LAW OF TORTS: TRESPASS TO PERSON

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INTRODUCTION TO TRESPASS
Trespass symbolizes the invasion of a mans private right without any justification. The invasions must be intentional; unintended invasions are eclipsed by negligence. The burden of proof lies on the plaintiff. In trespass: a) the defendant must plead and prove the justification, the plaintiff need not show that the defendants conduct was unreasonable. b) damage is not an essential element, and need not be proved by the plaintiff.

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Trespass to person historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming. Now, however, most jurisdictions broadly recognize three trespasses to the person: assault, which is any act of such a nature as to excite an apprehension of battery; battery, which is any intentional and unpermitted contact with the plaintiffs person or anything attached to it; and false imprisonment, which is the unlawful obstruction or deprivation of freedom of movement. 5/4/12

ASSAULT
It is defined as the unlawful laying of hands on another person or an attempt to do a corporal hurt to another, along with an apparent present ability and intention to do the act. Menacing attitude and hostile purpose make the assault unlawful. Mere words do not amount to assault. Elements for assault: a) gestures or preparations constituting a threat of force b) the gestures or preparations causing reasonable apprehension of force (case citation: A C Cama vs. H F Morgan) c) presence of ability on the defendants part to execute the threat immediately (case citation: Stephens vs. Myers)

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BATTERY
It is defined as the actual and unwarrantable striking of another person or touching him in a rude, angry, revengeful or insolent manner. It includes assault, and is distinguished from it mainly in that physical contact is necessary to accomplish the former. The force can be inflicted directly or indirectly. Elements for battery: a) the use of force is either directly to the body or by means of bringing an object in contact with the plaintiffs body b) the use of force must be intentional (case citation: Coward vs. Baddeley)

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DISTINCTION BETWEEN ASSAULT AND BATTERY

BATTERY It is the application of unlawful force, i.e., physical contact is necessary ASSAULT An action which puts a person in instant fear of unlawful force, although no force may actually be applied, i.e., mere fear of physical violence is sufficient It is not defined in the IPC It is defined in IPC (section 351)
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DEFENCES TO ASSAULT AND BATTERY

Self defense Defense of property, land, houses, goods and chattels Expulsion of a trespasser (case citation: Timothy vs. Simpson) Retaking of goods Lawful correction Leave and license of the injured party Preservation of public peace Legal process

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MAYHEM
It is defined as a bodily harm whereby a man is deprived of the use of any member of his body or of any sense which he can use in fighting to defend himself or annoy his enemy, or by reason of which he is generally or permanently weakened. An action can lie even without proof of actual damage, as they violate the right of a person.

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FALSE IMPRISONMENT
It is defined as the total restraint of the liberty of a person, for however short a time, without lawful excuse. The detention of the person may be: a) actual b) constructive, i.e., implied by operation of law (case citation: Grainger vs. Hill) Elements of false imprisonment: a) the detention must be unlawful b) the period of detention is immaterial c) the restraint of liberty must be total, partial obstruction does not constitute imprisonment (case citation: Bird vs. Jones) The person so imprisoned may use force to release himself. It is an actionable wrong.

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Liability in case of False Imprisonment

A person may be liable for false imprisonment not only when he directly arrests or detains the plaintiff, but also if he was active in promoting or causing the arrest or detention. (case citation: Rafael vs. Verelst)

Arrest by Public Officer

There is no liability where the detention is in accordance with the CrPC and the subsequent formalities are observed. Reasonable suspicion, however, must exist at the time of arrest. The existence of the power to arrest and the justification for its exercise are to be clearly distinguished. (case citation: Joginder Kumar vs. State of UP)
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Arrest by a Private Person

There is no liability if the person is promptly handed over to the authorities. Section 43 of the CrPC authorizes private arrest of a person who has committed a non-bailable, cognizable offence.

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DAMAGES
The plaintiff is entitled to recover compensation for the suffering caused by the trespasser. The amount of compensation varies according to the circumstances under which the person was detained. (case citation: Dumbell vs. Roberts)

Justification of Detention
If the defendant acted under a legal and legally executed warrant. In the absence of a warrant, the law differs depending upon whether the defendant is a constable or private person. A constable may arrest anyone suspected to have committed a felony; or to prevent a breach of peace.

The English Common Law right of a private person to arrest ceased to apply to India since the enactment of the IPC and CrPC.

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