Trespass to person and defences

Ask students to draw up a list of common games they play or other students play at recess or lunchtime. Once the list is complete, ask them to list events that could occur during those games that may cause harm to others.

There are three different types of trespass to person in civil law — assault,

battery and imprisonment. The tort of trespass has been developed by

the courts. It had its beginnings some time around the thirteenth century, at a time when the distinction between criminal and civil law was not as clear as it is today. The law of trespass is concerned with direct interference with persons or property. It is divided into three types:

1.) trespass to person 2.) trespass to land 3.) trespass to goods.

Trespass to person Let us look at the three forms of trespass to

person. In civil law, assault and battery are two entirely separate types of wrongs. However, in criminal law, assault and battery have been merged into the one offence — assault. You will recall from the previous chapter that it is possible for a defendant to face both criminal and civil actions for the same conduct. Usually, if a person is physically attacked the defendant will face criminal charges for assault. But, it is also possible for the victim to initiate civil action for the torts of assault and battery in order to recover damages.

Assault

Assault under the tort of trespass has a different meaning to assault under criminal law. In tort, an assault occurs when the defendant's words or actions cause the plaintiff to believe that he or she is about to suffer bodily injury. For example, if you are in a public car park and a person carrying a baseball bat comes towards you in a menacing way, causing you to fear that you are about to suffer physical harm, that is sufficient to meet the tort of assault.

To prove assault the plaintiff must show that a reasonable person in the same circumstances would be in fear of suffering a physical injury. It is doubtful whether or not words alone constitute an assault. Usually, the threatening words need to be accompanied by some sort of action like pointing a gun at the plaintiff or shaking a fist at the plaintiff's face. However, if the circumstances are such that the plaintiff believes, on reasonable grounds, that the defendant has the ability to carry out the threat, words alone can amount to assault. This includes threats made over a telephone.

Case

In a New South Wales case, Hart v. Herron [1984] Aust. Torts Report 80–201, the court found that a medical practitioner and hospital had wrongly imprisoned the plaintiff. The plaintiff had been asked to sign a consent form for treatment but refused. The nurse gave the patient a tablet and the patient ‘blacked out’. When the patient woke up he found he had been treated by a psychiatrist with deep sleep therapy and had been given various other types of therapy.

Battery Battery refers to the actual

application of force to the plaintiff's body. A battery occurs:• when the defendant causes physical contact

with the plaintiff• the action is direct, intentional or negligent• the action was carried out without the

plaintiff's consent.

Unlike the tort of negligence it is not necessary for the plaintiff to have suffered actual damage or loss. This means even a light slap can constitute a battery. However, in such circumstances the court is likely to award a very small amount of damages with the view to acknowledging that the plaintiff's rights have been infringed. Other examples of actions that constitute a battery include cutting a person's hair without his or her consent, hitting, throwing water on the plaintiff or spitting on the plaintiff's face.

Whatever form the battery takes, it must be without the plaintiff's consent in order to win a case of trespass. In some instances, it is possible to determine that the plaintiff has consented by examining the circumstances of the case. For example, a person who voluntarily gets into a crowded train and gets bumped by another passenger has consented to the contact. In relation to sport, limits are placed on the plaintiff's implied consent to bodily contact. For instance, the deliberate punching of another player's jaw during a soccer match has been held by the courts to be a trespass.

False imprisonment False imprisonment is concerned with the protection of an

individual's right to freedom of movement. It occurs when the defendant deliberately or negligently confines (imprisons) the plaintiff in such a way that there is no means of escape. The imprisonment must be without lawful justification. The actual place of imprisonment is not important. It could include confinement to a house, department store, car or aircraft.

In the case of Myer Stores Ltd v. Soo [1991] 2 VR 597, a person was recorded on security camera apparently shoplifting. A week later when the plaintiff was in the store the security guard suspected he was the same person who had been shoplifting. The plaintiff agreed to do as he was instructed by the security guard. He walked behind the guard with two police officers following on behind to the security room for interrogation. The interrogation lasted approximately one hour. The Supreme Court found that he had been falsely imprisoned from the time he was first spoken to in the store to the time he was released from the security room.

Defences to trespass to the person The primary defence to trespass to the person is that the plaintiff

consented to the conduct. This consent must be freely given with no hint of threat, duress or intimidation. There are many types of situations where the plaintiff's consent is at issue.

214 A boxer may consent to bodily contact in the boxing ring, but

contact that occurs outside the contest may lead to a case in battery.

Parents have the role of disciplining their children. However, this is not a defence if the discipline involves a battery that amounts to bodily harm. The discipline must be reasonable or it will lead to intervention by child welfare authorities.

A doctor who carries out a medical procedure without the patient's consent may have committed a trespass to person. In cases where the patient is a young child, parental consent is, of course, required. This means even though a doctor, with the parents' consent, injects a struggling, protesting young child with a vaccine, it will not constitute a battery.

A second defence is that the conduct was lawful. A law enforcement officer such as a member of the police force has the power to arrest a person, thereby stopping the person's right to freedom of movement. Where the arrest is lawful, no court action in trespass to person is possible. Also, if the person resists arrest, the police officer can use reasonable force so there can be no action for the trespass of battery.

A CASE OF TRESPASS TO PERSON Darren and Jason are both aged 17 years and are in Year 11

at the Westside Secondary College. Since starting at the school, the boys have been rivals. Recently, Darren openly flirted with Jason's girlfriend. This led to more tension between the boys with Jason claiming threateningly that he was going to ‘get Darren and make him suffer’. One day, after school, as Darren was making his way down the very crowded corridor, Jason pushed Darren into a cleaner's storeroom. He grabbed Darren's school bag from his shoulder causing Darren to fall awkwardly to the ground and slammed the storeroom door shut. Darren was found three hours later by the cleaner when he unlocked the room. Jason claims he was just mucking about and did not know Darren could not get out of the room.

TEST your understanding 1.) What is the difference between the tort of assault and the tort of

battery? 2.) Provide examples of conduct that would be considered to be an

assault and a battery. 3.) What is the difference between false imprisonment and lawful

imprisonment? 4.) Provide an example of a situation to show that a plaintiff has been

falsely imprisoned. APPLY your understanding 5.) Decide whether or not a trespass to person has occurred in each

of the following situations. Where appropriate give reasons for your answer.• Frank was frustrated when his four-year-old son was being uncooperative so he

smacked the child on his legs.• Barry gave consent to his surgeon to remove a lump in his neck. When Barry was

under anaesthetic the doctor also removed a large mole on Barry's neck.• Kathy is caught shoplifting from a department store and willingly accompanies the

store security guard to an office to discuss the matter.• Jennifer, in a fit of rage, threw a glass of red wine over her boyfriend's head and

clothes.• Mia was travelling in a crowded tram when another passenger accidentally

bumped into her, causing her to fall over.• Even though Wally knows Suzanne does not like him, he kissed her on her face.