Trespass is a negligent or intentional act made by individual that causes injury to another person or his/her property without lawful justification, no matter how slight it is. It is divided into three types;
1.Trespass to land.
This occurs whenever a person’s (plaintiff) possession in land is wrongfully interfered with. The key thing here is possession and not necessarily ownership and as such the plaintiff can be the owner or the tenant. It occurs in three ways;
i. Trespass by wrongful entering on the plaintiff’s land. E.g, encroaching, walking through
the land or putting your hand through their window without their permission
ii. Trespass by remaining on the land, that is, a person who, having been initially authorized to enter upon land, is later asked to leave it and he fails to do so in reasonable time he is said
to trespass by remaining on the land.
iii. Trespass by placing things on the land. It’s worth noting that this trespass is different from
nuisance in that;
- The thing place on the land directly affects the plaintiffs procession unlike nuisance which affects how they enjoy the property
- Nuisance unlike trespass is concerned with enjoyment and not possession
- Trespass to land is actionable per se, that is actionable without proof of injury unlike nuisance
Note- each time one repeats a trespass (continuing trespass) the court allows for fresh lawsuit.
Defenses
The main defences to an action for trespass to land are as under:-
i. Prescription
Land acquired by possession is also said to been acquired by prescription .The new owner may plead title by prescription as a defence to an action brought by previous owner to recover the land. A defendant may also plead prescription, as by proving aright of common grazing or right of way over the Plaintiff’s land.
ii. Act of Necessity
The necessity may be pleaded as a defence to an action of trespass to land e.g. entry to put out fire for public safety
iii. Statutory Authority
Where the authority is conferred by law, whether by statute or by court order, this is also an available defence e.g. the authority of a court broker
iv. Entry by licence
An entry authorized or licensed by the plaintiff is not actionable in trespass unless the authority or license given is abused.
Remedies
The remedies in respect of trespass to land include:
i. Damages
The plaintiff may recover monetary compensation from the defendant,
The extent of which depends on the effect of the dependant’s act on the value of the land in
question.
ii. Ejection
We saw earlier on that a person is entitled to use reasonable force to defend his property.
Thus, where a person wrongfully enters or remains on another’s land, he may be ejected using reasonable force may entail liability for assaults an ejectment may also be based on a court order (an eviction order)
iii. Action for recovery of land
The plaintiff may bring an action to recover his land from the defendant Where there has been a wrongful dispossession, it is commonfor such action to be coupled with the above two remedies.
iv. Injunction
In addition to the above remedies, an injunction may be obtained to ward off a threatened trespass or to prevent the continuance of an existing one
v. Distress Damage Feasant
In the case of trespass by placing things on land (or in the case of chattle trespass) the plaintiff has a right To detain the defendant‘s chattel or animal which is the cause of the trespass in question.
2.Trespass of a person
This trespass just like trespass to goods also occurs in three ways;
i) Assault
This occurs when a person intentionally threatens to use force against another person without lawful justification hence putting the person in fear. E.g pointing a gun towards him
Rules of the Tort
1. There must be some apprehension of contact
2. There must be a means of carrying out the threat by the defendant
3. The tort is actionable per se.
4. The tort is generally associated with battery
5. Mere words without body movement do not constitute assault.
Assault is constituted by:-
i. A display or show of force ii. Pointing of a loaded gun
iii. Cursing in a threatening manner
ii)Battery
This is the actual use of force towards another person without lawful justification e.g. hitting a person. It is only actionable if it is voluntary or intentional.
Intention:
Assault is committed where the plaintiff apprehends the commission of a battery on his person. If the defendant does not intent to commit a battery but induced a belief in the plaintiff?s mind that he is about to do so, he is nevertheless liable for assault.
Pointing a loaded gun at a person is of course an assault but if the gun is unloaded it is still assault unless the person at whom it is pointed knows this.
Apprehension:
Suppose the plaintiff is an unusually fearful person in whom the defendant can induce the fear of an imminent battery though a reasonable man would not have fear in those circumstances, does the defendant commit assault?
The better view is that the test is based upon the subjective intention of both parties thus there is battery if the defendant intends to create fear of commission of a battery whether or not he knows the plaintiff to be a fearful person and the plaintiff actually has this fear.
In Smith vs. Superintendent of Working Police Station (1983), the defendant was convicted of criminal assault when he entered the grounds of a private house and stood at the window seriously frightening its occupant who was getting ready for bed.
The plaintiff must however apprehend a battery thus it is not assault to stand still at the door of a room barring the plaintiff’s entry. It would also not be assault to falsely cry „fire? in a crowded place.
Must damages be proved?
Both torts of assault and battery are actionable per se. Where the defendant’s act has caused no damage the courts may award only nominal damage but the court may also award aggravated damages because of the injury to the feelings of the plaintiff arising from the circumstances of the commission of the tort.
Rules of battery
1. Absence of the plaintiff’s consent
2. The act is based on an act of the defendant mere obstruction is not battery
3. A contact caused by an accident over which the defendant has no control is not battery
4. There must be contact with the person of the plaintiff it has been observed the least touching of another person in anger is battery
5. Battery must be direct and the conduct must follow from the defendant’s act
6. The tort is actionable per se. The essence of battery is to protect a person from unpermitted contacts with his body. The principal remedy is monetary award in damages.
iii) False Imprisonment
This occurs when a person is deprived of their freedom without legal explanation, e.g locking someone in a room.
Main ingredients of the tort
(a) Knowledge of the plaintiff
Knowledge of the restraint is not necessary but may affect the quantum of damages.
In Meeting v. Graham White Aviation Co the plaintiff was being questioned at the defendants company in connection with certain thefts from the defendants company.
He did not know of the presence of two works police outside the room who would have prevented his leaving if necessary.
Held; the defendant was liable for false imprisonment. Arcing L J said “it appears to me that a person can be imprisoned without his knowing. I think a person can be imprisoned while he is asleep or in a state of drunkenness, while unconscious or while he is a lunatic. Of course the damages might be diminished and would be affected by the question whether he was conscious or not?
(b) Intention and directness
The tort is defined to exclude negligent imprisonment of another person. The tort must be intentional and should be committed directly. Where for reason of lack of intention or directness the plaintiff cannot establish false imprisonment an action in negligence may still be available.
In Sayers v. Badour U.D.C the plaintiff became imprisoned inside the defendant’s toilet because of negligent maintenance of the door lock by the defendant’s servants. In trying to climb out of the toilet she fell and was injured. She recovered damages from the defendant because it was a
reasonable act on her part to escape from a situation in which the defendant by his negligence had
placed her.
An action for false imprisonment would not have been available because there was no direct act of imprisonment.
(c) The restraint must be complete
There must be a total restraint placed upon the plaintiff’s freedom of action
In Bird v Jones the defendant closed off the public footpath over one side of a bridge. The plaintiff wishing to use the footpath was prevented by the defendant. In the plaintiffs action one of the questions that was necessary to decide was whether the defendant’s act amounted to false imprisonment.
Held: It did not since the defendant has not placed a total restraint on the plaintiff. The blocking of a part of a public highway might be a public nuisance for which the plaintiff could bring an action in tort if he could show special damage arising from. Provided the area of restraint is total it does not seem to matter that it is very large.
There has been a difference of opinion between the court of appeal and the lower court the circumstances in which a person already the lawfully imprisoned in a prison may be regarded as falsely imprisoned.
In R v. Deputy Governor of Prison, there was an agreement that imprisonment under intolerable conditions would amount to false imprisonment. The Court Of Appeal however required knowledge of those conditions by the defendant but the lower courts thought that a defense would exist here under the provisions of the prisons Act.
Rules of the tort
1. The tort must be intentional
2. It is immaterial that the defendant acted maliciously
3. The restraint or confinement must be total. However, it need not take place in an enclosed environment
4. It has been observed every confinement of a person is an imprisonment whether it be in a
common prison, private house or in the stocks or even forcibly detaining one in the public
5. The boundary of the area of confinement is fixed by the defendant. The barriers need not be physical. A restraint affected by the assertion of authority is sufficient.
6. 6. The imprisonment must be direct and the plaintiff need not have been aware of the restraint
7. The tort is actionable per se.
8. The principal remedy is a monetary award in damages.
Defenses
i. A parental Authority
A parent has a right to reasonably chastise or discipline his Children. This means that where a parent beats his child or locks Him up in roomfor sometime by way of reasonable chastisement, he cannot be sued for battery or false imprisonment .Similarly, if a parent gets a knife and threatens that he will cut off his child’s mouth unless the child stops abusing grown-ups, no action can be brought against him for assault When a child is at school all his parent’s right of
ordinary control over him Are delegated to the school authority (or teachers) and are exercised by the Latter in ‘loco parents ‘.Reasonable chastisement by the school authority. e.g Reasonable punishment by teachers ,is not actionable in tort
Note: According to R.v (1891) a husband has no right to chastise
ii. Judicial authority:
An act done under order of court is not actionable as trespass. We show at the beginning of this chapter that acts done in a judicial Capacity are not actionable in tort. It follows that where a judge orders a corporal punishment of a number of strokes, no action for battery can be brought against him or a person administering the strokes .Also, statutory authority may be pleaded as a defence
Remedies
i. Damages:
An award of damages iii General Defences the defendant may also rely on the general defences already considered. Self-defence is a particularly viable defence to assault and battery. Volenti (or the plaintiffs consent),may also be pleaded Thus, a patient who has consented to a medical operation cannot round and sue the surgeon for trespass (battery ).Similarly ,a spectator who suffers injury in the cause of a game whose rules are being followed cannot sue for trespass is the most obvious and usual remedy. The amount of damages awarded depends on the circumstance of each case, having regard (or in the case
The amount of damages awarded depends on the circumstances of each case, having regard to matters like the injury suffered, the period of false imprisonment e.t.c.
ii. Habeas Corpus:
The Writ of Habeas Corpus is a remedy to false imprisonment. The writ directs the person in show custody the applicant is detained to produce him before the High Court; the Court may order his release if it appears that there are not sufficient grounds for detaining him.
3. Trespass to goods
This is the intentional or negligent interference of goods in possession of the plaintiff. This tort protects a party interest in goods with regard to retention their physical condition and invariability.
Types/forms of trespass
1. Taking a chattel out of the possession of another
2. Moving a chattel
3. Contact with a chattel
4. Directing a missile to a chattel
Rules/requirements of the tort
1. The trespass must be direct
2. The plaintiff must be in possession of the chattel at the time of interference
3. The tort is actionable per se
4. The principal remedy is a monetary award in damages
The defenses available to this tort include:-
1. Plaintiff’s consent
2. Necessity
3. Mistake
NatalieR answered the question on May 11, 2022 at 09:15