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51 Cards in this Set

  • Front
  • Back
Introduction to Trespass Generally
Trespass to goods/chattels, person and land.

Actions in trespass formed origins of tort law: private actions for interference with personal rights. Diff to other tort:

- Trespass remains generally associated with element of intention and deliberate interference whereas other causes of action concern accidental interference.

- Burden of proof and the procedure are distinct: plf must show that the dft’s conduct caused direct impact, and burden is then on dft to show impact was not intentional or negligent.

Trespass is actionable per se – plf does not have to show actual loss or injury, but only nominal damages

Heavily influenced by constitutional elements of protection for bodily integrity, privacy and inviolability of dwelling. But Court prefer to use tort law rather than constitutional in this area.

Trespass to person: battery (unlawful personal contact), assault (threat of battery), false imprisonment (unlawful deprivation of personal liberty).
Trespass to person
Battery: unlawful personal contact;

Assault: threat of battery;

False imprisonment: unlawful deprivation of personal liberty.

Trespapss to the Person is actionable per se
Trespapss to the Person is actionable per se
It's actionable per se. This is important.
Assault
An act which causes another person to apprehend the infliction of immediate, unlawful force on is person (Collins v Wilcock [1984]).

Applies where dft directly or indirectly causes the plf to apprehend contact. Belief of contact must be reasonable. Must be mental impact on plf. Words can of themselves constitute an assault, but mere insults are not enough.
Collins v Wilcock [1984]
Authority for the proposition that an act which causes another person to apprehend the infliction of immediate, unlawful force on is person.
Battery
The actual intended use of physical force to another person without his consent … or any other lawful excuse (AG Reference [1981])

Direct or indirect (upturning of chair while sitting on it) contact with a person without consent or lawful authority. Force or physical injury is not required but there must be some form of contact, although it can be slight such as spitting or lightly touching.

Traditionally a battery was considered to be an intentional touching of a harmful, hostile, malicious or offensive nature to which no consent or authority had been given either orally or verbally. Requirement of proof of hostility or malice has been abandoned by the courts: Re F [1990]: unreasonable limitation on battery action. Prank, over-friendly slap on back, surgery where mistake re consent – no hostile element but may not be lawful.

Often against employees such as security guards, bouncers etc. Employee must show he acted proportionately and with minimal force and may justify as self-defence of defence of property. Is disproportionate or excessive: battery. In general it will be held that employee is acting outside the scope of his employment if excessive force is used and therefore the employer is not vicariously liable.

Gibbons v Securicor [2004]: Court found that:

- An occupier can withdraw a person’s licence to be present & individual commits trespass if refuses to leave.
- A degree of force may be used to remove a person from the premises where they are trespassing.
- If a person assaults or batters another or attempts to, that other person can use reasonable force to defend themselves.

Victim of child sexual or violent abuse may sue in trespass. Statute of Limitations (Amendment) Act 2000: postpones operation of 6 year limitation where plf suffered significant psychological injury as result of earlier abuse. Delahunty for vicarious.
Re F [1990]
Requirement of proof of hostility or malice has been abandoned by the courts as unreasonable limitation on battery action.

Prank, over-friendly slap on back, surgery where mistake re consent – no hostile element but may not be lawful.
Gibbons v Securicor [2004]
Plf asked to leave shopping centre because shouting at security guards, refused to leave and tried to strike a guard. Security restrained him, brought him to an office and called Gardai. Sued for battery, false imprisonment and defamation. Court found that:

- An occupier can withdraw a person’s licence to be present & individual commits trespass if refuses to leave.

- A degree of force may be used to remove a person from the premises where they are trespassing.

- If a person assaults or batters another or attempts to, that other person can use reasonable force to defend themselves.

Here restraint and detention was justified - case dismissed.
False Imprisonment
The unlawful restraint or detention of the plf.

Essential element is the unlawful detention of the person, or the unlawful restraint on his liberty. Does not need to be actually aware that being falsely imprisoned. May be imprisonment without walls – detention must only be such as to limit the party’s freedom of movement in all directions. - Dullughan v Hillen [1957].

Blocking one means of exit will not suffice if plf has reasonable means of escape (not dangerous or where plf was not aware of Meering v Graham White Aviation). Bird v Jones: Hammersmith Bridge, refused to use alternative – not false imprisonment.

Vicarious liability where tort was committed in course or scope of employment and if acts excessive, courts must determine whether authorised by employer. Dillon v Dunnes Stores [1968]
Dullughan v Hillen [1957]
Whether by constraining him, or compelling him to go to a particular place, or confining him in private place or detaining him in public place.

Essential element is the unlawful detention of the person, or the unlawful restraint on his liberty.

Does not need to be actually aware that being falsely imprisoned. May be imprisonment without walls – detention must only be such as to limit the party’s freedom of movement in all directions.
Meering v Graham White Aviation (1920)
The claimant was brought to his employer's office to be interviewed in connection with a theft. Although the claimant did not know it, two security guards had been stationed outside and told to prevent him leaving.

When the claimant found out, he brought an action for false imprisonment.

Lord Atkins said (p. 53):

It appears to me that a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious, and while he is a lunatic...It is quite unnecessary to go on to show that in fact the man knew that he was imprisoned.
Bird v Jones (1845)
The claimant was arrested after punching a policeman who tried to obstruct his passage along Hammersmith Bridge. Part of the bridge had been (unlawfully) closed to pedestrians. His action in False imprisonment failed, because the court held (by a majority) that obstruction of passage was not a sufficient deprivation of liberty to cosntitute an imprisonment.
Dillon v Dunnes Stores [1968]
Store detectives acted in excessive manner in investigating theft by employees – no implied authorisation. Also Gibbons.
Elements of Trespass to the Person
Number of common elements in claims for trespass to the person.

(i) Voluntary Conduct

(ii) Direct Impact

(iii) Intention

(iv) Causation

(v) Damages
Voluntary Conduct
Involuntary conduct is insufficient eg where pushed into someone by someone else, or where acted on reflex.
Direct Impact
Plf must establish the impact. For:

- Battery: direct or indirect contact.
- Assault: Apprehension of contact.
- False Imprisonment: Confinement or detention.

Impact must be direct in sense that it is the immediate result of the particular voluntary act. Can use instrument.
Intention
Continuing small degree of uncertainty as to whether trespass confined to intentional acts, but appears to be Devlin v Roche [2002].

A dft is deems to have intended the natural and probable results of voluntary conduct and the dft is liable for any unintended and extended consequences which flow from the original intended act.

Fagan v Commissioner Met Police [1969]: Intention can be formed during the act (refusing to move car from policeman’s foot).

In general where no intention no action in trespass lies, but can be action in negligence if failure to exercise reasonable care.
Causation
Not as complicated as in negligence cases: just need to prove that the impact occurred from the Dft’s conduct.
Damages
Trespass is actionable per se and the plf does not have to prove any dmange: where does not suffer any the Court will generally only award nominal damages and costs.

In assessing what damages are recoverable the Polemis test of direct consequences applies, and not the Wagon Mound test of reasonable forseeability that applies in negligence cases.

Plf may recover for any physical or mental injuries from the trespass without the restrictions which apply in negligence law to psychological injury.

Plf may also recover exemplary damages.
Devlin v Roche [2002]
Continuing small degree of uncertainty as to whether trespass confined to intentional acts, but appears to be.
Fagan v Commissioner Met Police [1969]
Intention can be formed during the act (refusing to move car from policeman’s foot).
Defences to Trespass to the Person
(i) Consent

(ii) Self Defence

(iii) Defence of Third Parties

(iv) Defence of Property

(v) Lawful Authority

(vi) Statutory Authority

(vii) Discipline of Child

(viii) Necessity

(ix) Duress
Consent - Valid Consent
Where plf has validly given consent or authority to the impact: full defence. Must be voluntary, and aware of what relates to.
Re T [1993]
Mother who was Jehovah’s convinced daughter not to have blood transfusion – undue influence. Primary factors were patient’s strength of will and the relationship between the patient and influencing party.
Norberg v Wynrib [1992]
Sexual favours for drugs – not consent. Imbalance between parties (doctor patient), exploitation and undue influence.
Consent - Implied Consent
No longer used – has been replaced in medical context with defence of necessity. Also justificiation.
Consent - Scope of Consent
Acts outside the scope of the consent given will not be covered. Corcoran v W & R Jacobs [1945]: Searching by security guards in contract of employment, but security guard lunged and acted outside the scope of the consent.

Medical consent: unanticipated problem in surgery. Courts traditionally assessed issue in terms of scope of the patient’s original consent and an implied consent that becomes necessary during the op. But now use necessity.
Corcoran v W & R Jacobs [1945]
Searching by security guards in contract of employment, but security guard lunged and acted outside the scope of the consent.
Consent and Informed Consent
CL: Dr must obtain consent to treatment, failure to do so = battery. Patient must understand what consenting to, consent form must be explained, signature not sufficient Chatterton v Gerson [1981].

Dr under duty to explain nature, purpose and consequences of treatment. Failure to disclose a risk associated may expose dr to liability in negligence. However failure to disclose material risks does not affect the validity of the patient’s basic consent. Reibl v Hughes approved by SC in Walsh v Family Planning Services [1991]: Battery only where no consent at all, or where emergency situations aside go beyond consent given. Unless there is misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery.
Who Can Given Consent?
Parent or legal guardian for child (if unmarried parents then mother only unless father appointed guardian).

Child can consent after 16. If parents incapacitated next of kin cannot consent to treatment for child, but dr will consult and then act relying on necessity and best interests of child.
Self Defence
Lawful to use reasonable force in self defence to assault and/or battery. (What about false imprisonment? Presumable if someone locked into room to prevent them attacking you?)

The response must be proportionate and excessive force may not be used.

Turner v Metro [1950]: Precise proportionality is often not possible in context of physical fight and law will not concern itself with niceties. May permit pre-emptive strike.
Defence of Third Parties
Modern torts law appears to recognise that every man has the right to defending any man by reasonable force against unlawful force. People (AG) v Keatley [1954].
Defence of Property
A person may eject another with reasonable force where the other enters or attempts to enter his property with force or violence. A significant degree of violence in the entering is not required and the opening of gates may constitute force or violence allowing another to respond with force.

Rose v Curtis [1989]: Alarm, warning shot, hit plf in skull inadvertently. Acted reasonably and not in reckless disregard for plf.

If no force in entry then landholder must first request the trespasser to leave before forcibly removing him. McKnight v Xtravision [1991]. Little v Monarch Properties [1996]: Plf asked to leave, refused & asked to speak with manager, dragged through the shopping centre. Actions were excessive and security personnel should have asked the plf to move then escorted.
Lawful Authority
Gardai enjoy extensive powers of arrest, and can detain someone where suspicion of having committed certain categories of offence, for searches and to enter and search premises

S4 CJA 1997: Any person can arrest without warrant any person who he suspects with reasonable cause to be in the act of committing an arrestable offence or to have committed such an offence. Must bring suspect into Garda custody as quickly as possible.
Statutory Authority
Eg detention and isolation of persons with infectious diseases, mentally unsound who are danger to themselves or others, airports or airplanes.

Dft must act in strict compliance with authority provided under statute, and if unauthorised or excessive acts occur a claim in trespass may lie.
Discipline of Child
Parent, guardian or loco parentis can use physical contract to discipline a child – if a teacher acts disproportionately or excessively the school may be vicariously liable or if outside scope teacher personally liable.
Necessity
Medical emergencies – where dr cannot obtain consent or where ignore refusal to consent. Re A [2001]: co-joined twins separated against wishes of parents Court accepted op performed in knowledge that both children would die within short space of time.
Duress
Difficult to avail of in the context of trespass to the person, will depend on the relevant circumstances.

Possibly if being held at gunpoint, but courts reluctant to apply this defence. One person cannot injure or physically impact another on the basis of loose threats.

Trespass will have to be proportional response to actual duress.
Chatterton v Gerson [1981]
Informed consent - Patient must understand what consenting to, consent form must be explained, signature not sufficient
Walsh v Family Planning Services [1991]
Reibl v Hughes approved by SC:

Battery only where no consent at all, or where emergency situations aside go beyond consent given. Unless there is misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery.
NW Health Board v HW & CW [2001]
Parents refused to allow baby to have heel prick test. Court upheld: not an exceptional case giving rise to an imminent threat to life or serious injury.
Gregan v O’Sullivan [1937]
Hit on lip, responded with pitch fork and 13 puncture wounds: excessive force, defence of self defence failed.
Turner v Metro [1950]
Precise proportionality is often not possible in context of physical fight and law will not concern itself with niceties.

May permit pre-emptive strike, in particular circumstances.
Rose v Curtis [1989]
Alarm, warning shot, hit plf in skull inadvertently. Acted reasonably in defence of property and not in reckless disregard for plf.
Little v Monarch Properties [1996]
Plf asked to leave, refused & asked to speak with manager, dragged through the shopping centre. Actions were excessive and security personnel should have asked the plf to move then escorted.
S4 Criminal Justice Act 1997
S4 CJA 1997: Any person can arrest without warrant any person who he suspects with reasonable cause to be in the act of committing an arrestable offence or to have committed such an offence. Must bring suspect into Garda custody as quickly as possible.
Re A [2001]
Co-joined twins separated against wishes of parents Court accepted op performed in knowledge that both children would die within short space of time.
Intentional Infliction of Suffering
Functions as distinct tort although underdeveloped in this jurisdiction (US used a lot).

Can be contrasted with recovery for nervous shock which relates to negligently inflicted psychiatric suffering (this intentionally inflicted). In practice only useful as separate cause of action where Dft had committed no other tort.

US: has been extended to cover intentional/reckless infliction of emotional distress by extreme or outrageous conduct and the action is not confined to recognised psychiatric illness.
Wilkinson v Downtown [1897]
Prank – told woman husband injured. Suffered severe and permanent physical (?) consequences. Court found that recovery lies in trespass to the person for the intentional or reckless infliction by the Dft of emotional suffering or distress on the plf. Did not have to establish that intended to cause distress that in fact resulted, but that acted recklessly in this regard.
Janvier v Sweeney [1919]
Impersonation of policeman, threatened to charge with espionage. Recovered damages for shock and upset suffered as result of Dft’s deliberate acts.
MacKnight v. Xtravision (1991)
So far as defence of property is concerned, therefore, one may expect that litigants will invoke the late Judge Carroll’s enlightened judgment, in emphasising the need for commercial occupiers to exercise restraint in the face of trespass.