LIST OF CASES

TRESPASS TO PERSON
Tuberville v Savage [1669] EWHC KB J25

FACTS – A man placed his hand on his sword and told another, “If it were not assize-time, I would
not take such language.” The justices of assize were in town.

ISSUE – The question was as to whether laying a hand on a sword and stating “If it were not assize-
time, I would not take such language,” constituted an unlawful assault by placing another in
apprehension of immediate violence.

HELD – The Court held that an assault requires both (1) the intention and (2) the act of assault. Even
an act of, for example, striking a man, without an intention to assault, does not constitute an assault.
Accordingly, the Court held that the facts did not give rise as the man merely stipulated that he
would have the intention to assault if it were not assize-time. It was, indeed, assize-time and the
man’s declaration expressly stipulated that he would not and did not intend to commit an assault.
Thus, there could have been no assault as there were no intention nor act of assault, nor imminent
threat thereof.

R v St George [1840] 9 C&P 483

Facts - The Defendant (St. George) got into an argument with the victim, a Mr Durant. During the
course of this argument, the Defendant took out a gun and pointed it at Mr Durant. The gun was, in
fact, not loaded. He was in any event prevented from taking further action by a third party. The
Defendant was prosecuted for assault.

Issues - The issue in this case centred on the possibility of a threat being carried out. Assault is
commonly found where the victim was placed in fear of being harmed, however the question in the
present case was whether even if a victim was so afraid, assault could be found to exist where the
threat was impossible to perform (as was the case here, since the gun was unloaded). One aspect of
the issue before the court was therefore whether the victim’s fear had to have been reasonable.

Decision - It was held by the court that in the circumstances the Defendant was guilty of an assault.
Threatening someone with a gun, regardless of whether the gun was loaded, would amount to a
threat as long as the victim thought that the gun was in fact loaded. On the other hand, where the
victim was aware that the gun was not loaded, but was still afraid, that fear would be unreasonable
and therefore there would be no assault in those circumstances. The test applied is subjective, but
there must be at least a subjective possibility that the threat against the victim can be carried out.it
was held that pointing an unloaded gun at a person constituted an assault.

Blake v Barnard (1840) 173 ER 985 - it was held that the gun had to be loaded before assault could
be established.

Stephens v Myers (1830) 172 ER 735

Fact – the defendant threatened to hit the plaintiff and he advanced with his clenched fists upon
him. He was stopped by a third party, just before he could reach the plaintiff.

Decision – The court held that assault was established as he was capable of carrying out his threat, if
he was not stopped by the third party a mere few seconds before he hit the plaintiff
Thomas v National Union of Mineworkers (South Wales Area) [1986] Ch 20

Fact – Picketing miners threatened some other miners who did not join in the picketing. The
picketing miners were in fact controlled and observed by the police .

Decision – The court held that the threats issued by the picketing miners did not constitute an
assault on the other miners as there was no capability on the part of the picketing miners to commit
any form of physical contact with the other miners.

Innes v Wylie and Others (1844) 174 ER 800

Fact – A policeman acting under an instruction, prevented the plaintiff from entering a room. The
court held that if the policeman was entirely passive and simply obstructed the entrance of the
plaintiff, it would be no assault.

Issue – The question was whether the policeman took active measures to prevent the plaintiff from
entering the room, or did he merely stand in the doorway, passive and not move at all, in which case
there would be no assault.

Decision – it was held that, there was no assault on the plaintiff as there was no positive act of
obstruction from the policeman.

R v Meade & Belt (1823) 1 Lew CC 184, where Holyroyd J stated that "no words or singing are
equivalent to an assault", is often cited as authority for the proposition that words alone,
unaccompanied by physical gestures, cannot amount to an assault.

Where the court stated that no words or singing are equivalent to an assault.

R v Wilson R v Wilson [1996] 2 Cr. App. R. 241

Facts – Alan Wilson was charged under s 47 of the Offences Against the Person Act 1861 for assault.
He branded his initials into his wife’s buttocks with a hot knife.

Issues -

1. whether R v Brown (1993) 97 Cr. App. R. 44, is an authority for the proposition that consent is not
a defence to assault occasioning actual bodily harm to a person, under s 47 of the Act.

2. when criminal investigation or conviction is required where consensual activity between a couple
occurs in the privacy of their own home. Where consensual activity has taken place in the privacy of
one’s home, and is has not serious or extreme in nature, a defence of consent is valid against s 47 of
the Act and it is not a proper matter for criminal investigation.

Decision – The court distinguished the case of R v Brown holding that the engagement of the
defendants in sadomasochism which led to the decision to convict the defendant under s 47 of the
Act was extreme, with a serious risk of injury occurring.

There was no factual comparison to be made between the actions of Wilson and the facts presented
in R v Brown and there was no aggressive intent on the part of Wilson. It was further held that
consensual activity between a husband and wife in the privacy of their own home was not a matter
for criminal investigation or conviction. Therefore, consent was a valid defence to s 47. The appeal
was allowed and the conviction was quashed

Lord Goddard CJ held that the words “Get out your knives” constituted an assault.
R v Ireland [1998] AC 147

Facts – The Defendant in this case consistently called three separate women over the course of
three months. During each call he did not speak, but instead breathed heavily on the line. He was
prosecuted and convicted for assault occasioning actual bodily harm contrary to s.47 of the Offences
Against the Person Act 1861 c.100, on the grounds of the psychiatric injury suffered by the victims.
The Defendant appealed his conviction and argued that silence cannot amount to assault and
further that psychiatric harm was not actual bodily harm.

Issues – Whether silence could amount to assault occasioning actual bodily harm for the purposes of
s.47 OAPA 1861. Further, whether psychiatric injury can amount to ABH under the same provision.

Decision – The court held in the affirmative that silence causing psychiatric injury could constitute
assault occasioning ABH under s.47 OAPA 1861. Silence could act as a threat where it was done in a
way which could induce fear in the victim; where the victim is afraid that the threat will be acted on
in the near future, this could amount to an assault. Proximity of the Defendant to the victims is
irrelevant to this determination as fear could be induced equally easily over the telephone as in
person. It was held by the court that repeated phone calls of this nature could be expected to cause
a victim to apprehend immediate and unlawful violence. The principle is, words which instils a
reasonable fear of unlawful and immediate physical violence does amount to assault.

- (Lord Steyn) – “the proposition… that words cannot suffice is unrealistic and indefensible.. (the
phone caller) intends his silence to cause fear and intimidation.”

Scott v Shepherd [1773] 96 Eng. Rep. 525

Facts – The defendant threw a squib, which is a small, lit firework, into a busy marketplace with lots
of people and stalls. In order to protect themselves and avoid damage, the squib was thrown on by
two other people. When it landed near to the complainant, it exploded and caused injury to his face.
He later lost the use of one of his eyes. The original thrower, the defendant, was charged with
assault and trespass.

Issues – The defendant was found liable for trespass and he appealed this decision. The defendant
argued that the injury to the complainant was not caused by his actions; it was not a direct act, as
others threw the squib on. The issue in the appeal was whether the defendant throwing the squib
caused the injury or whether other people broke this chain of causation and the injury was caused
by novus actus interveniens.

Decision – This case has become known as the Famous Squib case. The court dismissed the appeal;
the injury to the complainant was the direct and unlawful act of the defendant who originally threw
and intended to throw the squib. The other people were not ‘free agents’ in this situation and threw
on the squib for their own safety and this was justifiable. The throwing on was classed as a
continuation of the defendant’s action, which was intended. Whatever followed this was part of the
defendant’s original act.
Gibbons v Pepper [1695] 2 Salk 637

The defendant was riding a horse when someone hit the horse from behind, causing the horse to
bolt. The horse collided with the plaintiff, and in action against the defendant.

the court found that defendant not liable as the incident of the horse bolting and colliding with the
plaintiff was outside his control.

Cole v Turner [1704] 6 Mod Rep 149

Facts – The case concerned an action brought before the court for trespass and battery. The
Claimants were a husband and wife, both of who had allegedly suffered battery by the
Defendant.

Issues – The issue in this case was the connection between anger and the tort of batter. The
question was whether any touching could amount to battery or whether there had to be an
element of aggression involved.

Decision – It was held that anger was a relevant element to the tort of battery and that
accidental touching would not amount to battery. At the same time even a light touch could
be converted to battery through the existence of anger.

Holt CJ stated that “the least touching of another in anger is a battery. If two or more meet in a
narrow passage, and without any violence or design of harm, the one touches the other gently,
it is no battery. If any of them use violence against the other, to force his way in a rude
inordinate manner, it is a battery; or any struggle about the passage, to that degree as may do
hurt, is a battery.”

Wilson v Pringle [1987] QB 237

Facts –two boys played in a school yard. Furthermore, the D said he had pulled a bag from the
other’s shoulder as an ordinary act of horseplay. However, the plaintiff said it was a battery.

Issue – Whether this act could be considered as an intentional tort.

Held – The court of appeal held that, there must be hostile touching before it can be amount to a
battery

In conclusion, a differently constituted COA thought that the above formulation was too wide and
impractical in application. Furthermore, the defendant’s appeal against summary judgment was
allowed. Firstly, a claim of trespass to the person amounting to a battery was established by showing
an intentional touching of the plaintiff. Moreover, that the touching was hostile. Where the facts of
the touching did not themselves establish hostility, the pleadings should particularise just how
hostility is shown. Therefore, force applied by way of self-defence amounts to lawful excuse.

Reasoning – Battery must be an intentional touching or contact in one form or another of the C by
the D. That touching must be proved to be a hostile touching. The element of hostility must be a
question of fact. It may be imported from the circumstances.
Collins v Wilcock [1984] 1 WLR 1172

Facts – A police officer wished to question a woman in relation to her alleged activity as a prostitute.
The woman decided to walk away, but the police officer was intent on stopping her and in order to
do so, grabbed her arm in order to prevent her from walking away. Under the Street Offences Act
1959 c.57, the police officer had no power to detain the woman. The woman struggled with the
police officer and scratched him. She was charged with assaulting a police office in the course of his
duty.

Issues – whether the conviction for assaulting a police officer was lawful given the lack of legal
authority on the part of the police office to restrain the woman.

Decision – It was held that the police officer was acting outside the scope of his powers as he had no
power to arrest the woman in that situation and therefore, was acting outside of the scope of his
duties as a police officer.

There was no question therefore of assaulting a police officer in the course of his duty. It was held
further that the grabbing on the part of the police officer, without the power to make an arrest,
amounted to an unlawful assault (a battery).

The woman had been entitled to resist as an action of self-defence. Her conviction was therefore
quashed. The court took the opportunity to clarify the meaning of battery as a touching of another
with hostile intent or in other words any intentional touching outside of the scope of what normally
acceptable.

Goff LJ – “[A] broader exception has been created to allow for the exigencies of everyday life.
Generally speaking consent is a defence to battery; and most of the physical contacts of ordinary life
are not actionable because they are impliedly consented to by all who move in society and so expose
themselves to the risk of bodily contact . . Although such cases are regarded as examples of implied
consent, it is more common nowadays to treat them as falling within a general exception embracing
all physical contact which is generally acceptable in the ordinary conduct of daily life. . [We] think
that nowadays it is more realistic, and indeed more accurate, to state the broad underlying principle,
subject to the broad exception. . . In each case, the test must be whether the physical contact so
persisted in has in the circumstances gone beyond generally acceptable standards of conduct; and
the answer to that question will depend upon the facts of the particular case.”

Nash v Sheen [1955] CLY3726

The claimant had gone to the defendant’s hairdressing salon where she was to receive a ‘permanent
wave’. A tone rinse was applied to her hair, without her agreement, causing a skin reaction. The
defendant was liable in battery.

Although, as the cases illustrate, the courts have been prepared to take a fairly wide view of what
amounts to a direct touching, the one thing that does appear to be clear is that only a positive act
will suffice. There is unlikely to be liability in battery for an omission.

The court held that the consent given by the plaintiff did not include the tone-rinse and its
consequences. Battery was established.
Tiong Pik Hiong v Wong Siew Gieu [1964] 30 MLJ 131

There was clear intention of the wrongdoer to scratch the face of claimant because it was her own
wilful, direct and intentional act of her own to scratch the face of another. The act of scratching is a
kind of touching that is unreasonable by a standard of a reasonable man to inflict physical injury to
another. Finally, the claimant here obviously did not consent her face being touched by the
wrongdoer

The defendant was found liable in battery for scratching the plaintiff’s face and hitting the latter, due
to her jealousy of the plaintiff’s friendship with her husband.

W Elphinston v Lee Leng San [1938] MLJ 130

It was held that false imprisonment cannot be established through negligence. Intention of the doer
is a prerequisite.

Harnett v Bond 1925 all er 110

The plaintiff lived in an asylum run by second defendant. The plaintiff was given a month’s leave, but
the second defendant was given the discretion to call the plaintiff back if he felt that the plaintiff
could not look after himself during that one month.

On his second day out, the plaintiff went to an office to pay a visit to some people. The first
defendant who was there, was of the opinion that the plaintiff was acting strangely. He called
second defendant, who asked the first defendant to make sure that the plaintiff stayed there, as the
second defendant would send a car round to fetch the plaintiff.

The car arrived some three hours later and the plaintiff was brought back to the asylum. The second
defendant found the plaintiff to be insane and did not let him out.

For nine years thereafter, the plaintiff was sent from one institution to another institution. He was
finally proven sane and released. The jury was of the opinion that the plaintiff was sane nine years
previously at the time of committal to the institution.

The Court of Appeal found the first defendant liable for false imprisonment during the three hours’
restraint, and the second defendant, for the nine years’ restraint.

Bird v. Jones [1845] 7 QB 742

Facts – Bird, B, wished to cross a section of a public road which was closed off due to a boat race.
Two policemen, D, prevented B from passing in the direction he wished to go, but was allowed to go
in the only other direction in which he could pass. B refused to go in that direction and stood in the
same place. B raised an action against D for false imprisonment.

Issues – B claimed that the exclusion from using a section of the public road which prohibited him
from moving in one direction, despite all other directions remaining unobstructed, constituted false
imprisonment.

Decision – Partial obstruction and disturbance does not constitute imprisonment. Coleridge J. stated
at paragraph 744 of his judgement that:

“a prison may have its boundary large or narrow, visible and tangible, or, though real, still in the
conception only; it may itself be moveable or fixed: but a boundary it must have; and that boundary
the party imprisoned must be prevented from passing; he must be prevented from leaving that
place, within the ambit of which the party imprisoning would confine him, except by prison-breach.”

A prison must therefore have a boundary. As there was still one direction which B could take, he
could not be said to have been imprisoned as he was not confined and prevented from passing or
leaving that place. B was at liberty to move off in another direction and no restraint or actual force
was used against him

Lord Denman - in his dissenting judgment held that if a person is prevented from doing what he has
a right to do, it does not matter that he is permitted to do something else.

Wright v Wilson 154 F.2d 616 (3d Cir. 1946)

It was held that no false imprisonment arose when the plaintiff could have escaped from his
confinement, although it meant he would have trespassed on another’s land in order to regain his
liberty.

Herring v Boyle: CExC 1834

Facts – A mother went to fetch her 10-year-old son from school on 24 December 1833 to take him
home for the Christmas holidays. The headmaster refused to allow her to take her son home
because she had not paid the last term’s fees, and he kept the boy at school over the holidays.

Held: Her action for false imprisonment brought on behalf of the boy failed.

Bolland B said: ‘as far as we know, the boy may have been willing to stay; he does not appear to
have been cognisant of any restraint, and there was no evidence of any act whatsoever done by the
defendant in his presence. I think that we cannot construe the refusal to the mother in the boy’s
absence, and without his being cognisant of any restraint, to be an imprisonment of him against his
will.’

The court held that the school authorities were not liable because the boy did not realize that he
was being falsely imprisoned.

Meering v Grahame-White Aviation Co Ltd.  (1919) 122 LT 44

The plaintiff was suspected of stealing varnish from his workplace, the defendant’s premises.
Following this suspicion, the defendant called the police to bring the plaintiff into the defendant’s
office.

The defendant told the police to stay around the office area and not to allow the plaintiff to leave
the same.

The plaintiff was subsequently proven to be innocent.

This view has been approved in the case of Murray v Ministry of Defence, where Lord Griffiths said
that:

• “if a person is unaware that he has been falsely imprisoned, and has suffered no harm, he
can normally expect to recover no more than nominal damages…. The law attaches supreme
importance to the liberty of individual and if he suffers a wrongful interference with that
liberty it should remain actionable without proof of special damage”.

Murray v Ministry of Defence [1988] 1 WLR 692

Facts – Margaret Murray, M, was a suspect of aiding IRA, a prohibited organisation in Northern
Ireland. D and five soldiers arrived at M’s house to arrest M at 7a. D ascertained M’s identity,
assembled all the occupants of the house in one room, and searched the house. D formally arrested
the plaintiff at 7.30 am under section 14 of the Northern Ireland (Emergency Provisions) Act 1978
(the 1978 Act) which allows members of the armed forces to arrest without a warrant and detain for
up to four hours a person suspected of committing an offence. M was taken to an army screening
centre where she was pat-searched, interviewed, and released at 9.35 am. M claimed damages
against the Ministry of Defence for false imprisonment and trespass. The judge dismissed her action.
M appealed to the Court of Appeal and then to the House of Lords.

Issue – M claimed that she had been wrongfully arrested, as she was given no proper reason for her
detention by the arresting officer.

Decision – It is not an essential element of the tort of false imprisonment that the victim should be
aware of the fact of denial of liberty. Where a person is detained by a police officer and knew that
they were being detained, that amounted to an arrest even though no formal words of arrest were
spoken by the officer. The failure to make the formal arrest until half an hour after entering the
house did not render M’s detention from 7am unlawful and under the circumstances of the case it
was reasonable for D to delay formally arresting M until D had taken the precautions to assemble all
the members in the house in one room and to search the house. The appeal was dismissed.

Robinson v Balmain New Ferry Co. Ltd [1910] AC 295

Facts – Robinson (R) paid a penny to cross on a ferry, however he narrowly missed the ferry and
changed his mind about crossing. R attempted to leave through the gate he came through, however
it required another penny to be paid to leave. R refused to pay the penny because he had not
crossed on the ferry. Balmain New Ferry Co. (D) forcibly prevented R from leaving until he paid the
penny. R raised an action for false imprisonment.
Issue – R claimed that he was falsely imprisoned due to the forcible prevention of his leaving the
ferry wharf without paying a penny to leave.
Decision – A person can be legitimately prevented from leaving if they had entered an earlier
contracted permitting so. When R entered the ferry gate, he agreed to pay a penny on both entering
and leaving the ferry. This bound him to a contract and D was entitled to impose a reasonable
condition before allowing him to pass through their turnstile from a place to which he had gone of
his own free will. This case narrows the law on false imprisonment, following the case of Bird v.
Jones  [1845] 7 QB 742 in which it was held that false imprisonment is constituted by total (and not
partial) obstruction, however in the present case it is held that it even where a person is totally
obstructed it will not constitute false imprisonment if there is a reasonable condition to passing
Herd v Weardale Steel, Coal and Coke Co Ltd. [1915] AC 67

Facts - Herd (H) was a miner in a coal mine. H attended work at 9.30 am, and in the ordinary course
of work he would be entitled to be raised to the surface from the mine at the end of his shift at 4pm.
When H arrived at work in the mine, he wrongfully refused to being work, and requested to be
raised to the surface in the lift at 11am. His employers, Weardale Steel, Coal and Coke Company, the
owners of the colliery (D), refused to allow H to be lifted to the surface until 1.30 pm. H was thus
detained in the mine until that time. H sued D for damages for false imprisonment.

Issues - H claimed that his prevention from using the lift until 1.30pm, which caused him to be
imprisoned in the mine as it was the only means of exit, constituted false imprisonment.

Decision/Outcome - There was no false imprisonment due to the operation in the present case of
the common law doctrine of volenti non fit injuria, which means that a person cannot bring an
action against another person for tort or delict if they had willingly placed themselves in a position
where harm might result, knowing that some degree of harm might result. In this case, the
imprisonment constituted the ‘harm.’ Following the case of Robinson v Balmain New Ferry Co. Ltd
[1910] AC 295, H was only entitled to the use of the exit on the terms on which he had entered. H
had breached his employment contract by refusing to do the work he was ordered to do. This breach
of contract justified his detention in the mine until the lift could be used at 1.10 that day.
 LIST OF CASES
TRESPASS TO GOODS
Wilson v Lombank [1963] 1 WLR 1294

Facts – Wilson bought a car off Lombank. The representative of Lombank had no right to sell the
vehicle. Wilson took the vehicle to the garage for repairs, where he had a line of credit with the
garage, having used them in the past. The car was mistakenly taken by another Lombank
representative, thinking it was one of theirs. Lombank later returned it to Wilson after realising their
mistake. Wilson sued for damages for trespass of the car.

Issue – Whether Wilson’s line of credit to the garage affected his possession over the vehicle and
whether he was entitled to damages for trespass.

Held – Upon consideration of the past dealings between the garage and Wilson, there was found to
be an implied term between Wilson and the garage but no lien. Wilson had possession of the car,
never lost possession of the car at any stage and had rights to immediate possession. As Wilson
could have demanded to have access to the car at any time, he had possession of the vehicle as and
when he chose. It was also relevant that the garage had waived any responsibility when the
representative collected the vehicle, which went towards demonstrating that the line of credit did
not affect ownership. As a result of the vehicle having been mistakenly taken, Wilson was entitled to
damages for the total sum of the repairs and the value of the vehicle. Lombank’s mistaken
occupancy of the vehicle amounted to trespass of Wilson’s property.

Kirk v Gregory (1876) 1 Ex D 55,

a woman (the defendant), who moved rings belonging to a man who had just died from one room in
his house to another was held liable in nominal damages for this asportation, ie for carrying away of
the goods from one place to another.

The court held that trespass was established as the act was direct and voluntary.

Penfolds Wines v Elliot [1946] HCA 46; 74 CLR 204; [1946] ALR 517

The plaintiffs made and sold wine in their own bottles. Their name was printed on the bottles and it
was also printed that the bottles belonged to them. The defendant who was hotel proprietor sold
wine in bulk to his hotel guests.

The guests brought their own bottles and among the bottles brought, were those of the plaintiffs’.
The plaintiff prayed for an injunction alleging that the defendant was trespassing on their goods.

The court denied an injunction and said that no trespass had occurred as the plaintiffs did not have
possession in fact of the bottles.

Syarikat Jengka Sdn Bhd v Abd Rashid Harun [1981] 1 MLJ 201

The court said that goods and its existence is an important element in the tort of conversion which
must be proven.
Ashby v Tolhurst [1937] 2 K.B.

The plaintiff left his car at the defendant’s car park. When he came to collect his car, the attendant
told the plaintiff that someone who had claimed to be the plaintiff’s friend had driven the car out of
the area. There was also a disclaimer of liability at the parking lot.

The court held the defendant not liable in conversion as there was no intentional act on their part.
The defendant had negligently allowed the car to be stolen through an omission.

Fouldes v Willoughby (1841) 8 M&W 540

The plaintiff boarded the defendant’s ferry and offered to pay extra in order that he could bring his
two horses onto the ferry.

The defendant refused to allow the plaintiff to bring his horses aboard but the plaintiff ignored the
refusal. The defendant then rode the horses to a hotel and left them at the stable of the hotel.

The plaintiff went ahead with his journey but upon his return he was requested to pay for leaving
the horses at the stable. The plaintiff claimed from the defendant, among others for conversion.

The defendant contended that the main reason why he brought the horses down was because the
horses were making a lot of noise on the ferry.

The court held that only trespass to goods existed. An act that involved moving an object from one
place to another, was not sufficient to amount to conversion.

The Exchequer Court held that the ferryman was not guilty of conversion, because there was no
interference with the plaintiff's "general right of dominion" over the horses. “In my opinion,” said
Lord Abinger CJ,

“he should have added to his direction, that it was for them to consider what was the intention of the
defendant in so doing. It is a proposition familiar to all lawyers, that a simple asportation of a
chattel, without any intention of making any further use of it, although it may be a sufficient
foundation for an action of trespass, is not sufficient to establish a conversion. It has never yet been
held that the single act of removal of a chattel, independent of any claim over it, either in favour of
the party himself or any one else, amounts to a conversion of the chattel.”

Rolfe B gave a now well recognised definition of conversion that it is – "a taking with the intent of
exercising over the chattel an ownership inconsistent with the real owner's right of possession".

JH Rayner (Mincing Lane) Ltd v Teck Hock & Co. (Pte) Ltd & Ors

It was held that as a general rule a person who is not the owner and who conveys the goods in
question to another without the consent or the authority of the owner commits conversion and the
person to whom the goods are conveyed may also be liable in conversion.

Principle – it laid down a principle that if a person receives goods voluntarily when in fact the goods
belong to a third party who does not consent to the handling of the goods, the party who receives
them may be liable in conversion. On the other hand, if a person receives goods involuntarily he
does not commit conversion by virtue of that involuntary reception.
Lethbridge v Philips 2 Strakie 478 (1819)

The plaintiff, a famous artist, lent a painting to a third party. The third party, without the plaintiff’s
consent and previous knowledge, brought the painting to the defendant’s house and left it there.

The defendant placed the painting near a stove and the painting was damaged.

The court held the defendant not liable on the principle laid down above.

Moorgate Merchantile Co v Finch [1962] 1 QB 701

A hire purchase agreement provided that the hirer may not use the car for purposes which were
contrary to the law. Another clause stipulated that if any of the terms of the agreement was
breached, the owner may take immediate possession of the car without prior notice to the hirer.

The instalments were still being made when one day the plaintiff hirer left the car at a workshop for
some repair works. He also allowed the workshop owner, D1 to lend the car to D2. D2 used the car
to smuggle watches and the car was confiscated by customs officials.

The plaintiff hirer claimed against the workshop owner D1, and D2. D2 was held liable in conversion
for using the car for unauthorized purposes.

Case of Jag Shakti

The plaintiff was a salt importer who had two bills of lading. The defendant was the owner of a ship
which was carrying salt from India to Bangladesh.

Upon arrival in Bangladesh the defendant gave the salt to M instead of the plaintiff, and the plaintiff
sued in conversion.

Held – The plaintiff had a right to receive the salt as he had the relevant bills of lading with him. The
defendant had committed conversion when he handed over the salt to M.

The rightful owner’s right to have possession was denied when the goods were given to another
party.

Nambiar v Chin Kim Fong [1963] MLJ 60

The plaintiff’s insurance company instructed for the plaintiff’s car to be sent to the defendant’s
workshop for repairs. On July 27, 1961 the defendant informed the plaintiff that the repairs were
completed and the car was ready for delivery.

On August 12, the plaintiff went to collect the car, but the defendant refused to release the car
unless the plaintiff signed a certain document which the plaintiff was under no duty to sign. At a
later date, the plaintiff again demanded for the car and again the defendant refused to release it for
the same reason.

The court held that, since the plaintiff was asked to sign what amounted to a release to his insurance
company and the defendant against any bad work and added to that the repairs did not entirely
satisfy the plaintiff, the defendant’s request was unreasonable and constituted a detinue.
 LIST OF CASES

TRESSPASS TO LAND

Basely v Clarkson (1681) 3 Lev 37

The defendant accidentally mowed the plaintiff’s grass while he was mowing his own grass.

The court held the defendant liable as the act of mowing the grass was a voluntary act, and
therefore done with intention. An act done under a mistake is not necessarily an involuntarily act. A
mistaken action may be a voluntary action and therefore intentional.

Conway v George Wimpey & Co Ltd [1951] 2 KB 266

Facts - Conway (C) was on his way to work on an aerodrome when he hailed a lorry belonging to the
George Wimpey & Co Ltd (W) and driven by one of their employees (D). The lorry was crossing the
aerodrome taking a number of the defendants’ servants to their work. D had been expressly told by
W’s transport manager that he could only transport W’s men, and a notice to this effect had been
affixed in his cab. Nevertheless, D gave C a lift for a short distance. When C dismounted the lorry, he
caught his right leg under a wheel of the lorry and had to have it amputated after it was badly
crushed. C raised an action against W for damages.

Issues - The issue in question was whether W as D’s employers could be held liable for the injury
caused to C as a result of the lorry ride D provided for C against W’s instructions.

Decision/Outcome - Both D, as the lorry driver, and C were equally responsible for the accident. C
was effectively a trespasser when he mounted the lorry, and it was immaterial whether he knew he
was one or not. D performed a wrongful act in allowing C, who was not an employee of W, to ride
the lorry, and as this performance was not one which he was employed to perform at all, the act was
outside the scope of his employment. W could therefore not be held liable for C’s injury as a result
of C’s trespass. Trespass will arise where a person crosses the property of another on reliance of the
permission of a person who has no authority to give that permission.

The court stated that a deliberate entry onto the land is sufficient. It is irrelevant that the defendant
does not know that he is entering the plaintiff’s land, or that he believes the entry is authorized, or
that he honestly and reasonably believes that the land is his.

Smith v. Stone [1647] Style 65

Facts – Smith (S) brought an action of trespass against Stone (D) after D was carried onto S’s land by
force, and violence of others, and was not there voluntarily. D was carried onto the land of P by
force and violence of others; there was trespass by the people who carried D onto the land, and not
by D.

Issue – D claimed that he had a special plea of justification for the trespass, because he was carried
onto S’s land by force, and violence of others, making the trespass of S’s land involuntary

Held – An involuntary trespass is not actionable. Only the trespass of the party which D onto the land
was actionable. The court compared the present circumstance to a hypothetical situation involving a
person driving cattle onto someone else’s land:

“as he that drives my cattel into another mans land is the trespassor against him, and not I who am
owner of the cattell.”
If however, the defendant’s entry onto the plaintiff’s land is without his consent and is involuntary,
the element of intention is not fulfilled.

• In this case, the defendant was brought onto the plaintiff’s land without his consent. The
court held that the defendant was not liable, but the person who brought him in was liable
for trespass.

League Against Cruel Sports Ltd. v Scott

• The plaintiffs owned land which they maintained as a deer sanctuary. Hunting was
prohibited on the grounds. Hounds from a local hunt entered the sanctuary and disturbed
the deer. The master of the pack was not liable as the trespass was accidental and an
involuntary act on his part.

• The court further held that the master of the pack would have been liable if he had intended
the hounds to enter the plaintiff’s land or if he knew there was a probability of entry and yet
he did not take any steps to prevent the foreseeable entry.

Hickman v Maisey [1900] 1 QB 752 Judge - A L Smith, Collins, Romer LJJ

• The plaintiff used his land to train horses. There was a road across the plaintiff’s land and the
defendant used the road in order to spy on the plaintiff’s horses.

• The court held that the defendant had committed trespass to land as he was not using the
road for its purpose, which was to cross to the other side of the land.

• Collins LJ (applying Esher’s judgment) ‘in modern times a reasonable extension has been
given to the use of the highway as such . . The right of the public to pass and repass on a
highway is subject to all those reasonable extensions which may from time to time be
recognised as necessary to its exercise in accordance with the enlarged notions of people in a
country becoming more populous and highly civilised, but they must be such as are not
inconsistent with the maintenance of the paramount idea that the right of the public is that
of passage.’
Harrisson v Duke of Rutland[1893] 1 QB 142, Judge - Lord Esher MR, Lopes LJ, Kay LJ

Fact - The plaintiff used his land for shooting bird. A highway was subsequently built over the land.
The defendant disapproved of the plaintiff’s activities. He entered the plaintiff’s land through usage
of the highway and tried to get rid of the birds.

The court held that the defendant had interfered with the plaintiff’s right to engage in a sport on his
own land and the defendant had abused the use of the highway. It is because a highway ought to be
used for its usual purpose. Unreasonable use of a highway, would amount to trespass to land.

Lord Esher MR said: ‘on the ground that the plaintiff was on the highway, the soil of which belonged
to the Duke of Rutland, not for the purpose of using it in order to pass and repass, or for any
reasonable or usual mode of using the highway as a highway, I think he was a trespasser.’ and
‘Highways are, no doubt, dedicated prima facie for the purpose of passage; but things are done upon
them by everybody which are recognised as being rightly done, and as constituting a reasonable and
usual mode of using a highway as such. If a person on a highway does not transgress such
reasonable and usual mode of using it, I do not think that he will be a trespasser.’

Lopes LJ said: ‘if a person uses the soil of the highway for any purpose other than that in respect of
which the dedication was made and the easement acquired, he is a trespasser. The easement
acquired by the public is a right to pass and repass at their pleasure for the purpose of legitimate
travel, and the use of the soil for any other purpose, whether lawful or unlawful, is an infringement
of the rights of the owner of the soil.’

Kay LJ said: ‘the right of the public upon a highway is that of passing and repassing over land the soil
of which may be owned by a private person. Using that soil for any other purpose lawful or unlawful
is a trespass.’

Government of Malaysia & Anor v Kong Ee Kim [1965] 31 MLJ 81

Fact - The plaintiff depastured her chicken on a public highway.

Decision – The court held that it was not her physical presence on the highway that constituted a
trespass.

In this case trespass was established due to the plaintiff using the highway to depasture chickens,
which did not constitute a reasonable use of the highway.

Holmes v Wilson 551 S.W.2d 682 (1977)

The defendant had built buttresses on the plaintiff’s land for the purpose of supporting a road. The
defendant had already paid compensation to the plaintiff but was nonetheless found liable for not
removing the buttresses.
Tay Tuan Kiat v Pritam Singh [1987] 1 MLJ

the defendant built a wall that encroached onto the plaintiff’s land, the court held that there
was continuing trespass as long s the wall was not demolished. In addition, by using
another’s land as access road to one’s land constitutes continuing trespass. A continuing
trespass therefore gives rise to a new cause of action from day to day as long as it lasts. 

Court: Where the defendant built a wall that encroached onto the plaintiff’s land, the court held that
there was continuing trespass as long as the wall was not demolished.

Ooi York Choo v Lim Song Foundry (1963)

Fact: The plaintiff owned a piece of land which was adjacent to the sea. Between the plaintiff’s
land and the sea there was a strip of accretion land about one hundred feet by one hundred feet
belonging to the State. The defendants were licensees of this accretion land and one of the
conditions of the license was that the licensee should seek permission for access to this land. The
plaintiff claimed against the defendants for using the plaintiff’s land as a means of access to and
from the accretion land.

Held: The court held that the defendants had committed continuing trespass when they used the
plaintiff’s land as a means of access to and from the accretion land, prior to the consent given by the
plaintiff.

By refer to 2 cases that we choose; we create a situation under tort law about trespass to land in
construction industry. It is mention about James v David & BBC contractor. The situation as
following:MBF Property Services Sdn Bhd v Madihill Development Sdn Bhd. (No 2)

Julaika Bibi v Mydin

The plaintiff, holder of a temporary occupation licence (TOL), sued the defendant for wrongful
occupation of a house on the said land and claimed for ejectment, plus damages for trespass. At the
time the plaintiff received the TOL, the defendant was already in possession of part of the house
with the consent of the previous TOL holder.

The court held that a TOL holder could bring an action for ejectment in tort against a trespasser. The
defendant was a trespasser against the plaintiff from the moment of cancellation of the previous
title and the issue of a fresh TOL to the plaintiff.

Mohamed Said v Fatimah [1962] MLJ 828

Facts – The appellant’s temporary occupation licence expired on Dec 31, 1960 and he did not
subsequently make the required renewal payment until July 5th. 1961.

He brought an action for trespass on May 6th 1961 against the respondent of the land and therefore
could not institute an action for trespass against the respondent.
Wong See Kui v Hong Hing Tin Mining Co. [1969] 2 MLJ 530

The plaintiff held a TOL over a fishpond. The defendant was a mining company and had a license to
mine on the land beside the pond.

One of the requirements in the defendant’s license was that the tailings from his mining activities
must be channeled into the pond.

Thus both parties had possession over the pond.

The plaintiff alleged that his fish died when the defendant pumped the mining tailings into the pond.

The court held that both the plaintiff and defendant had concurrent possession, and thus there was
no interference.

Azizah bte Zainal Abidin & 5 Ors v Dato’ Bandar Kuala Lumpur (1999)

The defendant local authority undertook works to channel a river which ran along and inside the
boundary of the land belonging to the plaintiffs.

The work was to alleviate floods along the river. As a result of the work, the river was widened. It
devoured over 2,000 square feet of the plaintiff’s land.

The court held that the defendant’s entry onto the plaintiff’s land was lawful by virtue of s 53(1) of
the Street, Drainage and Building Act 1974 as they were carrying out their statutory duty of
maintaining, repairing or improving any watercourses under their control.