Personal Boundaries: The Tort of Trespass to the Person

Denis Grigoras

Denis is a lawyer who draws on his background in complex legal disputes and transactions to problem-solve for his clients.

Trespass to the person is a longstanding area of tort law that addresses actions involving direct physical contact or threats to an individual's physical or mental well-being.

Trespass to the Person

I.  Introduction

Trespass to the person is a longstanding area of tort law that addresses actions involving direct physical contact or threats to an individual’s physical or mental well-being. This blog post will provide an overview of the categories of trespass to the person, qualifications of liability, defences, and the various nuances that make this underused tort applicable to modern pleadings. By the end of this post, readers should have a general understanding of the concept of trespass to the person and its possible applications.

II.  Categories of Trespass to the Person

Trespass to the person has evolved from its origins, which focused solely on direct physical attacks. Today, it encompasses battery, assault, false imprisonment, intentional infliction of psychiatric harm, and a range of qualifications and exemptions.

A.  Battery

Battery is a form of trespass to the person that involves intentional and offensive contact without consent. The direct application of force is required, distinguishing between direct and indirect force. Non-consensual touching is generally considered offensive. In Canada, unlike England, battery can be committed negligently, allowing for cases of negligent trespass.

B.  Assault

Assault, as distinct from battery in tort law, occurs when an incomplete or inchoate battery instills a reasonable fear of being struck or attacked in the victim. For assault to occur, the victim must be aware of the threat, and the threat must create fear in a reasonable person. There can be battery without assault and assault without battery.

C.  False Imprisonment

False imprisonment involves the unlawful restraint of a person’s freedom of movement, requiring total prevention of movement. The term “false” indicates the defendant acted without lawful excuse, making the arrest wrongful. It often arises in police or detention contexts. False imprisonment can also occur when a legally confined plaintiff is treated improperly and unlawfully.

D.  Intentional Infliction of Psychiatric Harm

Liability for trespass to the person extends to cases where the defendant directly caused the plaintiff to suffer nervous or psychological shock. Liability is recognized when the defendant’s conduct is flagrant, outrageous, intentional, or reckless. A visible and provable illness suffices, but grief and emotional distress are insufficient. Intent can be inferred from the defendant’s general conduct, but the tort is not available in marriage breakdown cases.

III.  Qualifications of Liability

A. Inevitable Accident

Historically, trespass to the person was considered a tort of strict liability. The focus was on the defendant’s act, rather than the intention or negligence behind it. In Weaver v. Ward, the defendant was found liable even though the plaintiff’s injury occurred unintentionally. The plaintiff was injured when the defendant discharged his musket accidentally while both of them were engaged in a military exercise. The problem for the defendant was that he couldn’t demonstrate that the accident may be judged “utterly without his fault.”

In Stanley v. Powell, the court suggested that defendants could prove they had no intention to injure the plaintiff. This led to the idea that an accidental trespass to the person was no trespass at all. The question then emerged whether it was the defendant’s responsibility to prove a lack of intent to injure, or the plaintiff’s responsibility to establish the defendant’s intent or negligence.

A divergence of opinion arose between Canadian and English courts. English decisions in Fowler v. Lanning and Letang v. Cooper indicated that the plaintiff must prove the defendant’s intent. Canadian cases, such as Cook v. Lewis, favoured placing the burden of proof on the defendants to excuse themselves.

As a result, in Canada, a person who commits trespass to the person will be liable for unforeseeable, intended, or foreseeable consequences of the trespass, whereas in England, a defendant will only be liable for intended or foreseeable consequences.

B.  Mistake

Unlike cases involving accidental trespass, claiming that the trespass resulted from a mistake will not excuse the defendant from liability. However, it may reduce the damages payable if the defendant can show that the mistake was genuine and reasonable. In determining the reasonableness of the mistake, courts will consider the circumstances of the case and whether the defendant’s actions would have been lawful had the mistaken belief been true.

C.  Age

Minors can be held liable for trespass to the person, but the standard for liability may differ depending on the age of the minor. Courts often consider the capacity of the minor to appreciate the consequences of their actions and whether they possessed the requisite intent. In some jurisdictions, the standard of care applied to minors is based on the reasonable behaviour of a child of similar age, intelligence, and experience.

D.  Mental Disorder

Individuals with mental disorders can be held liable for trespass to the person, but the evaluation of their liability may be more nuanced. Courts may examine whether the mental disorder impaired the individual’s ability to understand the consequences of their actions or form the necessary intent for liability. In some cases, the defendant’s mental disorder may be relevant to the assessment of damages or the availability of certain defences.

IV.  Defenses to Trespass to the Person

A.  Consent

Consent is a powerful defence against allegations of trespass to the person. If the plaintiff consented to the defendant’s actions, they cannot claim damages. Consent must be voluntary, informed, and not obtained through fraud, coercion, or misrepresentation. In certain circumstances, implied consent may be found, such as in contact sports or social interactions. However, consent can be limited, and if the defendant exceeds the scope of the consent given, they may still be held liable.

B.  Common Law Justification for the Use of Force

In some situations, the common law permits the use of force as a defense to trespass to the person. Examples of common law justifications include the defence of others, the prevention of crime, and the suppression of riots. The force used must be proportionate to the threat and necessary under the circumstances.

C.  Authority of Statute

When a statute authorizes the use of force, individuals acting within the scope of that authority are generally shielded from liability for trespass to the person. This defence typically applies to law enforcement officers and other public officials carrying out their duties. However, the protection does not extend to actions that exceed the statutory authority or involve excessive force.

D.  Lawful Arrest

A lawful arrest can serve as a defence to trespass to the person when force is used to apprehend a suspect. Law enforcement officers or private citizens conducting a citizen’s arrest must adhere to the legal requirements for arrest, such as having probable cause or a valid warrant. The force used during the arrest must be reasonable and proportionate to the circumstances.

E.  Necessities of Ordinary Life

In some cases, the necessities involved in everyday life may provide a defence to trespass to the person. This defence recognizes that minor, incidental contact is inevitable in daily life and should not give rise to liability. Examples include bumping into someone in a crowded space or accidentally brushing against a person while passing. To qualify for this defence, the contact must be brief, unintentional, and not result in significant harm.

VIII.  Conclusion

Trespass to the person is a multifaceted area of tort law, encompassing various forms of intentional or negligent harm to an individual’s physical or mental well-being. Although the case law seems dated, the categories of trespass to the person, qualifications of liability, and available defences continue to apply today. Understanding trespass to the person is crucial for those who seek to navigate the legal landscape, whether as a plaintiff or defendant, and this overview can serve as a guide for the modern application of tort claims involving trespass to the person.

Example: Johnston v. Barrett & Kinney

In the case, the plaintiff sought damages for trespass to the person after being forcibly ejected from a political meeting by the defendants on October 27, 1972. The plaintiff interrupted the main speech at the meeting with a question, after which the defendant Barrett approached him, and an altercation ensued. Barrett and Kinney, another defendant, dragged or carried the plaintiff out of the meeting and into the street.

The court found that both defendants committed an assault and battery by manhandling the plaintiff against his will. Barrett was also found to have punched or pushed the plaintiff, causing him to fall. None of the justifications for trespass to the person applied to the defendants, and the plaintiff’s actions did not constitute a breach of peace.

The court ruled that the defendants owed the plaintiff damages for trespass to the person, not requiring physical injury but compensating for the loss of dignity. The plaintiff was humiliated and demeaned, and the court valued this at $1200. The plaintiff was awarded this amount and his costs were to be taxed under the Supreme Court tariff’s first column.

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