Principles of Tort Law

INTRODUCTION

This chapter considers three different torts: battery (unlawful physical touching); assault (an apprehension or threat of unlawful touching); and false imprisonment (unlawful confinement or constraint). While their common aim is to protect the integrity of C's person, the ingredients of each tort are quite disparate.

As a preliminary matter of terminology: trespass to the person is a form of action, but assault, battery and false imprisonment are causes of action.

Trespasses versus actions on the case

As explained by Buxton LJ in Wainwright v Home Office, the distinction between torts of trespass and torts of ‘action of the case’ arose in much earlier (medieval) times. A trespass encompassed a direct and wrongful interference by D with the person, land or goods of C, such that an action in trespass was pleaded when the damage was caused directly, rather than indirectly. On the other hand, an action on the case consisted of a claim arising from an act or statement which indirectly caused C damage. By having to prove the chain of causation (which required an examination ‘on the case’), that distinguished actions on the case from trespasses.

Unfortunately, the categorisation of trespasses to the person is an ongoing source of confusion. The Irish Law Reform Commission has stated that assault, battery, false imprisonment, and the tort of Wilkinson v Downton are indeed ‘the modern elements of the generic writ of trespass to the person’. However, some judges disagree. For example, the tort in Wilkinson v Downton (considered in the identically-named online chapter) is not a trespass to the person, it is a form of ‘an action on the case’ – Lord Hoffmann stated, in Wainwright v Home Office, that the tort ‘ha[s] nothing to do with trespass to the person’. Furthermore, in the Wainwright Court of Appeal below, Buxton LJ remarked that false imprisonment has been ‘unhappily’ categorised as a tort of trespass to the person too.