Personal Trespass
Trespass
Trespass covers a wide category of directly inflicted civil wrongs. Trespass to the person includes direct physical assault and threats to do so. The injury, damage or interference must arise from a direct physical action. If a person has suffered loss, but it cannot be shown to have resulted from a direct intentional action, then he may still be entitled to compensation under negligence rules.
The action must be voluntary in the sense that it must be under conscious control. In many cases, the action will be deliberate and intentional. However, the action need not be intentional in the sense of the result being desired. If a person does a voluntary act and a particular consequence is likely, then he will be deemed to have intended it under a trespass law.
There may be trespass to persons, land and goods. Trespass to land covers direct entry onto land by persons and by things intruding onto land by direct action.
Trees growing across the boundary do not constitute trespass because they are not the result of a direct deliberate action. Trespass to goods covers taking and detention of goods (detinue) and wrongful appropriation (conversion)
A person may be sued for trespass even he does not cause damage. Because some cases may not involve actual injury or financial loss, the level of compensation may be limited. If injury, loss or damage occurs, compensation may be awarded. Alternatively or in addition, an injunction (i.e. a mandatory court order) may be granted to prevent future trespass.
Trespass requires that the action must be voluntary, in the sense that it must be under conscious control. It need not be intentional in the sense that the result is desired. No proof of loss or damage is necessary. Trespass is actionable if itself (“per se”)
Civil Battery
A battery is a tort. The injured person may take civil action for damages and other remedies. More serious instances of a battery also be a criminal offence. There are various gradations of criminal liability for criminal assault. There may be both civil liability and a criminal offence for the same act. What is commonly considered an assault in criminal law and in everyday terms, is a battery in civil
A battery is the direct application of force without consent. Consent may be express or implied. A physical attack constitutes trespass. Pulling a chair, in which a person is about to sit or striking a horse so that it gallops off constitutes a battery
No significant physical force or physical injury is necessary. Any physical touching constitutes a battery. Passive touching by itself does not constitute a battery. There may be a fine line of distinction in certain cases. Passive obstruction would not constitute generally a trespass. However, if a person obstructs another and interferes with his personal liberty in such a way that leads to an immediate and evitable collision, there may be a battery.
The contact must have happened, as a direct result of what the defendant has done. The slightest touching constitutes a battery. It is not necessary that there is any hostile intention. In many everyday situations, there may be implied consent to what would otherwise e a battery. This may occur for example in crowds or in another everyday situation.
A battery is a direct physical contact with a person, without his consent. It is not necessary that there is hostile intention. Any touching or direct contact constitutes a battery. It need not be physical direct. If something is thrown or directed at a person, this constitutes a battery. Passive obstruction by itself does not constitute a battery, other than in exceptional circumstances
Examples of Battery
The clearest example of a battery is a physical attack. However, any direct application of force will constitute a battery. Shooting at a person constitutes a battery. Throwing an object at a person is a battery. Setting an animal on another is a battery. So too is hitting a horse, so that it gallops and throws its rider off.
There may be a battery, notwithstanding that no substantial force is used. Any touching without consent will constitute a battery.
Obstruction or blocking of the passage or way by itself is not the battery. There may be limitations to the principle, where a person stands his ground knowing that a person shall involuntarily collide with them. It is said that pulling away from a chair on which a person is about to sit, constitutes a battery.
The direct application of force must be caused by the defendant. It is often stated that if a person digs a hole in the road, into which another falls, there is no battery. There may be a liability in negligence. Planting and detonation of a bomb is a battery.
The absence of liability in trespass for indirect action, even violent action, has been criticised. They will usually be liability in negligence. Negligence, for the purpose of liability, includes intentional action. This is a somewhat artificial basis of liability, where the action is intentional.
Basic human rights and constitutional require protection and vindication of the right to life and bodily integrity. This may require that the courts to find and employ a less artificial basis for making a person liable for intentional actions that indirectly cause physical injury.
Civil Assault I
A civil assault involves putting a person in reasonable apprehension of an immediate battery. Threatening by words or actions, constitute an assault for civil liability. Where a person has no apprehension of a battery, there can be no assault. There may be an apprehension, even though the claimant is mistaken, provided that his apprehension is reasonable.
Words may constitute an assault by reason of the threat of physical action. In a famous case, it was held that words may negate the effect of otherwise threatening behaviour. Silence can constitute an assault, if it leads, in the circumstances, to reasonable fear and apprehension of an immediate battery.
Any words that put a person in fear may constitute an assault, where there is an imminent threat of a battery, i.e. the application of force. Whether or not this is the case, will depend on the circumstances and context. Words may constitute an assault, where they give rise to reasonable apprehension of a battery. Famously, where the words negate the possibility, will not constitute an assault.
It has been held in the UK, that silence may constitute assault, in some particular contexts. A silent caller may wish and intend to cause fear in the victim, and would accordingly constitute assault.
Assault is anything which puts somebody in a reasonable apprehension of immediate battery. There must be fear of immediate physical contact. There is no limit to the circumstances which may cause a putting in fear.
Civil Assault II
No actual physical contact is required. The immediate threat is enough. For example, pointing a gun or threatening with a weapon would be a civil assault (as well as carrying criminal consequences). However, threatening gestures which cases a reasonable person to apprehend unconsented physical contact will suffice.
Where a person has no apprehension of a battery there can be no assault. Where a person is mistaken as to the actual risk of a battery, the may be an assault if the apprehension, although mistaken, is reasonably held.
Words, by themselves, will not usually constitute an assault. Persons are usually expected to exhibit fortitude. Words may constitute an assault if accompanied by other circumstances which reasonably induce fear. Words, on the other hand, may negate an assault. In a famous case, a man menacingly touched his sword and said that were it not assize time, he would strike him.
Silence will not generally constitute an assault. In some circumstances, silence can lead to reasonable fear and apprehension. In one case, it was decided that a silent telephone caller could be guilty of assault where the victims was given reason to apprehend physical contacts.
Consent
Consent will negate a battery. Consent may be implied. In everyday life in crowds, accidental touching” or brushing against is impliedly consented to. Certain sports involve implied consent.
If this implied consent is exceeded, there may be a battery. It is not possible to consent to acts of physical violence. For example, it is possible to consent to boxing. On the other hand, fist fighting is beyond what can be consented to and will be a battery even with consent.
A person may expressly or impliedly consent to touching which might otherwise constitute a battery. In everyday life, implied consent may be given to a certain amount of necessary contact. For example, in crowded places, there is implied consent to some degree of unintended touching in passing. Examples may include drawing a person’s attention by tapping on the shoulder where necessary, bumping into persons on crowded streets.
There are limits to implied consent to physical contact. The contact must not be unwarranted, offend a person’s dignity, be hostile, deliberate, or be outside the bounds of social usages. Much will depend on the context.
In the context of criminal law, there are limits to the extent to which a person may consent to a battery. A person may not consent to the infliction of serious personal injury as a matter of public policy. The same principle is likely to apply in relation to civil liability
Criminal Battery
Confusingly, a battery for civil law purposes may be an assault for criminal purposed. An assault for civil purposes is the threat of a battery. The range of matters that can be the subject of a claim for battery are wider than those which may constitute a criminal assault.
There are various categories of criminal assault, ranging from assault causing serious bodily harm to less serious “simple “assaults. Each of these also constitutes a battery for the purposes of the law on civil compensation. Generally, the criminal matter would be disposed of first and the civil claim may be taken afterwards.
Battery and Medical Treatment
A significant and perhaps counterintuitive instance of battery arises in the case of a surgical operation, where the patient has not given informed consent. In such cases, there may be a battery, because of the absence of informed consent.
Consent to medical treatment must be informed. Where a person undertakes treatment and does not have the ability to consent or has not given informed consent, the surgery or treatment may constitute a battery.
This has implications in terms of liability for medical malpractice. Trial by jury is available in the case of battery. There is greater scope of recovery for damages than would apply in the case of negligence.
Intentional Infliction of Emotional Harm
There is a long-standing tort comprising the intentional or reckless infliction of emotional suffering. It is a stand-alone tort. The tort is famously based on a late 19th-century case of Wilkinson v Downton. In that case, a person was told as a so-called practical joke, that her husband had been seriously injured in an accident and that he was lying in distress on the ground. The claimant suffered severe psychiatric injuries in consequence.
The case established the principle that a person is liable to the victim, if he wilfully does an act calculated to cause physical harm to him, infringing his right to personal safety and thereby cause him personal injury. There must be no justification for the action. It was said that the action must be wilful and malicious. This is an older formulation which requires only that the action must be deliberate and lack justification There is no requirement for spite or ill will.
The intentional infliction of emotional suffering is a stand-alone tort. In a famous case, a person was told as a practical joke that her company has been killed causing violent shock and injuries there may be liability. This is different to be moderate than the negligent victim of emotional suffering, which is within narrower pounds back
The action must be wilful and the respondent must intend or be reckless as to the consequence. The tort has been applied in cases of outrageous and extreme conduct, where the person who acts intentionally or recklessly as to infliction of emotional or psychiatric injury.
There must be a recognisable distinct psychiatric or psychological injury, as in the cases of so called nervous shock. However, the principle covers the infliction of physical injury if circumstances so cause is also covered. Mere anxiety or stress is insufficient. This requirement is similar to that for negligently causing emotional suffering. The claim for negligence is within narrower bounds, in some respects.
The intentional inflectional of emotional injury is likely1 to constitute a criminal offence.
False Imprisonment
False imprisonment is in an unlawful restraint on personal liberty. The person must be bound within limited confines. He must be restrained in all directions. The extent of confinement may vary in the circumstance. It may be for example, in an in a room a building or in a fenced open space. The person concerned must be aware of the confinement. There is no liability if the claimant is sleeping or lacks mental capacity
Imprisonment may be physical or psychological. The barriers need not be physical. It is sufficient that a person fears that force would be used to confine him, if he tried to leave or escape. A person is not required to subject himself to risk danger or risk injury undergo significant humiliation, such as walking naked, in order to escape confinement.
Where a person is required to remain or is restrained by a person who wrongfully exercising police authority, there is false imprisonment. This may arise where a private person wrongfully exercises a common law power of arrest. The Gardai and other public authorities may be liable for false imprisonment, where they arrest or detain the claimant, without or in excess of statutory authority. This can raise complex issues regarding the extent of statutory powers, which themselves are subject to the constitutional limitations of the deprivation of liberty
It appears that a person may be imprisoned where another refuses wrongfully to release a person who has come an present on his property even accidentally or as trespasser. It has been held that where employees were locked into and not released from a factory or workplace at the end of the working day.