Summary
Summary The Intentional Torts
- Module
- Tort Law (LAWW2017)
- Institution
- The University Of Nottingham (UON)
Topic 12 of the tort law module. Used by a 1:1(1st) student.
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Hemi Mistry March 20231. Introduction
a. What are the intentional torts?
b. How do they differ from the tort of negligence?
c. What are the defining characteristics of the intentional torts?
d. Overview of the intentional torts:
i. Trespass to Land
ii. Trespass to Goods
iii. Trespass to the Person
1. Assault
2. Battery
3. False Imprisonment
iv. The Wilful Infringement of the Right to Personal Safety (aka the Wilkinson v
Downton tort)
v. Harassment (Protection from Harassment Act 1997)
e. Relationship between the intentional torts and other areas of law
i. E.g. criminal law, human rights law, public law, land law, personal property
law
2. Assault
3. Battery
4. False Imprisonment
5. Defences
6. The Wilful Infringement of the Right to Personal Safety (aka the Wilkinson v Downton tort)
7. Harassment
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, Hemi Mistry March 2023
1. Introduction
1.1. The Basics
Relationship with the tort of negligence
Trespass to the Person
‘The direct interference with a person’s body or liberty/freedom of movement,’ Winfield and Jolowicz
(20th Edition), p.55
Harassment
Wilkinson vAssault
Downton
False Imprisonment
Battery
o Collins v Wilcock [1984] 1WLR 1172, 1177 (per Goff LJ):
‘The law draws a distinction, in terms more easily understood by philologists than by
ordinary citizens, between an assault and a battery. An assault is an act which causes
another person to apprehend the infliction of immediate, unlawful, force on his person; a
battery is the actual infliction of unlawful force on another person. Both assault and battery
are forms of trespass to the person. Another form of trespass to the person is false
imprisonment, which is the unlawful imposition of constraint upon another's freedom of
movement from a particular place…. The fundamental principle, plain and incontestable, is
that every person's body is inviolate…. The effect is that everybody is protected not only
against physical injury but against any from of physical molestation.’
Some History and Useful Terminology
To help you understand some of the old cases, the legal issue they raised (and why there was an
‘issue’ at all), and simply to understand the language you may see a judge use, it is necessary to
know a bit about the historical development of English tort law and the distinction between two
terms: 1) trepass vi et armis, 2) trespass (or ‘action’) on the case.
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, Hemi Mistry March 2023
Trespass To Land
Trespass vi Trespass To Goods/Chattels
Trespass To The Person
Assault
et armis Battery
False Imprisonment
Vi et armis and contra pacem
“Trespass”
or “Action”
Historically, these were claims entertained by the royal courts even though
they lacked vi et armis and contra pacem. Today, such cases would fall
within torts of negligence or nuisance.
on the Case
1.2. Defining Characteristic 1: Intentional
Conduct
Intentional (as opposed to ‘negligent’ or ‘careless’)
Key Points:
1) Intention as to conduct (e.g. touching), not consequence (i.e. harm/lack of harm)
2) Fowler v Lanning [1959] 1 QB 426 - Burden of proof is on the claimant – they must either
establish that the defendant acted negligently (and bring their claim in the tort of
negligence) or establish that the defendant acted intentionally (and bring their claim in
trespass).
3) Letang v Cooper [1965] 1 QB 232 (Court of Appeal) - No ‘negligent trespass’.
Letang v Cooper [1965] 1 QB 232 (Court of Appeal)
Statute of limitations for bringing a claim in negligence had expired, so she sought trespass instead.
Did Cooper unintentionally commit battery against Letang? No
Denning MR (with whom Danckwerts LJ agreed):
‘If one man intentionally applies force directly to another, the plaintiff has a cause of
action in assault and battery, or, if you so please to describe it, in trespass to the person.
"The least touching of another in anger is a battery". If he does not inflict injury
intentionally, but only unintentionally, the plaintiff has no cause of action to-day in
trespass. His only cause of action is in negligence, and then only on proof of want of
reasonable care. If the plaintiff cannot prove want of reasonable care, he may have no
cause of action at all. Thus, it is not enough nowadays for the plaintiff to plead that "the
defendant shot the plaintiff". He must also allege that he did it intentionally or
negligently. If intentional, it is the tort of assault and battery. If negligent and causing
damage, it is the tort of negligence.’
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, Hemi Mistry March 2023
Concurrent Claims in negligence and trespass
Bici v Ministry of Defence [2004] EWHC 786
Facts: UK peacekeeping soldiers in Pristina, Kosovo. Large crowd of civilians celebrating the
liberation of Kosovo from Serb occupation by NATO. Soldiers in the square were there to maintain
order. The victims were in a car. The soldiers fired 15 bullets at the car, shooting and killing two
occupants and severely injuring others.
Could a claim in negligence prevent a separate claim in trespass arising out of the same facts?
Summary – 2 claims:
o Negligence – the decision to open fire was negligent – when making the decision to open fire
the soldiers fell below the standard of reasonably competent soldiers.
o Trespass – the intentional infliction of force by the shooting itself.
‘Intentional conduct’ also includes ‘reckless’ conduct
Pritchard v Co-Operative Group Ltd [2011] EWCA 329 [33]:
‘Assault and battery are ‘intentional torts’ in the sense that the defendant must intend to do that
which causes the damage … acts done or words said reckless as to whether they cause damage also
give rise to an ‘intentional tort’ … In this context, ‘intentional’ must embrace ‘recklessness’.’
Iqbal v Prison Officers [2010] QB 732: (per Smith LJ)
[73] ‘if the defendant realises that the likely consequence of his act or omission will be that the
claimant is imprisoned and carries on with that act … regardless of that likely consequence, that will
amount to false imprisonment, provided of course that the other requirements are satisfied.’
[74] ‘In the present case I do not think it could be said that the prison officers actually wished that
the prisoners should be confined to their cells all day. However, it is clear that they foresaw that this
was likely to happen and they went ahead with their strike action regardless. I would hold that the
act (or omission) did carry the requisite degree of intention.’
Although trespass cannot be committed negligently, negligence can
be committed with intentional or reckless conduct
o Many cases that could be dealt with as trespass claims are in fact litigated in negligence
instead.
o Historically, this is the result of the expansion of the tort of negligence;
o No need to get into the business of proving intention or recklessness;
o But, question: to what extent is ‘negligence’ accurate labelling for intentional wrong-doing?
A vey recent example:
Czernuszka v King [2023] EWHC 380
Claimant was an amateur rugby player who was rendered paralysed from the neck down by a
‘revenge tackle’ by the defendant. The tackle was intentional, it fell far outside the scope of
permissible conduct under the rules of the game.
Mr Justice Spencer:
o Para.58(x): ‘I do not find that the Defendant intended to injure the Claimant, indeed that is
not alleged against her: I do find, though, that the “tackle” was executed with reckless
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