Trespass to the person

Trespass to the person means a direct or an intentional interference with any person’s body or liberty. It can arise even in case if there is no physical harm occurs to the victim. There are three main wrongs which falls under the category of the trespass to a person, which are; assault, battery and false imprisonment and there is one common element is that the wrong shall be committed by the “direct means”.

Trespass to the person consists three torts:-

  1. Assault
  2. Battery and;
  3. False imprisonment.


Battery is the intentional application of force to another person. Assault is the intentional putting of another person in fear of an imminent battery.

Assault connotes the application of physical force to the person, but in the law of torts tha actual application of force to the person is not an assault but battery, and an assault means any act which puts the plaintiff in fear that a battery is about to be committed against him.

Thus, to slap the plaintiff on the face is battery; but to approach him menancingly with a clenched fist is an assault; to throw an object at him is an assault so long as the object is still in the air, but if the object strikes him there is a battery.

Very often the threat of violence will be immediately followed by the actual application of the violence to the plaintiff’s person, so that the defendant will have committed both an assault and a battery. For example, where the defendant first points a loaded gun at the plaintiff and then fires a shot which hits him.

There are instances in which there would be a battery but no assault is where the plaintiff is struck unexpectedly from behind, or when asleep; an example of an assault without a battery is where the defendant aims a blow at the plaintiff but his blow is intercepted by a third party, so that the plaintiff is not actually touched. See English case of Stephens V. Meyers (1830) 172 E.R. 735.

In assault, the action of the defendant must have been such that a reasonable man might fear that violence was about to be applied to him. The test is objective, not subjective. Thus if a man of ordinary courage would not have been afraid, the fact that the particular plaintiff was afraid will not make the defendant liable.

Conversly, the fact that the plaintiff was exceptionally brave and was not afraid will not prevent him from succeeding in his action if a man of ordinary courage would have been afraid.

More so, it is clear that to point a loaded gun at the plaintiff is an assault. See the case of Kwaku Mensah V. The King (1945) 11 W.A.C.A. 2 (P.C). , it is not clear whether there will be an assault where the the plaintiff believes the gun to be loaded, whereas in fact it is not.

There is a view that there will be no assault since there would be no means means of carrying the threat of shooting into effect. Probably the better view, however, is that there would be an assault, on the ground that an assault “involves reasonable apprehension of impact of something on one’s body, and that is exactly what happens when a firearm is pointed by an aggressor”.

In battery it is not necessary that there should be any bodily contact between the defendant and the plaintiff. It is sufficient if the defendant directly brings some material object into contact with the plaintiff’s person.

Thus, for example, it is battery to throw stones at the plaintiff; to spit in his face; to knock over a chair in which he is sitting; or to set a dog upon him. See the case of Lawal V. Deputy Suprintendent of Police (1975) 2 W.S.C.A. 72.

It is even battery to project heat, light, electrical force or smells at the plaintiff to an extent which causes discomfort.
It is not necessary that any physical harm should have been caused to the plaintiff. Thus, for example, it is battery to hold a man’s arm in the process of arresting him unlawfully, or to take his fingerprints unlawfully. Nor is battery necessarilly a hostile act.

Thus it may be battery to kiss a woman against her will. On the other hand, “contacts conforming with accepted usages of daily life are not actionable. Furthermore, to jostle or push a person in a crowded bus or sports stadium will not constitute battery, though it may be otherwise if the defendant uses violence to force his way through in a “rude and inordinate manner.” nor will it be battery to touch a person in order to draw his attention to something. See the case of DonnelyV. Jackman (1970) 1 W.L.R. 562.

Defenses to Trespass to Person – Trespass to the person

  1. Self Defense: It is lawful for any person to use a reasonable degree of force for the protection of himself or any other person against any unlawful use of force. The key to successful defense is the element of reasonableness, as the defense will operate if the force used by the defendant is proportionate to that being applied by a tortfeasor.
  2. Inevitable Accident: Inevitable accident provides a good excuse for a prima facie trespass which is otherwise actionable. It is defined as an event over which the defendant had no control and the effects of which could not have been avoided by exercise of the greatest care and skill.
  3. Consent of the Plaintiff: If the claimant consented either expressly or impliedly to the torts of assaults and battery, there will be a complete defense.
  4. Self-help: This is a type of remedy which is available to a person while he is still under detention. That person is authorized to use reasonable force in order to escape from detention instead of waiting for a legal action and procuring his release thereby.
  5. Habeas Corpus: It is speedier remedy for procuring the release of a person wrongfully detained. Such a writ is issued by the order of the court.

See also Strict Liability, Mental elements in Tort, Injuria Sine Damno, Damnum Sine Injuria, Tort and crime Distingushed, Tort and Contract.

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