Trespass to the Person

Cambridge Law Tripos: Law of Torts, Michaelmas Term 2022

Dr Jonathan Morgan, Corpus Christi College

Tort and the Vindication of Rights

The trespass torts are established by a direct invasion of the relevant interest (bodily
integrity; freedom of movement; property rights), unless there is legal justification for
the invasion—irrespective of whether the invasion causes any loss. Viz. these torts
are “actionable per se”— and damage is not here “the gist of the action”.

Constitutional importance: applicable against everyone, including (indeed, especially)

against public (or private) officials who make bold to touch or detain the subject
(police and prison officers), or to operate upon or administer drugs to him (doctors).

Thus, it has been held in the public interest that an action in battery against the police
should proceed, even when they have admitted liability in negligence (and agreed to
pay damages for all loss occurring) after an officer shot the claimant:

Ashley v Chief Constable of Sussex [2008] 1 AC 962

Note: damages nominal when a public official exceeds her authority but the same
invasion of the claimant’s rights would still inevitably have occurred had correct
procedures been followed (i.e. where no loss has been caused by the false
imprisonment):

Lumba v Home Secretary [2012] 1 AC 245

Exemplary and aggravated damages may be awarded in suitably serious (public)

cases:

e.g. Patel v Home Secretary [2014] EWHC 501 (Admin)

Since most things that the police do to unco-operative subjects constitute (prima facie)
assault, battery and/or false imprisonment, tort law places the onus on police
constables to show legal authority for what they do—e.g. a valid power of arrest—on
pain of liability.

Ashley v Chief Constable [2006] EWCA Civ 1085, [192] (Arden LJ):

‘Any claim to commit a trespass to another’s person or property out of self-

defence must be jealously regarded by the law because it amounts to the
creation of an exception to the rule of law.’
Connor v Chief Constable of Merseyside [2006] EWCA Civ 1549, [65] Hallett LJ:
 ‘the use of force must be in accordance with the law and the burden on the
police justifying an interference with civil liberties of the kind we have here is
a heavy one. Their conduct will be closely scrutinised by the courts.’

NB the power to arrest, detain etc must actually exist. It is not sufficient justification
that a prison governor honestly and reasonably believes that a prisoner must be
detained if the governor has incorrectly calculated the prisoner’s parole date—and it
matters not that the governor’s (forgivably) mistaken calculation was due to the High
Court having misconstrued the legislation in question!

(R v Governor of Blundeston Prison, Ex parte Gaffney [1982] 1 WLR 696)

(cf. R v Governor of Brockhill Prison, Ex parte Evans [1997] QB 443)—

* R v Governor of Brockhill Prison, Ex parte Evans (No.2) [2001] 2 AC 19 (Lord

Hope):

“The authorities are at one in treating [false imprisonment] as a tort of strict

liability. That strikes the right balance between the liberty of the subject and
the public interest in the detection and punishment of crime. The defence of
justification must be based upon a rigorous application of the principle that the
liberty of the subject can be interfered with only upon grounds which a court
will uphold as lawful.”

R (Hemmati) v Home Secretary [2019] UKSC 56, [81] per Lord Kitchin:

“[False imprisonment] has just two ingredients: the fact of imprisonment and
the absence of lawful authority to justify it... All that a claimant has to prove in
order to establish false imprisonment is that he was directly and intentionally
detained by the defendant, whereupon the burden shifts to the defendant to
show that there was lawful justification for doing so.”

-- The Supreme Court confirmed that liability is strict: the principles of “sufficiently
serious breach” (i.e. fault) for member state liability under EU law were inapplicable.
 Assault and Battery

Wainwright v Home Office [2002] QB 1334 (Buxton LJ):

67 ... Battery is physical interference with the person of the plaintiff. That will
normally consist of direct touching of the person, but has also been extended to acts
directly likely to cause such interference, such as hitting the plaintiff’s horse, causing
him to fall off…

68 An assault has long been defined as an overt action, by word or by deed, indicating
an immediate intention to commit a battery … or, as it is sometimes expressed, to put
the plaintiff in fear of an immediate assault. This tort is therefore parasitic upon, and
protects the interests protected by, battery.

What must be intended?

Binsaris v Northern Territory [2020] HCA 22 (CS gas used during prison disruption)

Wilson v Pringle [1987] QB 237, 248, 249 (Croom-Johnson LJ):

“[The defendant] has submitted that before trespass to the person will lie it is not only
the touching that must be deliberate but the infliction of injury. The plaintiff’s
counsel, on the other hand, contends that it is not the injury to the person which must
be intentional, but the act of touching or battery which precedes it: as he put it, what
must be intentional is the application of force and not the injury... In our view, the
submission made by counsel for the plaintiff is correct. It is the act and not the injury
which must be intentional. An intention to injure is not essential to an action for
trespass to the person. It is the mere trespass by itself which is the offence.”

See Wainwright v. Home Office [2002] QB 1334, [69] per Buxton LJ:

“The importance that the law attaches to protecting citizens from direct physical
interference with their persons is demonstrated by two particular features of the tort of
battery, both of which sharply distinguish it from the tort of negligence. The first is
that any intended "hostile" touching founds an action for battery, even if there is no
intention thereby to cause injury or actual physical harm [Wilson v. Pringle]. The
second is that battery is actionable per se. That in turn implies two things: first,
damages are recoverable for the act of interference itself, even if it causes no injury
and no loss; but, secondly, if damage is caused by a trespass it is recoverable simply
on the basis of causation, and does not additionally require foreseeability to be
established.”
“Acceptable” touching?

Wiffin v. Kincard (1807) 2 Bos & Pul 471 (a touch by a constable’s staff on shoulder
of man who had climbed on a gentleman’s railing to gain a better view of a mad ox)

See Collins v. Wilcock [1984] 1 WLR 1172, 1177-78 (Robert Goff LJ) (“physical
contact which is generally acceptable in the ordinary conduct of daily life”—tapping
to attract someone’s attention?)

Wilson v. Pringle [1987] QB 237 (“hostile” touching)?

- cf. In Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 73 (Lord Goff of

Chieveley)

Defence: Consent

In Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1, 12 (Lord Donaldson MR):

“Prima facie, in the absence of consent all, or almost all, medical treatment
and all surgical treatment of an adult is unlawful, however beneficial such
treatment might be. This is incontestable.”

Chatterton v. Gerson [1981] QB 432, 443 (Bristow J) (negligence not trespass)

(Duty to warn of risks: see Montgomery v. Lanarkshire Health Bd [2015] 1 AC 1430)

Decisions by (potentially) competent adults:

In Re T. (Adult: Refusal of Treatment) [1993] Fam. 95 (Lord Donaldson MR):

“An adult patient who, like Miss T., suffers from no mental incapacity has an
absolute right to choose whether to consent to medical treatment... It exists
notwithstanding that the reasons for making the choice are rational, irrational,
unknown or even non-existent… But just because adults have the right to
choose, it does not follow that they have in fact exercised that right.”

Home Secretary v Robb [1995] Fam 127 (prisoner’s hunger-strike)

(Note also jurisdiction for court to give consent on behalf of children or incompetent
adults, in their best interests.)
 False Imprisonment

What is “Imprisonment”?

Regina (Jollah) v Home Secretary [2018] EWCA Civ 1260, [43] (Davis LJ):

the phrase "false imprisonment", though hallowed by usage, is somewhat

misleading. "False" does not necessarily signify "mendacious" or "fallacious";
"imprisonment" does not necessarily connote being incarcerated…

JG Fleming, The Law of Torts (10th ed) para 2.80: “Although false imprisonment is a
species of trespass it need not involve the use of actual force or direct physical
contact. Provided there is a constraint upon a person’s will so great as to induce the
plaintiff to submit there may be an arrest without imposition of hands.”

Regina (Jalloh) v Home Secretary [2020] UKSC 4, [24], [27] (Baroness Hale):

The essence of imprisonment is being made to stay in a particular place by

another person… There is, of course, a crucial difference between voluntary
compliance with an instruction and enforced compliance with that instruction.

R v Bournewood Community and Mental Health NHS Trust, ex parte L. [1999] 1 AC

458

cf. HL v. United Kingdom (2005) 40 E.H.R.R. 32 (article 5, ECHR)

Walker v Metropolitan Police Commr [2015] 1 W.L.R. 312 (brief detention in

doorway)

Regina (Jalloh) v Home Secretary [2020] UKSC 4 (common law “imprisonment”

stricter than “deprivation of liberty” under article 5, ECHR)

Awareness of Detention Required?

Meering v. Grahame-White Aviation Co Ltd (1919) 122 LT 44 (Atkin LJ) (no)

- Approved: Murray v. MoD [1988] 1 WLR 692 (Lord Griffiths)

Defendant’s conduct

Iqbal v Prison Officers Association [2010] QB 732 (prison officers’ strike led to
confinement in cell—but “indirectly” and “by omission”) — Lord Neuberger MR:

“In Smith v. Littlewoods Organisation [1987] A.C. 241, 271 Lord Goff said that ‘the
common law does not impose liability for what are called pure omissions’… Such a
hard and fast distinction between action and inaction may seem arbitrary to some
people, but it is not unprincipled, and, while it may lead to apparent injustice in
particular cases, it does help to ensure a degree of clarity and certainty in the law.
However, a general rule such as that propounded by Lord Goff … can often, perhaps
inevitably, be said to beg the question at issue when it is relied on in a particular case.

“Accordingly, the question which arises here is whether the going on strike
constituted a ‘pure’ omission on the part of the prison officers. It might be said that it
was a positive wrong because they were under duty to comply with the governor's
directions, and therefore their failure to let the claimant out of his cell on 29 August
2007 was wrongful. The problem with that argument, as I see it, is that the duty
concerned was owed by the officers to the governor or to their employer, not to the
prisoners.”

Defendant’s knowledge? cf. Iqbal v Prison Officers Association [2010] QB 732, [72]:

“[T]he claimant must show not merely an intentional act … but also an
intention to deprive the claimant of his liberty.” (Lady Justice Smith)

Defences: Consent?

e.g. Herd v Weardale Steel Co [1913] 3 KB 771 and [1915] AC 67

Defences: Necessity?

Hepburn v Chief Constable of Thames Valley [2002] EWCA Civ 1841, [14] (Sedley
LJ):

It is a bedrock of our liberties that a citizen’s freedom of person and of

movement is inviolable except where the law unequivocally gives the state
power to restrict it. ... That, and not an implied power [for the police] to detain
or manhandle people who are doing nothing wrong…

Austin v Metropolitan Police Commr [2008] QB 660; [2009] 1 A.C. 564 (“kettling”)

-- See Austin v. United Kingdom (2012) 55 EHRR 14 (no violation of Art 5, ECHR)