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DAMODARAM SANJIVAYY SANJIVAYYA A NATIONAL LAW UNIVERSITY UNIVERS ITY VISAKHAPA VIS AKHAPATNAM, TNAM, A.P., INDIA
PROJECT TITLE:
Trespass to Person
SUBJECT: Law of Tort
NAME O! THE !ACULTY: Dr. Sri Devi
Na"# of t$# Ca%&'&at#: Syed Owais Talib Ro(( No.: 2016 20 1610 107 7 S#"#t#r: 1 st semester
Acknowledement
2 | Page Firstly, I would like to express my sincere gratitude to my respected Law of Torts Dr.Sri Devi for giving me a golden opportunity to take up this project regarding ― professor, Dr.Sri
Trespass Trespass to person and sincere thanks for the continuous continuous support of my study and related research, research, for her patience, patience, motivation, motivation, and immense immense knowledge knowledge.. Her guidance helped me in all the time of research. I could not have imagined having a etter advisor and mentor for my research.
!ontents
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"jectives of the study####################.$ &ignificance of the study###################..$ &cope of study#######################..$ (eview of literature#####################..$ (esearch methodology####################.$ Introduction########################..) (elevance of intention in trespass to person############* -ssault##########################..+ a. -ssault#######################..+ . ssential ingredients of assault##############. c. /ases of assault####################. 0. 1attery##########################...!2 a. 1attery#######################...!2 . ssential ingredients of attery##############.!2 c. /ases of 1attery####################.!2 !2. 3efenses to -ssault and 1attery#################!% !!. False Imprisonment######################!' a. False Imprisonment###################!' . ssential ingredients of False Imprisonment#########..!' c. /ases of False Imprisonment ###############.!' d. False Imprisonment and /onstitution of India#########!* e. 3efences#######################..! f. (emedies#######################.!0 !%. /onclusion#########################...%2 !'. 1iliography#########################%!
Ob"ectives o# t$e st%dy
This studies aims at studying the trespass to person with all its types, defences and remedies. It studies the evolution of the law of trespass to person It also studies the cases laws of the trespass to person.
Sini#icance o# st%dy
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This study signifies the law of trespass to person. It helps us to know more aout the laws and principles of trespass to person.
Scope o# st%dy The study of the tort of trespass with special reference to trespass to person.
&eview o# 'iterat%re The data collected for this study is otained through 4rimary sources i.e. 1ooks and 5ournals and &econdary sources i.e. 6esites
&esearc$ met$odoloy This project is purely doctrinal type and the material and literature is collected from oth on primary and secondary sources such as wesites, ooks, journals and internet sources. This (esearch process deals with collecting and analy7ing information to answer 8uestions. The (esearch is purely descriptive in its oundaries of the topic.
(ody o# t$e pro"ect
)ntrod%ction
9nder the law of torts, trespass is classified into three categories: namely; • • •
Trespass to land Trespass to goods Trespass to person
5 | Page The acts of trespass to person attracts the liaility under the tort law as well as the criminal law. The trespass to person in criminal law in India is well defined in the I4/. !
Trespass to the person historically involved six separate trespasses; threats, assault, attery, wounding, mayhem, and maiming. Through the evolution of the common law in various jurisdictions, and the codification of common law torts, most jurisdictions now roadly recogni7e three trespasses to the person, -ssault, 1attery and False imprisonment.
-ll three re8uire that the act e a direct and intentional act, with indirect or unintentional acts falling under the tort of negligence. 1attery and assault re8uire the claimant to estalish that the defendant intended to act, while false imprisonment is a tort of strict liaility. The guiding principle ehind all three is ased on the statement of s ody is inviolate=, excepting normal, day?to?day physical contact.
&elevance o# intention in trespass to person*
-s per the old law, whenever an injury was caused to others y a person y direct and immediate use of force, the plaintiff can sue the defendant in trespass to person, without alleging the tort of negligence, whereas if the injury was only conse8uential he had to sue in the case of negligence.
Instead of dividing action for personal injuries into trespass or negligence the cause of action itself is divided. The thing which is taken into account is whether the act was done with any intention or not. 1 Indian 4enal /ode,!*2
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Thus a person in order to estalish a case of trespass to person does not need to prove whether there was an intention to commit the trespass or not.
In Fowler v. Lanning %, 3iplock 5. e8uated the urden of proof in cases of unintentional trespass with that in those of negligence.
Lord 3enning in Letang v. /ooper ' has recogni7ed the importance of intention in trespass to person. +acts
@r. /ooper negligently drove over @rs. Letang in his car while she was sunathing on a piece of grass where the cars were parked. Letang filed a claim of trespass to the person, ecause the claim under the tort of negligence was time?arred. Trespass to the person is a tort involving wrongful direct interference with another person and traditionally includes oth intentional and negligent act.
,%dment
The /ourt of -ppeal, the ench containing of Lord 3enning @(, 3iplock L5 and 3anckwerts L5, unanimously held that since /ooper>s actions were negligent rather than intentional, the statute of limitations arring the claims and actions for damage caused y negligence applied. Letang failed to recover her damages ecause her claim was too late.
-##ect
The effect of this case is that an action for the tort of trespass to the person can only e rought for intentional torts, such as assault, attery, false imprisonment, trespass to land and goods, etc. 4laintiff wishing to recover damage to his person or property that was caused y the defendant>s negligent action needs to prove all the ingredients of negligence.
In this project the focus will e on the trespass to person. The trespass to person can e again classified in to three types; !. -ssault 2 In Fowler v. Lanning A!0)0B !C1 $%* 3 Letang v /ooper A!0*$B 6/- /iv )
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Assa%lt*
-ssault is an intentional act y one person that puts another person in apprehension of imminent harmful or wrongful contact. The assault is a crime in India under section ')! of the I4/. -n assault is carried out y a threat of odily harm coupled with apparent and present aility to cause harm. There must e intention as well as act done for an assault to occur. "nly words used does not amount to assault. 1ut the words which a party uses threateningly at the time may or give gestures such a meaning as may make them amount to assault. In most of the cases, attery is preceded y assault ut it is not always necessary that assault precede attery. It can happen that someone hits a person from ehind his ack, in this case assault did not precede attery. It was earlier said that assault re8uires some odily movements and threating words would not constitute assault. It was later rejected y the House of Lords in the cases of ( v. Ireland$ where it was stated that only words can constitute assault provided the plaintiff has reason to elieve that they may e carried out in the near future to 8ualify as Dimmediate threatE. This was also upheld y the /ourt of -ppeal in the case of ( v. /onstan7a.)
-ssential inredients o# assa%lt* • • •
Intent -pparent aility to carry it our -pprehension nowledge of threat
!ases o# Assa%lt*
Step$en v yers /10 4 ( v Ireland A!00+B $ -ll ( %%) 5 ( v /onstan7a A!00+B /rim L( )+*
8 | Page Facts The 4laintiff who was a chairman at a meeting sat at a tale where the defendant was sat. There were six people etween the plaintiff and defendant. The defendant who was disruptive and suse8uently motion was passed that the defendant should leave the room. The defendant said he would rather pull the plaintiff out of his chair and immediately advanced with his fist clenched towards the chairman ut was stopped y the man sat next to the plaintiff. It seemed that his intention was to hit the plaintiff. The defendant argued that no assault took place as defendant did not have power of carrying out his threat as there were people in etween them.
5udgement The court stated that not every threat is an assault. There needs to e a means of carrying out the threat. The judge directed the jury that if the defendant could have reached the chairman and hit him there would have een an assault. 1ut if the defendant did not have any intention of hitting the plaintiff, or it was unrealistic that he could reach the plaintiff, then there will e no act of assault.
(avisetti 3enkat S%rya &ao v. 4andipati %t$ayya*
Facts In this case, the plaintiff, who was a well to do agriculturist, was in arrears of land revenue. The village revenue collector, who had duty to collect revenue, went to the plaintiffGs residence to collect the amount. 6hen the defendant demanded to pay, the plaintiff pleaded his inaility to pay the revenue as his wife had locked the house and gone out for a few days. The defendant insisted to have the payment as the very day was the last day of the year for collection of the revenue. The plaintiff was told that on his failure to pay, his movale property will e sei7ed. &ince the plaintiffGs house was locked and no other movales were readily availale to sei7e, the defendant told him that the earrings which the plaintiff was wearing will e sei7ed. The village gold smith was called and on his arrival, one person who was present there paid off the due amount owed y plaintiff y orrowing the same from another person. The plaintiff sued the village revenue collector stating that apart from other wrongs the defendant had also committed the tort of assault.
5udgment;
9 | Page It was held y the court that since the defendants, after the arrival of the gold smith said nothing and the threat of using force y the gold smith was too remote possiility to have put the plaintiff in fear of immediate violence. Hence, there was no assault.
(attery* 1attery is an act of intentionally applying force on another person without any lawful justification. There must e physical contact in order to constitute attery. 6ithout physical contact there cannot e attery. The physical contact need not e direct contact even the harm caused y other means such as use of water, light and heat can also amount to attery. 1attery is different from assault in the sense that assault is a mere threat of causing harm ut in attery the actual odily injury or harm is caused to the victim. The awareness of the victim
10 | P a g e of someone committing attery on him is not re8uired. ven without the knowledge of the victim, the act can amount to attery.
-ssential inredients o# battery*
• • • •
There should e a physical touch directly or indirectly. Intention must e present. The physical contact must e without lawful justification. 9se of force 1attery must e voluntary
!ases o# battery*
5ilson v. Prinle*
Facts The plaintiff and defendant oth were schooloys involved in an incident in a school corridor which resulted in the plaintiff falling and eing injured. The 3efendant argued that there was no attery as this involves delierate touching with hostility and the intent to inflict injury and horseplay did not involve such intent. The /laimant argued that there mere ly had to e an intentional touching. 5udgement The court held that attery involved an intentional touching, ut no intention to cause injury. The court considered whether a etter test would e implied consent or a test ased on how common the actions are in daily life. These will e useful considerations ut ultimately the touching must e >hostile>.
Pratap Da"i v. (.(. And !.). &yl. 6
Facts
6 !+) ! 1"@. )%
11 | P a g e The plaintiff entered a carriage on the defendantGs railway ut y oversight failed to purchase a ticket for his travel. -t an intermediate station he asked for the ticket ut the same was refused, at another place, he was asked to get out of the carriage since he didnGt have a ticket. "n his refusal to get out, force was used to make him get out of the carriage. In an action y him for his forcile removal. 5udgement It was held that the use of force was justified as he, eing without a ticket was a trespasser. The defendants were therefore, not liale.
Stanley v. Powell 7
Facts 4owell who was a memer of a shooting party, fired at a pheasant ut the pellet glanced off a tree and accidently injured &tanley who was another memer of the shooting party. &tanley sued 4owell for committing attery. 5udgement it was held y the court that @r. 4owell was not liale. If act is done wilfully or negligently, then the defendant would have een liale.
De#ences #or assa%lt and battery -ssault and attery may e justified in the following cases
7 !0! ! C.1. *
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&elf?defence; The act done was can e justified if it was done in the self?defence of himself or anyone. The use of force in self?defence is only justifiale only
ii
when it was necessary and it was not disproportionate to the evil to e prevented. 3efence of property or goods; If a person enters the house of another with force and violence, in defence of the possession of the property or goods, the owner is
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justified in turning him out. (etaking of goods; The rightful owner can justify an assault in order to repossess himself of land or goods which are wrongfully in the possession of another, who
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refuses to deliver them on re8uest, so long as no unnecessary violence is used /onsent; - man cannot complain of harm to which he has exposed himself with
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knowledge. 4reservation of pulic peace; - person who disturs pulic meeting or lawful game maye lawfully removed. Here the force used should not e more than what
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is necessary. Legal process; -ssault maye justified on the ground that it was done in serving
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legal process, including search y law. Jecessity; This defence is applicale in cases which the action in 8uestion was in response to threat of a greater harm.
+alse )mprisonment* False imprisonment in the imposition of total restraint for some period, even a short period, upon lierty of another, without sufficient lawful justification.
8 1ird v. 5ones, !$) + C.1. +
%$ 13 | P a g e To constitute the wrong of false imprisonment, imprisoning someone in an ordinary is not re8uired. 6hen a person is deprived of his personal lierty, y preventing him from moving outside the place where he is, also constitutes false imprisonment. -s stated y /oleridge, 5. in 1ird v. 5ones, D- person may have its oundary large or narrow, visile and tangile or though rea: still in the conception only; it may itself e movale, fixed; ut a oundary it must have: and that oundary the party imprisoned must e prevented from passing: he must e prevented from leaving the place, within the amit of which the party imprisoning would confine him, except y prison reach.E
-ssentials o# #alse imprisonment
• •
There should e total restraint on the lierty of a person. It should e without any lawful justification
!ases o# #alse imprisonment*
eerin v. ra$amew$ite Aviation !o. 8
Facts The plaintiff, an employee of the defendant company was suspected of having stolen the companyGs property. He was called to the companyGs office and was asked to stay in the waiting room. He was told that his presence there was re8uired for the investigation in connection to the companyGs property which was stolen. Two employees remained outside the room where the plaintiff was made to sit. In the meantime the police was called and the plaintiff was arrested on the charge of theft. Later he was ac8uitted and then he sued the defendant for false imprisonment. 5udgement It was held that the policemen were not acting as the companyGs agents and arrest made was not wrongful as it was made on sufficient reasonale grounds of suspecting theft. It was, 9 !0%2 !%! L.T. $$
14 | P a g e however, also held that the detention of the plaintiff y the officers efore the police arrived was wrongful and amounted to false imprisonment. The fact that, while the plaintiff was in waiting?room, he did not make much difference ecause when a person is detained, those detaining him Dmay e anxious to make hi elieve that he is not in eing imprisoned, and at the same time, his captors outside the room may e oasting to persons that he is imprisoned.E!2
($im sin$ v. State o# ,amm% 9 :as$mir 11
Facts 1him &ingh, who was a @L- of the legislative assemly of 5ammu and ashmir, was not allowed to attend the assemly session. He was arrested and kept in jail for several days at an undisclosed location without any notice to his family. His family searched for him and later moved to the court. -fter the court gave direction to the police he was presented efore the magistrate. 1him &ingh filed a case of false imprisonment against the police. 5udgement The /ourt held the policemen liale for false imprisonment and directed the state to pay 1him &ingh (s )2,222K? as compensation.
&%d%l s$a$ v. State o# (i$ar 12
Facts
10 !%% L.T. at )'?)$, per -tkin L.5. 11 -.I.(. !0* &./. $0$ 12 -.I.(. !0' &./. !2*
15 | P a g e The petitioner was ac8uitted y the court in !0* ut was released from jail in !0% i.e. !$years thereafter. The state tried to justify the detention y pleading that the detention was for medical treatment of the petitioner for his mental imalance.!' 5udgement The plea was rejected. -s an ancillary relief, in a writ of habeas corpus y the petitioner, a sum of (s. '),222K? was granted as compensation as interim measure y the &upreme /ourt, without precluding the petitioner from claiming further compensation. !$
+alse )mprisonment And T$e !onstit%tion O# )ndia 1; 13 1angia (.., Law of Torts twenty?first edition, -llahaad Law -gency, %2!!, pg.no. !2 14 1angia (.., Law of Torts twenty?first edition, -llahaad Law -gency, %2!!, pg.no. !2 15 http;KKwww.lawteacher.netKfree?law?essaysKjurisprudenceKtrespass?to?person.php, Last accessed; %2K!2K%2!*
16 | P a g e The /onstitution of India envisages certain provisions exclusive to the interests of the individuals especially with regard to their personal freedom and infringement on it. The mandate of the /onstitution awards gravity to the entire spectre of rights relating to an individual>s personal freedom. It is under this amit that the aspect of false imprisonment can e located. (ight to life and personal liert y read through the -rticle %! into the /onstitution of India is a crucial provision. The intention is to protect the life and lierty of the people from the wishful acts of the xecutive. The imprisonment of a person cannot e ordered y anyone in the position of power and authority to do so if there is no law providing for the same. -rticle %% derives asically from the principles of the -rticle %! and deals specifically with the aspect of manner of arrest and imprisonment. 6hile the latter says that, DJo person shall e deprived of his life or lierty except y procedure estalished y law.E The former -rticle says that a person who is arrested should e informed regarding the grounds of his arrest. -t the same time, he should e permitted to seek the services of his lawyer. -nd he should e produced efore the nearest magistrate within %$ hours of his arrest. -n indirect echo of the aove rights is also oserved in the -rticle %2, which provides for protection against ex?post?facto laws and doule jeopardy. In case of violation of any of these rights, a citi7en of India is free to move to the &upreme /ourt or the High /ourt under the writ petitions -rticle '% and -rticle %%* respectively. &uch petitions may e moved under the heads of certiorari, 8uo?warranto and prohiition. The only exception to the aove Fundamental (ights arise with regard to the defence and security concerns of the nation. The (udul &hah case assumes special significance in this discussion on state liaility for false imprisonment. In the present case the &upreme /ourt ordered the award of compensation of (s. '),222K? apart from the release of the person who had een illegally detained for a period of !$ years. This was a landmark as it was the first instance of the &upreme /ourt linked the constitutional provision of Haeas /orpus with the principle of compensation. 1esides, as is the standard practice, any law in contravention to the fundamental (ights guaranteed under the /onstitution of India stands void: therefore, any legislation y the &tate or 9nion Legislatures running in contradiction to the aove Fundamental (ights with regard to personal lierty shall stand void. The right to freedom of personal lierty has certain defences against it, which is asically envisaged keeping in mind the need of the pulic
17 | P a g e authorities to act in the interest of pulic law and order in particular and the security of the nation in general. The judiciary is shielded from the conse8uences of their actions vide the 5udicial "fficers 4rotection -ct, !)2. This protection is availale asically against the judgments passed y the judges or in the exercise of their judicial powers in any other manner. However, the aove act is not without its own limitations such that in character and function it doesn>t ecome asolute. It is clearly oserved that the standards laid down y the &upreme /ourt are strict when it comes to safeguarding citi7ens against the malice of false imprisonment.
To 8uote; DJo arrest should e made without a reasonale satisfaction reached after some investigation into the genuineness and onafides of a complaint and reasonale elief as to the person>s complicity and even so as to need to effect arrest, arrest must e avoided if a police officer issues a notice to the person to attend the station house and not to leave station without permission to do so.E The remedy availale under the /onstitution is the writ of Haeas /orpus, which is availale not just against any government authority ut also against any other instance of unlawful detention. In the words of 3r. 1.(. -medkar ; DIf I was asked to name any particular article in this constitution as the most important ?an article without which this /onstitution would e a nullity? I could not refer to any other article except this one. It is the very soul of the /onstitution and the very heart of it.E !*
16 http;KKwww.lawteacher.netKfree?law?essaysKjurisprudenceKtrespass?to?person.php, Last accessed; %2K!2K%2!*
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De#ences
'aw#%l a%t$ority
There is no liaility where detention is in accordance with the /riminal 4rocedure /ode and suse8uent formalities are also oserved. 6hen a person is detained on a reasonale suspicion, it must exist at the time of arrest. The officer should act in good faith in furtherance of the oject of the authorising statute. The detainee must e informed of the ground of arrest. He should e produced efore a @agistrate within %$ hours and further detention should e under magisterial orders. -rrest y a private person &ection $' of the /riminal 4rocedure /ode, !0+' authorises private arrest of a person who has committed a non?ailale cogni7ale offence. There is no liaility if the person is promptly handed over to authorities.
4ecessity Jecessity could also amount to defence to a claim for false imprisonment. The test for deciding whether measures falling short of arrest could lawfully e taken against individuals was whether there was a reasonale suspicion that that individual was presenting a particular threat. The urden of proof was on the claimant to show that the exercise of discretion to detain was unreasonale.!+
17 http;KKwww.legalservicesindia.comKarticleKarticleKconcept?of?trespass?to?person?!2+'?!.html, Last accessed; %2K!2K%2!*
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&emedies a. -ction for damages; 6henever the plaintiff has een wrongfully detained, he can always ring an action to claim damages. /ompensation may e claimed not only for injury to the lierty ut also for disgrace and humiliation caused therey. . &elf?help; This is the remedy which is availale to a person while he is still under detention. - person is authori7ed to use reasonale force in order to escape from detention instead of waiting for a legal action and procuring his release. c. Haeas /orpus; It is a speedier remedy for procuring the release of a person wrongfully detained. &uch a writ may e issued either y the &upreme /ourt under -rticle '% or y a High /ourt under -rticle %%* of the /onstitution. 1y this writ, the person is re8uired to produce the detained person efore court and justify the detention. If the /ourt finds that detention is made without any reasonale ground, it will order that the person detained must e released immediately.!
!oncl%sion 18 1angia (.., Law of Torts, Twenty?third edition, -llahaad Law -gency, Faridaad, %2!', pg. no. !$)
20 | P a g e There are three types of trespass in torts, namely; ! Trespass to person % Trespass to goods ' Trespass to land
The evolution of law of trespass to person has taken place. In Fowler v. Lanning, 3iplock 5. e8uated the urden of proof in cases of unintentional trespass with that in those of negligence. Lord 3enning in Letang v. /ooper has recogni7ed the importance of intention in trespass to person.
The trespass to person is of three types, namely; !. -ssault %. 1attery '. False Imprisonment These have their own remedies and defences such as self?defence, necessity, lawful authority and so on#.
(ibliorap$y
21 | P a g e (ooks
Law of Torts, twenty?first edition y (.. 1angia Law of Torts, twenty?third edition y (.. 1angia 5ebsites
http;KKwww.lawteacher.netKfree?law?essaysKjurisprudenceKtrespass?to?person.php http;KKwww.legalservicesindia.comKarticleKarticleKconcept?of?trespass?to?person?!2+'?!.html
