This trespass just like trespass to goods also occurs in three ways;
This occurs when a person intentionally threatens to use force against another person without lawful justification hence putting the person in fear. E.g pointing a gun towards him
Rules of the Tort
1. There must be some apprehension of contact
2. There must be a means of carrying out the threat by the defendant
3. The tort is actionable per se.
4. The tort is generally associated with battery
5. Mere words without body movement do not constitute assault.
Assault is constituted by:-
i. A display or show of force
ii. Pointing of a loaded gun
iii. Cursing in a threatening manner
This is the actual use of force towards another person without lawful justification e.g. hitting a person. It is only actionable if it is voluntary or intentional.
Assault is committed where the plaintiff apprehends the commission of a battery on his person.
If the defendant does not intent to commit a battery but induced a belief in the plaintiff‟s mind that he is about to do so, he is nevertheless liable for assault.
Pointing a loaded gun at a person is of course an assault but if the gun is unloaded it is still assault unless the person at whom it is pointed knows this.
Suppose the plaintiff is an unusually fearful person in whom the defendant can induce the fear of an imminent battery though a reasonable man would not have fear in those circumstances, does the defendant commit assault?
The better view is that the test is based upon the subjective intention of both parties thus there is battery if the defendant intends to create fear of commission of a battery whether or not he knows the plaintiff to be a fearful person and the plaintiff actually has this fear.
In Smith vs. Superintendent of Working Police Station (1983), the defendant was convicted of criminal assault when he entered the grounds of a private house and stood at the window seriously frightening its occupant who was getting ready for bed.
The plaintiff must however apprehend a battery thus it is not assault to stand still at the door of a room barring the plaintiff’s entry. It would also not be assault to falsely cry „fire‟ in a crowded place.
Must damages be proved?
Both torts of assault and battery are actionable per se. Where the defendant’s act has caused no damage the courts may award only nominal damage but the court may also award aggravated damages because of the injury to the feelings of the plaintiff arising from the circumstances of the commission of the tort.
Rules of battery
1. Absence of the plaintiff’s consent
2. The act is based on an act of the defendant mere obstruction is not battery
3. A contact caused by an accident over which the defendant has no control is not battery
4. There must be contact with the person of the plaintiff it has been observed the least touching of another person in anger is battery
5. Battery must be direct and the conduct must follow from the defendant’s act
6. The tort is actionable per se. The essence of battery is to protect a person from unpermitted contacts with his body. The principal remedy is monetary award in damages.
This occurs when a person is deprived of their freedom without legal explanation, e.g locking someone in a room.
Main ingredients of the tort
(a) Knowledge of the plaintiff
Knowledge of the restraint is not necessary but may affect the quantum of damages.
In Meeting v. Graham White Aviation Co the plaintiff was being questioned at the defendants company in connection with certain thefts from the defendants company.
He did not know of the presence of two works police outside the room who would have prevented his leaving if necessary.
Held; the defendant was liable for false imprisonment. Arcing L J said “it appears to me that a person can be imprisoned without his knowing. I think a person can be imprisoned while he is asleep or in a state of drunkenness, while unconscious or while he is a lunatic. Of course the damages might be diminished and would be affected by the question whether he was conscious or not‟
(b) Intention and directness
The tort is defined to exclude negligent imprisonment of another person. The tort must be intentional and should be committed directly. Where for reason of lack of intention or directness the plaintiff cannot establish false imprisonment an action in negligence may still be available.
In Sayers v. Badour U.D.C the plaintiff became imprisoned inside the defendant’s toilet because of negligent maintenance of the door lock by the defendant’s servants. In trying to climb out of the toilet she fell and was injured. She recovered damages from the defendant because it was a reasonable act on her part to escape from a situation in which the defendant by his negligence had placed her.
An action for false imprisonment would not have been available because there was no direct act of imprisonment.
(c) The restraint must be complete
There must be a total restraint placed upon the plaintiff’s freedom of action
In Bird v Jones the defendant closed off the public footpath over one side of a bridge. The plaintiff wishing to use the footpath was prevented by the defendant. In the plaintiffs action one of the questions that was necessary to decide was whether the defendant’s act amounted to false imprisonment.
Held: It did not since the defendant has not placed a total restraint on the plaintiff. The blocking of a part of a public highway might be a public nuisance for which the plaintiff could bring an action in tort if he could show special damage arising from. Provided the area of restraint is total it does not seem to matter that it is very large.
There has been a difference of opinion between the court of appeal and the lower court the circumstances in which a person already the lawfully imprisoned in a prison may be regarded as falsely imprisoned.
In R v. Deputy Governor of Prison, there was an agreement that imprisonment under intolerable conditions would amount to false imprisonment. The Court Of Appeal however required knowledge of those conditions by the defendant but the lower courts thought that a defense would exist here under the provisions of the prisons Act.
There is of course false imprisonment where a prisoner is detained beyond the legal date of his release. (Cowell v. Corrective Services Commissioner)
Rules of the tort
1. The tort must be intentional
2. It is immaterial that the defendant acted maliciously
3. The restraint or confinement must be total. However, it need not take place in an enclosed environment
4. It has been observed every confinement of a person is an imprisonment whether it be in a common prison, private house or in the stocks or even forcibly detaining one in the public
5. The boundary of the area of confinement is fixed by the defendant. The barriers need not be physical. A restraint affected by the assertion of authority is sufficient.
6. 6. The imprisonment must be direct and the plaintiff need not have been aware of the restraint
7. The tort is actionable per se.
8. The principal remedy is a monetary award in damages.
i. A parental Authority
A parent has a right to reasonably chastise or discipline his Children. This means that where a parent beats his child or locks Him up in roomfor sometime by way of reasonable chastisement, he cannot be sued for battery or false imprisonment .Similarly, if a parent gets a knife and
threatens that he will cut off his child’s mouth unless the child stops abusing grown-ups, no action can be brought against him for assault When a child is at school all his parent’s right of ordinary control over him Are delegated to the school authority (or teachers) and are exercised by the Latter in ‘loco parents ‘.Reasonable chastisement by the school authority. e.g Reasonable punishment by teachers ,is not actionable in tort
Note: According to R.v (1891) a husband has no right to chastise
ii. Judicial authority:
An act done under order of court is not actionable as trespass. We show at the beginning of this chapter that acts done in a judicial Capacity are not actionable in tort. It follows that where a judge orders a corporal punishment of a number of strokes, no action for battery can be brought against him or a person administering the strokes .Also, statutory authority may be pleaded as a defence
An award of damages iii General Defences the defendant may also rely on the general defences already considered. Self-defence is a particularly viable defence to assault and battery. Volenti (or the plaintiffs consent),may also be pleaded Thus, a patient who has consented to a medical operation cannot round and sue the surgeon for trespass (battery ).Similarly ,a spectator who suffers injury in the cause of a game whose rules are being followed cannot sue for trespass is the most obvious and usual remedy. The amount of damages awarded depends on the circumstance of each case, having regard (or in the case
The amount of damages awarded depends on the circumstances of each case, having regard to matters like the injury suffered, the period of false imprisonment e.t.c.
ii. Habeas Corpus:
The Writ of Habeas Corpus is a remedy to false imprisonment. The writ directs the person in show custody the applicant is detained to produce him before the High Court; the Court may order his release if it appears that there are not sufficient grounds for detaining him.