
Why it matters: The contemporary statement of the rule, with a strong free-speech overlay: telling the truth in the public interest is "justification or excuse".

6. Protection from Harassment Act 1997

Where D's conduct is a pattern rather than a single tortious act, the Protection from Harassment Act 1997 often fits better. The Act creates a criminal offence and a parallel civil action. In Majrowski v Guy's & St Thomas' NHS Trust [2006] UKHL 34 the House of Lords confirmed two features of the civil action: it is actionable in tort, and an employer can be vicariously liable for an employee's harassment in the course of employment — opening up workplace bullying litigation. In Hayes v Willoughby [2013] UKSC 17 the Supreme Court held that D's belief that he was acting to prevent or detect crime (a s 1(3) defence) must be rationally held; obsessive paranoia is no defence.

Protection from Harassment Act 1997 — key sections

s 1 — Prohibition: (1) A person must not pursue a course of conduct (a) which amounts to harassment, and (b) which he knows or ought to know amounts to harassment. (2) Objective test: D ought to know if a reasonable person with the same information would think so. (3) Defences: preventing or detecting crime; statutory authority; reasonableness in the circumstances.
s 3 — Civil remedy: (1) Breach of s 1(1) is actionable by the (potential) victim. (2) Damages cover anxiety caused and financial loss. Injunctions are available; breach of injunction is itself an offence (s 3(6)).
s 7 — Interpretation: (2) "Harassing" includes alarming or causing distress. (3) "Course of conduct" means conduct on at least two occasions. Incidents far apart are unlikely to qualify (Lau v DPP [2000]); a single web publication repeatedly accessed may suffice (Law Society v Kordowski [2011]).

The threshold is meaningful. In Thomas v News Group Newspapers [2001], Lord Phillips MR held the conduct must be "oppressive and unacceptable" and "calculated" to produce the s 7 consequences; in Majrowski Lord Nicholls echoed that it must "cross the boundary from the regrettable to the unacceptable". Mere annoyance is not harassment (Saha v Imperial College [2013]).

7. Application framework

Identify the conduct and the protected interest. Physical contact (battery)? Apprehension of immediate force (assault)? Confinement (false imprisonment)? Words causing severe distress (Wilkinson / PHA)? Plead in the alternative where facts overlap.
Check the trespass triad: intention, directness, immediacy. Mere carelessness routes to negligence (Letang v Cooper); consequential rather than direct harm routes to Wilkinson or PHA.
Run each tort's elements. Battery (Collins v Wilcock; Wilson v Pringle); assault (R v Ireland; Tuberville v Savage); false imprisonment (Bird v Jones; Iqbal).
Canvass defences. Consent; lawful authority (PACE 1984 ss 24, 24A; MHA 1983); self-defence (Ashley); necessity (F v West Berkshire HA; MCA 2005). Contributory negligence unavailable (Co-op v Pritchard).
Quantify and remedy. Trespass torts are actionable per se: nominal, aggravated, occasionally exemplary damages. PHA s 3 covers anxiety and financial loss, plus injunctions. Wilkinson-Rhodes requires recognised psychiatric illness or physical harm.

8. Common pitfalls

Assuming "force" in battery means violence. It does not. Any unwanted touching outside generally acceptable everyday contact is enough — an unwanted kiss is a battery. Conversely, a tap on the shoulder to attract attention is not.

Treating Wilson v Pringle's "hostility" as a free-standing element. The better modern view (F v West Berkshire HA) is that hostility adds nothing once you ask whether the touching was consented to or otherwise lawfully justified. Do not let D escape liability just because the touching was friendly in motive.

Forgetting that false imprisonment requires total restraint and a positive act. A claimant with a reasonable means of escape (Bird v Jones) is not imprisoned. A custodian who merely omits to unlock is not committing a fresh tort (Iqbal).

Reaching for Wilkinson v Downton whenever C is upset. After Wainwright and O v Rhodes, the rule needs (a) unjustified words/conduct directed at C, (b) actual intent to cause severe distress, and (c) recognised psychiatric illness or physical harm. Most "distress" cases now belong under PHA 1997 — pick the correct doorway.

9. Exam checklist

Identified which trespass tort(s) the facts engage; pleaded in the alternative where they overlap.
Confirmed conduct was intentional (or reckless) and direct — not merely negligent (Letang v Cooper).
Battery: elements via Collins v Wilcock; addressed the (now-attenuated) hostility point in Wilson v Pringle; applied F v West Berkshire HA on necessity.
Assault: distinguished words alone (R v Ireland) from negativing words (Tuberville v Savage); checked immediacy.
False imprisonment: insisted on total restraint (Bird v Jones) and a positive act (Iqbal); knowledge by C not required.
Canvassed defences: consent, lawful authority (PACE s 24), self-defence (Ashley), necessity; noted contributory negligence rejected (Co-op v Pritchard).
Considered Wilkinson v Downton as restated in O v Rhodes — three elements; rejection of imputed intention in Wainwright.
For repeated conduct: PHA 1997 — course of conduct (s 7), civil remedy (s 3), Majrowski on vicarious liability, Hayes v Willoughby on rationality.