TRESPASS TO THE PERSON
3 MAIN TORTS
1. Battery
Conduct Requirement
D must directly and voluntary apply force to the claimant
Fault Requirement
Fowler v. Lanning – limits battery to cases of intentional touching
Wilson v. Pringle – suggesting touching must be hostile (Weir calls this “nonsense”)
2. Assault
Conduct Requirement
D must perform an act that makes the claimant think D is about to touch them
C must believe he is in imminent danger (Turberville v. Savage)
It doesn’t have to be shown that C was afraid of being attacked or that C was actually about to be attacked
Fault Requirement
‘Careless assaults’ exist – but it is doubtful whether courts would allow a claim of this sort
Claims are more likely allowed when assault is intentional
3. False Imprisonment
Conduct Requirement
D must perform act which directly results in the claimant’s freedom of movement being restricted
Restriction has to be complete – Bird v Jones (claimant was free to walk the other way)
Doesn’t have to be shown that C was aware he was falsely imprisoned
Fault Requirement
Intent to deprive claimant of liberty (Smith LJ)
DEFENCE OF CONSENT
Physical contact is always lawful if the claimant consents. When is consent vitiated?
Consent is vitiated if it was procured through illegitimate pressure/influence
Withdrawal consent renders any further interference as unlawful. Exception – if its unreasonable to expect the
interference will be stopped immediately. Test – reasonable amount of time
Also e.g. if patient agrees to procedure X, but doesn’t understand X due to doctor’s shortfall, the patient did not really
consent to X. (Chatterton v. Gerson)
Medicine & children – Gillick competence test. Otherwise, consent of parents is needed
However, it is possible to consent to harm.
Blake v. Galloway – claimant consented to risk of injury when playing game, so D not liable
STATUTORY POWERS
Statutory powers may only interfere if it’s reasonable – must be executed for a purpose, meet legitimate expectations
and be consistent with ECHR
If not – breach of a public law duty
WILKINSON V DOWNTON
Recognised intentional infliction of mental shock. Now- boundaries of this tort are narrow due to freedom of
expression
UKSC recognised 2 requirements (Rhodes v OPO)
1. Intention need not be to cause psychological illness – sufficient that D intended severe distress
2. Recklessness is not sufficient – there must be an actual intention to cause severe distress
BREACH OF DUTY
OBJECTIVITY
Standard of care is objective.
Special considerations:
i. Emergency: not fair to hold people to a reasonable person standard – acknowledged by S.4 Social
Action, Responsibility & Heroism Act
ii. Automatism: D has not breached standard of care if he is in this state (Mansfield v Weetabix)
iii. Isolated Mistake: Did D demonstrate a predominantly responsible approach?
Two exceptions: assumption of responsibility & duty to act
BALANCING
High risk – low cost: negligence
Low risk – high cost: no negligence
Low risk – low cost: depends on court
3 MAIN TORTS
1. Battery
Conduct Requirement
D must directly and voluntary apply force to the claimant
Fault Requirement
Fowler v. Lanning – limits battery to cases of intentional touching
Wilson v. Pringle – suggesting touching must be hostile (Weir calls this “nonsense”)
2. Assault
Conduct Requirement
D must perform an act that makes the claimant think D is about to touch them
C must believe he is in imminent danger (Turberville v. Savage)
It doesn’t have to be shown that C was afraid of being attacked or that C was actually about to be attacked
Fault Requirement
‘Careless assaults’ exist – but it is doubtful whether courts would allow a claim of this sort
Claims are more likely allowed when assault is intentional
3. False Imprisonment
Conduct Requirement
D must perform act which directly results in the claimant’s freedom of movement being restricted
Restriction has to be complete – Bird v Jones (claimant was free to walk the other way)
Doesn’t have to be shown that C was aware he was falsely imprisoned
Fault Requirement
Intent to deprive claimant of liberty (Smith LJ)
DEFENCE OF CONSENT
Physical contact is always lawful if the claimant consents. When is consent vitiated?
Consent is vitiated if it was procured through illegitimate pressure/influence
Withdrawal consent renders any further interference as unlawful. Exception – if its unreasonable to expect the
interference will be stopped immediately. Test – reasonable amount of time
Also e.g. if patient agrees to procedure X, but doesn’t understand X due to doctor’s shortfall, the patient did not really
consent to X. (Chatterton v. Gerson)
Medicine & children – Gillick competence test. Otherwise, consent of parents is needed
However, it is possible to consent to harm.
Blake v. Galloway – claimant consented to risk of injury when playing game, so D not liable
STATUTORY POWERS
Statutory powers may only interfere if it’s reasonable – must be executed for a purpose, meet legitimate expectations
and be consistent with ECHR
If not – breach of a public law duty
WILKINSON V DOWNTON
Recognised intentional infliction of mental shock. Now- boundaries of this tort are narrow due to freedom of
expression
UKSC recognised 2 requirements (Rhodes v OPO)
1. Intention need not be to cause psychological illness – sufficient that D intended severe distress
2. Recklessness is not sufficient – there must be an actual intention to cause severe distress
BREACH OF DUTY
OBJECTIVITY
Standard of care is objective.
Special considerations:
i. Emergency: not fair to hold people to a reasonable person standard – acknowledged by S.4 Social
Action, Responsibility & Heroism Act
ii. Automatism: D has not breached standard of care if he is in this state (Mansfield v Weetabix)
iii. Isolated Mistake: Did D demonstrate a predominantly responsible approach?
Two exceptions: assumption of responsibility & duty to act
BALANCING
High risk – low cost: negligence
Low risk – high cost: no negligence
Low risk – low cost: depends on court
