1. Trespass to the person and defences
Chapter 8.5

2. Introduction
There are three different trespass to the person in civil law:
Assault
Battery
Imprisonment

3. Trespass to the person
In civil law, assault and battery are two entirely separate types of wrongs.
In criminal law, assault and battery have been merged into the one offence — assault.
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.
it is also possible for the victim to initiate civil action for the torts of assault and battery in order to recover damages.

4. 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.

5. To prove assault the plaintiff must show that a reasonable person in the same circumstances would be in fear of suffering a physical injury.
words alone constitute an assault.
the threatening words need to be accompanied by an action like pointing a gun at the plaintiff or shaking a fist.
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.

6. 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.

7. it is not necessary for the plaintiff to have suffered actual damage or loss.
even a light slap can constitute a battery.
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; cutting a person's hair without his or her consent, hitting, throwing water on the plaintiff or spitting on the plaintiff's face.
battery must be without the plaintiff's consent in order to win a case of trespass.
sometimes it is possible to determine that the plaintiff has consented e.g. getting in a crowded train and getting bumped by another passenger has consented to the contact

8. False Imprisonment
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
it must be without lawful justification
the actual place of imprisonment is not important (e.g. a house, department store, car or aircraft)

9. Defences to trespass to the person
1. The plaintiff consented to the conduct but it 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. E.g.
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.
A second defence is that the conduct was lawful.
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.

10. Your turn
Test Your understanding 1-4
Apply your understanding Q 5