Trespass has been said to be one of the most ancient form of torts. It developed even before the presence of the police force, to provide protection against the physical interference to person, land or property. The statement has made specific reference to the tort of trespass to person, in regards to the extent of intention needed to determine that a trespass to person has occurred. As such this essay will examine the tort of trespass, with reference to both UK and Malaysian cases in order to make that determination. It will then conclude.
As mentioned before trespass may take three forms. The focus here will be on the trespass to person. All three forms of torts, it should be noted, are actionable per se, meaning that the claimant may not …show more content…
Although it is another necessity which needs to occur. It can be argued that more often than not, knowledge can be tied in with intent. There is a certain intent of harm when knowledge exists in an assault case, be it under omission to act.
The next element of trespass to person is battery. Battery has been defined as “the direct and intentional application of physical force to the person of another without lawful justification” . It is the act of making physical contact. This must be intentional. In the case of Fagan v Metropolitan Police Commissioner [1969] 1 QB 439, [1968] 3 All ER 442 ), the defendant was held liable for criminal assault as prior to having negligently driven his car on the foot of a police offer, the defendant subsequently deliberately delayed to remove the vehicle.
In battery, any form of physical contact, no matter how trivial, is enough to constitute ‘force’. The case of Collins v Wilcock [1984] 3 All ER 374 clearly illustrates this. This was the case where a police officer tried to question a woman whom she suspected of soliciting, she took hold of said woman’s arm, whereby the woman scratched her on the arm. It was held that the “officer had gone beyond the scope of her duty, without exercising powers of arrest, her action in touching the woman had amounted to …show more content…
Here, reference can be made to the case of Livingstone v Ministry of Defence (1984) N.I.L.R. 356, where a soldier in Northern Ireland fired a baton round targeting a rioter. He missed and hit the claimant instead. Here, because his action of firing the “baton was intentional, even though he was aiming at a rioter when he fired, the soldier was found liable in battery, when he missed his target and struck the plaintiff”.
The third and final element of trespass to person is that of false imprisonment. It has been said that there is no need to be an imprisonment in the conventional sense of the word. Any unlawful arrest is sufficient enough to establish in itself, false imprisonment. Such as the “continued detention of one, who, though in original custody, has acquired a right to be discharged” . In other, simpler words, as Steele defined it, the ‘unlawful and total physical restraint of the liberty of the