Trespassing On Concerned Torts Violations Law

Essay
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The trespass to the person torts concern possible violations of the individuals right to be free from
unlawful interference, this essay will explore the torts of assault, battery and false imprisonment and
the connections these have with the scenarios in question. Assault is defined by Goff LJ as an act
which causes another person to apprehend the infliction of imminent, unlawful force on his person this
shows that in tort, unlike in criminal law, an assault is when a person is put in fear of immediate harm.
What is reasonable anticipation of a battery? If someone were to say I will kill you on your 21st
birthday this would not be an assault because it is not an immediate threat and possibly you would
have time to react. Likewise if you apprehend a threat in a bar because a man is advancing on you
with a broken bottle and he is restrained by a friend there is no assault because you are being
protected. This shows the very circumstantial nature of the tort of assault. In relation to the scenarios
given for this essay there appears to be an assault between Grant and Phil when he advances upon
him, however as Grant is restrained this removes the threat and no assault has actually taken place,
although when Grant throws the bottle it would be an assault towards Phil as he would have see it
coming and feared its imminent impact.
Battery is defined as the actual infliction of unlawful force on another person ; however this definition
in itself raises many issues. What constitutes unlawful touching? If the definition is taken literally then
the slightest tap on the back could be a battery and some consideration has been taken in deciding the
extent to which the charge of battery is permissible. Lord Holt CJ is quoted as saying the least
touching of another in anger is a battery which was subsequently interpreted as battery requiring a
hostile intention. As with all the torts which involve trespass to the person intent is important, it is
certain that the act must be voluntary but it is unclear whether they should have intended the claimant
harm or if negligence is enough, battery is applied per se so there is no need to prove that the
defendant intended or caused harm to the claimant. Perhaps the view of Goff LJ is the most
reasonable; he argues that an action leading to a battery is not an action generally acceptable in the
ordinary conduct of general life . In the scenarios set there may be several cases of battery, Phil
subjects Michelle to a kiss that she does not consent to which is unlawful touching. Grant performs a
battery upon Dot by striking her with the bottle; although he meant to hit Phil he intended to throw the
bottle and that caused an immediate injury. The doctor who performs the blood transfusion on Dot is
also performing an action that she would object to, however she is unconscious at the time and as a
doctor he is doing what he believes is necessary (a mitigating factor in battery) to save her life, so this
is not a battery.
False imprisonment is defined as unlawful imposition of constraint on anothers freedom of movement
from a particular place in order for someone to be liable they must completely restrict the claimants
movement and it must be done without lawful authorisation. In the pub they unlawfully lock Grant in a
cupboard, although they restrain him to prevent further harm this is still false imprisonment because it
hasnt been officially sanctioned. When the police eventually lock Grant up however this is not false
imprisonment as they have a legal right to incarcerate someone who has broken the law.
In relation to Paul, the newspaper reporter, I can refer to The Protection from Harassment Act 1997 this
aims to protect people from harassment and remedy any offences. It states in section 1 that A person
must not pursue a course of conduct:
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other.

It is limited by the number of offences, the act does not cover solitary events, harassment must occur at
least twice. This is true of Paul as he is exaggerating the acts of Phil and Grant in a way which deforms
their character, and he does so on three occasions making him liable to being sued.

Section B
Duty of care is essential to the tort of negligence, it is not enough that the defendant is at fault; they
must also be in a relationship with the claimant which entitles the claimant to legal compensation for
the defendants fault . The courts are cautious about imposing a duty of care for several reasons, such
as to avoid too many claims being brought on one individual which they would be unable to support.
They may want to disqualify certain types of claims, as if there were too many this could slow the
process of the courts and make them ineffective. They also do not want to take the deterrent effect too
far and run the risk of being too harsh, also in some situations it is perfectly reasonable that someone
may act in a way which damages someone else,. This shows how courts being cautious in imposing a
duty of care can benefit the claimant and society as a whole. In particular reference to the potential
claimant, if no duty can be established by precedent it would save them the time and expense of a
court action where there is no basis for a claim.
However from the claimants perspective the duty of care may not always be imposed in a way they
find satisfactory. The notion of a duty of care was established by Lord Akin, his famous neighbour
principle set down that a duty of care is owed to those who are so closely and directly affected by my
act that I ought reasonably to have them in contemplation as being so affected when I am directing my
mind to the acts , this was refined by Lord Wilberforce (Anns v Merton London Borough Council [1978]
) who set the position that the defendant owes a duty if it was reasonably foreseeable that their action
would cause harm to the claimant. This was a very broad definition and benefited the claimant, who
could arguably have a claim against anyone who they could prove had a duty of care over them. In
effect any event can be reasonably foreseeable if you think about it long enough, and as Lord Goff
comments the function of duty of care is not so much to identify cases where liability is imposed but to
identify those where it is not . Eventually this two stage formula for establishing a duty of care became
unpopular because it was too vague; the decision reached in Anns v Merton London Borough Council
[1978] was overruled in Murphy v Brentwood District Council [1990]. The old system was replaced by a
new three stage system in Caparo Industries v Dickman [1990] which required not only that the event
was foreseeable but that there is the correct degree of proximity between the claimant and the
defendant, also that it is fair, just and reasonable the law should impose a duty. This narrowed the
margins within which a claim could be made; a claimant then who is indirectly affected by the
defendants actions has limited basis for a claim, this method also does not take into account what the
claimant believes is fair on his part, but rather what the judges believe is fair and reasonable. The
decision the judges reach over fairness is not often about the experience of the individual and their
loos but often reflects what they believe would be best for the law at large. This is represented in the
case of Marc Rich & Co v Bishop Rock Marine Co Ltd [1996] where a duty of care was not imposed on
the defendant because it was considered unfair, unjust and unreasonable to do so as it may undermine
the terms on which international trade was conducted.
Although the rule in Caparo still applies judgements have moved onto a more incremental approach as
the House of Lords reject that there can be a single approach to deciding whether a duty is owed in a
certain case. This has resulted in decisions about duty of care being less about deciding whether the
defendant will have the duty imposed on them, but is rather about finding the relevant precedent which
shows whether the defendant owes a duty to the claimant. For the claimant this is beneficial if the
precedent shows they are owed a duty, but if not the law becomes inflexible in their case which could
lead to a potentially unfair and unsatisfactory result.