CHAPTER 3: TRESPASS

Intro:
1.) Trespass to Person
2.) Defences to Trespass to Person.
3.) Trespass to Land.
4.) Defences & Remedies.

I.) Trespass to Person:

a.) Battery:
A battery is defined as the intentional application of force to the
person of the plaintiff. There are a number of essentials to this tort:

Direct Act The defendants act must be the direct cause of the
plaintiffs damage. In Scott v. Shepherd, the defendant threw a light
squib into the market which was then thrown by a number of person to the
other stalls, consequently causing injuries to the plaintiff. The defendants
were held liable because it was a direct result of their act. The acts of the
stall holders in passing on the squib were impulsive and did not break the
casual link between the act of the defendant and the injury to the plaintiff.

Intentional Act The act of battery must be an intentional act. In

Letang v. Cooper, the plaintiff negligently drove his car over the plaintiffs
legs. Lord Denning stated that where the act causing the damage was
intentional, then a claim may lie in trespass, but where the act causing the
damage was a negligent one, then a person can only sue in negligence.

Hostility In Wilson v. Pringle, it was held that the act of

intentionally touching the plaintiff had to be a hostile touching. It was also
stated that hostility was not the same thing as ill-will or malice and that in
each case the issue of hostility was for the court to decide. However, the
authority of Wilson was challenged in Re F (Mental Patient:
Sterilisation). Here, Lord Goff argued that the requirement of hostile
touching was difficult to reconcile with the principle that any touching of
anothers body is, in the absence of lawful excuse, capable of amounting to
battery e.g. an uncontrolled prank, an over-friendly slap and a surgery
without the patients consent are all acts of battery. It is suggested that the
approach adopted by Lord Goff is, in fact, the correct one.

Contact with the Plaintiff Any contact with the plaintiff, no matter
how trivial, is sufficient force. In Cole v. Turner, it was said that the
least touching of another in anger is a battery. The contact with the person
of the plaintiff must be an active contact. For example, if the defendant has
blocked a doorway and the plaintiff bumps into him while trying to get out
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then no battery has occurred. However, active contact, though quite trivial
like an unwanted kiss, may amount to battery. The contact need not be with
the person of the claimant e.g. throwing water on the claimant, pulling a
chair under him will also constitute battery.

b.) Assault:
It is defined as putting the plaintiff in immediate apprehension of
battery. According to R v. Ireland, words alone are capable of putting the
plaintiff under reasonable apprehension of immediate violence, than they
would amount to an assault.

Words may also negative an assault. In Tuberville v. Savage, the

defendant placed his hand on the sword and said to the defendant that if it
were not assize time, he would not take such language from him. The court
held that him not liable because he had declared his intent to negative the
assault by uttering his words before his action.

However, if the action precedes the words then it will be too late. As in
Read v. Coker, the victim sued successfully for assault where the
defendant and his servants surrounded him rolling up their sleeves and
then threatened to break his neck if he did not leave the premises.

It is not necessary that the threat be carried out, provided that the
plaintiff reasonably apprehends battery. Thus, in R v. St George, it was
held that pointing a gun at the claimant which, unknown to him was
unloaded, would produce a reasonable apprehension and amount to an
assault, even though the defendant could not carry out the threat. Fear is
unnecessary. The test is whether the claimant reasonably apprehends
personal violence, irrespective of what effect this had on him.

c.) False Imprisonment:

False imprisonment means the intentional deprivation of the plaintiffs
freedom of movement without lawful excuse e.g. an unlawful arrest. The
plaintiff need not be aware of the restriction upon his freedom. In Murray
v. Minister of Defence, it was stated that there may be situations where
the plaintiff may suffer adversely from false imprisonment even though he is
unaware of his detention. Thus, the plaintiffs knowledge is not relevant. But
if the plaintiff suffered no harm then he would get only nominal damages.

The tort is committed only where the plaintiffs liberty is completely

restrained. In Bird v. Jones, the defendant had wrongfully roped a public
footpath and he stopped the plaintiff from climbing over the ropes. He was
held not liable because he was not completely restrained and he could go
back the way he had come and then continue his travelling. The tort is not
committed when the plaintiff has an avenue of escape open to him, provided
that it must be a reasonable one.
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There is an additional requirement that the restriction upon the

liberty of the plaintiff be unlawful. However, the law does allow an occupier
of premises to lawfully impose certain restrictions upon visitors. Thus, In
Robinson v. Balmain Ferry, the defendants charged one penny to enter
the ferry and one peony to exit. The plaintiff paid his penny to enter but
refused to pay the penny on exit upon which the defendant did not allow
him to leave. It was held that this did not amount to trespass because the
condition that a penny be paid was reasonable to be imposed. However,
this does not mean that the defendant could impose any condition at all. In
Sunbolf v. Alford, an innkeeper was liable for false imprisonment when
he locked the defendant when he refused to pay his bill.

II.) Defences to Trespass to Person:

a.) Battery:
Consent/Necessity Thus, a doctor performing a surgery would not
be liable for battery as her patient would have signed a form consenting to
the operation. In Sidaway v. Bethlam Royal Hospital, the House of
Lords held that it is not necessary whether sufficient information had been
disclosed to the plaintiff; but whether a reasonable doctor would have acted
as the defendant in only releasing a certain amount of information. The
defence of consent also applies to sports as long as the physical contact
takes place within the rules of the games.

With adult patients who need emergency treatment but are unable to
consent e.g. they are unconscious, it is established that a doctor would be
justified in proceeding on the basis of necessity. In Re F, a mental patient
formed a relationship with a male patient. The doctors held that the best
solution is to sterilise her. Her mother applied to the court for a declaration
that the operation would not be unlawful. On the basis of necessity, the
operation was declared lawful. The test of what is necessary is the best
interests of the patient and this is to be determined by the Bolam test.

Consent must be given freely; if it is obtained under duress it will not

be valid. In Re T (Adult: Refusal of Medical Treatment), the patient, T,
was in urgent need of a blood transfusion. Ts mother, who was a Jehovahs
Witness, influenced T, in her weakened physical condition, to refuse consent
to a blood transfusion. The Court of Appeal held that T had not been fit to
make a genuine decision and she had also been under undue influence of
her mother which vitiated the decision to refuse a blood transfusion. In the
absence of either a valid consent or a valid refusal, the doctor acted validly
in giving the transfusion under the principle in Re F.

Self Defence The burden of proving this defence rests with the
defendant. The defence is only available where reasonable force is used and
the act of self-defence is not out of all proportion to the threatened harm.
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b.) False Imprisonment:

Lawful Arrest The burden of proving the defence of lawful arrest
rests with the defendant. The powers of arrest are contained within PACE
1984. S.24(4) allows any person to make an arrest without a warrant whom
he reasonably believes to be in the act of committing an arrestable offence.
S.24(5) allows the arrester to make an arrest, even a wrong person, where
an arrestable offence has actually been committed. S.24(6) gives these
powers to a police officer. However, the reasonableness of suspicion is the
core issue. In Hough v. Chief Constable of Staffordshire (2001), the
plaintiff was stopped by police for a routine check when the police computer
revealed an entry that the car owner might be armed. Thus, the claimant
was arrested but no weapon was found from him. He brought an action for
false imprisonment but the House of Lords found the defendants not guilty.

III.) Trespass to Land:

Trespass to land is defined as the Unjustifiable interference with the
possession of land. It is actionable per se i.e. it is not necessary to show
that the plaintiff has suffered any damage as a result of the trespass. For a
successful claim in trespass, three things must be proved: (1) Possession; (2)
Intention; and (3) Interference with Possession.

a.) Possession of the Land:

The action in trespass depends upon possession, not ownership, of
land. Therefore, only the person in exclusive possession has the right to sue.
Mere use of land does not constitute possession. Thus, a licensee, e.g. a
guest in hotel, does not possess the land and cannot sue for trespass.

The plaintiff need not have possession at law; but possession in fact.
Possession in fact means that the plaintiff has no actual propriety interest
but exercises possession/control over the land. Thus, if a lease is statutorily
void but the lessee still has control over it, then he posses only factual
possession; not possession in law.

b.) Intention:
Trespass is a tort of intention because the defendant must have
intended to enter upon the land; not that he had intended to commit the
tort of trespass. In Smith v. Stone, the defendant was dumped on the
plaintiff's land by some men. It was held not to be a trespass as it was not a
voluntary act. However, if he had voluntarily entered the land, even under
duress, then this would have been trespass.

In regard with control over animals, it is not enough merely to show

that the animals entered voluntarily. In League against Cruel Sports v.
Scott, trespass was made by staghounds in the course of hunting deer. It
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was stated that it must be shown that either the master of animals intended
them to enter or negligently failed to exercise proper control over them. In
this case, the defendants knew on a number of occasions that the animals
may enter on the plaintiffs land. Thus, they were held liable.

c.) Interference with Possession:

For trespass to occur there must be some direct and immediate
interference with the plaintiffs possession e.g. entering his land without his
permission. If the defendants action requires other factors to cause the
interference, then it is an indirect interference not amounting to trespass
e.g. pouring water into stream so combined with heavy rain it floods the
plaintiffs land.

Interference of a continuing nature gives rise to a new cause of action

from day to day as long as it lasts. In Holmes v. Wilson, the defendants
trespassed on the plaintiff's land and installed some buttresses there. The
plaintiff first sued them successfully in trespass. He then further sued them
for failing to remove the buttresses but the defendants claimed that his
action was time barred. However, the court rejected the argument saying it
was a case of continuing trespass, which continued till the buttresses were
on the land, and the plaintiff could bring an action until they were removed.
Continuing trespass applies only in failing to remove things/people left on
the land. It does not extend to failing to restore the land to its original form.

d.) Special Cases of Interference:

Trespass to Highway The original purpose of the highway is
passage and travelling. If it is used for any other purpose, not reasonably
identical to the original purpose, then this would be trespass. In Hickman
v. Maisey, the defendant was a race tout who used the highway to watch
the forms of the horses on the plaintiffs land. The defendant was held to be
abusing his right and this amounted to trespass. (Note: Trespass can also
be committed against subsoil of the land, but if surface and subsoil is
possessed by different people then only the owner of the subsoil can sue).

Trespass to Airspace An intrusion in the airspace at a height which

interferes with the plaintiffs ordinary use and enjoyment of land amounts to
trespass. In Lord Bernstein v. Skyviews, the defendants took an aerial
picture of the plaintiffs property. It was held against the plaintiff because
his use and enjoyment of property did not extend to the flight of any
aeroplane several hundreds of feet above his property.

However, if a structure is attached to an owners adjoining land and

overhangs his land, then this is trespass; even if the interference is at such
a height that it would not affect use of land. Thus, in Anchor Brewhouse
v. Berkley House, where the booms of some cranes hung over the
plaintiff's land and they did not interfere with the plaintiffs enjoyment of
land were held to be trespass.
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It should be noted that S.76(1) Civil Aviation Act 1982 provides that
no tort would be committed by the flight of an aircraft over any property
unless, as provided in S.76(2), anything from the aircraft or the aircraft
itself falls to cause damage to the land of the plaintiff.

IV.) Defences & Remedies:

a.) Defences:
License A license, i.e. permission to use the land, may be express or
implied. However, if the license is exceeded or revoked then the trespass is
committed. In case of revocation, a reasonable time is given to the defendant
to leave the premises. Gratuitous License is revocable anytime on giving a
reasonable notice. Contractual licenses can be either revocable or
irrevocable. If the license is obtained for a limited period or special purpose,
then till its completion it would be deemed irrevocable. In Hurst v. Picture
Theatres Ltd., the plaintiff paid to enter the defendants cinema but was
ejected by the doorman. It was held that the defendant had no right to eject
the plaintiff for the duration of the movie.

Lawful Authority For example, policemen under powers given by

PACE 1984, or easements under common law.

Necessity In Rigby v. CCN, the police fired some gas into a

building to arrest a dangerous criminal. But the gas also burnt the plaintiffs
shop. The defendants were given the defence of necessity against trespass
but the plaintiff was awarded damages under tort of negligence.

b.) Remedies:
a.) Damages They are awarded according to the reduction in value of the
plaintiff's land and not the cost of restoring it to its previous state.
b.) Injunction It is awarded in case of a continuing trespass, whether
already committed or just threatened that it would be committed.
c.) Re-Entry The plaintiff can use reasonable force to get the trespasser
out. However, self-redress should be used in sparingly like in emergency.
d.) Distress Damage Pheasant If the defendant leaves some chattel on the
land, then the plaintiff can possess it till he is paid the damages.
However, he cannot use the chattel for his own benefit.
e.) Ejection A plaintiff is only entitled to such an order where he can
establish that he has an immediate right to possession.
f.) Mesne Profits The plaintiff can claim from the trespasser profits which
he obtained from occupying the plaintiffs property, damages for the
deterioration and reasonable costs of obtaining possession.