Advanced Torts: Module A: Introduction To Torts and Trespass To The Person

Master of Laws (LLM)
Postgraduate Diploma in Laws

Postgraduate Certificate in Laws
Advanced torts
Module A: Introduction
to torts and trespass to
the person
2019
C. Witting
LWM82A
This revised edition of the Study Guide was prepared for the University of London by:
•• Christian Witting, Professor of Private Law at Queen Mary University of London.
This is one of a series of Study Guides published by the University. We regret that owing to pressure
of work the author is unable to enter into any correspondence relating to, or arising from, the Guide.
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Contents
Contents
Chapter 1: Introduction..........................................................................................1
1.1 Introduction to the course.....................................................................................1
1.2 Overview.................................................................................................................... 2
1.3 Educational aims..................................................................................................... 2
1.4 How to use this Study Guide............................................................................... 3
1.4.1 Reading.............................................................................................................. 3
Useful further reading..........................................................................................4
1.4.2 Online resources............................................................................................4
1.5 Allocating your time............................................................................................... 5
1.6 The examination..................................................................................................... 5
1.6.1 Preparing for the examination.................................................................. 5
1.6.2 Taking the examinations............................................................................6
1.7 Module A: Introduction to torts and trespass to the person..................... 7
1.7.1 Preliminary reading...................................................................................... 7
1.7.2 Tort law and common law.......................................................................... 7
1.7.3 Definition of ‘tort’........................................................................................... 7
Chapter 2: History of tort law............................................................................. 11
2.1 Introduction.............................................................................................................11
2.2 Trespass and case...................................................................................................11
2.3 Forms of action...................................................................................................... 12
2.3.1 Abolition of forms........................................................................................ 12
2.3.2 Pleading in tort..............................................................................................13
Chapter 3: Protected interests and fault............................................................ 15
3.1 Introduction............................................................................................................ 15
3.2 Protected interests................................................................................................ 16
3.3 Liability bases......................................................................................................... 18
3.3.1 Deliberate/intentional conduct .............................................................. 18
3.3.2 Negligence..................................................................................................... 19
3.3.3 Strict liability................................................................................................. 19
3.4 Intention in tort law............................................................................................ 19
3.4.1 Intention is a complex concept............................................................... 19
3.4.2 Use of intention as a criterion of liability........................................... 21
3.4.3 Proof of intention........................................................................................22
3.5 Negligence in tort law.........................................................................................24
3.5.1 Intentional acts can be pleaded in negligence................................... 25
3.5.2 Liability in negligence can mean strict liability for some
defendants..............................................................................................................26
3.5.3 Negligence can mean strict liability for all.........................................28
3.6 Strict liability........................................................................................................29
Chapter 4: Battery.................................................................................................33
4.1 Introduction............................................................................................................ 33
4.2 Fault...........................................................................................................................34
4.2.1 Negligently inflicted battery? .................................................................34
4.2.2 Fowler v Lanning..........................................................................................34
4.2.3 Letang v Cooper..................................................................................34
4.2.4 Utility of negligent trespass.................................................................... 35
4.2.5 Meaning of ‘intentional act’ .................................................................... 35
i
Advanced torts: Module A
4.2.6 Transferred intent......................................................................................36

4.2.7 Hostility..........................................................................................................36
4.3 Character of the defendant’s act...................................................................... 37
4.3.1 Positive act..................................................................................................... 37
4.3.2 Unpermitted contact.................................................................................. 37
4.4 Directness...............................................................................................................38
4.5 No consent by the claimant..............................................................................39
4.5.1 Burden of proof.............................................................................................39
4.5.2 Rationale........................................................................................................39
4.5.3 Treatment here............................................................................................39
4.6 Defences: consent............................................................................................... 40
4.6.1 Express or implied...................................................................................... 40
4.6.2 Class of act.................................................................................................... 40
4.6.3 Subjective or objective test?.................................................................... 40
4.6.4 Effect of consent.......................................................................................... 41
4.7 Defences: self-defence......................................................................................... 41
4.7.1 Necessity......................................................................................................... 41
4.7.2 Reasonableness............................................................................................ 41
4.8 Damages..................................................................................................................42
Chapter 5: Assault................................................................................................ 47
5.1 Introduction............................................................................................................47
5.2 Definition................................................................................................................47
5.3 Intention................................................................................................................. 48
5.4 Apprehension – objective test......................................................................... 48
5.5 Mode of commission........................................................................................... 49
5.5.1 Words.............................................................................................................. 49
5.5.2 Silence............................................................................................................ 49
5.6 Directness............................................................................................................... 49
5.7 Defences.................................................................................................................. 49
Chapter 6: False imprisonment..........................................................................53
6.1 Introduction............................................................................................................ 53
6.2 Definition................................................................................................................ 53
6.3 Fault.......................................................................................................................... 53
6.3.1 Intention ........................................................................................................ 53
6.3.2 Negligence.....................................................................................................54
6.4 Character of the defendant’s act.....................................................................54
6.4.1 Total restraint .............................................................................................54
6.4.2 Place of confinement................................................................................. 55
6.4.3 Prisoners........................................................................................................56
6.4.4 Executive detention................................................................................... 57
6.4.5 Positive act.................................................................................................... 57
6.4.6 Directness.....................................................................................................58
6.4.7 Burden............................................................................................................58
6.5 Knowledge of the claimant...............................................................................58
6.6 Persons liable........................................................................................................59
6.7 Defences..................................................................................................................59
6.8 Damages..................................................................................................................59
6.8.1 General............................................................................................................59
6.8.2 Nominal damages......................................................................................59
6.8.3 Aggravated damages................................................................................60
6.8.4 Exemplary damages..................................................................................60
6.9 Other relevant law..............................................................................................60
ii
Contents
Chapter 7: Intentional infliction of harm........................................................ 63

7.1 Introduction............................................................................................................63
7.2 Wilkinson v Downton ......................................................................................... 64
7.3 Re-classification of Wilkinson v Downton.................................................... 64
7.4 Utility of principle................................................................................................65
7.5 Defences.................................................................................................................. 66
Sample examination question (whole module)............................................... 69
iii
Notes
iv
Chapter 1: Introduction
1.1 Introduction to the course

This course is designed for students who have obtained an
undergraduate degree in law or some other discipline and who are
now interested in postgraduate-level studies. Many international
students taking this course will not have had any prior exposure to the
common law (which is mostly made by judges). Tort law is fundamental
to the common law and is of everyday importance in all sorts of
community and business interactions. More than that, many legal
concepts in the common law world are built upon – or at least take for
granted – the existence of tort law. Tort law is vast. In this course, you
will be introduced to four areas of the subject:
Module A – Introduction to torts and trespass to the person
This module introduces you to tort law and to the most ancient of
actions in the common law, which were first seen in the Middle Ages.
These are basic actions protective of the human body and dignity
and include battery, assault and false imprisonment. The module also
introduces you to a more modern action for intended harm.
Module B – The action in negligence
This module introduces you to the most important of the modern
tort actions. It is important in the sense that it is the most frequently
pleaded of the torts. The law of negligence is well-known for setting a
standard of ‘reasonableness’ in interactions between persons. The cause
of action is protective of several interests. The main type of action that
will be studied is negligence in the causation of psychiatric illness.
Module C – The defamation action
This module introduces you to another complex tort which operates
in a way which is quite different from that of negligence. Unlike
negligence, this tort is prima facie one of strict liability. It can be
committed whether fault is present or not. The limits of the tort are set
largely by an array of defences, which balance interests in free speech
against those of reputation.
Module D – Tort theory
This module is designed to complete an advanced course on tort law
by considering it from a more theoretical perspective. The module
looks at the importance of conceptualism in theorising the subject and
then moves on to consideration of various theoretical perspectives.
These include corrective justice, rights theory, economic theories of
tort law, deterrence theory and pluralist accounts.
Works cited
•• Cane, P. Responsibility in law and morality. (Oxford: Hart Publishing, 2002) [ISBN
9781841133218].
•• Goldberg, J.C.P. and B.C. Zipursky ‘Civil recourse defended: A reply to Posner,
Calabresi, Rustad, Chamallas, and Robinette’ (2013) 88 Indiana LJ 569.
•• Gordley, J. Foundations of private law: property, tort, contract, unjust enrichment.
Oxford: Oxford University Press, 2006) [ISBN 9780199291670]. 1
•• Ibbetson, D. A historical introduction to the law of obligations. (Oxford: Oxford

University Press, 1999) [ISBN 9780198764120].
•• Smith, S. ‘The normativity of private law’ (2011) 31 OJLS 215.
•• Tilley, C.C. ‘Tort law inside out’ (2017) 126 Yale LJ 1320.
1.2 Overview
Module A: Introduction to torts and trespass to the person
Chapter 2: History of tort law
Chapter 3: Protected interests and fault
Chapter 4: Battery
Chapter 5: Assault
Chapter 6: False imprisonment
Chapter 7: Intentional infliction of harm
Module B: The action in negligence
Chapter 2: Duty of care: general
Chapter 3: Duty of care: psychiatric illness
Chapter 4: Standard of care and breach
Chapter 5: Causation and remoteness
Chapter 6: Defences
Module C: The defamation action
Chapter 2: Introduction to the tort of defamation
Chapter 3: Defamatory meaning
Chapter 4: Reference
Chapter 5: Publication
Chapter 6: Defences
Module D: Tort theory
Chapter 2: Conceptualisation and theory
Chapter 3: Corrective justice
Chapter 4: Rights theory
Chapter 5: Economic theories
Chapter 6: Deterrence
Chapter 7: Pluralism in tort law
Sequence
Modules to be studied in order.
1.3 Educational aims

By the time you have completed your study of the Advanced torts
course, you should be able to:
•• explain the major characteristics of tort law
•• explain what sorts of interest tort law protects
•• explain the several liability bases in tort – whether fault-based or
strict liability
2
•• understand the operation of several of the most important of the

torts – battery, assault, false imprisonment, intentional infliction of
harm, negligence and defamation
•• understand some of the major theoretical debates about the nature
of tort law and what it might be used for in social terms
•• advise on how claimants should proceed in their actions with
respect to the above-named torts.
1.4 How to use this Study Guide

Each module of this course has a separate Study Guide, and a version of
this introductory chapter is found in each Guide.
The Study Guide provides a starting point for your study of the course.
It introduces and explains the core syllabus topics. It is not intended to
replace independent study of primary legal materials, the set textbooks
and other academic literature, but rather to help you use these other
materials effectively.
In order to fulfil this function, the Guide is designed to be easy to read
and use. At times it includes quite detailed discussion of certain issues,
but in general it avoids duplicating material which you may find in the
set textbooks and other readings. It also contains several features to aid
your study:
•• Learning outcomes for the course as a whole and for each module
and each chapter, so you know what you are expected to achieve at
each stage of your study.
•• Self-assessment questions to encourage you to think critically
about the material.
•• Sample examination questions plus guidance on how each
question might be approached, to help you prepare for the
examination for each module.
•• Guidance on Essential reading.
1.4.1 Reading
The Study Guide refers you to various reading resources. These are
divided into Essential reading and Useful further reading.
Essential reading
Much of the Essential reading is drawn from the supplied textbooks for
the course:
Witting, C. Street on torts. (Oxford: Oxford University Press, 2018) 15th
edition [ISBN 9780198811169] (hereafter referred to as ‘Witting’).
Lunney, M., D. Nolan and K. Oliphant. Tort law: text and materials. (Oxford:
Oxford University Press, 2017) 6th edition [ISBN 9780198745525]
(hereafter referred to as ‘Lunney et al.’).
You should have been sent these books (or more recent replacements)
when you registered on the course.
The content of this module is based on Witting, which sets out the
English law on the subject matter of torts. The Study Guides (especially
for Modules A, B and C) present most of the key ideas from relevant
3
chapters in Witting. In this way, you might like to use that textbook
in order to extend your knowledge of the basic subject matter with
further discussion of the law. In addition, you should read the Lunney
et al. casebook – which presents the law in a slightly different way and
which has the advantage of including many extracts of the cases.
In addition, the Guide refers to various other Essential readings. We try
to ensure that these are freely available to you. Some will be available
in the Online Library, which is a collection of subscription based
resources (e.g. Westlaw or LexisLibrary for case reports); others may
be available via other free-to-access websites; and other material may
be available as scans which you can download from the course home
page of the Postgraduate Laws eCampus dedicated to the course (see
‘Online resources’ below).
Useful further reading

The Guide also identifies Useful further reading. You are not required
to read all of this, and we do not undertake to make such readings
available to you – although in fact you may well be able to find many of
them in the Online Library or through other free online resources. You
should try to read beyond the Study Guide and Essential reading if you
can. The students who perform best in examinations for Postgraduate
Laws courses are generally those who have taken the time to develop a
broad critical understanding of their subject area, drawing on a range
of sources and academic analyses.
1.4.2 Online resources

Resources available via the Student Portal
You can access the Online Library via the Student Portal and directly
at: http://onlinelibrary.london.ac.uk/ The Library consists of several
different databases containing an enormous collection of case reports,
journals and practitioner texts. Through the Portal, you can also access
the Postgraduate Laws eCampus (also known as the virtual learning
environment, or VLE). Here you can download the Study Guides and, if
you are studying the course after May 2019, past examination papers,
Examiners’ commentaries and any updates to the study materials.
You can also contact fellow students on the course via a dedicated
discussion forum. Notices concerning changes to course materials or
administrative arrangements may be posted on the eCampus, so you
should check it regularly.
For more information on the Student Portal, Online Library and
eCampus, see the Postgraduate Laws Student handbook, which is
available at: https://london.ac.uk/current-students/programme-
documents
To access some of the resources you will need to obtain an Athens
password. Guidance on how to go about obtaining your Athens
password is available from the Online Library: http://onlinelibrary.
london.ac.uk/
Online research skills

A Library and information skills course is available on the VLE and
can be accessed from the programme home page from the list of
4 available courses. The course offers guidance on locating case reports
and journal articles and viewing the course before you commence your
studies is highly recommended.
1.5 Allocating your time

It is impossible to say with great precision how much time you should
set aside for studying Advanced torts because your individual learning
rate will depend on your circumstances, fluency in English and any
prior study of law. Furthermore some topics of the syllabus require
considerably more time than others.
However, as a full-time Postgraduate Laws student you are expected to
spend approximately 120 hours studying and preparing for the exam
for each module of this course. It is advisable to set aside a specific
amount of time each week to study each course, increasing the amount
in the six weeks before the examination.
Some topics of the syllabus will require considerably more time than
others. My best advice is that you should allocate a specific amount
of time for the study of each module of the course each week with a
view to completing your study of all topics in the syllabus so as to leave
ample time for revision before the exam.
1.6 The examination

Important: The information and advice given here is based on
the examination structure used at the time this Guide was written.
However, the University can alter the format, style or requirements
of an examination paper without notice. Because of this, we strongly
advise you to check the instructions on the paper you actually sit.
Your understanding of the material covered by the syllabus for this
module will be assessed by an unseen written examination of 45
minutes’ length, with reading time. To the extent that there are any
prerequisites for this module, knowledge of the materials covered in
those prerequisites may be necessary to answer the questions in the
examination for this module.
1.6.1 Preparing for the examination

•• It is recommended that you commence by reading through the
whole of the Study Guide in order to gain a general understanding
of the topics and their main points.
•• When you have finished the first reading, return to the start of the
Study Guide and work your way through each chapter in turn. Begin
with the Study Guide chapter and then do the Essential reading. This
will comprise a mix of textbook chapters, selected articles and/or
cases. The cases listed as Essential reading are important decisions
on topics covered and should be read in full. This will help to provide
a fuller context to the rules and the way they are applied. Other
relevant case extracts are available in Lunney et al.
•• You may want to make study notes of your readings as you go,
so as to arrange the topics into memorable bites of information.
Indeed, this type of ‘synthesis’ of the materials is likely to be the way
5
in which you make sense of the materials, bringing them together

into a coherent whole.
•• Once you believe you have mastered the principles in each chapter,
try to do the Self-assessment tasks.
•• Then read the Useful further reading and attempt the Sample
examination questions at the end of each chapter.
•• Having completed all four modules, go back to the Sample
examination questions and try to see how the modules inform each
other.
•• Please do not leave out part of the Study Guide or the Essential
reading. Examination questions will require an understanding of
the whole of the material.
1.6.2 Taking the examinations

The golden rule for examination success is to answer the question
asked; don’t just reel off a pre-prepared answer on a particular topic.
Start by reading the question carefully – it sounds obvious, but it is
essential. Under the examination rules in force at the time of writing
this Guide, you are given ten minutes to read the paper before you start
writing your answer. Use that time wisely.
Then, spend a few minutes planning your answer before you start
writing it. It is tempting to start writing straightaway when you have so
little time, but planning your answer should help ensure that it has a
clear and coherent structure.
Whether you are writing an essay or tackling a problem question, your
answer should begin with a clear introduction. This need not be long –
two or three short sentences should do.
In introducing an essay, you should generally identify:
•• what you think the question is asking of you
•• the approach that you will be adopting in your answer.
In answering a problem question, start by identifying the main legal
issues that the fact scenario raises.
Whichever type of question you answer, you will not have time to
explore all relevant issues in depth. With only 45 minutes, you need to
be selective and concentrate on what you see as the most important
issues – although ideally you will briefly note, in your answer, other
issues that may be relevant and explain why those you are focusing on
are particularly important.
In writing the body of your answer, you will need to be succinct. Avoid
vague generalisations; use clear language in straightforward, short
sentences. Use a structure which is logical and shows that you are
moving from one issue to another in a way that makes thematic sense.
Substantiate your arguments by identifying relevant law. When
referring to cases, you do not need to give a full citation – a short name
(e.g. ‘Ireland’ or ‘Stephens’) will usually suffice, although it may also be
useful to identify the relevant court and perhaps the year of judgment.
Do not waste time describing irrelevant facts; just mention the key
point(s) of the case in relation to your argument.
6
If you do all the above – provide a clearly structured answer which

clearly addresses the question and is supported by reference to
relevant legal authority – you should at the very least achieve a pass.
Better answers generally also do one or both of two things:
•• Analyse the question carefully, identifying any underlying
assumptions or points of ambiguity which can then be exposed
and discussed.
•• Discuss relevant academic commentary. If you demonstrate that
you have read beyond the Essential texts by making intelligent
reference to other works, so much the better.
1.7 Module A: Introduction to torts and trespass to

the person
1.7.1 Preliminary reading
If you would like a basic introduction to tort law prior to the readings
provided in this and the other modules, we would recommend that
you purchase:
•• Cane, P. Key ideas in law: tort law. (Oxford: Hart Publishing, 2017)
[ISBN 9781509909421].
1.7.2 Tort law and common law

Tort law is one of the core areas of private law, along with contract law,
property law and equity (with restitutionary claims being found across
these subject areas). In England, there are no great legal codes which
attempt to set out general principles of private law. While there are
many areas of the private law which have a substantial statutory content
(see Tilley, 2017), the private law has been made for the most part by the
courts (courts of both common law and equity) (see, e.g., Gordley, 2006;
Ibbetson, 1999). The courts have made the law through consideration
of legal issues as they arise from case to case. To the extent that general
principles of liability can be discerned from the cases, these have been
elucidated over time through the so-called ‘inductive’ method by both
the courts and academic commentators. This is to say that courts (and
commentators) distil general patterns in the cases and treat them as
providing the relevant ‘principles’ of tort law.
1.7.3 Definition of ‘tort’

Although tort law is of ancient origins, a satisfactory definition remains
somewhat elusive. However, the following working definition can be
offered:
Tort is that branch of the civil law relating to obligations

imposed by operation of law on all natural and artificial persons.
These obligations, owed by one person to another, embody
norms (or standards) of conduct that arise outside (or in
addition to) contract and unjust enrichment. Tort enables the
person to whom the obligation is owed to pursue a remedy
on his or her own behalf where breach of a relevant norm
of conduct results in a substantial infringement of his or her
personal interests. (Smith, 2011)
7
Although these matters are the subject of debate among torts scholars,
pertinent aspects of this working definition (and of the practices that
lie behind it) are as follows.
First, persons commence tort actions because they have suffered
infringements of their interests – usually resulting in loss of some kind.
In any particular action, the claimant seeks compensation in order to
ameliorate the impact of his or her loss – and, perhaps, for subsidiary
reasons involving the vindication of his or her dignity and sense of
rectitude, as well as the desire to deter future wrongdoing. (Indeed,
we might note that courts frequently assert the idea that tort law has
the twin goals of compensating the claimant and deterring future
wrongdoing (see, for example, Michael v Chief Constable of South
Wales Police [2015] AC 1732, at [127]; Crawford Adjusters Ltd v Sagicor
Insurance Ltd [2014] AC 366, at [87]). We come back to these ideas in the
last module in this course.)
Second, the state facilitates tort actions for several reasons. One reason
relates to the need to maintain order among its citizenry – to prevent
persons engaging in their own vendettas with the potential that this
might have for blood to be spilt (see Goldberg and Zipursky, 2013,
pp.572–73 (government has a duty to provide alternatives to self-
help in disputes)). Another reason relates to the state’s instrumentalist
desire to create appropriate standards of conduct among persons.
Tort law is a non-contractual means of ensuring that persons, who
might be strangers to each other when they interact, are able to
interact in the knowledge that certain minimum standards of conduct
will be respected, thus solving the ‘co-ordination problems’ that are
characteristic of communal societies (Cane, 2002, 184; Tilley, 2017,
pp.1,320, 1,347, 1,364 and 1,376). Tort rules apply to all persons
undertaking relevant conduct because the law imposes its rules upon
those persons. A third reason is that the tort regime permits the state to
create and uphold these standards without having to accept complete
responsibility for studying co-ordination problems in advance and
being proactive in the provision of solutions (Tilley, 2017, pp.1,320,
1,349–50 and 1,392) – the system is one of private enforcement, which
is a cost-effective way of achieving the state’s instrumentalist aims.
(Section 1.7.3 © OUP, Street on torts by Witting (2018) pp.1–752. By
permission of Oxford University Press.)
Learning outcomes for Module A

By the end of this module and having completed the Essential readings, self-
assessment questions and sample examination questions, you should be able to:
•• explain the reasons for the major division of tort law into trespass and case,
why the action on the case arose, by what process causes of action in tort
were commenced and advise claimants in tort action on whether to plead
causes of action
•• describe the kinds of interests that tort law protects, explain which interests
tort law protects, describe the bases of liability in tort law and critique
explanations of fault-based responsibility
•• explain what the tort of battery is, describe its elements and situations in
which it arises and advise a client on their individual case
8
•• explain what assault is, describe its elements, how it differs from battery
and advise as to what kind of test is used to determine whether a relevant
apprehension has been caused
•• explain what constitutes a false imprisonment, how this tort is fault-based,
what amounts to sufficient restraint and determine the factors relevant to an
award of damages for false imprisonment
•• explain the origins of the tort of intentional infliction of harm, the attitude of
courts to it, describe its elements, the differences between it and the torts of
battery or assault, and the circumstances in which the tort might have some
utility.
9
Notes
10
2.1 Introduction
This short chapter provides you with some of the necessary
background to tort law. It deals with the way in which tort law has
developed – characterised by two separate branches each with their
own particular characteristics. The chapter then turns to matters of
pleading (which were at the heart of the development of the law of
torts). Important here is the ‘writ’ and the extent to which it is necessary
to plead a specific cause of action in court.
Learning outcomes
By the end of this chapter, and having completed the Essential readings and self-
assessment questions, you should be able to:
•• explain the reasons for the major division of tort law into trespass and case
•• explain why the action on the case arose
•• explain by what process causes of action in tort usually were commenced
•• advise on whether a claimant in a tort action ought to specifically plead
causes of action.
Essential reading
•• Witting, Chapter 1 Overview of tort law, Section 2 Brief history of tort law, and/
or
•• Lunney et al., Chapter 1 General introduction, Section I Historical development
of tort law.

(Oxford: Oxford University Press, 2006), esp. pp.159–73.
•• Ibbetson, D. A historical introduction to the law of obligations. (Oxford: Oxford
University Press, 1999) [ISBN 9780198764120], Chapters 3, 4 and 6.
Works cited
•• Cane, P. ‘General and special tort law: uses and abuses of theory’ in Neyers,
J., E. Chamberlain and S. Pitel (eds) Emerging issues in tort law. (Oxford: Hart
Publishing, 2007) [ISBN 9781841137070], Chapter 1.
•• Milsom, S.C.F. Historical foundations of the common law. (London: Butterworths,
1981) 2nd edition [ISBN 9781483182551].
•• Plucknett, T.F.T. A concise history of the common law. (Boston: Little Brown, 1956)
5th edition [ISBN 9781616191245].
•• Pollock, F. and F.W. Maitland The history of English law. (1968) 2nd edition [ISBN
9781584777182].
2.2 Trespass and case

The history of tort law, especially as regards its earliest stages of
development, is subject to conjecture and debate (see Ibbetson, 1999;
Plucknett, 1956, pp.369–70 (setting out possible origins of trespass)). This
is because of the difficulty we experience today in interpreting ancient
11
legal materials, such as the court rolls. However, some broad points of
importance to our study of this topic can be made: by the 13th century,
the Royal Courts had asserted jurisdiction to hear certain kinds of dispute
involving ‘trespasses’ (direct infringements of others’ bodily and property
interests using ‘force and arms’). Jurisdiction was based upon the claim
that the defendant’s wrongful conduct was in ‘breach of the King’s Peace’
(Ibbetson, 1999, p.39). Various kinds of action were recognised, including
trespass torts protective of the body – what we now know as battery,
assault and false imprisonment (Milsom, 1981, p.303). In early times,
when crime and tort were not distinguishable, ‘breach of the King’s
Peace’ primarily covered ‘deeds of violence done to persons’: Pollock and
Maitland, 1968, p.452. Over the centuries, the basic level of protection
offered evolved into a more comprehensive regime, allowing personal
actions with respect (especially) to wrongs to the person, goods, land
(Ibbetson, 1999, pp.15 and 64; Milsom, 1981, pp.283 and 303) and the
conduct of legal actions (Pollock and Maitland, 1968, p.519). Actions
were commenced by way of writ (Ibbetson, 1999, pp.14, 40 and 49–50.
See also Section 3.1 and 3.2, below), which set out the legal complaint
being made. The writs were formulaic documents, but over the course
of the late 14th century the requirement that actions be characterised
by use of ‘force and arms’ in breach of the King’s Peace started to look
hollow and eventually was abandoned (Ibbetson, 1999, pp.41 and 52–54;
Milsom, 1981, pp.289–91).
By this stage, many actions that had been restricted to the local
courts migrated to the central Royal Courts, which became the most
important mechanism for the resolution of disputes between persons
(Milsom, 1981, 300ff ). The level of protection that courts offered to
fundamental personal interests was expanded, especially from the 15th
century, through the development of the ‘action on the case’. This was
an exceptional kind of action (special action for trespass on the case)
which permitted a claimant to provide the reasons in justice why he
or she should be able to bring an action despite not satisfying one or
more of the requirements of subsisting trespass writs (Ibbetson, 1999,
pp.55–61; Milsom, 1981, p.304). It was through the action on the case
that the courts developed many torts permitting recovery for indirectly
caused harms (see Reynolds v Clarke (1725) 1 Str 634, at 636; Day v
Edwards (1794) 5 TR 648) – actions such as nuisance, conversion and
defamation were established by the early 16th century (Ibbetson, 1999,
Chapter 6), and the development of negligence was on the horizon
(Ibbetson, 1999, 164ff ).
(Section 2.2 © OUP, Street on torts by Witting (2018) pp.1–752. By
2.3 Forms of action

2.3.1 Abolition of forms
Until passage of the Common Law Procedure Act 1852 and the
Judicature Act 1875, a claimant could sue in tort only if he or she
brought a cause of action within a recognised form of action – that is,
one for which a suitable writ was available (for a list of writs, see Pollock
and Maitland, 1968, pp.565–67). Although the forms of action have
12
been abolished, many old cases cannot be understood without some

knowledge of what they were. Moreover, classifications of torts derive
from the various writs grounding suit, so that rules worked out under
them necessarily have been the starting point for any growth in tort
law which has taken place since. Many seemingly arbitrary divisions
between one tort and another are explained today by reference only to
the forms of action. As observed already, the writ of trespass lay only for
direct infringements of interest, while the ‘action on the case’ developed
separately for indirect injuries. And it will be seen, below, that even now
trespass is not committed where the interference is indirect in nature.
2.3.2 Pleading in tort

In theory, a claimant does not need to plead a specific tort of
negligence, trespass or whatever; he or she needs simply to set out
the relevant facts said to demand redress (Letang v Cooper [1965] 1 QB
232, at 242–43). A judge could find for the claimant merely by holding
that, on the facts proved, there was a tort. But, given the complexity of
modern tort law, pleading the commission of a specific tort or torts is
important for several practical reasons:
•• so that the defendant knows the case to be made against him or her
•• so that evidence related to the particular tort(s) can be gathered
•• so that the costs of bringing legal action can be kept down
•• and so that the court can be ‘guided’ to the result desired (the
making of a particular award).
The utility of any torts textbook lies in its explanation of the ‘elements’
that must be proved in order to succeed in each kind of tort action. With
regard to any particular decided case, the student of tort law will be
concerned to know not only that the claimant has succeeded on certain
facts (and obtained the desired award or some variation thereof), but
also which tort has been committed. In short, it is important to know
both the elements of each tort and the general principles of tortious
liability (see Cane, 2007).
Self-assessment questions
1. What are the two general kinds of tort action and how do they differ from
each other?
2. What is a ‘writ’ and why has it been an important concept in the development
of the several torts?
3. When pleading an action in tort, why should the elements of specific torts be
pleaded?
When you have completed this task, you might like to upload your answers to the
Student Café on the VLE and seek comments from your peers. Peer evaluation is
an excellent method of assessment
13
Reminder of learning outcomes

Having completed this chapter, and the Essential readings and self-assessment
questions, you should be able to:
•• explain the reasons for the major division of tort law into trespass and case
•• explain why the action on the case arose
•• explain by what process causes of action in tort usually were commenced
•• advise on whether a claimant in a tort action ought to specifically plead
causes of action.
14
3.1 Introduction
This chapter seeks to introduce the major building blocks (or
ingredients) of tort law. This involves considering the interests that
tort law tends to protect and the bases upon which liability might be
created in defendants. There are three types of liability base: intention,
negligence and strict liability. We will explore each of them in detail
and see how they overlap with each other.
Learning outcomes
•• describe the kinds of interests that tort law protects
•• explain which interests tort law protects more highly and which it protects
less highly
•• describe the different bases of liability in tort law
•• critique simplistic explanations of fault-based responsibility in tort law.
Essential reading
•• Witting, Chapter 1 Overview of tort law.
•• Cane, P. ‘Mens rea in tort law’ (2000) 20(4) Oxford Journal of Legal Studies 533.
Available via LexisLibrary in the Online Library.
•• Honoré, T. ‘Responsibility and luck: the moral basis of strict liability’ (1988) 104
Law Quarterly Review 530. Available via Westlaw in the Online Library.

•• Finnis, J. ‘Intention in tort law’ in Owen, D.G. (ed) Philosophical foundations of
tort law. (Oxford: Clarendon Press, 1995) [ISBN 9780198258476], Chapter 10.
•• Gardner, J. ‘The purity and priority of private law’ (1996) 46 University of Toronto
Law Journal 459.
•• Goldberg, J.C.P. and B.C. Zipursky ‘The strict liability in fault and the fault in
strict liability’ (2016) 85 Fordham Law Review 743.
•• Handford, P. ‘Intentional negligence: a contradiction in terms?’ (2010) 32 Sydney
Law Review 29.
•• Keating, G.C. ‘Strict liability wrongs’ in Oberdiek, J. (ed) Philosophical
foundations of the law of torts (Oxford: Oxford University Press, 2014) [ISBN
9780198701385], Chapter 14.
•• Waldron, J. ‘Moments of carelessness and massive loss’ in Owen, D.G. (ed)
Philosophical foundations of tort law. (Oxford: Clarendon Press, 1995) [ISBN
9780198258476], Chapter 17.
Works cited
•• Cane, P. ‘Mens rea in tort law’ (2000) 20 Oxford Journal of Legal Studies 533.
•• Cane, P. Responsibility in law and morality. (Oxford: Hart Publishing, 2002) [ISBN
9781841133218], Chapter 3 Responsibility and culpability.
•• Cane, P. The anatomy of tort law. (Oxford: Hart Publishing, 1997)
[ISBN 9781901362084].
15
•• Carty, H. An analysis of the economic torts. (Oxford: Oxford University Press,

2010) 2nd edition [ISBN 9780199546749].
•• Holmes, O.W The common law. (1881).
•• Honoré, T. ‘Responsibility and luck’ (1988) 104 LQR 530.
•• Kutz, C. Complicity: ethics and law for a collective age. (Cambridge: Cambridge
University Press, 2001).
•• Lucy, W. Philosophy of private law. (Oxford: Oxford University Press, 2007) [ISBN
9780198700685], Chapter 6 Wrongfulness.
•• McBride, N.J. ‘Tort law and human flourishing’ in Pitel, S.G.A., J.W. Neyers and
E. Chamberlain (eds) Tort law: challenging orthodoxy (2013), Chapter 2.
•• Murphy, J. ‘The merits of Rylands v Fletcher’ (2004) 24 OJLS 643.
•• Pacciocco, D. ‘Subjective and objective standards of fault for offences and
defences’ (1995) 59 Sask LR 271.
•• Shavell, S. ‘Strict liability versus negligence’ (1980) 9 JLS 1.
•• Tan, K.F. ‘Harassment and intentional tort of negligence’ (2002) Sing JLS 642.
•• Weir, T. ‘The staggering march of negligence’ in Cane, P. and J. Stapleton (eds)
The law of obligations: essays in celebration of John Fleming. (Oxford: Oxford
University Press, 1999) [ISBN 9780198264842], Chapter 5.
3.2 Protected interests

Tort law is the most important part of the common law designed
to protect fundamental human interests. But no claim in tort can
succeed, however morally reprehensible the defendant’s conduct,
unless the court first recognises some form of damage suffered by
the claimant that involves a violation of an interest sufficient to confer
on the claimant a legal right to protection of that interest (Rogers v
Rajendro Dutt (1860) 25 JP 3). Here, ‘interests’ can be defined as the
kinds of natural and other attributes and goods that people need to
lead satisfying lives, and which a civilised society ought to recognise
as worthy of some degree of protection (e.g. McBride, 2013, Chapter
2). Tort law, therefore, serves to determine which of the many human
(and related) interests are so fundamental that the law should impose
obligations upon all persons that are designed primarily to protect
those interests and, secondarily, to provide a remedy when those
interests are wrongfully violated by others. It will be useful, therefore,
to consider the various rights and interests which tort law protects.
They are set out, below, according to the rough ‘hierarchy’ in which
they are found in tort law. Tort law protects the interests discussed first
more highly than those which are discussed last.
1. Personal and proprietary interests. The protection of the person
from physical harm, restrictions on freedom of movement, and
the protection of interests in tangible property – especially the
right to non-interference with land and goods – was originally
the most important concern of tort law. The relevant modern
torts which provide this protection include trespass in its various
forms (some of which are considered below) and torts protecting
against interference with goods. (It is these torts which provide the
foundation of the protection of European Convention on Human
Rights rights to life (Article 2), freedom from torture or degrading
16
treatment (Article 3), freedom from slavery (Article 4), liberty

(Article 5) and peaceful possession of property (First Protocol,
Article 1). The focus of protection offered under the Convention
and under the common law is different, although their areas of
operation overlap. (With respect to Article 2, see, for example,
Savage v South Essex Partnership NHS Trust [2009] 1 AC 681, at [91].)
Whereas the law of trespass and interference with goods is
concerned with deliberately-brought about contacts with protected
interests, since the landmark decision in Donoghue v Stevenson
[1932] AC 562 the courts have developed the tort of negligence
to provide further protection for personal safety (including
some protection for mental integrity) and property interests.
(Negligence law is examined in Module B.) Indeed, personal and
proprietary interests have come to rank so highly that further
torts have emerged offering protection for those interests against
conduct which is not necessarily, or cannot be proved to be, either
intentional or negligent. For example, there are torts of ancient
origin – such as nuisance – as well as other more recent torts – such
as the rule in Rylands v Fletcher (developed during the height of
the industrial revolution when a new range of threats to private
property arose almost overnight, see Murphy, 2004) – which protect
these interests. The former highlights the degree of importance
vested by the common law in the landowner’s interest in his or her
property.
In addition, action has been taken by the legislature to protect
tort law’s core interests. Parliament has introduced a regime of
strict liability for injuries caused by defective products (Consumer
Protection Act 1987). (What constitutes ‘strict liability’ will be
examined below.)
2. Reputation. Tort law has long protected an individual’s interest in
his or her reputation via the torts of libel and slander (collectively
known as ‘defamation’, considered in Module C). For a long time,
English protection of interests in reputation was relatively extensive
(certainly as compared to that in the USA). But the defamation torts
have suffered from a newfound enthusiasm by the legislature for
‘free speech’ (Defamation Act 2013). As such, the torts today are
of more limited (but still significant) scope and subject to a wide
range of partial and complete defences, which circumscribe their
operation (see, for example, the defences available in defamation
discussed in Module C). In addition, these torts are expensive to
litigate.
3. Interests in intellectual property. Interests in tangible property,
land and goods are well protected by the common law. By contrast,
intellectual property in confidential information, copyright and
patents presents greater problems. Much of the law in this field is
statutory; and interests in intellectual property generally overlap
with interests in economic relations. However, the law of tort does
have something to offer with its protection against passing off
goods as those of another and in its fledgling protection of private
information and several other privacy interests.
17
4. Due process. A right to protection from malicious abuse of the

judicial process is recognised in the tort of malicious prosecution
and its ancillary tort of abuse of process.
5. Interests in economic relations, business and trade interests.
For a variety of reasons, including the absence of any requirement
that harm be inflicted ‘directly’ in the tort of negligence, courts
have adopted a cautious approach to protecting purely financial
interests from negligently inflicted harm. There is a group of
economic torts (see Carty, 2010), which are founded upon
intentional action, which do offer a level of protection for financial
and business interests, but these torts are unclear in their scope.
In addition to the classic economic torts of interference with
contractual relations, conspiracy and intimidation, other torts of
significance in this context are passing off and deceit.
6. Privacy. The most obvious example of a possible lacuna in tort
law concerns the protection of privacy – which is guaranteed
under the European Convention on Human Rights by Article 8.
However, tort law is slowly developing a level of protection in this
area. This development started with rights to protect confidential
information (Attorney General v Guardian Newspapers Ltd (No. 2)
[1990] AC 109) and has grown to protection of information about
which there would be a proper expectation of privacy (Campbell v
MGN [2004] 2 AC 457). In other jurisdictions, rights to privacy also
extend to more specific rights to seclusion and one would expect
some further development in these areas.
3.3 Liability bases

It is not enough merely to identify the kinds of interest that tort law
protects. The kinds of wrongful conduct considered sufficient to
violate those interests must be identified also (Lucy, 2007, Chapter 6).
Often, wrongdoing provides a crucial reason for court intervention in
a dispute between private parties. Two kinds of wrongdoing are based
on deliberate or intentional action and on failures to reach a reasonable
standard of care (or negligence). Collectively, we term these as types of
‘fault’-based wrongdoing. Fault provides a reason for imposing liability
upon the defendant. At least at a superficial level, we can contrast
fault-based wrongdoing to strict liability. Let us look at each of these
concepts in overview before considering some of the problems with
this ostensibly straightforward delineation of liability bases.
3.3.1 Deliberate/intentional conduct

The deliberate or intentional infringement of a protected interest
often demonstrates a level of wrongdoing sufficient to compel judicial
intervention requiring the defendant to compensate the claimant. An
act is deliberate when the defendant ‘meant to do’ it and when this
results in infringement of the protected interest – although there need
be no intention to cause harm. This is the type of intention required
18
in the trespass torts (considered below). By contrast, there are a small

number of torts which require a different type of intention – that is,
an intention to injure. Included in this class of torts is lawful means
conspiracy (which requires a predominant intention to injure).
3.3.2 Negligence
Certain interests might be so crucial to the claimant, and so vulnerable
to ‘accidental’ harm, that negligence on the part of the defendant
suffices to engage his or her liability in tort. Negligence in this sense
subsists in failures by the defendant actor to reach the standard of care
set by the law. It subsists in the failure to act as the law requires rather
than in any mental state of inadvertence. Generally, the law is not
concerned with the presence or absence of any particular mental state
(such as inadvertence) when considering the imposition of liability for
negligence.
3.3.3 Strict liability

More rarely, the relationship of the claimant and the defendant, or
the nature of the defendant’s conduct, will give rise to strict liability.
Strict liability is liability regardless of fault. This means that the law
does not inquire into whether the defendant was at fault – displaying
either intention or negligence – or not. These things are irrelevant to
the type of liability in question. (Which is to say that there is no inquiry
into these things. Therefore, strict liability cannot be equated with the
absence of fault because the court is unlikely to have evidence about
this.) In such instances, the law requires the defendant to bear a greater
(but not absolute) responsibility for protecting the claimant’s interests.
Strict liability has been said to assist in controlling injurious activity
levels in a way that is more effective than what occurs under fault-
based torts (e.g. Shavell, 1980).
3.4 Intention in tort law

As stated, the division of tortious liability bases into the three-
fold classification of intention, negligence and strict liability is not
as straightforward as it seems at first. We need to explore these
concepts in more detail before we move on to consider the first of
our substantive torts. There are a number of ‘lessons’ to be learned
about each liability base. The ultimate conclusion is that the three
liability bases are not mutually exclusive of each other. Indeed, on any
particular set of facts, they might have an overlapping operation.
3.4.1 Intention is a complex concept

Peter Cane’s article on ‘Mens rea in tort law’ assists us in exploring
important issues about intention in tort law. Cane notes that ‘in
ethical terms, intention is widely felt to be the clearest and strongest
basis for the attribution of personal responsibility for conduct and
outcomes’ (Cane, 2000). This is to say that, where intention is present,
there is good moral reason for imposing liability on wrongdoers.
The question is: why? The answer would seem to lie, in part, with old
19
(Kantian) ideas about the importance of the human will in creating

responsibility in moral terms. According to John Finnis, human actions
cannot be judged as right or wrong, good or bad, unless they are
assessed according to the relevant actor’s intentions (Finnis, 1995).
Finnis assumes that it is important to find a moral basis for individual
responsibility. However, we will see that courts do not concentrate on
the morality or immorality of the defendant’s actions to the exclusion
of all other concerns.
So, what is ‘intention’ in tort law? Cane notes that intention might arise
as to the conduct engaged in by the defendant (the choice to engage
in that conduct) or as to the anticipated consequences of conduct for
the claimant (the aim, purpose or objective to injure). The first form of
intention (the choice to engage in that conduct) corresponds to the
requirement of voluntariness in the intentional torts of battery, assault
and trespass to land. This is not a demanding form of intention. And it
does not necessarily entail any kind of immorality when present. For
example, a doctor who tries to remove a cancerous lump from a patient
without consent can be liable in battery. The second form of intention
(the aim, purpose or objective to injure) is more demanding in nature.
It is the sort of intention found in economic torts such as conspiracy
(not covered in this course, but see Witting, Chapters 14–15). It usually
indicates a degree of immorality in conduct.
Intention can be distinguished from the different type of mental
state called ‘recklessness’. As to the distinction between them, Cane
observes:
A person intends a particular consequence of their conduct if their

purpose is to produce that consequence by their conduct. A person
is reckless in relation to a particular consequence of their conduct
if they realise that their conduct may have that consequence, but
go ahead anyway. The risk must have been an unreasonable one to
take: a surgeon is not reckless simply by virtue of being aware of the
risk that the patient may die on the operating table.
(Cane, 2000)
Having made this distinction, Cane explains that recklessness is

sometimes treated as sufficiently equivalent to an intention to injure
requirement imposed by tort law. Cane observes that:
the person who intends that their conduct should produce a

particular consequence, and the person who is reckless as to
whether their conduct will produce a particular consequence,
both engage in the conduct deliberately. It is this element of
deliberateness in relation to conduct that links intention and
recklessness and leads to their assimilation in tort law.
(Cane, 2000)
Another reason for accepting that recklessness is sufficiently equivalent

to intention to injure is the difficulty of proving intention and greater
ease of proving recklessness. (More will be said about proof of
intention below.)
20
Recklessness can be distinguished, in turn, from negligence. Cane says:
Since tortious negligence involves no mental state, the line

between it and ‘conscious’ recklessness (which entails actual
awareness of risk) is clear enough. In order to be consciously
reckless a person must take an unreasonable risk of which they
were actually aware, whereas a person can be negligent even
if they were not aware of the unreasonably risky nature of their
conduct, provided they should have been.
(Cane, 2000)
Cane then turns to the issue of motive. Motive and intention have
often been confused with each other in the tort case law – but they
are different. One’s motive is the reason why one engages in the
conduct or intends its consequences. Basically, motive explains why
the defendant does something – including why he or she acts with a
certain intention.
In any particular case, intention and motive may coincide: a

person may aim to produce a particular outcome because
they desire it. But equally, they may diverge: a person may
intentionally do X not because they desire to do X but because,
for instance, they promised to do X; indeed, the person’s desire
may be not to do X.
Motive is sometimes important in tort law, but not frequently. As Cane
notes, bad motives are called ‘malice’ in tort law. Malice can defeat
certain defences to a prima facie case of defamation (considered in
Module C). This is to say, for example, that: the claimant might have
proved that a statement made by the defendant was defamatory.
However, the defendant might have pleaded a defence to defamation
– such as honest opinion. Under s.3 Defamation Act 2013, this defence
arises when three conditions are met: the statement complained of
was a statement of opinion; it indicated ‘whether in general or specific
terms the basis of the opinion’; and ‘an honest person could have held
the opinion’ by reference to specified matters. The defence ‘is defeated
if the claimant shows that the defendant did not hold the opinion’.
Offering an opinion which is not actually held is seen as a misuse of the
right to speak and thus cannot be the basis of a successful defence.
3.4.2 Use of intention as a criterion of liability

Intention to act or deliberateness is (as mentioned above) a feature of
the trespass torts, such as battery (examined below). But this is a very
low-threshold type of intention. It is the kind of intention that barely
requires the defendant to do any thinking. Thus, this type of intention
is present when the defendant deliberately steps on to land that he
or she believes to be his or her own when, in fact, it is not. In such
circumstances, the defendant prima facie commits the tort of trespass
to land because of the deliberateness of his or her actions – regardless
of whether there was any immoral dimensions to those actions.
As regards intention to injure, its most important place is among the
economic torts. The law is reluctant to impose liability in the economic
torts unless intention to injure (or some variant of this mental state)
is present. This is, in part, because we accept the right of persons to
compete in economic terms and because tort law does not offer a high
21
degree of protection to financial interests. They are not seen to be as

fundamental to human survival as are bodily interests. Cane says:
Tortious intention plays an important part in justifying liability

for… inflicting harm by competitive market activity. To the extent
that competition is a zero-sum game, one person’s loss is another
person’s gain; and so the law does not impose tort liability for
negligently harming a person by competing with them. But
even liability for intentional harm might be thought to inhibit
market activity unduly, and so the law requires, in addition, either
unlawfulness (as in the case, e.g., of intimidation) or combination
plus a ‘predominantly’ bad [purpose] (as in the case of ‘lawful
means’ conspiracy). (Cane, 2000)
Another role of intention is this: where it is present, it justifies a liberal

award of damages. Thus, with respect to torts requiring intention,
there is no restriction on the award of damages such as applies under
the remoteness limb in negligence (which requires that the type of
damage inflicted be foreseeable in nature – as to which see Module
B). Where an intentional tort has been committed, damages may be
awarded for all losses flowing directly from commission of the tort
(Williams v Humphrey (1975) The Times, 20 February). The damages
do not have to be of a foreseeable kind. The presence of intention
might also justify the award of more than compensatory damages – it
might be ground for awarding the claimant exemplary (or punitive)
damages. Thus, Cane notes that ‘punitive damages would probably be
awarded only where the defendant’s conduct and its consequences
were intentional or where the defendant was reckless in the sense of
consciously indifferent’ (Cane, 2000).
Despite the fact that intention does have a valid place in tort law, Cane
concludes that ‘intention and recklessness play only a minor part in tort
law’ (Cane, 2000). This reflects the infrequent pleading of torts like the
economic torts. It also reflects the difficulties of proving intention (and
other mental states).
3.4.3 Proof of intention

In Edgington v Fitzmaurice (1885) 29 Ch D 459, Bowen LJ thought that
proof of intention was not problematic for courts. He said that ‘the
state of a man’s mind is as much a fact as the state of his digestion’ (at
483). But intention to injure is notoriously difficult to prove. It is rarely
the case that a court will have access to the subjective intentions of
individuals (although this is possible, such as where the individual
records their plans in a document. In Han Cheng Fong v Teo Nghee
Patrick [2013] SGHC 51, [54], the defendants recorded their plans to
‘get rid of’ a person named Han in emails). The difficulty experienced
in determining true intention is only magnified when it comes to
attributing such states of mind to companies and other organisations.
So how is intention to injure proved? ‘The reality’ says Paciocco, ‘is that
a person’s subjective state of mind is personal to the [individual] and
can only be determined as an adjudicated fact by resort to its objective
manifestations’ (Pacciocco, 1995). It is found through an examination
of the circumstances in which the individual acted and the evidence
that has come to light about those circumstances. Proof need be on the
22
balance of probabilities only. Cane believes that there are real problems
relating to the issue of proof in the use of an intention requirement in
tort law. He says that:
… a judgment that a person’s conduct was intentional will

be underpinned by an assertion about the ‘normal person’,
not about the agent. In relation to conduct, the reasoning will
go something like this: the agent’s conduct must have been
intentional because what the agent did is not the sort of thing
that people normally do unintentionally. And in relation to
consequences, the reasoning will go somewhat as follows:
the agent must have intended these consequences because
they are not the sort of thing that people normally bring about
unintentionally. If I am right about this, ‘inferred intention’… is
not a frame of mind at all; rather, it expresses a judgment about
the way people normally (ought to) behave. (Cane, 2000)
Thus, the reality is that ‘intention’ might be found where there is

no real intention. In Complicity: ethics and law for a collective age,
Christopher Kutz makes some similar remarks about proof of intention
in the criminal law. He says that a finding of intention is often ‘a
construct teetering upon a scaffolding of circumstantial evidence and
psychological inference’. His conclusions might be apposite in the
typical case involving proof of intention in tort law.
The philosophers have got it wrong on intention in tort law. It
would appear that much of the reality of tort law is far removed from
philosophical writing about it – especially as regards the importance
of ‘intention’. The moral philosophers, starting with Immanuel Kant,
analyse the actions of persons in terms of will theory. Under will theory,
actions can be described as good or bad only where the actor has
made decisions freely, exercising his or her free will. The main reason for
recognising that actions are bad and deserve sanction is that the actor
made a decision (intended) to engage in injurious conduct. Will theorists
thus place central importance upon the presence of intention as a reason
for imposing tortious liability. They are uncomfortable with any lesser
mental state – and find it difficult to justify negligence-based tort liability.
One such modern day writer is John Finnis. Right at the start of his
chapter on ‘Intention in tort law’, Finnis says that intention is a concept
which is ‘well worthy of its central role in moral and legal assessment,
because it picks out the central realities of deliberation and choice…’
(Finnis, 1995). He says that it is wrong to assume that ‘human acts can be
identified, for the purposes of moral or legal assessment, independently
of the acting person’s intention(s)…’. Moreover, ‘to choose harm to the
person is the paradigmatic wrong, the exemplary instance of the denial
of right’. ‘Moral responsibility and consequent legal liability for intentional
infliction of harm are paradigmatic, exemplary’. Finnis would not count as
of moral importance those things which are not intended, that is, which
are mere side effects of action. He quotes the exposition of the intention
necessary to find lawful means conspiracy in Crofter Hand-Woven Harris
Tweed Co v Veitch [1942] AC 435, at 444–45:
The test is not what is the natural result to the plaintiffs of such
combined action, or what is the resulting damage which the
defendants realise or should realise will follow, but what is in
23
truth the object in the minds of the combiners when they acted
as they did. It is not consequence that matters, but purpose.
Finnis’s views about when there should be liability in tort law do

not reflect very well the conditions under which liability is actually
imposed. What we have said is enough to demonstrate that liability is
imposed frequently without real regard to the exercise of will in terms
of intention to engage in injurious conduct. But we need to get at the
real problem behind the analysis of the will theorists.
Cane provides an important reason why the focus of the philosophers
upon issues of the defendant’s intention is misplaced as regards tort
law. Tort law is not concerned merely with the defendant’s exercise
of will. Rather, ‘[t]ort law is a complex interaction between protected
interests, sanctioned conduct, and sanctions’ (Cane, 2002, Chapter 3).
He expands upon this in Responsibility in law and morality:
Theories of moral responsibility that focus exclusively on the

quality of the agent’s will, and ignore the nature of the agent’s
conduct and its impact on other individuals, invest the quality of
the agent’s will with a centrality and importance, in explaining
the nature of responsibility, that it does not deserve… Our
responsibility practices have a relational character that [will]
theory fails to capture… Finnis’s view[s are] based on an analysis
which focuses on the agent and their ‘moral standing’ judged in
terms of an austerely duty-based ethical system. The law takes a
more pluralistic approach. (Cane, 2002, Chapter 3)
In that same book, Cane describes tort law as embodying a two-

sided relation – where the interests of persons in the security of
their personal and property interests are treated as important and
where there might be no alternative redress other than that from the
defendant who has caused injury or damage. It is for such reasons that:
In the civil law paradigm, the interests of victims are given at

least as much weight as those of agents [that is, people who act
and infringe the interests of others]. This is reflected in the fact
that the basic measure of civil law remedies is the impact of the
proscribed conduct on the victim, not the nature of the agent’s
conduct or the quality of the agent’s will. (Cane, 2002, Chapter 3)
Thus, intentional torts do not dominate in the way that the tort
of negligence does. It is to this tort that we now turn in order to
determine what negligence-based fault really is (and what it is not).
3.5 Negligence in tort law

Tony Weir wrote of the ‘staggering march of negligence’ as a cause
of action (Weir, 1999). Although only established as a distinct tort in
1932, today the majority of civil actions in tort are cases of negligence.
Why has it become so important? Two reasons for this relate to its
nature, focusing on external acts – it has a role to play in solving co-
ordination problems – and its standard of reasonableness – which has
an instinctive appeal to the courts. That much we know. Let us now go
further in exploring what lies at the heart of this tort.
24
Negligence as a tort is not to be equated with mere inadvertence

(failure to pay attention or carelessness). Although we may make an
empirical assumption that negligence is often committed because
of the defendant’s inadvertence (failure to pay attention), this is not
always so. As Cane states, negligence does not subsist in a state of
mind such as inadvertence. Negligence is not about a state of mind
at all. Negligence is concerned with external action or inaction – with
a failure to reach the appropriate standard of care which has been
set by the law. This is determined by reference to the mythic figure of
the ‘reasonable person’ or the person of average capabilities – what
in England used to be called the ‘man on the Clapham omnibus’ or, in
Australia, the ‘man on the Bondi beach tram’.
Here are some more important points to note about negligence-based
fault, which help to uncover its true nature.
3.5.1 Intentional acts can be pleaded in negligence

Intention and negligence are not alternative types of fault, mutually
exclusive of each other. In fact, they can have an overlapping operation.
In an article on ‘Harassment and intentional tort of negligence’, Tan
Keng Feng sought to correct a statement made by the Singapore Court
of Appeal in Malcomson v Naresh [2001] 4 SLR 454. Lee J had said that:
‘In the law of negligence, a person has the duty to ensure that he does
not cause any damage to others. Such acts are unintentional…’. His
Honour is not the only judge to have made such an assumption. The
same idea underlies the ruling of the English Court of Appeal in Letang
v Cooper [1965] 1 QB 232, which decided that trespass to the person lay
only for intentional acts and not for negligent acts (this is not the rule
in Australia). The mistake made in these cases is to equate negligence
with a state of mind – inadvertence – and to treat this as mutually
exclusive of intention. The truth is that negligence can arise even where
the act in question was entirely intentional. As Tan explains:
The defendant can definitely behave below the standard of

a reasonable person in breach of a duty to take care, either
carelessly or intentionally. I can drive too fast, below the
standard of the reasonable driver in the circumstances, and
knock a pedestrian down, and this can be done intentionally, if
I desire to harm him, or carelessly, if I am inattentive with regard
to his safety by my fast driving. (Tan, 2002)
Tan says that the existence of an action in battery does not preclude an
action in negligence.
Various cases support Tan’s views. For example, in Paterson Zochonis v
Merfarken Packaging Ltd [1986] 3 All ER 522, Goff LJ said that ‘the action
of negligence lies not only for carelessness but also for intentional
conduct…’. And, in the Tasmanian case of Wilson v Horne (1999) 8 Tas
R 363, Underwood J (at first instance) stated: ‘In negligence, a duty
of care is owed to those within the requisite proximity not to expose
them to the risk of injury or harm. Such a duty must encompass
protection from intentional, as well as actionable harm’. On appeal,
Evans J reinforced this point, giving another very good example: ‘… it is
not unusual for a plaintiff to suffer injuries as a consequence of a wide
range of conduct of the defendant which may include the intentional
25
application of physical force. This occurs quite often when a patient

makes a claim against a doctor…’. These conclusions are reinforced by
Peter Handford, who writes that:
if inadvertently caused injury that entails unreasonable risk

of harm constitutes a breach of th[e standard of care in
negligence], then presumably injury inflicted deliberately or
recklessly constitutes a more egregious departure from the
norm set by the law. In terms of general principle, therefore,
there is nothing illogical in breach of duty for the purposes of
the tort of negligence extending to harm deliberately, as well as
carelessly, inflicted. (Handford, 2010)
Handford goes on to say that negligence is really about blameworthy

conduct, rather than careless conduct. In saying this, he is simply
observing that what matters is the wrongfulness of the defendant’s
external acts rather than a state of mind. He also goes on to make the
suggestion that the tort of negligence might need a new name!
3.5.2 Liability in negligence can mean strict liability for

some defendants
Of course, negligence is fault-based. It revolves around the standards
of care ostensibly observed by the mythical ‘reasonable person’ – the
‘man on the Clapham omnibus’ or the ‘man on the Bondi beach tram’.
There is a catch to this standard of reasonableness: not all persons are
capable of reaching them. Here we come to the problem of the ‘short-
comer’. Negligence can be committed even where the defendant tried
his or her utmost to reach the relevant standard of care. Justice Oliver
Wendell Homes noted the problem of the short-comer in The common
law, where he wrote:
If a man is born hasty and awkward, is always having accidents

and hurting himself or his neighbours, no doubt his congenital
defects will be allowed for in the courts of Heaven, but his slips
are no less troublesome to his neighbours than if they sprang
from guilty neglect. [Hence] the law considers… what would be
blameworthy in the average man, the man of ordinary intelligence
and prudence, and determines liability by that. If we fall below the
level in those gifts, it is our misfortune. (Holmes, 1881)
The position of the short-comer is considered further by Tony Honoré
in his paper ‘Responsibility and luck’. A central theme is that ‘being
responsible in law and in ordinary life is not the same thing as being… to
blame’ (Honoré, 1988). He is concerned with the position of the short-
comer. Who is this? It is the person who is unable to meet the standard
of care set by reference to the reasonable person test. The practical effect
of the rule of negligence upon the short-comer is, so the argument goes,
that he or she is subject to a form of strict liability. He or she cannot reach
the ordinary standard of care. And yet his or her best efforts to take care
are irrelevant in determining his or her liability in negligence.
In the literature, it is said sometimes that the short-comer should take
his or her deficiency into account prior to acting – in making decisions
about whether or not to act. Thus, the blind person should take his or
her blindness into account in determining how to get to the shops –
26
he or she should not attempt to drive to the shops. He or she should

seek assistance if the only way to get to the shops is to drive. However,
Honoré does not feel attracted to the idea that the short-comer who
does not take his or her shortcoming into account is always guilty of
antecedent fault when an accident occurs – as would inevitably be the
case with the blind person who attempts to drive. He says:
It is not true that a person who undertakes a task for which he

or she is not up to scratch need be at fault in failing to realise
this fact. Lack of skill often goes hand in hand with lack of nous
to recognise one’s incompetence. Prior fault can serve to justify
only some of the cases in which legal systems impose liability
for lack of competence [perhaps only easy cases such as that
involving the blind driver]. (Honoré, 1988)
Honoré explains that ordinary concepts of fault ostensibly turn upon
the idea that the person is at fault only if he or she could have acted
differently, so as not to cause harm. But he finds that this is not an
entirely accurate reflection of the law. Honoré explains that the better
view is this:
We have a choice. Either we abandon the notion that

responsibility depends on the ability to do otherwise in the
circumstances. Or we retain the notion, but construe the
required capacity as a general ability to perform the sort of
action which would in the instant case have led to a different
outcome. The general ability need not have been exercisable in
all the concrete conditions, external and internal, of the case.
The second view is preferable since it enables us to retain a
modified form of our common sense belief in the importance
of capacity to act otherwise as an element of responsibility. On
this view, the capacity to remain alert, when alertness would
have avoided the accident, does not refer to the possibility
of someone’s remaining in a steady state of alertness for an
indefinite period but rather to an ability to remain alert in
normal conditions most of the time. (Honoré, 1988)
Honoré tries to justify the imposition of liability in negligence upon the

short-comer by reference to two types of rationalisation. The second
argument for imposing liability on short-comers (which is the one of
interest to us) is the ‘personhood thesis’. The thesis is that the person
must accept responsibility for the injuries that he or she causes others
because he or she is the ‘author’ of those injuries. The actions that the
person takes and the injuries that he or she causes record his or her
actions in the world, record his or her personal history. Honoré says:
If actions and outcomes were not ascribed to us on the basis

of our bodily movements and their mental accompaniments,
we would have no continuing history or character… It is by
virtue of these ascriptions [of authorship] that each of us has
a history, an identity and a character. But there is a price to be
paid for being a person. As the counterpart of this status we
are responsible for our actions and their consequences, and
sometimes this responsibility exposes us to legal sanctions.
(Honoré, 1988)
27
Stephen Perry is attracted to this explanation for the imposition of

negligence liability on short-comers. He says that ‘our status as moral
agents requires us to acknowledge certain of the outcomes of our
choices to act as ours; we are their authors, and they are properly
attributed to us as agents… Sometimes… outcome-responsibility can
serve as the basis of a moral obligation to compensate’ (Perry, 1992).
Note the point here: that Perry does not see outcome responsibility as
automatically giving rise to liability in tort. Something more is required
to explain liability in tort. One of Perry’s own contributions to scholarship
is a theory of how outcome responsibility is the basis for the application
of principles of corrective justice in tort law. He bases his theory on
the ‘avoidability’ criterion, which is similar to Honoré’s explanation of
responsibility being grounded in a general capacity to do otherwise. (We
will come back to notions of corrective justice in Module D.)
3.5.3 Negligence can mean strict liability for all

In his work, Honoré explains how the tort of negligence applies to the
short-comer. He indicates possible unfairness for the short-comer as an
individual. But the standards of negligence are potentially oppressive
not only to the short-comer. Even the most capable and conscientious
of persons will sometimes be caught short – so to speak. This is
acknowledged by Honoré:
…in no activity or walk of life can people consistently maintain

the high standard of skill and care required by law without
variation. Indeed, that is to understate the matter. Empirical
studies show, for example, a high rate of error on the part of
even competent drivers. It is not only the stupid and clumsy
who are incapable of meeting the objective standard of care on
the road. The intelligent and adroit cannot consistently meet it
either. (Honoré, 1988)
This is a theme taken up by Jeremy Waldron in his chapter ‘Moments
of carelessness and massive loss’ (Waldron, 1995). Waldron starts with
the facts of a hypothetical accident. Two drivers are driving at or near
the speed limit past a shoe store advertising discounts on men’s shoes.
The first driver is Fortune. Fortune takes his eyes off the road to look at
the advertisement and continues on his way. Fate does the same thing,
but he is unlucky. The cars in front of him slow down while he has taken
his eyes off the road. The result for Fate is that he crashes into the back
of a motorcycle ridden by Mr Hurt – who is then injured. Hurt’s back is
broken and he will be in a wheelchair for life. Hurt eventually sues Fate
for $5 million. Waldron assumes away accident insurance – the award
against Fate bankrupts him.
What is the point of this story? The point is that both Fortune and Fate
have done exactly the same thing – momentarily taken their eyes off
the road when driving in order to look at the shoe store advertisement.
Moreover, what they have both done is quite ordinary in nature – we
all do it from time to time. But how does the law justify the imposition
in negligence of a $5 million award in the case of Fate while Fortune
suffers no penalty at all for his inadvertence? Obviously the technical
distinction is that the tort of negligence is complete in one case but
not in the other. In the case of Fate, he has caused damage – and the
28
elements of negligence are complete. But Waldron (who is a political

philosopher) struggles to see the fairness of the outcome.
Waldron does acknowledge that, as between Fate and Hurt, it is
probably better that Fate be liable:
…the law-suit singles Fate out to bear a massive loss on the basis
of the fortuitous outcome of a moment’s carelessness. But if it is
arbitrary to single Fate out in this way, it is even more arbitrary to
allow Hurt to be singled out for such a massive loss. For Hurt is
entirely innocent in the matter; he does not even have the taint of
carelessness associated with his conduct that Fate has.
When discussing who is to be made liable, we usually speak in terms

of ‘responsibility’. But Waldron sees the term ‘responsibility’ as a ‘Janus
faced’ concept (that is, having two very different appearances):
On the one side, it means little more than ‘caused’… On the

other side, it connotes culpability and liability. It is not in
dispute that Fate’s carelessness was responsible (and Fortune’s
carelessness was not responsible) for Hurt’s injury in the first
sense. But something more is needed to establish the relevance
of the second sense of responsibility in a meaningful way.
Waldron also argues that ‘a gaping disproportion between individual

outcomes and the morality of individual characters and conduct seems
to be a primary form of unfairness’. There is an undoubted gap in the
situation as between Fortune and Fate. It does not seem entirely fair to
distinguish between Fortune and Fate on the basis of luck in the way
that has occurred. It is in such circumstances that Waldron questions the
assumption that the appropriate system of compensation lies in tort law:
Is the traditional nexus between plaintiff-victim and defendant-

injurer, which lies at the heart of tort law, sufficiently fair,
sufficiently non-arbitrary from a moral point of view, to count as
a better way of addressing the problem of accident costs than,
say, a New Zealand style accident scheme that abandons the
principle of individual liability altogether? [His answer is: ‘no’.]
The hypothetical is an extreme one. In most jurisdictions, Fate will have

been required to insure his car before driving. Compulsory third party
cover is imposed because of the frequency of road accidents and the
terrible consequences that they might have for injured persons. But
one only has to move away from driving accidents to see that the same
potential for injustice might arise elsewhere.
3.6 Strict liability

Our discussion, above, raises some questions about the reality of fault
in tort law. In true intentional torts, there are difficulties of proof which
mean that the presence of intention often must be found simply
according to the external circumstances in which the defendant
acted. Other so-called ‘intentional torts’ require no intention to injure,
but merely an intention to act – or voluntariness. This is a low-level
requirement. In negligence, the liability of the short-comer might be
seen to be strict in nature in the sense that he or she cannot reach the
appropriate standard no matter how he or she tries to do so.
29
It is now time to say a few words about strict liability, which might be
more pervasive in tort law than first thought. What is strict liability? There
have been many false starts in attempting to define this basis of liability.
Let us take, as an example, the vicarious liability case of Lister v Hesley Hall
Ltd [2002] 1 AC 215. Lord Hobhouse stated that vicarious liability is strict in
the sense that ‘there has been no actual fault on the part of the employers’.
Lord Millett assumed that ‘an employer who is not personally at fault is
made legally answerable for the fault of his employees’. Such statements
seem to entail the proposition that vicarious liability is available only in
cases of blameless employers. However, it is important to recognise that
they are potentially misleading. Why?
Properly defined, strict liability is that type of liability which arises
regardless of fault. What does this mean? The point about strict liability
is that the court does not inquire into whether fault was present or not.
In a vicarious liability case (which makes an employer responsible for
the torts of employees and persons akin to employees), for example,
the employer might have been blameless, but this is not inevitable. This
was acknowledged in another vicarious liability case, Bernard v Attorney-
General of Jamaica [2005] IRLR 398, by Lord Steyn who said that ‘[t]here
may of course be cases of vicarious liability where employers were at fault’.
The point is that, in strict liability cases, the court is indifferent to matters
of fault; liability can be imposed whether fault is present or not. Strict
liability, in this sense, is not synonymous with no-fault liability.
John Gardner describes strict liability in slightly different terms – but in a
way that does seem to be correct. In his ‘The purity and priority of private
law’ he says that ‘strict liability is a duty to succeed’ (Gardner, 1996). What
he means is that the duty is, for example, ‘not to trespass’ – or not to
invade another’s land without permission. The law places an obligation on
persons to succeed in this duty – so that if they do invade another’s land,
they are liable (in this case, for the tort of trespass to land). And Gardner
reiterates that this is so whether the defendant tried or not.
Where the responsibility base does not lie in fault, it must lie in something
else. Honoré notes that strict liability often arises with respect to
dangerous activities; or else it arises for some good policy-based reason.
Here, again, we strike trouble. Legal philosophers have struggled to
defend tortious strict liability in what is assumed to be (on the whole) a
fault-based system of tort liability. An attempt is made by Gregory Keating
(Keating, 2014), who classifies strict liability torts into two groups:
1. Harm-based torts, including nuisance, product liability and
vicarious liability. Keating says that the commission of these torts
is justified. There is no wrong in the conduct itself. But where
harm arises, it would be a wrong for the defendant not to pay
compensation. ‘The obligation imposed by all of these doctrines is
an obligation not to harm without repairing even if there is no fault
in the infliction of the harm itself… All of these harm-based liabilities
are strict in that they impose liability on conduct that is not wrong…
They condemn harming without repairing…’
2. Autonomy-based torts, including the trespass torts and conversion.
Keating says that the commission of these torts can be ‘innocent’
or excusable, such as when someone mistakenly enters the land of
another thinking that it is his or her own. ‘The wrong consists in the
30
failure to respect the right [in question]. Fault is simply irrelevant’. The
right protected will be one ‘that assigns a power of control over some
physical object or, in the case of battery, control over some subject…’
Keating goes on to provide a further, unifying justification for these
forms of liability:
… strict liability in tort embodies corrective justice. However, it

is equally important to see that strict liability also goes beyond
corrective justice because it rests on a principle of fairness as
well as on a conception of wrongdoing…
It would appear that Keating greatly over-complicates matters. As Cane

observes, torts are concerned with certain protected interests, with
certain kinds of prohibited conduct, and with certain responsibility
bases (Cane, 1997). These arise in various combinations. One reason for
imposing liability on a lowly-ranked interest (like financial interests) is
the presence of intention to injure (as happens in the economic torts).
By contrast, where the interests in question are highly protected (body
and property), then lesser degrees of fault will do. In other cases, the
law might impose liability in a different combination to forward some
policy goal (such as with vicarious liability).
1. What interests does tort law protect? Are there any significant interests
missing from this list that ought to be there?
2. Do we overplay the significance of tort law’s hierarchy of protected interests
because there is a sense in which, when tort matters are litigated, what is at
stake is ‘just money’?
3. What liability bases arise in tort law? Which of these are ‘fault-based’ and which
are not?
4. Can there be an overlap in the operation of intention and negligence? Why?
5. What is the proper definition of strict liability?
an excellent method of assessment.

•• describe the kinds of interests that tort law protects
•• explain which interests tort law protects more highly and which it protects
less highly
•• describe the different bases of liability in tort law
•• critique simplistic explanations of fault-based responsibility in tort law.
Sample examination question

‘The law of torts is not fair when it imposes liability for acts which are not
done with fault. Fault is the moral justification of liability’. Critically analyse this
statement.
Feedback: p.32.
31
Advice on answering the question

This question will require a determination of what ‘fault’ is in the law of torts. For
the most part, we mean the different types of ‘intention’ and ‘negligence’. One
might note that ‘negligence’ is not a state of mind. It consists in a falling below
the objective standard of reasonable care. Fault-based torts can be contrasted
with strict liability torts and doctrines (such as vicarious liability) where fault is
irrelevant to liability. You might want to illustrate the differences by reference to
torts introduced in this module and from your wider reading. One might note
that what counts as ‘moral justification’ will depend upon one’s views of what
morality requires. But the focus in legal writing is often upon the position of
one party only – the defendant. Cane notes that tort law is concerned with the
position of both the claimant and the defendant. Thus, what counts as ‘fair’ might
have to take into consideration both parties. Tort law tries to achieve a balancing
act. One might also note that there are many ways in which the use of the term
‘fault’ in tort law does not reflect moral shortcomings in the defendant actor.
Examples of these can be given.
32
Chapter 4: Battery
Chapter 4: Battery
4.1 Introduction
Battery is any act of the defendant that directly and intentionally
or negligently causes some physical contact with the person of the
claimant without the claimant’s consent. Several key elements of this
tort require consideration here, including those of what counts as fault
in this tort, the required character of the defendant’s act, directness,
and proof of no consent by the claimant.
Learning outcomes
•• explain what the tort of battery is and what its elements are
•• describe typical situations in which battery arises
•• explain how battery is seen as an ‘intentional’ tort
•• explain why some unconsented to contacts with the body are not treated as
battery
•• advise a client about whether a battery has been committed in their
individual case.
Essential reading
•• Witting, Chapter 10 Trespass to the person and related torts, Section 2 Battery
and Chapter 13 Defences to intentional torts against the person or property,
and/or
•• Lunney et al., Chapter 2 Intentional interference with the person, Section III
Battery.
Cases
•• F v West Berkshire Health Authority [1989] 2 All ER 545.
•• Freeman v Home Office (No. 2) [1984] QB 524.
•• Wilson v Pringle [1987] QB 237.

•• Beever, A. ‘Transferred malice in tort law?’ (2009) 29(3) Legal Studies 400.
•• Trindade, F. ‘Intentional torts: some thoughts on assault and battery’ (1982) 2
Oxford Journal of Legal Studies 211.
Works cited
•• Cane, P. Key ideas in law: tort law. (Oxford: Hart Publishing, 2017) [ISBN
9781509909421].
(Oxford: Oxford University Press, 2006) [ISBN 9780199291670].
•• Prosser, W.L. ‘Transferred intent’ (1967) 45 Tex LR 650.
33
4.2 Fault
From the 13th century, the courts provided compensation for injuries to
the person and to property. A suit in trespass could succeed only where
the interference was ‘direct’ and this remains the case today (Sterman v E
W & W J Moore Ltd [1970] 1 QB 596). Directness here means that there is
no substantial interposition of another volition between the defendant’s
act and the contact with the body of the claimant. But if the injury is
caused directly, and is attributable to careless conduct on the part of
the defendant, must the claimant frame his or her action in negligence,
or might battery be an option? Here we need to delve into some rather
technical rulings on the law of battery and how it ought to be pleaded.
4.2.1 Negligently inflicted battery?

Until the middle of the 20th century, one would have said with
confidence that both the torts of battery and negligence were
available in cases of direct injuries sustained as a result of careless
conduct. This conclusion followed from the fact that, historically,
trespass actions would succeed where there was a direct contact unless
the defendant could show inevitable accident (Weaver v Ward (1616)
Hob 134). In other words, mere carelessness on the defendant’s part
would not allow him or her to escape liability in trespass.
4.2.2 Fowler v Lanning

The modern confusion in English law surrounding the relationship
between negligence and trespass began in Fowler v Lanning [1959] 1
QB 426, which concerned a technical point of law about the burden
of proof. In the course of his judgment, Diplock J sought to ensure
that the claimant would not gain an ‘unfair’ advantage by relying
on trespass rather than negligence on the basis that, according to
the former tort, the burden of proof would lie with the defendant to
disprove any negligence on the defendant’s part whereas in the latter
it was for the claimant to prove a failure in care. In so holding, Diplock
J sought to align trespass to the person with the hitherto anomalous
‘highway rule’ that the burden of proof lies on the claimant to show the
defendant’s negligence (Holmes v Mather (1875) LR 10 Ex 261).
4.2.3 Letang v Cooper

Although Fowler v Lanning did not abolish the principle that trespass
to the person can be committed negligently, it did leave the claimant
with the burden of proving negligence where his or her injury was
caused by negligent conduct. But then came Letang v Cooper [1965] 1
QB 232. In this case, the defendant negligently drove his car over the
claimant’s legs while the latter was sunbathing on the grass car park of
a hotel. More than three years later, the claimant sued the defendant for
her injuries. The rules on limitation of actions provided that actions for
‘negligence, nuisance or breach of duty’ were barred after three years
while other tort actions were barred after six years. The claimant relied
on trespass in an effort to prevent her action from being time-barred.
The Court of Appeal did not want to reach the supposedly absurd
conclusion that an action for negligent trespass would lie while an
action for negligence simpliciter would not. For their part, Lord Denning
34
Chapter 4: Battery
MR and Danckwerts LJ insisted that there was no overlap between

trespass and negligence. They thought that, if an act was intentional, it
would sound in trespass (not negligence) liability, and that if an act was
negligent it would lead to negligence (not trespass) liability (at 240).
However, this attempt at doctrinal elegance left no formal place in the
law of trespass for intentional but indirect contacts and is problematic
for that reason alone. By contrast, Diplock LJ thought that trespass
could be committed negligently, but that in such cases the claimant
must prove both the negligence alleged and that there was resulting
harm (contrast intentional trespass which is actionable per se). In other
words, the claimant would gain no practical advantage from framing
his or her action in trespass rather than negligence.
4.2.4 Utility of negligent trespass

In the wake of Letang v Cooper, it would appear that actions for
negligent trespass effectively have disappeared. But we cannot assert
conclusively that trespass has no relevance when negligent conduct is
relied on (see Trindade, 1982). There might be cases in which a claimant
perceives an advantage from framing a claim in trespass rather than
in negligence, most probably because of the more generous rules
on remoteness of damage. For in negligence law, the defendant is
responsible only for injuries that are reasonably foreseeable (The
Wagon Mound [1961] AC 388), whereas in trespass all the damage
actually ensuing from the defendant’s unlawful act should be
recoverable (Williams v Humphrey (1975) The Times, 20 February).
4.2.5 Meaning of ‘intentional act’

These technical points of pleading aside, we note that most modern
trespass actions are likely to be based on an intentional act on the
part of the defendant. This raises a second fundamental question:
what is meant by ‘intentional act’ in this context? There are two broad
possibilities:
(1) that the defendant intended only to act in the way that he or she
did; or
(2) that the defendant intended both to act in the way that he or she
did and that the contact with the claimant take place.
In most cases, the distinction is of little consequence. If A aims a punch
at B and succeeds in striking B, there is nothing to separate A’s act
(the thrown punch) from its outcome (for example, B’s broken nose).
But in some circumstances, A might do a thing without intending the
outcome. If D aims his or her rifle at C, then pulls the trigger, there is no
doubt that he or she intended to shoot C. But if D aims his or her rifle
at a partridge on a hunting trip but accidentally shoots C, it is clear that
D intended the act (firing the gun) but not the outcome (C’s injury).
In such circumstances it might be stretching the tort too far to hold D
liable in battery. But if D aimed his or her gun at a third party, T, then
pulled the trigger missing T and shooting C, standing next to T, we
might think that D ought to be held liable.
35
4.2.6 Transferred intent

In terms of the defendant’s mental state in the first example, there is a
genuine accident (possibly even without carelessness on D’s part). In
the second example, the defendant’s act was reckless. This could be the
basis upon which the English courts might, like US courts, borrow from
the criminal law notion of ‘transferred intent’ and apply it in tort law
(Restatement, Torts (2d), §32. See also Prosser, 1967). Yet there is limited
support for adopting this approach. In addition to a technically non-
binding but supportive first instance decision (Bici v Ministry of Defence
[2004] EWHC 786, at 71), there is the argument of principle arising
from the fact that battery is both a tort and a crime. Thus, as De Grey CJ
observed in Scott v Shepherd (1773) 2 Wm Bl 892, ‘though criminal cases
are no rule for civil ones... yet in trespass I think there is an analogy’
(at 899).
In that case there was held to be a battery where the defendant threw
a lighted squib into a crowded market place that was tossed from one
trader to another before it eventually exploded in the claimant’s face.
Yet the case is inconclusive because the main issue was whether there
was sufficient directness to satisfy the requirements of the tort. Further
oblique authority is found in Haystead v Chief Constable of Derbyshire
[2000] 3 All ER 890. The defendant punched a woman in the face so
that she dropped the baby she was holding. He was charged with
criminal assault in relation to the baby. Clearly the tortious counterpart
of this crime is a battery. The Divisional Court did not consider
application of the transferred intent doctrine but did say (with the
implication that a battery action might lie) that:
There is no difference in logic or good sense between the facts

of this case and one where the defendant might have used a
weapon to fell the child to the floor, save only that this is a case
of reckless and not intentional battery.
Although the court emphasised the requirement of a sufficiently
direct act to ground liability, and although it neglected to address
head-on the question of whether the defendant’s intention must
apply only to his or her actions, or whether it must extend also to the
outcome of those actions, the case does signal an unwillingness to
allow defendants to escape liability in such cases (in a similar vein see
Livingstone v MOD [1984] NI 356).
On balance, then, it seems that there is some judicial support for
the application of the transferred intent principle in English battery
cases. On the other hand, there is a plausible counter-argument that,
although certain forms of conduct should be branded morally wrong
and deserving of criminal punishment, they might not warrant a
remedy in tort where neither motive nor malice normally are relevant
in determining liability (as opposed to the amount of damages) (see
Gordley, 2006, 189ff ).
4.2.7 Hostility
In cases where contact with the claimant’s person is unproblematic,
it is well established that the defendant need not have intended the
claimant any harm. The defendant merely should have understood
that his or her conduct was beyond the bounds of physical contact
36
Chapter 4: Battery
‘generally acceptable in the ordinary conduct of everyday life’ (Collins

v Wilcock [1984] 3 All ER 374, at 378). In Wilson v Pringle [1987] QB 237
(see also Williams v Humphrey (1975) The Times, 20 February), however,
the Court of Appeal held that the claimant must show that the
defendant’s touching of the claimant was a ‘hostile’ touching. Yet the
term ‘hostility’ (to the extent that it is required) should not be equated
with ill-will or malevolence. It means merely that the defendant is
doing something to which the claimant might object, something that
the claimant might regard as an unlawful intrusion on his or her rights
to physical integrity. Thus, the bare allegation that one 13-year-old
boy jumped on another during horseplay was insufficient to establish
a battery. Further evidence of intent to injure or cause distress to the
claimant had to be shown if liability for battery were to be imposed.
Had a grown man engaged in similar conduct, however, the result
surely would have been different.
In F v West Berkshire Health Authority [1989] 2 All ER 545, at 564, Lord
Goff doubted that the use of the word ‘hostile’, however defined,
was appropriate to describe the necessary state of mind in battery. A
surgeon operating on a patient to preserve his or her life and health
might be motivated by a judgment as to the patient’s best interests,
not hostility towards the patient. Yet if the patient is competent to
do so, and has refused to consent to a particular course of treatment,
the surgeon commits a battery. Lord Goff preferred the following
approach. Any deliberate touching of another’s body, beyond the
bounds of acceptable everyday conduct, in the absence of lawful
excuse, can constitute a battery. Where a person by reason of some
permanent or temporary mental incapacity cannot himself or herself
consent to medical or other necessary procedures, the requisite lawful
excuse might have to be found in the defence of necessity.
4.3 Character of the defendant’s act

4.3.1 Positive act
There can be no battery unless there is a positive act by the defendant.
Merely to obstruct the entrance to a room by standing in someone’s
way is insufficient (Innes v Wylie (1844) 1 Car & Kir 257, at 263) (although
there might be an assault where it is clear that if A tries to pass B, B
will attempt forcibly to prevent that happening, see Hepburn v CC
of Thames Valley Police [2002] EWCA Civ 1841). Also, no battery is
committed if an incident occurs involving contact over which the
defendant has no control (Holmes v Mather (1875) LR 10 Exch 261).
4.3.2 Unpermitted contact

There can be no battery unless there is contact with the claimant. But
is any contact, however slight, enough? Lord Goff has suggested that
battery protects a person ‘not only against physical injury but against
any form of physical molestation’ (F v West Berkshire Health Authority
[1989] 2 All ER 545, at 563). This formulation provides a guide as to the
kind of conduct that courts hold to be tortious, so long as the word
37
‘molestation’ is read broadly. Such a reading explains why spitting in

someone’s face is battery, while touching another accidentally in a
crowd is not. It also explains Holt CJ’s view ‘that the least touching of
another in anger is battery’ but that ‘if two or more meet in a narrow
passage, and without any… design of harm, the one touches the other
gently, it is no battery’ (Cole v Turner (1704) 6 Mod Rep 149). The courts
cannot, and should not be expected to, give remedies against these
mostly unavoidable contacts in everyday life, and thus the second
quoted statement can be classed as an example of a permitted contact.
Battery, then, enables a person to seek redress against all unpermitted
contacts amounting to ‘molestation’, irrespective of whether there is any
physical harm (Ashley v CC of Sussex [2008] 1 AC 962, at [60]). So, taking
fingerprints (Dumbell v Roberts [1944] 1 All ER 326, at 330), spitting
in another’s face (R v Cotesworth (1704) 6 Mod Rep 172), and cutting
another’s hair against his or her will (Forde v Skinner (1830) 4 C & P 239)
are all batteries.
4.4 Directness
As with all trespasses to the person, the requirement of directness
applies in battery. It is not enough that the act ‘causes’ the contact.
Contact must follow immediately from the defendant’s act (Leame v
Bray (1803) 3 East 593, at 603); or at least be a continuation of it (Scott
v Shepherd (1773) 2 Wm Bl 892, at 899). This is to say (again) that there
must be no significant act of volition between the defendant’s act
and the eventual contact with the claimant’s body. It is battery where
A strikes B’s horse so that the horse bolts throwing B to the ground
(Dodwell v Burford (1669) 1 Mod Rep 24), or where D punches a third
party so that injury results to C (Haystead v CC of Derbyshire [2000] 3
All ER 890). It is a battery to overturn a chair in which the claimant is
sitting (Hopper v Reeve (1817) 7 Taunt 698). Finally, it is battery for a ship
to ram another despite the effect of the current (Covell v Laming (1808)
1 Camp 497).
If battery protected against insult generally, and not merely against
bodily infringement, then any intentional contact with anything closely
attached to, or associated with, the person of the claimant conceivably
could be treated as battery. This point was explored in Pursell v Horn
(1838) 8 Ad & El 602, which decided that throwing water on to clothes
which the claimant was wearing was not necessarily battery. But it
is probably going too far the other way to suggest that contact with
things attached to the claimant can constitute battery only if there
is a transmission of force to the body of the claimant (‘It must imply
personal violence’: Pursell v Horn at 604). The guide should be whether
the action constitutes molestation. The protection from insult or
indignity afforded by the tort of battery is limited to insult or indignity
arising from the touching (thus, an unwanted kiss is actionable: see
also Trindade, 1982, p.225).
38
Chapter 4: Battery
4.5 No consent by the claimant

4.5.1 Burden of proof
The absence of consent is an element of the cause of action in battery
and, consequently, the claimant must prove that he or she did not
acquiesce to contact with his or her person. At first sight, this might
seem rather odd, but any lingering doubt that the burden of proving
absence of consent lies on the claimant was laid to rest in Freeman
v Home Office (No. 2) [1983] 3 All ER 589, at 594–95 (affirmed [1984]
QB 524). A prisoner alleged that he had been injected with mood-
changing drugs against his will. The judge held that, since the essence
of battery is a specific and unpermitted intrusion on the claimant’s
body, it was for the claimant to establish that he or she did not agree to
the intrusion. This the claimant failed to do.
4.5.2 Rationale
Part of the rationale for this approach is that the alternative (treating
consent as a defence to liability in battery) would pose potential
problems for medical practitioners. Any contact with a patient – for
example, in providing vaccinations or examining sore throats with a
spatula – prima facie would constitute battery. To escape liability, the
doctor would have to justify the intrusion by proving that the patient
consented. This might be difficult to do in cases involving minor
procedures where no written consent had been obtained, records were
lost, or the practitioner has died (as had the prison doctor in Freeman
v Home Office (No. 2) [1984] QB 524). On the other hand, in the context
of actions by suspects against the police, or prisoners against prison
authorities, casting the burden of proof on the claimant might vitiate
the effectiveness of a battery action as a mechanism for vindicating
their civil liberties (but see R (on the application of Wilkinson) v
Broadmoor Hospital [2002] 1 WLR 419). In such circumstances, cases
would turn on the contest between the word of the prisoner and the
word of ‘respectable’ members of society in positions of responsibility.
4.5.3 Treatment here

Frequently, consent is a fundamental issue – especially in cases of
medical trespass. A question might arise of what exactly the patient
consented to, or indeed whether he or she was competent to give
consent at all. Logically, as it is for the claimant to prove absence of
consent, it might be expected that we should deal with these issues
here. But in practice, once the claimant has raised sufficient evidence to
cast doubt on the reality of a purported consent, consent is still treated
as a defence.
39
4.6 Defences: consent

Defences play an important part of the law of trespass to the person.
In this module, we deal with the two most important defences to the
trespass torts. These are:
•• consent and
•• self-defence.
The general principles are relevant just as much to assault and false
imprisonment as to battery.
4.6.1 Express or implied

Consent in the context of the trespass torts may be given expressly or
inferred from conduct. For example, a boxer’s consent to being punched
is implicit in his or her getting into the ring. Likewise, a teenager engaged
in horseplay with a friend cannot complain if he or she is injured by his
friend so long as the latter stays within the tacitly agreed rules of that
horseplay (Blake v Galloway [2004] 1 WLR 2844). Similarly, a footballer
consents not only to those tackles permitted by the rules, but probably
to those tackles that involve a technical breach of the rules of the game
as well. Where, however, an opponent commits a ‘professional foul’,
the conduct involved is beyond that to which the player agreed when
embarking on the game (Condon v Basi [1985] 1 WLR 866).
4.6.2 Class of act

Unless the claimant’s consent relates to the class of act complained of,
it will not prevent liability from arising. For example, the consent of an
occupier to a repairer entering his or her house in order to fix the boiler
would not stop the repairer from being held liable in battery if he or
she has sexual intercourse with the occupier. However, the claimant’s
consent need not correspond exactly to the defendant’s act. Thus, as
already noted, in the context of a contact sport consent generally to
the prospect of blows being struck will furnish the defendant with an
answer to liability (Blake v Galloway [2004] 1 WLR 2844, at [20]). It need
not be shown that the claimant consented to the precise number of
blows that were delivered. Of course, determining the generality of the
claimant’s conduct in a given case can be difficult. Each case will turn
on its own facts.
4.6.3 Subjective or objective test?

Consent is a state of mind on the part of the claimant. However, the
law is yet to determine definitively whether the claimant’s mental
state is ascertained subjectively or objectively. If a subjective test is
adopted, consent will be present only when the claimant agreed in
fact to the defendant’s contact with his or her person. On an objective
test (Bennett v Tugwell [1971] 2 QB 267, at 273), what was actually
running through the claimant’s mind at the time is not relevant. What
matters is whether the reasonable person would conclude, based on
an assessment of the claimant’s conduct, that the claimant consented
to the contact. A subjective test is more favourable to claimants and
promotes rights to personal security. An objective test gives greater
weight to the interest in freedom of action.
40
Chapter 4: Battery
4.6.4 Effect of consent

Consent always prevents liability in tort from arising. It is irrelevant
that the act consented to results in the infliction of serious harm for
inadequate reasons. It has been held, for example, that a person can
consent to the risk of being fatally shot (Murphy v Culhane [1977] QB
94) or to being injured in a bar fight (Bain v Altoft [1967] Qd R 32, at 41).
4.7 Defences: self-defence

A battery might be justified on the ground of self-defence. In order to
establish this defence, the defendant must prove that it was necessary to
use force to repel an attack by the claimant (or to prevent or terminate a
false imprisonment) and that the amount of force used was reasonable.
4.7.1 Necessity
The necessity requirement means that the defence will be unavailable
unless physical force was the only realistic means of avoiding the threat
posed by the claimant. Suppose, for example, that a defendant could
prevent the claimant from murdering him or her either by shooting the
claimant or by closing and locking a door between him or her and the
claimant. If the defendant opted to shoot the claimant, self-defence
would be excluded because it would be unnecessary do this in order
for the defendant to save himself or herself.
The criterion of necessity dictates that the threat posed by the claimant
must be reasonably imminent. This is because threats that are not
proximate can be neutralised other than by using defensive force, such
as by seeking help from the authorities. In other words, the defence of
self-defence does not create a privilege to commit pre-emptive strikes.
Of course, this does not mean that the defendant has to wait until he or
she is struck before it is permissible to use defensive force. This would
not make sense for, on occasion, the opportunity for the defendant to
save himself or herself might be lost if he or she does not act first. Thus,
the law permits the defendant to strike before the claimant if doing so
is necessary (Dale v Wood (1822) 7 Moore CP 33). The point is that the
defence is unavailable if the threat is so distant that it is speculative.
The necessity limb means also that force that comes after a threat has
passed will not amount to self-defence.
4.7.2 Reasonableness
The reasonableness limb is concerned with whether the amount of
force used by the defendant was proportionate to the threat posed by
the claimant. What constitutes reasonable force is a question of fact to
be determined in the light of the circumstances. It will be relevant to
consider, among other things, how the defendant resisted the claimant,
whether a weapon was used, and the number of times that the claimant
was struck. It is not a question simply of comparing the evil of the
response with the evil of the attack. Suppose that A pins B against a wall
and repeatedly kisses B against his will. The only means by which B can
compel A to desist is by lacerating A’s hands with a pair of scissors that B
41
is holding. It is not certain that the defence of self-defence will fail simply
because the wounding is more severe than the unwanted kisses.
Further issues regarding defences are considered in Chapter 13 of
Witting.
4.8 Damages
Trespass being actionable per se (without proof of actual harm
being suffered by the claimant other than that to his or her dignity),
damages can be awarded even when the claimant suffers no tangible
harm (Ashley v CC of Sussex [2008] 1 AC 962, at [60]). This reflects the
importance the law attaches to the autonomy of the person and
the affront to personal dignity that frequently arises from battery
(see Cane, 2017, pp.25–26). Furthermore, it seems that, once the
tort is proved, consequential loss in respect of goods, as well as the
personal injury sustained, can be recovered (Glover v London and
South Western Rly Co (1867) LR 3 QB 25). And the courts can award
additional damages also on account of insult or injury to feelings in
respect of a battery that has caused harm (Loudon v Ryder [1953] 2 QB
202. There is doubt as to whether such damages are available in cases
where the battery does not occasion any physical harm. (See the Riot
Compensation Act 2016, ss.1 and 8).
1. What interests in the person does the tort of battery protect? Are these limited
to physical states or do they go beyond this?
2. Is there still a measure of confusion about the kind of mental state required in
order for the defendant to be liable for battery? What is the most important
mental state found in these cases?
3. Who must prove consent or lack of consent in battery cases? Do the rules
make sense? Why were they so-constructed?

•• explain what the tort of battery is and what its elements are
•• describe typical situations in which battery arises
•• explain how battery is seen as an ‘intentional’ tort
•• explain why some unconsented to contacts with the body are not treated as
battery
advise a client about whether a battery has been committed in their individual
case.
42
Chapter 4: Battery

At school, Jamie approaches a friend, Liam, from behind and slaps him on the
back very hard, in order to dislodge the can of soda that he is drinking. This event
causes no injury to Liam except that he ingests some of the soda into his lungs
and suffers a coughing fit. A teacher sees this incident and comes up to Jamie
and restrains him (because the teacher thinks that Jamie is about to engage in
further physical ‘horseplay’). Jamie is sent to the head teacher’s office. The head
teacher, Nina, puts her hand on Jamie’s shoulder and tells him that he needs to
think carefully about the consequences of his actions. Later that day, Jamie tries
to board a train to go home. He has to push Portia aside somewhat so that he can
enter before the doors of the train close. Advise as to whether any batteries have
taken place in this scenario.
Feedback: p.44.
43

Prima facie, each of these contacts would fulfil the requirements for battery
involving intentional, direct contacts with the body that are unwanted, except
that Nina’s putting her hand on Jamie’s shoulder might not be capable of
the latter characterisation. There can be no action of battery with respect to
unconsented to contacts that are acceptable in everyday communal interactions.
These would include the need to mildly push past people in public transport and
play among children in school. However, the question will always be whether the
contact has gone beyond what is acceptable. Recall that the usual test is likely to
involve asking what amounts to ‘molestation’. The teacher might be able to prove
a defence not dealt with in the text above, which is that of defence of another (as
to which see Witting). Otherwise, defendants might want to try to prove consent.
44
Notes
Notes
45
Notes
46
Chapter 5: Assault
Chapter 5: Assault
5.1 Introduction
Although an assault will often be committed just before a battery, it
makes sense to deal with assault here because the tort’s definition
refers to acts that constitute battery. Whereas battery is relatively easy
to conceptualise, assault is slightly more complex. Issues that we need
to consider are:
•• the definition of assault
•• the type of intention required in order to commit the tort
•• the objective nature of the apprehension that must be brought about
•• issues concerned with assault by words and silence, and
•• directness.
Learning outcomes
By the end of this chapter, and having completed the Essential readings and
activities, you should be able to:
•• explain what an assault is and how it differs from battery
•• advise as to the elements of assault
•• advise as to what kind of test is used to determine whether a relevant
apprehension has been caused – that is, whether objective or subjective in nature.
Essential reading
•• Witting, Chapter 10 Trespass to the person and related torts, Section 3 Assault,
and/or
•• Lunney et al., Chapter 2 Intentional interference with the person, Section II
Assault.
Cases
•• Read v Coker (1853) 13 CB 850.
•• R v Ireland [1998] AC 147.
•• Stephens v Myers (1830) 172 ER 735.

•• Trindade, F. ‘Intentional torts: some thoughts on assault and battery’ (1982) 2
Oxford Journal of Legal Studies 211.
5.2 Definition
An assault is any act of the defendant that directly and intentionally
(or perhaps negligently) causes the claimant reasonably to apprehend
the imminent infliction of unwanted bodily contact. The law of assault
is substantially similar to the law of battery except that, in assault, a
reasonably held apprehension of contact (rather than contact itself )
must be established. Usually when there is a battery there will be
an assault, but not, for instance, when a person is hit from behind.
47
To shake a fist under the claimant’s nose, to aim a blow at him or her
which is intercepted, to surround him or her with a display of force
(Read v Coker (1853) 13 CB 850), or to point a loaded gun at him or her,
is to commit an assault.
5.3 Intention
Even more clearly than with battery, the intention element in assault
goes to the commission of the relevant act. If the defendant intends
to commit the acts which bring about an apprehension of imminent
bodily contact, this lays the ground for liability in assault. Some
question arises as to whether assault can be pleaded in circumstances
of negligence (as to which the discussion in Chapter 4 is some guide).
5.4 Apprehension – objective test

Within the tort of assault what must be apprehended is actual
unwanted physical contact. The test is concerned with whether a
person reasonably would anticipate the contact. The test is, thus,
objective in nature rather than subjective. As such, it is obvious
that simply photographing a person against his or her will is not an
actionable assault (Murray v Ministry of Defence [1985] 12 NIJB 12).
Where interventions of the police, or other protective intrusions,
ensure that persons cannot carry out threats of violence and abuse,
no assault is committed. Thus, where working miners were driven into
their collieries on buses with police guards, the threats yelled at them
by striking miners were not assaults (Thomas v NUM [1985] 2 All ER 1, at
24). The claimants could not reasonably have apprehended that those
threats would be carried out there and then and, thus, they fell outside
the scope of this tort. It is clear as such that the tort of assault provides
limited protection only from the infliction of mental anxiety.
But what about the use of an unloaded gun? In Stephens v Myers (1830)
4 C & P 349, Tindal CJ said that ‘it is not every threat, when there is no
actual physical violence, that constitutes an assault, there must… be
[in addition] the means of carrying the threat into effect’ (at 349–50.
In Osborn v Veitch (1858) 1 F & F 317 it was held that to point a loaded
gun at half-cock at C was an assault because there was ‘a present
ability of doing the act threatened’, the cocking of the gun taking just
a split second). Thus, in 1840, it was still said that pointing an unloaded
gun at the claimant was not assault (Blake v Barnard (1840) 9 C & P
626). These cases have not been overruled, but in criminal law such
an act is now treated as an assault (R v St George (1840) 9 C & P 483).
Reasoning by analogy, it is submitted that a modern court would reach
the equivalent conclusion in tort. A reasonable person could not be
expected to know that a gun being pointed at them in a threatening
manner was not loaded. Conversely, if the claimant is paranoid and
perceives the defendant’s innocuous waving of his or her hand in the
air during conversation as a threat, there is no assault.
48
Chapter 5: Assault

5.5 Mode of commission

5.5.1 Words
At one time it was thought that mere words could not constitute an
assault (see R v Meade and Belt (1823) 1 Lew CC 184 at 185, where it
was said obiter that ‘no words or singing are equivalent to an assault’),
but the rule is now otherwise. According to the House of Lords in R v
Ireland [1998] AC 147, words that instil a reasonable fear of an imminent
battery amount to a tortious assault for ‘[the] means by which persons
of evil disposition may intentionally or carelessly cause another to fear
immediate and unlawful violence vary according to the circumstances’
(at 166. The case centred on telephone calls, but unless a call is made
from a mobile phone just outside C’s house, it seems contrary to
principle to embrace such a case within assault, given the want of an
imminent battery). On the other hand, words accompanying an act
might explain away or make conditional what otherwise would be
an assault. Thus, there was no assault in an ancient case where the
defendant with his hand on his sword said: ‘[i]f it were not assize-time,
I would not take such language from you’ (Tuberville v Savage (1669) 1
Mod Rep 3).
5.5.2 Silence
Traditionally, there always has been an element of ‘physicality’ in
assault cases, and this appears to be a sensible requirement in a tort
which is supplementary to battery in protecting the body, autonomy
and dignity of the person. However, in R v Ireland the House of Lords
went so far as to hold that silence over the telephone could support
a criminal conviction and, possibly, an action in the tort of assault. In
hindsight, this development appears to have been unnecessary, given
the passage of the Protection from Harassment Act 1997 and it is
submitted that tort law should not follow Ireland.
5.6 Directness
There must be a direct connection between the acts which are
threatening in nature and the apprehension of an imminent bodily
contact.
5.7 Defences
The defences of consent and self-defence were introduced earlier, in
Chapter 4. Further discussion of the defences can be found in Witting,
Chapter 13.
49
1. How is battery different from assault? Provide a definition of assault.
2. Is the fault element in assault simpler to state than that in battery? Why or why
not?
3. How is ‘reasonable apprehension’ tested for in assault?

•• explain what an assault is and how it differs from battery
•• advise as to the elements of assault
•• advise as to what kind of test is used to determine whether a relevant
apprehension has been caused – that is, whether objective or subjective in
nature.

Linda is playing around with her classmates. They are playing ‘truth or dare’.
Janie threatens to reveal a secret about Linda that only the two of them know.
Laughing this off, Linda says: ‘If you do, I’ll come around to your place tonight and
whack you with a broom’. After hearing this threat, Janie reveals Linda’s secret to
the group. This immediately enrages Linda, who is known to have a hot temper.
When Janie turns around to leave, Linda comes up behind her and slaps her on
the back. Janie turns around and is just about to launch herself physically at Linda
when their friends intervene and hold Janie back. Linda approaches Janie and
slaps her again – this time on the face – and runs away.
Advise as to whether any battery has been committed in this scenario.
Feedback: p.52.
50
Notes
Notes
51

There is likely to be battery only in the last scenario here. Problems with bringing
actions for battery in the other scenarios are as follows. With respect to the
threat of hitting with a broom, Janie does not apprehend an imminent bodily
contact. Moreover, the words constitute a conditional statement. Otherwise,
note that words can be sufficient in assault. With respect to the back-slap, while
this is battery, Janie did not see it coming and thus could not have apprehended
an imminent bodily contact. With respect to Janie turning around, this is more
borderline. The question will be whether it was reasonable for Linda to apprehend
the imminent bodily contact.
52
6.1 Introduction
The tort of false imprisonment protects the claimant’s interests in
freedom from confinement and in liberty more generally. Matters that
must be considered in this chapter include:
•• what sort of fault need be present
•• matters to do with the character of the defendant’s act
•• the issue of whether the claimant needs to know of the restraint, and
•• the award of damages for commission of the tort.
Learning outcomes
•• explain what constitutes a false imprisonment
•• explain how this tort is fault-based
•• explain what sorts of acts would amount to a sufficient restraint in false
imprisonment
•• determine the factors relevant to an award of damages for false imprisonment.
Essential reading
•• Witting, Chapter 10 Trespass to the person and related torts, Section 6 False
imprisonment, and/or
•• Lunney et al., Chapter 2 Intentional interference with the person, Section IV
False imprisonment.
Cases
•• Bird v Jones (1845) 115 ER 668.
•• R v Governor of Brockhill Prison, ex p Evans (No. 2) [2001] 2 AC 19.
•• R (Lumba and Mighty) v Secretary of State for the Home Department [2012] 1 AC
245.
6.2 Definition
False imprisonment involves an act of the defendant which directly
and intentionally (or possibly negligently) causes the confinement of
the claimant within an area delimited by the defendant. Usually, when
there is a false imprisonment there will be an assault or battery also,
but not, for example, when A voluntarily enters a room and B then
locks the door trapping A inside.
6.3 Fault
6.3.1 Intention
Normally, false imprisonment arises from ‘intentional’ acts in the sense
that the defendant intends to act in a way which is substantially certain
to effect the confinement. Indeed, even where the defendant acts in
53
good faith, he or she might be liable for an intentional confinement

of the claimant. Thus, in R v Governor of Brockhill Prison, ex p Evans (No.
2) [2001] 2 AC 19, a prison governor who calculated the claimant’s
release date in accordance with the law as understood at the time
of her conviction was held liable when a subsequent change in the
interpretation of the law meant that the prisoner should have been
released 59 days earlier. However, since the governor was obliged to
detain the claimant until the law applicable to the calculation of the
prisoner’s release date was re-interpreted – on which date she was duly
released – it is difficult to see why the governor could not have relied
on the defence of necessity. Of course, if the law were to have been re-
interpreted before the actual release date, it would have been proper
that the detainee should be able to sue because an honest mistake as
to the right to continue detention ‘does not excuse a trespass to the
person’ (Hepburn v CC of Thames Valley Police [2002] EWCA Civ 1841):
the requisite intention to detain will be present and that is all that
counts in the absence of a recognised justification (such as necessity).
Brockhill Prison is an example of errors ostensibly on the part of the
prison governor. In Quinland v Governor of Swaleside Prison [2003]
QB 306, by contrast, it was more clearly judicial error in stating the
sentence to be three months longer than it ought to have been that
caused the claimant to be detained longer than he should have been.
The Court of Appeal stated that, since the prisoner was detained
unduly by virtue of a court order, there would be no remedy apart
from the correction of the arithmetical error that had occurred in
adding together the various periods of confinement attributable to the
offences of which the claimant had been convicted.
6.3.2 Negligence
In principle, negligence ought to be enough to engage liability for false
imprisonment. Accordingly, if a person locks a door, being unaware
of the presence of somebody in the room and not having checked,
this should suffice. On the other hand, a remedy was made available
in one case under the auspices of the tort of negligence, but not false
imprisonment, when a prisoner was negligently detained for a period
that exceeded that authorised by the court (Clarke v Crew [1999] NLJR
899). This suggests that the courts might take a dim view of any claim
based on ‘negligent false imprisonment’ (for example, Iqbal v Prison
Officers Association [2010] QB 732, at [71]–[72]).
6.4 Character of the defendant’s act

6.4.1 Total restraint
The courts insist upon total (as opposed to partial) restraint of the
person (partial restraint was the subject of an action on the case, on
proof of damage: Wright v Wilson (1699) 1 Ld Raym 739; Bird v Jones
(1845) 7 QB 742, at 752). Thus, to prevent a person from crossing a
bridge except by making a detour around a portion of the bridge
which has been closed off is not false imprisonment. Nor is it false
54
imprisonment if A is able to escape confinement by a nominal trespass

on the land of a third party (Wright v Wilson). So long as there is a total
restraint, a tort is committed and the shortness of the duration will be
taken into account when calculating damages (Walker v Commissioner
of Police [2015] 1 WLR 312).
6.4.2 Place of confinement

Although confinement must be total, it need not be in a ‘prison’ as
such. While preventing the claimant from landing in England from
mainland Europe would not be a false imprisonment, it is more likely
that the tort would be committed were the claimant to be restrained
from leaving the Isle of Man. Certainly, one might be confined in a
mine (Herd v Weardale Steel, Coal and Coke Co Ltd [1915] AC 67), in a
house (Warner v Riddiford (1858) 4 CBNS 180), in a doorway (Walker v
Commissioner of Police) or in a vehicle (Burton v Davies [1953] QSR 26).
The important point is that the defendant must fix boundaries to the
area of confinement. As Coleridge J said in Bird v Jones (1845) 7 QB 742,
at 744:
Some confusion seems... to arise from confounding

imprisonment of the body with mere loss of freedom...
Imprisonment... includes the notion of restraint within some
limits defined by a will or power exterior to our own.
Lord Denman CJ, in his dissenting judgment in the same case, said (at
754–55):
As long as I am prevented from doing what I have a right to do,

of what importance is it that I am permitted to do something
else?... If I am locked in a room, am I not imprisoned because I
might effect my escape through a window, or because I might
find an exit dangerous or inconvenient to myself, as by wading
through water...?
Although this contention was rejected so far as the adequacy of
a partial restraint is concerned, it is suggested that, if someone
can escape only at the risk of personal injury, or if it is otherwise
unreasonable for him or her to escape, false imprisonment arises.
On the other hand, the barriers that restrain the claimant need not be
physical. Restraint on movement, even by a mere threat of force that
intimidates a person into compliance, is false imprisonment. This is to
say that a restraint achieved by a mere assertion of authority is enough,
which is what occurred in a case involving wrongful arrest by the police
where no touching took place (Walker v Commissioner of Police [2015]
1 WLR 312, at [23]). The claimant need not risk retaliation by resisting
the defendant, even though he or she is entitled to use reasonable
force to resist unlawful restraint (R v McKoy [2002] EWCA Crim 1628).
Thus, when a Commissioner in Lunacy wrongfully used his authority
to dissuade the claimant from leaving his office, he was liable in false
imprisonment (Harnett v Bond [1925] AC 66).
By contrast, where a voluntary mental patient is restrained only in the
sense that he or she would be compulsorily detained under mental
health legislation if he or she attempted to leave, there is no false
imprisonment (R v Bournewood Community and Mental Health NHS
55
Trust, ex p L [1999] 1 AC 458). This is because the tort turns on actual,

not merely potential or conditional, imprisonment. (However, the
European Court of Human Rights held subsequently that there was
a contravention of Article 5(1) of the European Convention (HL v UK
(2005) 40 EHRR 32). In Surrey CC v P [2014] 2 WLR 642, the Supreme
Court appears to have accepted the ECtHR analysis of this issue,
emphasising in proceedings concerned with the Mental Capacity
Act 2005 that the fact of deprivation is to be determined objectively,
and arises where there is ‘continuous supervision and control and
lack of freedom to leave’ (at [63]). This is so whether or not the person
detained has the desire to leave. Lord Kerr stated that ‘deprivation of
liberty is not solely dependent on the reaction or acquiescence of the
person whose liberty is curtailed’ (at [76]).)
6.4.3 Prisoners
Once a person is lawfully detained, changes in the conditions of his or
her detention will not render it unlawful. In a series of cases, prisoners
argued that detention in intolerable or unsanitary cells constitutes
false imprisonment. The House of Lords rejected their claims (R v
Deputy Governor of Parkhurst Prison, ex p Hague [1992] 1 AC 58). Once
a prisoner is lawfully imprisoned under the Prison Act 1952, he or she
no longer enjoys any ‘residual liberty’ and the governor is entitled to
restrain and define his or her movements (see R v Deputy Governor
of Parkhurst Prison, ex p Hague at 164 and 176–78). (This does not
mean, however, that a prisoner subjected to intolerable hardship is
remediless. In appropriate circumstances, he or she might have an
action for assault and battery, for misfeasance in public office, or, if
the conditions of confinement affect his or her health, in negligence.)
It is suggested that a similar analysis may be applied to detention by
police officers who retain the right to detain (albeit not in the unlawful
manner). For, if a remedy in false imprisonment lay, once an arrested
person could establish that the conditions of detention rendered his or
her further detention unlawful, the logical consequence would be that,
from that moment on, he or she could go free, using reasonable force
to effect an escape if necessary.
In Olotu v Home Office [1997] 1 WLR 328 it was held that a person
held on remand beyond the statutory time limit could not sue the
prison authorities for false imprisonment. The claimant was lawfully
in the custody of the prison governor and only an order of the Crown
Court could secure her release. The failure of the Crown Prosecution
Service to bring her to trial, or arrange her release on bail, and her
own surprising failure to apply for bail, did not affect the validity of
her detention. The claimant’s right was not a right to be released
from prison per se, but a right to an order of the court releasing her
on bail. In similar terms, a failure by the Parole Board to arrange an
expeditious parole hearing for a prisoner does not permit a claim
in false imprisonment for the period of the delay (although a claim
under Article 5(1) of the European Convention might lie in ‘exceptional
circumstances’ where the ‘prisoner’s continued detention had become
arbitrary’: R (on the application of Sturnham) v Parole Board [2013] 2 AC
254, at [13]); and a similar conclusion has been reached with respect to
a failure by a prison authority to release a prisoner into home detention
56
curfew once he became eligible to be considered for this (McCreaner v

Ministry of Justice [2015] 1 WLR 354, esp. at [33] and [35]).
6.4.4 Executive detention

The Crown is liable in false imprisonment for executive detentions
of persons subject to deportation orders, which become unlawful as
a result of breaches of public law duties. In R (Lumba and Mighty) v
Secretary of State for the Home Department, a material breach lay in the
application of a secret and unlawful policy for detention, rather than
the published policy ([2012] 1 AC 245). Liability was held to arise even
where the claimants inevitably would have been detained were the
published criteria for detention applied because of the risk that they
would abscond and commit offences. Lady Hale justified this result
by stating that the ‘law requires that decisions to detain should be
made on rational grounds and in an open and transparent way and
not in accordance with arbitrary rules laid down by Government and
operated in secret’ (at [205]). In Kambadzi v Secretary of State for the
Home Department [2011] 1 WLR 1299 the breach lay in a procedural
failure to review the continuing detention of the applicant on the
regular basis indicated within published policy guidelines. The system
of review was characterised as ‘integral to the lawfulness of the
detention’ (at [87]). In this case, Lords Brown and Rodger dissented,
arguing (cogently, it is suggested) that ‘[t]heir Lordships in Christie v
Leachinsky would... be astonished at the suggestion that any failure to
give effect to a self-imposed requirement for periodic review of the
continuing detention of those awaiting deportation... renders that
detention unlawful’ (at [108]).
6.4.5 Positive act

A false imprisonment will normally result from some positive act (see
Iqbal v Prison Officers Association [2010] QB 732, at [21] and [35]); but
in Herd v Weardale Steel, Coal and Coke Co [1913] 3 KB 771 the question
was whether there might be liability in respect of a mere omission.
In that case, the claimant, a miner employed by the defendants,
descended into the mine in pursuance of his contract of employment.
During his shift, the claimant requested that the defendants carry him
to the surface in their cage. In refusing this request, the defendants
committed no breach of contract: their contractual obligation was to
transport the claimant to the surface at the end of his shift. The action
in false imprisonment also failed (see also Robinson v Balmain New Ferry
Co Ltd [1910] AC 295, at 299).
This case is authority for the proposition that failure to provide a means
of egress from premises is not a tort when there is no duty to provide
it. Thus, if A falls down B’s mineshaft while trespassing on B’s land, it is
not false imprisonment should B refuse to bring A to the surface in an
available lift. What Herd left undecided, however, is whether the failure
to carry out a duty – contractual or otherwise – might constitute false
imprisonment even though there has been no relevant positive act on
the part of the defendant. Here we might note that the House of Lords in
R v Governor of Brockhill Prison, ex p Evans (No. 2) [2001] 2 AC 19 made it
clear that the tort is committed where an obligation to release a prisoner
who has served his or her full term is not fulfilled on time. This general
57
approach is fortified by the executive detention case of Kambadzi v

Secretary of State for the Home Department, already discussed.
6.4.6 Directness
False imprisonment must result from an act of the defendant which
deprives the claimant of his or her liberty directly (Iqbal v Prison Officers
Association). So, it is not false imprisonment to cause a person to be
temporarily detained in an asylum by making false statements to the
authorities about his or her behaviour, it being the latter who exercise
the restraint. Again, prison officers do not falsely imprison prisoners
who are scheduled for daily release from their cells (but are to remain
within the confines of the prison) after the officers have gone suddenly
on strike that day (Iqbal v Prison Officers Association; J Varuhas [2010]
CLJ 438).
6.4.7 Burden
Where a direct and intentional confinement can be shown, the burden
of proof is upon the defendant to justify that confinement (R (Lumba
and Mighty) v Secretary of State for the Home Department [2012] 1 AC
245, at [64]). If this burden cannot be discharged, the defendant is
liable no matter how short the period of detention. As adumbrated, the
length of time imprisoned is a matter for damages.
6.5 Knowledge of the claimant

There is no requirement that the claimant alleging false imprisonment
be aware of the restraint on his or her freedom at the time of
confinement. In Meering v Grahame-White Aviation Co (1919) 122 LT 44
a man persuaded by works police to remain in an office, but unaware
that had he tried to leave he would have been prevented from doing
so, successfully recovered damages for his imprisonment. The House of
Lords in Murray v Ministry of Defence [1988] 2 All ER 521 endorsed the
result, stating that actual knowledge of detention is not a necessary
element of false imprisonment. According to Lord Griffiths, proof of a
total restraint should suffice. He said (at 704):
The law attaches supreme importance to the liberty of the

individual and if he suffers a wrongful interference with that
liberty it should remain actionable even without proof of special
damage.
It would seem to follow from this that, if a ‘prisoner’ has a reasonable

means of escape at his or her disposal, but does not know of it, there
will be a false imprisonment. However, the ‘prisoner’ might need to
show that a reasonable person would not have known of the escape
route, either.
58
6.6 Persons liable

When deciding who can be sued for false imprisonment, the usual
question is: who was ‘active in promoting and causing’ the confinement
(Aitken v Bedwell (1827) Mood & M 68)? Often, this issue arises when
a person is detained and charged for an offence where the arrest is
unjustified by law (see Pike v Waldrum and P & O Navigation Co [1952]
1 Lloyd’s Rep 431). Giving information to the police, on the basis of
which a police officer exercises his or her own judgement and arrests
the claimant, does not impose on the informer responsibility for that
arrest, however likely it is that an arrest will ensue from the information
proffered.
Thus, a store detective was not liable when the claimant was arrested on
the basis of information which she gave to police officers, even though
her information proved to be erroneous (Davidson v CC of North Wales
[1994] 2 All ER 597). Even signing the charge sheet at the police station
will not necessarily render the private citizen liable for the claimant’s
detention (Sewell v National Telephone Co [1907] 1 KB 557). It must be
shown that the claimant’s detention was truly the act of the defendant
rather than of the police. So, where a police officer refused to take the
claimant into custody unless the defendant charged him and signed the
charge sheet, the defendant, not the police officer, was held responsible
for that detention (Austin v Dowling (1870) LR 5 CP 534).
6.7 Defences
The defences of consent and self-defence were introduced earlier, in
Chapter 4. Further discussion of the defences can be found in Witting,
Chapter 13.
6.8 Damages
6.8.1 General
Like the other intentional torts, false imprisonment is actionable per
se – or without proof of damage (R (Lumba and Mighty) v Secretary of
State for the Home Department [2012] 1 AC 245, at [64], [197], [212],
[252] and [343]). In addition to damages for loss of liberty, the court
may compensate for injury to feelings and loss of reputation (Hook v
Cunard Steamship Co Ltd [1953] 1 All ER 1021). In R (Lumba and Mighty)
v Secretary of State for the Home Department, the Supreme Court held
that, where false imprisonment has occurred and the claimant was
aware of the restraint, damages are to be more than nominal in nature.
But there is no separate head of ‘vindicatory’ damages (see at [101],
[170], [195], [236]–[237] and [335]).
6.8.2 Nominal damages

In cases of unlawful executive detention where the defendant authority
would have had the right to detain if it had applied the proper policy,
it has been held by way of exception that damages may be merely
59
nominal (R (Lumba and Mighty) at [71] and [161]). ‘The amount of

compensation to which a person is entitled must be affected by
whether he would have suffered the loss and damage had things been
done as they should have been done’ (Kambadzi v Secretary of State for
the Home Department [2011] 1 WLR 1299, at 74).
6.8.3 Aggravated damages

Aggravated damages might be awarded where the claimant has
been humiliated during his or her false imprisonment by the police
(see Wainwright v Home Office [2002] 3 WLR 405), although there
is a suggestion that this should happen in ‘exceptional cases’ only
(Richardson v Howie [2005] PIQR Q3, at [23]).
6.8.4 Exemplary damages

Exemplary damages are exceptional. They are granted only where
the sum of basic and aggravated damages is inadequate to punish
the defendant for oppressive and arbitrary behaviour. An award of
exemplary damages constitutes a windfall for the claimant and the
amount awarded must be no more than is sufficient to communicate
disapproval of relevant behaviour.
6.9 Other relevant law

There is a substantial overlap between the protection of liberty offered
by false imprisonment and the protection available under Article 5(1)
European Convention on Human Rights. The provision lays down a
‘positive obligation’ on the part of signatory states to ‘protect the liberty
of those within’ their jurisdictions (Stanev v Bulgaria (2012) 55 EHRR 696,
at [120]). It is said to be ‘in the first rank of the fundamental rights that
protect the physical security of an individual’ (McKay v United Kingdom
(2006) 44 EHRR 827, at [30]). There must be more than a mere restriction
of liberty by the state; there must be a deprivation of liberty (Secretary of
State for the Home Department v AP [2011] 2 AC 1, at [2]).
In keeping with the courts’ modern view that the presence of an ECHR
prohibition does not necessarily require adaptation by the common
law of torts, it has been held that gaps in the law of false imprisonment
need not be filled in order to ensure the UK’s compliance with Article
5 (Zenati v Commissioner of Police [2015] QB 758, at [51]–[54]). Thus, a
remedy might be available under this provision where the claimant
would fail in common law false imprisonment (e.g. Surrey CC v P [2014]
2 WLR 642). In such cases, the court is required to grant damages that
provide ‘just satisfaction’ to the claimant (subs.8(3) Human Rights Act
1998). This is a vindicatory award and need not be limited to the same
compensatory figure that would be awarded under the nominate tort
of false imprisonment. For even though there will be some degree of
overlap between an action premised on Convention rights and one
based on the common law, the two are not coextensive. If, however, a
claimant does pursue a remedy under the Human Rights Act 1998, he
or she must demonstrate a causal link between the breach of Article 5
60
and the detention (R (on the application of Richards) v Secretary of State

for the Home Department [2004] EWHC 93).
In the most extreme cases, where the claimant has been held in a state
of ‘slavery or servitude’, an additional cause of action is available under
ss.1 and 8 Modern Slavery Act 2015 which permits the making of a
‘slavery reparation order’.
1. What is false imprisonment? Does this tort add anything to that established by
the law of battery and assault?
2. What are the elements of false imprisonment?
3. What is the relevant fault element in this tort?
4. What constitutes a restraint for the purposes of this tort?
5. For what is compensation awarded when false imprisonment has been
proven in court?

•• explain what constitutes a false imprisonment
•• explain how this tort is fault-based
•• explain what sorts of acts would amount to a sufficient restraint in false
imprisonment
•• determine the factors relevant to an award of damages for false
imprisonment.

Jack was suspected of stealing some items in a supermarket. He was asked to
accompany the store detective, Robin, to the manager’s office. While waiting for
the manager, Robin went to the toilet – and locked the manager’s office door
while Jack remained inside. At first Jack did not notice this. However, his mum
rang and asked when he would be coming home for dinner. Jack tried to open
the door but found it to be locked. The manager’s office was on the first floor
of the supermarket building. The window was wide open and Jack could have
jumped down to the ground – although at a moderate risk of injuring himself.
Jack chose not to jump and waited for the store detective to return. Eventually,
it became clear to both the manager and the store detective that Jack had not
stolen any items and he was allowed to go home.
Advise on whether the tort of false imprisonment has been committed in this
scenario.
Feedback: p.62.
61

The elements of false imprisonment are present. This is to say that there has
been an intentional, direct and total restraint of the claimant in a confined space
brought about by locking the door while Robin went to the toilet. Although
there was some means of escape, it was not reasonable to expect Jack to use this
means. A defence might be available which has not been dealt with in the text
above – that is, defence of the property of another (as to which see Witting).
62
Chapter 7: Intentional infliction of

harm
7.1 Introduction
This chapter considers a tort with different origins from the other three
studied in Module A. While the other three are ‘trespass’ torts, each with
a requirement of directness, the tort of intentional infliction of harm
does not have such a requirement. Unlike them, it is an action on the
case – and as such requires proof of actual damage. In this chapter, we
consider whether such a tort has any great utility.
Learning outcomes
•• explain the origins of the tort of intentional infliction of harm and the attitude
of contemporary courts to it
•• describe the elements of the tort
•• explain the differences between the intentional infliction of harm tort and that
of battery or assault
•• explain the kinds of circumstances in which the intentional infliction of harm
tort might have some utility.
Essential reading
•• Witting, Chapter 10 Trespass to the person and related torts, Section 4
Intentional infliction of harm, and/or
•• Lunney et al., Chapter 2 Intentional interference with the person, Section V
Intentional infliction of physical or emotional harm.
Cases
•• O v Rhodes [2016] AC 219.
•• Wilkinson v Downton [1897] 2 QB 57.
•• Wainwright v Home Office [2004] 2 AC 406.

•• Reaume, D. ‘The role of intention in the tort in Wilkinson v Downton’ in Neyers,
J., E. Chamberlain and S. Pitel (eds) Emerging issues in tort law. (Oxford: Hart
Publishing, 2007) [ISBN 9781841137070], Chapter 21.
•• Witting, C. ‘Intended mental harm in tort law’ (1998) 21 University of New South
Wales Law Journal 55.
Works cited
•• Bagshaw (2015) 76 SLR 55.
•• McBride, N. and R. Bagshaw Tort law. (Harlow: Pearson, 2018)
[ISBN 9781292207834].
•• Simester, A.P. et al. Simester and Sullivan’s criminal law: theory and doctrine.
(Oxford: Hart Publishing, 2016) 6th edition [ISBN 9781849467223].
63
7.2 Wilkinson v Downton

For the past 120 years, the trespass to the person torts have been
accompanied in English law by a tort based on the intentional infliction
of harm. This action on the case (explained in Chapter 2 – it is not
a trespass tort) arose from Wilkinson v Downton [1897] 2 QB 57. On
the facts, the claimant was told by the defendant, who knew it to be
untrue, that her husband had been seriously injured in an accident.
Believing this, the claimant suffered nervous shock resulting in serious
physical illness, and was held to have a cause of action.
Wright J held the defendant, a practical joker, liable on the basis that
he had ‘wilfully done an act calculated to cause physical harm to the
plaintiff... which in fact caused physical harm to her’ ([1897] 2 QB 57,
at 58). But it was by no means clear that the defendant actually had
intended the harm caused. For this reason, Wright J explained that
intention might need to be imputed, and his Lordship went on to
impute such to the defendant. But this seems a rash step given that
the defendant intended only to play a joke. The defendant’s act
was more redolent of negligence even though the joke was played
intentionally. And, as McPherson J observed in Carrier v Bonham [2001]
QCA 234 at [27]:
Most everyday acts of what we call actionable negligence are in

fact wholly or partly a product of intentional conduct. Driving
a motor vehicle at high speed through a residential area is an
intentional act even if injuring people or property on the way
is not a result actually intended. Wilkinson v Downton is an
example of that kind.
He then went on to note that ‘the expression calculated... is one of
those weasel words that is capable of meaning either subjectively
contemplated and intended or, objectively likely to happen’, before
concluding that in Wilkinson v Downton those words were ‘being
used in the latter, not the former sense’ (at [25]). In short, he recast the
decision as a negligence case. And this, it is submitted, is the better
way in which that case should be understood, given that it was highly
improbable that the practical joker had subjectively intended anything
more than fleeting or, at most, short-term, distress. What was crucial to
Wright J’s particular decision was the likelihood of harm occurring from
the joke (which is a central question posed in negligence cases, see, for
example, Bolton v Stone [1951] AC 850).
7.3 Re-classification of Wilkinson v Downton

There is a historical explanation as to why Wilkinson v Downton has
been presented as a kind of intentional tort sui generis. The fleeting and
insubstantial nature of the ‘harm’ actually intended by the defendant
(as opposed to that which actually occurred) would not, at the time,
have sufficed to found an action on the case. The Privy Council decision
in Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222
had prohibited recovery for nervous shock induced by negligence.
64
Thus, Wright J preferred to impute to the defendant an intention to

‘produce some effect of the kind that was [actually] produced’ (at
59), even though that kind of harm almost certainly was never in the
defendant’s mind. In the light of the more generous, modern approach
to cases of psychiatric harm (see, for example, Alcock v CC of South
Yorkshire [1992] 1 AC 310), it seems high time that we abandon Wright
J’s historically rooted legal fiction and reclassify Wilkinson v Downton
as a negligence case in which the defendant failed to take appropriate
care to avoid causing psychiatric harm to the claimant. Strong support
for this reclassification of the actual decision in Wilkinson v Downton
can be taken from the discussion of the House of Lords in Wainwright v
Home Office [2004] 2 AC 406, at [47].
7.4 Utility of principle

Notwithstanding these comments, it would be a mistake to discard
Wilkinson v Downton wholesale (see McBride and Bagshaw, 2005,
pp.68–69). This is because there are many intentional acts besides the
spoken word that can cause harm indirectly and thus defy classification
as forms of trespass. And without the rule in Wilkinson v Downton, it
is debatable whether there would be a cause of action. Thus, putting
poison in another’s tea, or digging a pit into which it is intended that
another should fall, are not trespasses, but might be brought within
the stated rule in Wilkinson v Downton. Furthermore, there are ancient
cases declaring that it is a tortious act deliberately to set spring guns
or other mechanical devices with the intention of injuring trespassers
which can be explained according to Wright J’s principle (Deane v
Clayton (1817) 7 Taunt 489; Bird v Holbrook (1828) 4 Bing 628). The only
other way of dealing with such cases would be to allow negligence
suits based on intentional and reckless conduct. And while this is not
per se objectionable (for reasons explained in Chapter 3), it does run
up against the objection that, in Letang v Cooper [1965] 1 QB 232, Lord
Denning MR and Danckwerts LJ made a strenuous effort to keep apart
negligence and the intentional torts against the person.
For a time, during the mid-1990s, it looked as though the principle from
Wilkinson v Downton would be extended beyond the protection of physical
and mental health, to the protection from harassment (Khorasandjian v
Bush [1993] QB 727). Yet dicta by the Court of Appeal in Wong v Parkside
Health NHS Trust [2001] EWCA Civ 1721 halted this expansion of the tort in
its tracks. In cases of distress falling short of negligently inflicted psychiatric
harm or assault, the preferred route to redress was thought to be the
Protection from Harassment Act 1997.
However, in O v Rhodes [2016] AC 219 the Supreme Court affirmed
the existence of a tort of intentional infliction of harm based upon
Wilkinson v Downton. A claim was brought on behalf of an 11-year-old
boy, who suffered from learning and other disorders, against his father,
a pianist who intended to publish a ‘harrowing’ autobiography. The
autobiography detailed matters including the sexual abuse committed
by a sports coach against the defendant when he was a child. The
65
language used in the book was extremely explicit and it was argued
that, should the claimant learn of the essential facts detailed in it, it
was likely to cause him psychological harm. An injunction was sought
to prevent publication. Although the claim was rejected, the Supreme
Court upheld the underlying principle (at [42]) and clarified the
elements of the tort.
The tort is now seen to have the following elements: first, a conduct
element comprising actions or words directed towards the claimant
or an ascertainable group of persons that includes the claimant.
(Lords Neuberger and Wilson would have specified, further, that the
conduct be of an outrageous or extreme nature in order not to impede
ordinary discourse, including heated and unpleasant arguments (at
[74] and [110] respectively).) Second, the tort has an intention element
subsisting in deliberately causing either physical harm or severe
mental distress to the claimant. In underlining this requirement, the
Court explained that neither the idea of imputed intention, which
held sway in the Wilkinson v Downton era, nor that of recklessness as
to the causation of harm, would be sufficient (at [87]). Third, the tort
has a consequence element, which subsists in either physical harm or
a recognised psychiatric illness (not just distress) (at [73]). On the facts,
the Supreme Court held that the elements of the tort were not satisfied
because: the publication of the defendant’s book was for a wide
audience and not relevantly directed at the claimant and there was no
intention to harm the claimant.
So, what sort of conduct is likely to fall within the revamped tort of
intentional infliction of harm? Bagshaw seems to be correct in asserting
that the tort is ‘of more use against bullies, those who act intending to
make their victims’ lives miserable, than against foolish pranksters who
miscalculate the consequences of practical jokes’ (Bagshaw, 2015, p.55).
7.5 Defences
The claimant will succeed, inter alia, where the defendant has no
justification or reasonable excuse for his or her conduct (although the
court seems to be saying that the claimant bears the burden of proving
no justification or reasonable excuse ([2016] AC 219, [74]), this would
be surprising because these are defences). A justification consists in
reasons which entail that the defendant’s actions were not wrongful
in the circumstances of the case, while an excuse is a special ground
for not imposing liability despite his or her actions being wrongful
(Witting, 1998, p.67; compare Simester et al., 2016, p.677). Discussion of
relevant defences can be found in Witting, Chapter 13.
66
1. Why was Wilkinson v Downton not a strong case on which to apply a tort of
intended infliction of harm?
2. What are the elements of the modern tort?
3. How does the intention element in the intended infliction of harm tort differ
from that in battery and other trespass torts?
4. Is there a requirement of harm in order to plead this tort?

•• explain the origins of the tort of intentional infliction of harm and the attitude
of contemporary courts to it
•• describe the elements of the tort
•• explain the differences between the intentional infliction of harm tort and that
of battery or assault
•• explain the kinds of circumstances in which the intentional infliction of harm
tort might have some utility.

Jason hated to do his maths homework and hated to sit in his maths class.
During class time, he would do all that he could to undermine the lessons taught
by Mr Brewster. He would send text messages to other students, would make
inappropriate noises and constantly ask to go to the toilet. Mr Brewster suffered
severe stress as a result of this – and as a result of students in other classes
adopting the same tactics. The evidence is that Mr Brewster was a quietly spoken
man with an inability to confront troublesome class members. Eventually, Mr
Brewster was fired from the school and took his own life.
Advise as to whether an action could be brought against Jason for the intentional
infliction of harm.
Feedback: p.68.
67

Following O v Rhodes, the requirements for fulfilment of the tort are as follows.
•• First, actions or words directed towards the claimant or an ascertainable group
of persons that includes the claimant. This is satisfied.
•• Second, an intention element subsisting in deliberately causing either physical
harm or severe mental distress to the claimant. Recklessness is not sufficient.
It is likely that one could say that Jason was intending severe mental distress,
but not the physical harm (extinction of life). Nevertheless, this would seem to
be enough.
•• Third, either physical harm or a recognised psychiatric illness (not just distress).
This has occurred.
•• Fourth, the defendant should have no justification or reasonable excuse for his
or her conduct. Neither of these defences would be available.
68
Sample examination question (whole module)

At last week’s party at Fawkner College, the following events took
place:
•• The students formed a conga-line; Ariadne thought that Betty, who
was in the line behind her, had her hands too low down the side
of her hips; but Betty, who had been drinking heavily, says she was
just ‘having fun’.
•• Chris was upset by Betty’s behaviour towards Ariadne and went
over to hit Betty. However, Dobry caught Chris’s hand just as it was
about to make contact with Betty’s face. Betty says that she cannot
remember these events.
•• Chris shouted very loudly at Dobry in Polish – so much so that
Dobry jumped in fright. However, Dobry could not understand that
Chris was threatening to kill him – because he does not speak the
language.
•• Afterwards, both Ariadne and Betty went to the toilet. While Betty
was in the stall, Ariadne locked her in. Betty was in the stall for 10
minutes before she figured out that she could get out by sliding
under the door.
Advise the parties as to any causes of action available in torts.
Feedback: p.70.
69

Ariadne v Betty
•• Battery: direct contact with the body required: Collins v Wilcock.
•• A question of intention arises, given that Betty was drunk. This element is
satisfied because Betty has a simple awareness of the nature of her act and
acts deliberately.
•• Discussion of the defence of consent and the limits thereto. Betty seems to
be taking advantage of a limited consent to make contact with the body of
Ariadne: Condon v Basi.
Betty v Chris
•• Assault: intentional act required.
•• Leading to a direct apprehension.
•• Reasonable apprehension of imminent bodily contact: Collins v Wilcock. This is
an objective test, referring to what the reasonable person would apprehend
or expect in the circumstances. Capacity to strike was there, but Chris was
stopped at the last moment. This is sufficient: see Stephens v Myers.
Dobry v Chris
•• Assault: intentional act required.
•• Leading to a direct apprehension.
•• Reasonable apprehension of imminent bodily contact: Collins v Wilcock.
•• Assault from a combination of actions and words? Could Dobry reasonably
believe that he is about to be hit? Note that, despite the name, he does not
speak Polish and thus there is no assault with respect to the threat alone. The
assault arises, if at all, from the combination of actions and attitudes which
communicate to the reasonable person that a bodily contact is imminent.
Betty v Ariadne
•• False imprisonment: intentional act required.
•• Confinement must be brought about directly.
•• Complete restriction of movement? Or some choice available? See Robinson
v Balmain New Ferry. Depends on the reasonableness of the means of escape.
Could analyse factors such as the size of the gap under the door, the dirtiness
of the floor, the time of day, whether the toilets were busy, so that help would
be at hand, etc.
•• What if Betty unreasonably (perhaps because she was drunk) believes herself
imprisoned for those 10 minutes when all the while there was a way out? As
long as there is a reasonable means of escape, no false imprisonment arises.
70
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Advanced Torts: Module A: Introduction To Torts and Trespass To The Person

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Master of Laws (LLM)

Postgraduate Diploma in Laws

4.2.6 Transferred intent......................................................................................36

Chapter 7: Intentional infliction of harm........................................................ 63

1.1 Introduction to the course

•• Ibbetson, D. A historical introduction to the law of obligations. (Oxford: Oxford

1.3 Educational aims

•• understand the operation of several of the most important of the

1.4 How to use this Study Guide

Useful further reading

1.4.2 Online resources

Online research skills

1.5 Allocating your time

1.6 The examination

1.6.1 Preparing for the examination

in which you make sense of the materials, bringing them together

1.6.2 Taking the examinations

If you do all the above – provide a clearly structured answer which

1.7 Module A: Introduction to torts and trespass to

1.7.2 Tort law and common law

1.7.3 Definition of ‘tort’

Tort is that branch of the civil law relating to obligations

Learning outcomes for Module A

Chapter 2: History of tort law

Useful further reading

2.2 Trespass and case

2.3 Forms of action

been abolished, many old cases cannot be understood without some

2.3.2 Pleading in tort

Reminder of learning outcomes

Chapter 3: Protected interests and fault

Useful further reading

•• Carty, H. An analysis of the economic torts. (Oxford: Oxford University Press,

3.2 Protected interests

treatment (Article 3), freedom from slavery (Article 4), liberty

4. Due process. A right to protection from malicious abuse of the

3.3 Liability bases

3.3.1 Deliberate/intentional conduct

in the trespass torts (considered below). By contrast, there are a small

3.3.3 Strict liability

3.4 Intention in tort law

3.4.1 Intention is a complex concept

(Kantian) ideas about the importance of the human will in creating

A person intends a particular consequence of their conduct if their

Having made this distinction, Cane explains that recklessness is

the person who intends that their conduct should produce a

Another reason for accepting that recklessness is sufficiently equivalent

Recklessness can be distinguished, in turn, from negligence. Cane says:

Since tortious negligence involves no mental state, the line

In any particular case, intention and motive may coincide: a

3.4.2 Use of intention as a criterion of liability

degree of protection to financial interests. They are not seen to be as

Tortious intention plays an important part in justifying liability

Another role of intention is this: where it is present, it justifies a liberal

3.4.3 Proof of intention

… a judgment that a person’s conduct was intentional will

Thus, the reality is that ‘intention’ might be found where there is

Finnis’s views about when there should be liability in tort law do

Theories of moral responsibility that focus exclusively on the

In that same book, Cane describes tort law as embodying a two-

In the civil law paradigm, the interests of victims are given at

3.5 Negligence in tort law

Negligence as a tort is not to be equated with mere inadvertence