Trespass to the Person in Irish Tort Law

The trespass torts are the oldest in the common law, and they behave differently from negligence in almost every respect that matters to an exam answer. They are direct rather than consequential, usually intentional rather than careless, and they do not require the plaintiff to have suffered any loss. That combination makes trespass powerful precisely where negligence struggles: where someone has been plainly wronged but the harm is dignitary, unquantifiable or unforeseeable.

What makes trespass different

Three features do the work. The interference must be direct — the defendant’s act must itself produce the contact or the restraint, not merely set up a state of affairs from which harm later follows. The act must be voluntary. And the tort is actionable per se, so the cause of action is complete on the wrongful act, without proof of damage.

There is a fourth advantage that is easy to overlook. Because these are intentional torts, remoteness is governed by the wider direct-consequences rule rather than by foreseeability, so the defendant answers for the direct results of the wrong even where those results could not have been anticipated. That is often the real reason a plaintiff pleads trespass rather than negligence on the same facts.

Battery

Battery is the direct and unlawful application of force to another person. The threshold is low: the slightest touching suffices, and neither hostility nor injury is required. The foundational statement is Cole v Turner Persuasive (Eng) — the least touching of another in anger is a battery. The Irish authority is Humphries v Connor Binding (IE), where removing an orange lily from a woman’s clothing was capable of being a battery: no injury, no blow, but an unconsented interference with the person all the same.

Two limits keep the tort sensible. The contact must be direct, so digging a concealed hole into which the plaintiff later falls is an indirect injury and not a battery, whatever else it may be. And the law tolerates the ordinary contacts of everyday life: as Goff LJ explained in Collins v Wilcock Persuasive (Eng), jostling in a crowd or a friendly touch on the arm to attract attention are impliedly consented to and are not actionable.

Assault

Assault is an act that intentionally causes another to apprehend an imminent battery, and the apprehension must be a reasonable one. No contact is needed, because it is the apprehension itself that the tort protects. That makes imminence the usual battleground: a threat of future violence, or one the plaintiff has no reason to think will be carried out now, will not do.

Words matter in both directions. In Tuberville v Savage Persuasive (Eng) the defendant laid a hand on his sword while saying that were it not assize-time he would not take such language — the words emptied the gesture of its threat, and there was no assault. Conversely, conduct without any gesture at all may qualify: in R v Ireland Persuasive (Eng) Lord Steyn accepted that silent telephone calls could amount to an assault where the victim feared imminent violence, though in the ordinary case a caller at a distance generates no apprehension of immediate contact.

False imprisonment

False imprisonment is the unlawful and total restraint of a person’s liberty without lawful justification. The governing Irish statement comes from Fawsitt J in Dullaghan v Hillen [1957] Ir Jur Rep 10 Binding (IE), and three points from it repay memorising.

• The restraint must be total — freedom of movement must be limited in every direction. A partial obstruction that leaves the plaintiff free to go another way is not enough, and a reasonable means of escape negates the tort.
• The victim need not be aware of the imprisonment at the time, which follows naturally from the tort being actionable per se.
• There can be an imprisonment without walls: no cell, lock or physical barrier is required, provided liberty is in fact totally restrained.

Intention, negligence and the voluntary act

Trespass is an intentional tort in the sense that the defendant must intend the act — the contact, the threatening gesture, the confinement — and the act must be voluntary. What the defendant need not intend is the harm. That is why battery is complete on an unconsented touching that causes no injury and was meant to cause none, and why the plaintiff’s inability to prove loss is irrelevant.

Where the interference is indirect or merely careless, the plaintiff is generally back in negligence, with its duty, breach, causation and foreseeability requirements — a considerably harder road when the loss is intangible. The exception at the edge of the topic is the rule in Wilkinson v Downton Persuasive (Eng), which catches a defendant who intentionally does an act calculated to cause emotional distress and thereby causes physical harm or a recognised psychiatric injury. Note what makes it the odd one out: it is not actionable per se, because the plaintiff must prove an injury rather than mere upset. Rhodes v OPO Persuasive (Eng) restated it in modern terms — the intended distress must be significant rather than trivial, and intention may be inferred as a matter of fact but not imputed as a matter of law — while Wainwright v Home Office Persuasive (Eng) records Lord Hoffmann’s view that the rule has nothing to do with trespass to the person, however conventionally it is grouped with it.

Consent and the other defences

Consent is the central defence and, where it applies, it is complete: consented-to contact is simply not unlawful. Two qualifications decide most problems. The person consenting must have the capacity to do so. And the act must fall within the scope of what was consented to — contact going beyond what the activity involves is a battery notwithstanding the plaintiff’s participation, which is why a deliberate off-the-ball strike in a sports match is actionable while a hard but lawful tackle is not. Consent may be express or implied, and the everyday-contacts principle in Collins v Wilcock is best understood as implied consent operating at the margins.

Beyond consent, the recognised defences are self-defence and defence of others, permitting reasonable and proportionate force to repel an attack; defence of property, where the permitted force is lower than for the defence of the person; lawful authority, which covers a lawful arrest and lawful detention (Garda and citizen’s-arrest powers under the Criminal Law Act 1997) and is the answer to most false-imprisonment claims against retailers and public bodies; and the reasonable chastisement of a child, now much narrowed. Contributory negligence is not a defence in the true sense but may reduce damages.

Related Tort Law notes: nuisance and Rylands v Fletcher · defamation · all free Tort Law notes.