Trespass to the person

Trespass to the person comprises three intentional torts: assault (apprehension of imminent unlawful contact), battery (unlawful contact with the person), and false imprisonment (unlawful restraint of liberty). The torts protect bodily integrity and personal liberty against direct intentional interference. They are actionable per se — without proof of damage — though substantial damages typically require proof of harm.

The rule in Wilkinson v Downton [1897] 2 QB 57 created a separate tort of intentional infliction of harm where the conduct was outside the ambit of the orthodox trespass torts. The Supreme Court in Rhodes v OPO [2015] UKSC 32 substantially refined the rule, restricting it to cases of (i) words or conduct directed at the claimant, (ii) intent to cause severe distress or worse, (iii) actually causing such distress.

This week studies the orthodox trespass torts and the Wilkinson v Downton / Rhodes refinement. Defences (consent; lawful authority; self-defence; necessity) are also studied. The topic connects to W6 (criminal-law analogues of these torts) and to the human-rights overlay (Article 3 ECHR — prohibition of torture and inhuman or degrading treatment; Article 5 — liberty).

Trespass to the person is one of the oldest forms of action at common law, traceable to the medieval period. The torts were originally distinguished by the writ system: assault and battery were direct injuries (trespass); false imprisonment was the direct restraint of liberty.

The modern doctrinal framework crystallised in the nineteenth century. R v Ireland [1998] AC 147 modernised assault to include silent telephone calls causing apprehension. Letang v Cooper [1965] 1 QB 232 confirmed that trespass to the person required intention; negligent injury to the person is governed by the tort of negligence.

Wilkinson v Downton [1897] 2 QB 57 created a separate tort. A practical joker told a wife (falsely) that her husband had been seriously injured; she suffered nervous shock. Wright J held that the defendant was liable for the tort of intentionally causing harm by words. The case has been refined extensively in the twentieth and twenty-first centuries, culminating in Rhodes v OPO [2015] UKSC 32.

(1) Battery. Direct intentional unlawful contact with another. Elements: (i) direct contact; (ii) intentional act; (iii) without consent or lawful justification. Hostility is not required (Re F (Mental Patient: Sterilisation) [1990] 2 AC 1). The contact may be slight; trivial contact (passing in a crowd) is not battery (Cole v Turner (1704) 6 Mod 149).

(2) Assault. Direct intentional act causing the claimant to apprehend imminent unlawful contact. Elements: (i) intentional act causing apprehension; (ii) of imminent contact; (iii) of an unlawful nature. Words alone may suffice (R v Ireland [1998] AC 147).

Five graded practice questions in the panel below.

See the Further Reading panel for Murphy and Witting, Stevens, the post-Rhodes academic commentary, and the Law Commission analysis.