Trespass - Tort Law
Trespass to the Person
As with other trespasses, trespass to the person is based on a concept of absolute inviolability. You have a legal right not to be touched or restrained in even the slightest manner, or to receive a threat of such, be it only unwelcome. Yet life is full of situations where a person may be touched, restrained or threatened in perfectly reasonable and innocent, or morally excusable ways. Thus trespass to the person is, possibly more than any other law, notorious for its hair trigger characteristics. Fortunately there are exceptions, but by and large the only thing standing between the perpetrator of a trivial tort and an adverse court finding, is that the average “victim” cannot be bothered with the difficulty of suing, or that they go along with the demand of common ethics that they should just get over such a minor offence.
Battery
At civil law (as opposed to criminal law) when a person touches you without consent, it is called battery. In Rixon v Star City, a case concerning the ejection of a problematic casino patron, Sheller JA confirmed that the slightest touch is battery, stating that every person’s body is inviolate. But he also confirmed that ‘if two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery.’ However, he stated that the mere absence of hostility is insufficient as a defence. There are practical exceptions such as punishing children, lawful arrest and self defence. Ordinary touching in day to day situations is subject to implied consent. There is no need that there be anger in the act of physical contact, only the lack of a lawful excuse.
Assault
While assault is the term used for physical contact at criminal law, at civil law assault means a threat of battery. Typically then, assault is a verbal offence. A threat made with a condition attached ordinarily would not be actionable. But there are exceptions such as where the condition given is unlawful. In Rozsa v Samuels a threat was made on the condition that the victim should back down after making a lesser threat of his own. Mr Rosza, a taxi driver, joined a taxi rank at the head, rather than the tail end, resulting in a conditional threat of beating from Drummond, the driver behind him. The appellant threatened to cut Drummond “to bits” with a table knife and started to get out of his taxi. Drummond backed off. The appellant was convicted of criminal assault. Hogarth J ruled that the threat was not to be interpreted literally, but in a sensible manner and saw in it a believable threat not of butchering, but of stabbing. Even though it was in response to a prior threat, it still went beyond the bounds of self defence. In fact, Mr Rosza could have avoided Drummond’s threat by complying with his demand.
False Imprisonment
False imprisonment overlaps heavily with false arrest, so the two are dealt with simultaneously here. In Bird v Jones it was ruled that imprisonment need not be in a locked room. All that is needed is that a person be kept in one place against their will. ‘Imprisonment is... a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience it may bring on him.’ Therefore there must be no reasonable means of escape. The court qualified this by stating that mere obstruction of passage alone cannot constitute imprisonment, whether by threat of violence or otherwise, if the person is at liberty to stay where they are, or to go in another direction.
In a serious confrontation, false imprisonment may become an issue for a civilian enforcer as the victim. A surveillance subject may demand an explanation or a debtor or interviewee may have complaints to get off their chest and prevent the investigator or debt collector from leaving for a time. This is relevant also in the event of a citizen's arrest executed incorrectly. See the section on citizen’s arrest and criminal false imprisonment in the chapter on Criminal Law. Not only is false imprisonment a criminal matter, but it can be sued on as a tort in civil proceedings with costly exemplary damages as a potential outcome.
Implied Imprisonment
Implied imprisonment/arrest is an issue which may be crucial at times for circumstance investigators who conduct interviews with insurance policy holders. In Symes v Mahon a police officer sought the attendance of a Mr McMahon at a meeting to discuss child support obligations and mistook Mr Mahon for McMahon. The plaintiff was not formally arrested, but compelled by notice to travel from home to Adelaide for a meeting. He willingly submitted to the authority of Constable Symes and boarded the same train. Having failed to attend of his own volition twice, the police directive becomes a key factor in Mahon’s course of action. The court recognised the importance of a psychological barrier to escape – the plaintiff submitted willingly to the defendant’s power as it seemed a better option than formal arrest.
The court’s treatment of his action amounts to recognising an implied form of arrest – one which can be affected without physical force, but where the person is left with only one viable option. Let us suppose that a person whose income has declined recently has an insurance claim pending with a vast sum of money expected after the theft of a large quantity of jewellery, or suppose key business equipment has been stolen and they cannot continue to operate their business until their claim is accepted. By participating in the interview they are said to have complied with the investigation of their own free will, but in fact due to their need for their claim to be honoured, they have no viable alternative except to comply. Suppose further that the person has a very busy schedule and is most begrudging to devote the time required and can think of more productive ways of spending the time taken by the investigation. Thus there is a deprivation of liberty. If a person’s physical movements are clearly imposed upon by the undertaking of an investigation then there is a risk that they could argue they were falsely imprisoned.
As expressed in Darcy v State of New South Wales the person imposing restraint needs to justify their actions somehow. This can be done firstly by reference to the contractual term implied in all insurance policies (as held by common law) that the policy holder will comply with any investigation undertaken into any claim they make. But a further question to be addressed lies in whether the strength of the factual basis for suspicion justifies the scope and depth of the inquiry. If the degree of imposition upon any person’s movements is clearly unduly long in the light of the available facts on which suspicion is based, then an argument of false imprisonment may stand. In so much as the client or firm is responsible for the parameters of an investigation, they would be vicariously liable. Such a matter could also be argued as a breach of the good faith requirement.
Rixon v Star City [2001] NSWCA 265; unreported, NSW Court of Appeal, 28 September 2001.
Police v Greaves [1964] NZLR 295.
Rozsa v Samuels [1969] SASR 205.
Bird v Jones (1845) 7 QB 742.
Symes v Mahon [1922] SASR 447.
Darcy v State of New South Wales [2011] NSWCA 413.