• Lex Specialis

Trespass to Person Under The Law of Torts

- Niyati Nagar

Trespass to Person

According to Black’s Law Dictionary Trespass is the doing of an unlawful act or of a lawful act in an unlawful manner that causes injury to another's person or property. Trespass in its general form a transgression or offense against the law of nature and society. Trespass to person is an offense against their person i.e., body. An unlawful act committed with violence, actual or implied, causing injury to the person, property, or relative rights of another; an injury or misfeasance to the person, property, or rights of another, done with force and violence, either actual or implied in law. Brown v. Walker It comprehends not only forcible wrongs, but also includes acts the consequences of which make them tortious.

A person is someone who is considered according to the rank he holds in society adjacent to the rights and duties that he possesses. Trespass to the person is a form of action. Trespass to a person in particular are of three types: assault, battery and false imprisonment which are causes of action. Trespass does not require to have a physical infliction of injury. All the three types of trespass to person are intentional torts and cannot be committed by accident. Three of them are causes of action and not actions on the case. This differentiation signifies these torts are actionable per se, and the recovery of damages is not subject to the principles of remoteness which apply to actions in the case. Wainwright v Home Office. Following are three types of trespass to person:

1. Assault

Assault is creating a fear or apprehension of battery i.e., actual physical injury by utterance of words or action. Such an action may be an attempt to commit battery and therefore actionable per se. Assault is a threat or attempt of violence and not actual violence and therefore the elemental requirements of assault constitutes an act which has the potential of creating an apprehension of injury. In order to prove assault a) an intent to inflict a battery or to cause him apprehension of a battery; b) an act done for this purpose, as distinguished from mere violent or abusive language; and c) an apprehension of a battery, are the requirements to be proved. It is to be noted, not all threats are assaults. A threat or attempt in order to be designated as assault requires to be so intended to cause an apprehension along with the necessary apprehension so caused.

Mere utterance of abuse does not amount to an assault, for example, X shouts at B that he will cut B’s throat and while shouting he waves his hand in the air. This threat words do not amount to assault for X’s wavering hand without an axe or other weapon do not hold potential of creating apprehension of death or other bodily injury in the mind of B. Hence, mere words without potential action do not constitute assault.

With respect to assault in torts, the intention is established on the basis of reasonable person’s knowledge as to consequences of their actions. Criminal assault statutes often speak of acting “purposely, knowingly, recklessly, or negligently.” Moreover, the victim must see an apprehension of immediate and actual harm, for example, X shouts on B while on a telephonic conversation that X will shoot B. There is no reasonable conclusion as to immediate harm to B’s person and therefore no assault. Bavisetti Venkata Surya Rao vs Nandipati Muthayya

2. Battery

Battery is intentional touching or use of force on a person. Elements to prove battery constitute the requirement of an intent, physical contact and the infliction of harm or injury. Battery is in general terms an offensive touching directly or indirectly with the intention to cause harm to the person. The harm so inflicted by battery need not be physical harm and therefore, there are two types of touching: offensive and harmful. In battery, the physical contact that is touching might be not harmful to the body directly but it may be offensive being insulting or giving mental injury to the victim. Offensive touch might include an act of forcibly pressing a person’s hat on his head Seigel v. Long,or cutting a man’s hair for instance.

3. False Imprisonment

False imprisonment is deprivation of liberty of a person in full. The tort of false imprisonment constitutes itself under the strict liability category and therefore the victim does not require to prove special damages. There are two elements for the commission of this tort namely, proof of restraint i.e., fact of false imprisonment and the absence of any lawful authority that could have justified such imprisonment. R v Deputy Governor of Parkhurst Prison and Others, ex parte Hague. The duration of detention does not vitiate the claim of false imprisonment. Neither the victim’s knowledge of detention nor the use of force by a detainer are factors that determine the claim under this head.


Trespass to a person is a common law tort and as discussed above constitute itself into the intentional tort category. Though intentional unlike criminal law offenses trespass to a person does not require proving of negligence, purpose, motive etc. There is ambiguity with respect to when an act is assault and when battery. To conclude, it is submitted that words uttered along with the supporting action in order to threaten another person with respect to an injury is assault and when such a threat is given the form of actual physical conduct it becomes battery. Trespass to a person in its aggravated form finds mention in criminal laws for example, under the head “crimes against body” of the Indian Penal Code, 1860.


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