Chapter 2. Trespass to the Person

• Pages: 11-52

INTRODUCTION

Trespass to the person comprises three torts:

(a) as s a u l t ;

(b) battery; and

(c) fal se impris onment.

These torts, which are derived from the ancient writ of trespass,1 protect persons

from interference with their personal liberty and are actionable per se, that is, with-

out proof of damage.2 In the words of Lord Reid:

English law goes to great leng ths to protect a person of full age a nd capacity from

interference with hi s personal liberty. We have too often seen freedom di sappear in

other countries, not only by coups d’état, but by gradual erosion; and often it is the rst

step that counts. So it would be unwise to m ake even minor concessions.3

In the Commonwealth Caribbean, civil actions for assault and battery are com-

paratively rare (except as adjuncts to actions for false imprisonment),4 presumably

because litigants prefer to seek redress in the criminal rather than the civil courts.

On the other hand, actions for false imprisonment are common, and a considerable

body of case law has accumulated around the tort.

Assault and battery disting uished

Battery is the intentional application of force to another person. Assault is the inten-

tional putting of another person i n fear of an imminent battery.

In popular speech, the word ‘assault’ connotes the application of physical force

to the person but, in the law of torts, the actual application of force to the person is

not an assault but a battery, and an assault means any act which puts the claimant

in fear that a battery is about to be committed against him. Thus, to slap the claim-

ant on the face is a battery, but to approach him menacingly with a clenched st is

assault; to throw an object at him is an assault so long as the object is still in the

air, but if the object strikes him there is a battery. Very often, the threat of violence

will be immediately followed by the actual application of violence to the claimant’s

person, so that the defendant will have committed both a n assault and a battery, for

example, where the defendant rst points a loaded gun at the claimant and then

res a shot which hits him.

1 Likewise, trespass to land, if the plai ntiff proves the trespas s he is entitled to recover nominal d am-

ages, even if he has not suffered a ny actual loss. Rosemarie Samue ls v Jamaica Public Service Company

Limited [2020] JMSC Civ 192.

2 Skinner v Attorney Ge neral of Trinidad and Tobago, HCA No CV 2006-03721.

3 S v McC [1972] AC 24, at 43.

4 Graham v Attorney Gen eral of Jamaica [2020] JMSC Civ. 144.

CHAPTER 2

TRESPASS TO THE PERSON

DOI: 10.4324/9 781351065108- 2

10.4324/97813510 65108 -2

12 Commonwealth Caribbean Tort Law

Although the distinction bet ween assault and battery in the law of torts is clearly

established, it has to be admitted that, in Caribbean and other jurisdictions, the

courts have tended to blur the distinction and to describe as an ‘assault’ conduct

which in strict law amounts to battery. In Williams v Attorney General of Jamaica,5 for

instance, the claima nt was leaving the Montego Bay police station with a friend who

had shortly before been released on bail, when the station guard, in hurr ying them

out of the station, used obscene and insulting la nguage. The claimant remonstrated

with the ofcer, whereupon the defendant constable held the claimant, pushed him

against a wall so that his head and elbow struck against it, hit him twice in the

stomach and pushed him out of the station. Such conduct clearly amounted to bat-

tery by the constable, but the Jamaican Court of Appeal treated the action as one for

‘assault’ and increased the magistrate’s award of damages for the ‘high-handed and

unwar ranted attac k’.

The tendency to describe a physical attack as an ‘assault’ rather than as a battery

may be due to the fact that, in criminal law, the offences of common assault and

aggravated assault connote the application of physical violence to the person. As

James J pointed out in Fagan v Metropolitan Police Commissioner,6 ‘for practical pur-

poses today, “assault” is generally synonymous with the term “battery” and is a

term used to mean the actua l intended use of unlawful force to another person with-

out his consent’.

AS SAULT

An assault is a direct threat made by the defendant to the claimant, the effect of

which is to put the latter in reasonable fear or apprehension of immediate physical

contact with his person. Thus, in Stephens v Mye rs,7 where, at a parish council meet-

ing, an altercation took place between C and the D, and D approached C menacingly

with a clenched st but his blow was intercepted by a third party, D was liable for

assault. And in the Jamaican case of Hull v Ellis,8 the defendant was held liable for

assault when, holding a revolver in her hand, she accosted the claimant as he was

riding his donkey along a public road and asked him where he had got the piece of

wood he was carrying.

In assault, the act of the defendant must have been such that a reasonable man

might fear that violence was about to be applied to him. The test is objective, not

subjective. Thus, if a person of ordinary courage would not have been afraid, the

fact that the particular claimant was afraid will not make the defendant liable.

Conversely, the fact that the claimant was exceptionally brave and was not afraid

will not prevent him from succeeding in h is claim if a person of ordinary courage

would have been afraid.9

Although it is clear that pointing a loaded gun at the clai mant is an assault,10 it

is not clear whether there will be a n assault where the gun is u nloaded or a toy gun

and the claimant mi stakenly believes the gun to be real and loaded. One view is that

5 [1966] Gleaner LR 51 (Court of Appeal, Jamaic a).

6 [1968] 3 All ER 442, at 445.

7 (1830) 172 ER 735. Followed in Dyer v Philli p (2003) High Court, Trinidad and Tobago, No 247 of 1995.

8 (1966) Court of Appeal, Jamaica, Civ App No 36 of 1965.

9 Fleming, The Law of Torts, 8th edn, 1993, Sydney: LBC Informat ion Services.

10 Mensah v R (1945) 11 WACA 2 (PC).

Chapter 2: Trespass to the Person 13

there will be no assault because there would be no means of carrying the threat of

shooting into effect.11 Probably the better view, however, is that there would be an

assault,12 on the ground that an assault ‘involves reasonable apprehension of impact

of something on one’s body, and that is exactly what happens when a rearm is

pointed by an aggressor’.13

Word s

Whether words alone can amount to assault is debatable. Holroyd J in an old case

said that ‘No words, or singing are equivalent to an assault’,14 but the better view is

that there will be an as sault if the words are sufcient to put the claimant in reason-

able apprehension of a battery, as where threatening words are uttered in darkness

and the claimant ca nnot see the aggressor.15

While it is debatable whether words alone can constitute an assault, it is clear

that words may negative what would otherwise be assault. Thus, where, during a

quarrel between C and D, the latter put his hand on his sword and said, ‘If it were

not assize time, I would not take such language from you’, there was no assault

because the words had negatived the apprehension of immediate contact caused

by the placing of D’s hand on his sword.16 Such a situation must be distinguished,

however, from a conditional threat, which can amount to assault. For example, if

D approaches C with the words, ‘If you don’t give me your money, I’ll break your

neck’, there would clearly be an assault, because the situation would cause reason-

able apprehension of immediate violence.17

Since there must be apprehension of immediate contact, it is clear that threaten-

ing words will not amount to assault if there is no capability of im mediate violence,

for example, where threats are uttered over the telephone, or where D threatens C as

a bus is leaving the bus stop with D on board.

BATT ERY

A battery has been dened as ‘a direct act of the defendant which has the effect of

causing contact with the body of the claimant without the latter’s consent’.18

Battery connotes an intentional act on the defendant’s part. It is not absolutely

clear whether or not a battery can be committed by negligence. The bet ter, and more

modern, view is that trespass to the person ca nnot be committed negligently.19

It is not necessary that there should be any bodily contact between the defend-

ant and the claimant. It is sufcient if t he defendant brings some material object into

11 Stephens v Myers (1830) 172 ER 735, per Tindal J; Blake v Barnard (1840) 173 ER 985, per Lord

Abinger CB.

12 R v St George (1840) 173 ER 921, per Parke B.

13 Wineld and Jolowicz, Tor t, 17th edn, 2006, London: Sweet & Maxwell, p 97.

14 R v Meade and Belt (1823) 1 Law CC 184.

15 See R v Wilson [1955] 1 WLR 493; Trindade, FA (1982) 2 OJLS 211, pp 231, 232; Handford, PR (1976)

54 Can BR 563.

16 Tuberville v Savage (1669) 1 Mod Rep 3.

17 See Read v Coke r (1853) 13 CB 850.

18 Op cit, Trindade, n 12, p 216.

19 See Letang v Cooper [1965] 1 QB 232; Wilson v Pringle [1987] QB 237.