Trespass to the person

This paper attempted to highlight almost every aspect related to trespass to the person. Every concept has been elaborately explained. It examines the protection provided by law against the trespass to the person. It also discusses the fundamental elements of it i:e battery, assault, and false imprisonment. Special emphasis has been given on the defenses to the trespass to the person. Further, the most important thing i.e. the relevance of intention has also been explained here.


Trespass to a person symbolizes the invasion of a person’s right and liberty without any lawful justification. When there is an invasion without intention, the cause of action is negligent and not trespass, what survives trespass is an intentional invasion as it is to be noted that intention is a chief element in trespass.

In most societies where everyone wants to preserve his or her body and property from external invasion and from another’s wrongful intention to harm. It is perhaps understandable, therefore, that one of the earliest remedies provided by English law was for forcible wrongs against the person. Such wrongs were remediable by commencing an action using a writ of trespass. The writ of trespass emerged in the 13th century. It originally existed in a semi-criminal form under which if the defendant convicted, he was liable to a fine or imprisonment in addition to being liable to the plaintiff in damages. However, by the end of the medieval period, the tort action had shed its criminal characteristics. In civil law, the writ of trespass dealt with direct interference with the person in three types of cases which correspond to the modern torts of assault, battery, and false imprisonment.

Meaning and Interpretation

What is trespass to the person?

Trespass to the person means the apprehension of unreasonable interference with one’s body or liberty. It includes usage of force causing damage and impairment in the body with malafide intention. Trespass may be done intentionally, deliberately, or negligently. However, it is considered as intentional even if the wrongdoer did it unknowingly. The word ‘intention’ here implies committing the wrong voluntarily. It is to be kept in mind that the relevance of intention forms the essential component to trespass. Trespass to the person is a trespass actionable per se unless the defendant establishes that his act was justified in law.

The tort of trespass to person has developed because of many changes and modifications. As time changes and so is the competition, there is an increase in the mala fide intention of people causing wrongful harm to others. There are many instances where the wrongful act interference of one person’s body or property results in much harm either in private or in public Therefore to apprehend such large sections of the public, there is a need to develop such laws to protect the individual’s property and body.

Trespass to a person may be categorized as assault, battery, and false imprisonment and their common element are that the wrong must be committed by “direct interference”. Any direct interference of a protected interest from a positive act was actionable subject to justification. If the interference was indirect, though foreseeable, or if the interference was from an omission as distinguished from a positive act, there could be no liability in trespass though the wrong-doer might have been liable in some other form of action. In today’s era, the area of trespass to a person relates not so much to the recovery of compensation but helps in the establishment of a right, or a recognition that the defendant acted unlawfully.

Essentials & relevance Of Trespass To the  Person


It is to be noted that an act does not amount to trespass to the person unless it is done with intention. Thus, the intention is the chief element for trespass to the person.

 In case of direct or intentional trespass, the proof of actual damage is not needed but in negligent torts, proof of damage becomes essential and the plaintiff needs to prove that injuries.

The relevance of intention in trespass to a person

According to old laws, trespass was a direct and forcible injury to a person. The intention was a necessary element of the wrong, but intention meant committing the wrong voluntarily. The wrong was intentional even if the wrongdoer did not know that the property belonged to another. But if a man was forced into the land of another it did not amount to trespass. The reason being the word  ‘Force’ was merely a phrase of pleading which was later dropped but the word ‘direct’ retained its importance and distinguished ‘trespass’ from ‘trespass on the case’. It thus divides the action for personal injuries into ‘trespass’ (direct damage) or case (consequential damage) the cause of action itself is divided. The thing which is now taken into account is whether the act of trespass was done intentionally or unintentionally?

Thus a person to establish a suit for trespass to the person needs to prove just one thing whether there was an intention to commit the trespass or not.

 LORD DENNING in LETANG V. COOPER[1] shows the relevancy of intention in trespass to person ;

Fact:-The plaintiff( Mrs. Letang )was sunbathing outside on a piece of land which ordinarily served as a car park. While she was sunbathing, the Defendant( Mr. Cooper) reversed over her legs with his car, causing her injury. The defendant did not do it intentionally but the plaintiff filed a claim in trespass to the person, because the claim in Negligence was time-barred.

Held:- The Court of Appeal, consisting of Lord Denning MR, Diplock LJ, and Danckwerts LJ, held unanimously that since Mr. Cooper’s actions were negligent rather than intentional, the statute of limitations barring claims actions for damage caused by negligence applied. Mr. Letang could not recover her damages because her claim was late.

Effect:- The effect of this case was that an action for trespass to the person can now only be brought for intentional torts, such as assault, battery, false imprisonment, trespass to land or chattels, etc. A claimant wishing to recover damages to his person or property that were caused by the defendant’s negligent action must prove all the elements of the tort of negligence.

Types of trespass to the person

  • Assault – It is an attempt or a threat to do a corporal hurt to another.
  • Battery –  It is the intentional and direct application of physical force to another person.
  • False imprisonment – It is the unlawful restraint of someone which affects the person’s freedom of movement.

1. Assault

An assault is an act of causing illegal apprehension of fear in the mind of another person causing him to suffer injury and usually a prelude to a battery.  It can be both direct and indirect. It can be carried out by the person himself or through the third person. Mere words do not amount to assault but insulting or menacing does. The intent to do violence must be expressed in threatening acts, and not merely in the speech. Threats over the telephone may be an assault provided the claimant has reason to believe that they may be carried out in the sufficiently near future.

The apprehension must be genuine. If there is no reasonable fear there is no assault. The victim must reasonably believe that the conduct of the defendant will harm him. For example, A takes out the gun pretending it to be loaded, in front of B. B in the apprehension of fear suffers a shock. Then A would be held liable for assault on B, even if the gun wasn’t loaded because there was a direct apprehension of fear. However, it is important to consider the foreseeability of a person.

Sec 351 of I.P.C. holds the person criminally liable for assault.

Essentials of assault include :

  • Intent
  • Apparent ability to carry out the purpose
  • Apprehension
  • Knowledge of threat.

The above point can be elaborated with the help of given case laws ;

Important Case Laws

Bavisetti Venkat Surya Rao v. Nandipati Muthayya [2]:
  • In this case, the Plaintiff owed a certain amount to the defendant which he was unable to pay. The defendant, to collect the amount thought to visit the plaintiff’s residence and sell some movables to recover the amount. The defendant called a goldsmith to evaluate the value of gold in the house of the plaintiff, but the person standing at the time of such evaluation near the house borrowed the amount from another to give it to the defendant, and after the defendant had taken the amount, the plaintiff sued him for assault.
  • It was held that since the defendants, after the arrival of the Goldsmith said nothing and did nothing and the threat of use of force by the goldsmith to the plaintiff was too remote a possibility to have put the plaintiff in fear of immediate or instant violence, there was no assault.
Stephen v Mayers [3]:
  • The plaintiff was a chairman at a meeting, the defendant also sat on the same table but there were six to sever person between him and the plaintiff. In course  of some angry discussion, the defendant  had been vociferous and he interrupted the proceeding of the meeting .a very large majority decided that the defendant be expelled from the meeting .the defendant then advanced toward the chairman with a clenched first saying that he would rather pull  the chairman out of the chair than be turned out of the room, but stopped by the churchwarden, who sat next but one to the chairman
  • He was held liable for the assault.
   Read v. Coker[4]:
  • In this case, the Plaintiff was a rent collector who entered Defendant’s workshop and refused to go until the rent was paid. The  Defendant and his men surrounded the Plaintiff, rolling up their sleeves, and threatened to break the Plaintiff’s neck if he did not leave.
  • It was held that this was an assault since the condition attached to the threat was not enough to nullify it.

2.  Battery :

The intentional application of force against someone in such a manner that it results in having a physical injury can be termed as a battery. It includes touching another person hostilely or against his will directly or indirectly, however, slightly. It can be a direct force like slapping a person or indirect force like setting a dog behind a person or spitting on a person.  What is necessary for the battery  is that there should be physical contact between the persons.

Sec 350 of I.P.C. holds the person criminally liable for battery

Essentials of battery include:

  • Direct or indirect physical contact.
  • Physical contact must be without lawful justification.
  • There should be a use of force.
  • It must be voluntary.

Important Case Laws

Pratap Daji V. B.B. And C.I. Ryl [5].
  • In this case, The plaintiff was asked to get out of the carriage since he didn’t have a ticket. On his refusal to get out, the force was used to make him get out of the carriage. In an action by him for his forcible removal,
  • It was held that the use of force was justified as he, being without a ticket was a trespasser. The defendants were, therefore, not liable.
Stanley v. Powell [6]
  • In this case, the defendant Powell, who was the member of a shooting party, fired at a pheasant but the pellet from his gun glanced off a tree and accidentally wounded Stanley (plaintiff), another member of the party.
  • It was held that the defendant would be held liable.

3. False Imprisonment

When a person’s way is restricted unlawfully from all possible directions to prevent him/her from moving in a direction for some period, however short, it is called false imprisonment.

The definition of false imprisonment is the unlawful restraint of someone which affects the person’s freedom of movement. It includes both the threat of being physically restrained and being physically restrained.

Essentials of false imprisonment include :

  • There should be a total restraint on the liberty of a person.
  • The imprisonment should be either (a) actual

                                                                      (b) constructive,

  • There should not be any lawful justification for the same.

Important Case Laws

Bird v. Jones[7] :

In August 1843 the Hammersmith Bridge Company cordoned off part of their bridge, placed seats on it, and charged spectators for viewing a regatta. The plaintiff objected to this and forced his way into the enclosure, where he was stopped by two police officers, one being Jones. He was prevented from proceeding across the bridge because he had not paid the admission fee, but was allowed to go back the way he came. He refused, and in the course of proceedings for his arrest, the question arose whether he had been imprisoned on the bridge.

It was held that this was not an ‘imprisonment’ and the defendant was not liable for the subsequent arrest.


In this case, it was held that the plaintiff was falsely imprisoned and his knowledge was immaterial. Meering was held in a room and questioned because his employer though him to be a thief. It was false imprisonment and he goes got more money because he knew he was being kept there.

Defenses against trespass to the person :

1. Consent Of Plaintiff  

  • The defendant can’t be said to be trespassing if there is mutual consent between the defendant and the plaintiff for the specific act. For example, if A and B voluntarily agrees to play boxing match, then if while playing A hits B, then  B cannot have any claim for trespass to the person.
  • Consent may be given expressly by words or implied from conduct.
  • Consent obtained by fraud does not serve as a defense

In Hegarty v. shine[9], it was held that mere concealment of the fact is not considered to be fraud to vitiate consent,

2. Contributory Negligence

  • When both the defendant and the plaintiff are at fault. In contributory negligence, it is the plaintiff’s failure to exercise reasonable care.
  • For example, in a car accident between car A and car B, car A’s driver was speeding and car B’s driver was driving drunk.  Both drivers are engaged in negligent risk creating behavior.  The negligence on the part of the injured plaintiff is called contributory negligence.
  • In contributory negligence, the compensation of the plaintiff  could be reduced

3. Self-Defence

It refers to a defendant’s right to use physical force to protect himself or his property from damage. It is to be noted that the key to success to this defense is the element of reasonableness, it means that this defense will only succeed if the force used was not excessive and was reasonable and necessary in the circumstances to defend themselves, another person, or their property from attack.

The use of force can be said unreasonable if it is :

  • Unnecessary- i.e. excessive than it required
  •  Disproportionate.

In Revill v. Newbury[10], it was held that the firing of a shot through a hole in a door in the direction of a trespasser, causing serious injury, was excessive force, and the defense of self- defense could not apply.

5. Parental Authority

It is a defense where, a parent is not considered to be guilty of an assault even if he is physically interfering with his child by way of reasonable restraint or chastisement, or for therapeutic reasons.

6. Statutory Au5thority

Any act or damage done by the authorities compelled by law or statutes is not actionable even if it would constitute a tort otherwise. In Vaughan v Taff Valde Rail. Co[11]. the sparks from an engine railway which was authorized by the railway company set fire to the appellant’s house, it was held since they did not do anything which was prohibited by the statute and took due care, hence , they were not liable.

7. Necessity

Necessity is a circumstance of immediate and urgent danger. But to constitute the defense of necessity, the action must be reasonable and proportional. The circumstances should be such that there is an emergency that would justify the action of the person.

In Leigh v Gladstone[12] it was held that the forcible feeding of a person who was at hunger strike does not amount a good defense.

8. Inevitable Accident

An inevitable accident has been defined as an event over which the defendant had no control and the effects of which could not have been avoided by the exercise of the greatest care and skill,.it serves as a good defense as the defendant can show that he could not be stopped the injury even after all precautions.


Trespass to a person is a general tort which is frequently increasing in everyday life.  It can be faced by people in numerous times a day. People suffer a lot of difficulties because of unawareness. They don’t file a suit against trespass even though they suffer harm due to the lack of unawareness about the laws. In our society, most people are ignorant about their rights due to which they have to face unnecessary damage. In concern of these difficulties, there are certain defenses provided under the trespass to the person which is necessary to get understood by the people. What is more important is to truly understand the nature of the trespassed act and the impact of it on the plaintiff. This is the only way we will be able to exercise our rights and duties.


  • What is Trespass to the person?
  • What are the general defenses against trespass to person?
  • What is the relevance of intention in trespass against a person?
  • How is assault different from the battery?


  • [1] [1965] 1 QB 232
  • [2] AIR 1964 AP 382
  • [3] [1830] EWHC KB J37
  • [4] 1853
  • [5] [1877] ILR 1 BOM 52
  • [6] 7 .L.T.R 25
  • [7] [1845]7 QB 742
  • [8] [1920] 122 LT 44
  • [9] 1878
  • [10] [1969] 2WLR 239
  • [11] [1858] 157 ER 667
  • [12] 1995

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