Trespass to the person is one of the three forms of trespass, all of which have their roots in the ancient writ of trespass which dates back to the thirteenth century. The other two forms are trespass to land and trespass to the goods. As Weir points out (An Introduction to Tort Law, 2nd edn, 135), with trespass in all its forms it is the physical aspect that dominates. As such the trespass torts can be contrasted with the more intangible rights protected under the Human Rights Act 1998.
Trespass may also be contrasted with the tort of negligence. The tort of negligence may be said to be primarily concerned with loss-spreading, that is of identifying when one person, the defendant, is liable to pay compensation, ie damages, to another person, the claimant, for loss which the claimant has suffered as a result of the defendant’s carelessness. By contrast, the trespass to the person torts serve to protect, and vindicate, our rights to bodily integrity (battery and assault) and freedom of movement (false imprisonment): there is no requirement in trespass, as there is in negligence, to show that the interference has caused any loss at all. It is the interference itself which is actionable.
Before looking at the three individuals torts, it is worth emphasising the following aspects of liability in trespass to the person.
For trespass to the person to be made out, whether in the form of battery, assault or false imprisonment, the defendant must have done something. As was said in a case at the beginning of the seventeenth century (the Six Carpenters’ Case (1610) 8 Co Rep 146a), ‘not doing is no trespass’. In other words, a failure by the defendant to do something will not give rise to liability in trespass.
Further, to be actionable the defendant must directly interfere with the claimant’s person or freedom of movement. Trespass to the person does not cover cases where the interference arises indirectly.
‘As every law student knows, the common law distinguished between an action in trespass and an action upon the case. Trespass to the person consisted in the direct infliction of harm (or the threat of the immediate infliction of such harm) upon the claimant. But the law recognised that physical harm might be inflicted indirectly. If intentional, this was the tort recognised by the High Court in Wilkinson v Downton . . . If negligent, it was eventually recognised as the tort of negligence in Donoghue v Stevenson.’ (Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721 at [7] (Hale LJ)).
The difference between direct and indirect interference was famously described in a case heard in the early part of eighteenth century:
‘if a man throws a log into the highway, and in that act it hits me; I may maintain trespass, because it is an immediate wrong; but if as it lies there I tumble over it, and receive an injury, I must bring an action upon the case; because it is only prejudicial in consequence, for which originally I could have no action at all.’ (Reynolds v Clarke (1724) 1 Strange 634, 636 (Fortescue J)).
The trespass to the person torts are commonly described as intentional torts, although as we will see, care needs to be taken as to what we mean by ‘intention’. The requirement of intention is relatively recent: ‘wilfulness is not necessary to constitute trespass’ (Leame v Bray (1802) 3 East 593, 600 Lord Ellenborough). (But note that this did not mean that D would be liable for all the direct consequences of his acts (‘the strict principle that every man acts at his peril was not applied in the case of trespass to the person even as long ago as 1617’ (Fowler v Lanning [1959] 1 QB 426, 433 Diplock J at 433)).
In Fowler v Lanning Diplock J held that under the modern law C had to allege (and prove) either intention or negligence.
C sued D for injuries suffered at a shooting party. While there was no suggestion that the shooting had been intentional, there was no allegation of negligence. The statement of claim simply stated that ‘the defendant shot the plaintiff’. In his defence, D asserted that the statement of claim disclosed no cause of action as ‘the plaintiff does not allege that the said shooting was intentional or negligent’.
As such, the immediate issue in Fowler v Lanning was on whom the burden of proof lay. Was it sufficient, as C argued, for him to show direct contact resulting from D’s deliberate act, with D then having to prove lack of intention and fault? Rogers notes (The Law of Tort, 2nd edn, 145) that at one time C’s argument ‘would have commanded universal and unhesitating assent’. But Diplock J held that the law had developed during the nineteenth century so that ‘under the modern rules of pleading, he must allege either intention on the part of the defendant, or, if he relies on negligence, he must state the facts which he alleges constitute negligence’.
Diplock J went on to hold that the statement of claim disclosed no cause of action but gave leave for amendments to the statement of claim to be made with consequential amendments to the defence.
A majority of the Court of Appeal went further than this in Letang v Cooper.
C had been lying down sunbathing on a strip of grass which was used as a car park at a hotel in Cornwall. C suffered injury when D, who was attempting to park his car, drove the vehicle over C’s legs. Some three and a half years after the accident, C brought a claim for damages in both negligence and trespass to the person. The judge held that the claim in negligence was time-barred, being outside the three year limit set out in the Limitation Act 1939. But the judge awarded C damages for trespass to the person.
The Court of Appeal allowed D’s appeal and dismissed the claim. Lord Denning MR, with whom Danckwerts LJ agreed, held that C’s sole cause of action lay in negligence: where an injury is inflicted unintentionally, no action lies in trespass.
‘. . . the distinction between trespass and case is obsolete . . . Instead of dividing actions for personal injuries into trespass (direct damage) or case (consequential damage), we divide the causes of action now according as the defendant did the injury intentionally or unintentionally.’ (Lord Denning MR at 239)
Diplock LJ did not go as far as Lord Denning MR and Danckwerts LJ. Drawing a distinction between intentional and unintentional trespass to the person, Diplock LJ said that actual damage was a necessary ingredient for the latter. In effect, where the claimant relied on negligence, rather than intention, trespass the person ceased to be actionable per se.
As will be seen below, it remains uncertain whether the approach of the majority in Letang v Cooper or that of Diplock LJ better represents the current law.
Battery, assault and false imprisonment are all actionable per se (subject to Diplock LJ’s approach in Letang v Cooper). This has two important consequences. First, as has already been noted, damages for trespass to the person are recoverable whether or not the claimant suffers any consequential loss or damage. Second, where the infringement does directly cause consequential loss, the claimant can recover damages for that loss whether or not it was foreseeable. In principle at least this represents a significant distinction between liability int trespass and that in negligence.
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