In tort - a person is never guilty => instead they are liable
Aim - Need to establish liability for any given tort
The sub-categories of trespass to the person:
o Assault
o Battery
o False
The rule in Wilkinson v Downton => this one does not fall under the umbrella of trespass to
the person => but still need to explore it => a new area => is one of the loophole that the
law was trying to fill in - but is still a bit flawed
o The formula:
Define the tort - either a statutory definition (written down) or Common Law definition
Identify the elements => breaking down the definition to find the elements
Need to show that the D satisfies those elements
Only then will the D be found liable for the tort
Trespass to the person and negligence are different - the elements itself are different =>
this is the reason why one cannot sue the D under both based on the same facts => either
one or the other => the D cannot be liable for both torts under the same facts => can be
liable of both torts, but not on the same facts
TTTP - general rules
1. Must be committed intentionally
o This is the main difference b/t TTTP and negligence
o To be distinguished from generally acceptable everyday conduct
Snehaa Sewpaul 1
,2. Must cause direct and immediate harm
3. There is no need to prove loss, it is actionable per se
Compensates for direct intentional harm
These rules will apply to all 3 types of TTTP (assault, battery, false imprisonment)
Battery - do not need to show harm or injury - as long as you did the action - sufficient =>
the definition does not require to show the result - only concerned with the D's action itself -
not require to show the C's hurt - need not prove any lose
Definition of the different TTTP
Apprehension of immediate unlawful touching - assault
o What is apprehension? = anticipate
Unlawful touching is sufficient - battery
o It actually happened - not apprehended
o Unlawful = w/o consent - or did not have legal authority to touch
o Touching = actual contact ( is a better word)
Being physically restrained - false imprisonment
o w/o consent
o w/o reasonable way to escape
o Falsely restraining a person w/o their consent
o If consent is given and is (fully informed)
Assault - Common Law definition
Collins v Wilcock [1984] 1 WLR 1172 - by Goff LJ
o An act which causes another person to apprehend the infliction of immediate,
unlawful force/violence on his person
o "on his person" - on himself - not on a third person
Words can also constitute assault
Snehaa Sewpaul 2
, CONSTITUTIVE ELEMENTS:
1. Reasonably apprehend
“The claimant must reasonably apprehend immediate unlawful force being applied to them
Must be reasonable
o Depends on your power of argument
There must be a reasonable apprehension/anticipation of immediate unlawful force being
applied to them
Apprehension = anticipation
o This is an objective test
o What would the average person have done in such cases? Would the average
person have apprehended fear in that particular situation?
o Apprehension not equal to fear
It is irrelevant if the claimant was actually in fear or not, but they must be
aware of the imminent force
o But must be aware of the imminent violence - knowledge that a person is committing
assault against you
o It is irrelevant if the claimant would have been able to defend themselves
o Read v Coker [1853] 13 CB 850
o This was an important case on what constituted an assault. The claimant rented a
workshop from the defendant. He fell into arrears and was asked to leave. When he
refused, the defendant and his servants surrounded him, rolled up their sleeves and
threatened to break his neck. The defendant was convicted of assault and false
imprisonment. The Common Bench, dismissing his appeal, held that, to constitute an
assault, there had to be an attempt, coupled with an act denoting ability and an
intention to assault. Accordingly, there had been an assault in respect of that
offence. The court further held that, where a defendant had bona fide believed that
he had been acting in the assertion of a legal right in arresting a claimant, he had
been entitled to the protection which the law intended, although he had not precisely
known what the law was at the relevant time.
o Smith v Chief Constable of Woking [1983] 76 Cr App R 234
Snehaa Sewpaul 3
, Held, that in the present case the defendant intended to frighten Miss M and
that she was frightened. There was no need for a finding that what she was
frightened of, which she probably could not have analysed at that moment,
was some innominate terror of some potential violence. It was clearly a
situation where the basis of the fear which was instilled in her was that
she did not know what the defendant was going to do next; but that
whatever that was, it was sufficiently immediate for the purposes of the
offence, as something of a violent nature. In effect, it was wholly open to the
justices to find as they did that the intention of the defendant was to
frighten Miss M so as to cause her to fear some act of immediate
violence, and, therefore, with the intention of an assault upon her.
Accordingly, the appeal would be dismissed.
2. Immediate and direct
There must be a threat of the infliction of immediate and direct force
Sometimes words are not as straightforward
o Will have to pay attention to the facts more properly in such cases
It should be possible for the D to inflict immediate and direct force, otherwise there is no
assault
o Thomas v National Union of Mineworkers (South Wales Area) [1986] 1 Ch 20
Was threats mostly
Held - no there was no reasonable apprehension - since there was a
barricade separating the protestors and the mineworker
As such, there could not have been a reasonable apprehension of immediate
force
Question/Test - was there any person or anything stopping/ preventing the D
from hurting the C? - if yes - then there cannot be an assault
The perpetrator of an assault must have the means to actually carry out the
apprehended action. For example, picketers outside collieries were not guilty
of assault where they were separated from working miners by the police, so
they could not have carried out any violent acts
Snehaa Sewpaul 4
Aim - Need to establish liability for any given tort
The sub-categories of trespass to the person:
o Assault
o Battery
o False
The rule in Wilkinson v Downton => this one does not fall under the umbrella of trespass to
the person => but still need to explore it => a new area => is one of the loophole that the
law was trying to fill in - but is still a bit flawed
o The formula:
Define the tort - either a statutory definition (written down) or Common Law definition
Identify the elements => breaking down the definition to find the elements
Need to show that the D satisfies those elements
Only then will the D be found liable for the tort
Trespass to the person and negligence are different - the elements itself are different =>
this is the reason why one cannot sue the D under both based on the same facts => either
one or the other => the D cannot be liable for both torts under the same facts => can be
liable of both torts, but not on the same facts
TTTP - general rules
1. Must be committed intentionally
o This is the main difference b/t TTTP and negligence
o To be distinguished from generally acceptable everyday conduct
Snehaa Sewpaul 1
,2. Must cause direct and immediate harm
3. There is no need to prove loss, it is actionable per se
Compensates for direct intentional harm
These rules will apply to all 3 types of TTTP (assault, battery, false imprisonment)
Battery - do not need to show harm or injury - as long as you did the action - sufficient =>
the definition does not require to show the result - only concerned with the D's action itself -
not require to show the C's hurt - need not prove any lose
Definition of the different TTTP
Apprehension of immediate unlawful touching - assault
o What is apprehension? = anticipate
Unlawful touching is sufficient - battery
o It actually happened - not apprehended
o Unlawful = w/o consent - or did not have legal authority to touch
o Touching = actual contact ( is a better word)
Being physically restrained - false imprisonment
o w/o consent
o w/o reasonable way to escape
o Falsely restraining a person w/o their consent
o If consent is given and is (fully informed)
Assault - Common Law definition
Collins v Wilcock [1984] 1 WLR 1172 - by Goff LJ
o An act which causes another person to apprehend the infliction of immediate,
unlawful force/violence on his person
o "on his person" - on himself - not on a third person
Words can also constitute assault
Snehaa Sewpaul 2
, CONSTITUTIVE ELEMENTS:
1. Reasonably apprehend
“The claimant must reasonably apprehend immediate unlawful force being applied to them
Must be reasonable
o Depends on your power of argument
There must be a reasonable apprehension/anticipation of immediate unlawful force being
applied to them
Apprehension = anticipation
o This is an objective test
o What would the average person have done in such cases? Would the average
person have apprehended fear in that particular situation?
o Apprehension not equal to fear
It is irrelevant if the claimant was actually in fear or not, but they must be
aware of the imminent force
o But must be aware of the imminent violence - knowledge that a person is committing
assault against you
o It is irrelevant if the claimant would have been able to defend themselves
o Read v Coker [1853] 13 CB 850
o This was an important case on what constituted an assault. The claimant rented a
workshop from the defendant. He fell into arrears and was asked to leave. When he
refused, the defendant and his servants surrounded him, rolled up their sleeves and
threatened to break his neck. The defendant was convicted of assault and false
imprisonment. The Common Bench, dismissing his appeal, held that, to constitute an
assault, there had to be an attempt, coupled with an act denoting ability and an
intention to assault. Accordingly, there had been an assault in respect of that
offence. The court further held that, where a defendant had bona fide believed that
he had been acting in the assertion of a legal right in arresting a claimant, he had
been entitled to the protection which the law intended, although he had not precisely
known what the law was at the relevant time.
o Smith v Chief Constable of Woking [1983] 76 Cr App R 234
Snehaa Sewpaul 3
, Held, that in the present case the defendant intended to frighten Miss M and
that she was frightened. There was no need for a finding that what she was
frightened of, which she probably could not have analysed at that moment,
was some innominate terror of some potential violence. It was clearly a
situation where the basis of the fear which was instilled in her was that
she did not know what the defendant was going to do next; but that
whatever that was, it was sufficiently immediate for the purposes of the
offence, as something of a violent nature. In effect, it was wholly open to the
justices to find as they did that the intention of the defendant was to
frighten Miss M so as to cause her to fear some act of immediate
violence, and, therefore, with the intention of an assault upon her.
Accordingly, the appeal would be dismissed.
2. Immediate and direct
There must be a threat of the infliction of immediate and direct force
Sometimes words are not as straightforward
o Will have to pay attention to the facts more properly in such cases
It should be possible for the D to inflict immediate and direct force, otherwise there is no
assault
o Thomas v National Union of Mineworkers (South Wales Area) [1986] 1 Ch 20
Was threats mostly
Held - no there was no reasonable apprehension - since there was a
barricade separating the protestors and the mineworker
As such, there could not have been a reasonable apprehension of immediate
force
Question/Test - was there any person or anything stopping/ preventing the D
from hurting the C? - if yes - then there cannot be an assault
The perpetrator of an assault must have the means to actually carry out the
apprehended action. For example, picketers outside collieries were not guilty
of assault where they were separated from working miners by the police, so
they could not have carried out any violent acts
Snehaa Sewpaul 4
