Tort Law 101

Element One: The Requirement of a Positive Act

The first and perhaps most fundamental requirement is that the defendant must have performed a positive, voluntary act. This distinction between acting and not acting (what lawyers call acts versus omissions) forms a crucial boundary in trespass law.

The law generally holds people responsible for what they do, not for what they fail to do. This principle reflects both practical and philosophical considerations. Practically, if we held people liable for everything they didn't do, where would it end? Should someone be liable for not warning you about every possible danger? For not helping every person in need? Philosophically, requiring positive duties to act would fundamentally alter the balance between individual freedom and social obligation.

This principle has far-reaching implications. If someone sees you about to walk into danger and says nothing, they haven't committed trespass against you. If someone refuses to unlock a door to let you out, whether that's false imprisonment depends on other factors - but their refusal to act isn't itself the imprisoning act.

The voluntary nature of the act matters too. If someone pushes you and you involuntarily collide with a third person, you haven't committed battery against that third person - your contact with them wasn't voluntary. Similarly, reflexive actions, involuntary movements during sleep, or actions taken during seizures don't constitute the voluntary acts required for trespass.

Element Two: Directness - The Immediate Connection

The second fundamental element requires that the plaintiff's injury flow directly from the defendant's act. This isn't about how quickly something happens, but about whether there's an unbroken causal chain between act and injury. Think of it as the difference between pushing someone off a cliff (direct) and leaving a banana peel where they might slip (indirect).

This distinction between direct and indirect consequences appears throughout tort law, but it's absolutely crucial in trespass. Why? Because trespass is actionable per se - you can sue without proving actual damage. Given this powerful remedy, courts limit it to situations where the defendant's act immediately caused the interference, without intervening causes.

The key distinction: voluntary human actions generally break the chain of directness, but reflexive acts of self-preservation do not. Natural forces like tides or wind can also break directness, as they did in Southport Corporation v Esso Petroleum when oil dumped at sea was carried to shore by the tide.

Element Three: Fault - Intent or Negligence

The third element requires that the defendant either intended the act or performed it negligently. This is where many people misunderstand trespass law. You don't need to intend harm - you need only intend to do the act that caused harm, or to have done it without proper care.

This raises an important distinction between types of intention. "Actual intention" means you genuinely meant to do something. "Deemed intention" applies when a reasonable person in your position would have known that a particular result was substantially certain to follow. If you throw a rock into a crowd, you might not intend to hit any specific person, but hitting someone is substantially certain.

For child defendants, the standard adjusts to their age. McHale v Watson established that children must meet the standard of reasonable children their age, not reasonable adults, recognising differences in cognitive development and impulse control.

The Burden of Proof: An Unusual Reversal

One of trespass law's most distinctive features is its approach to burden of proof. In most civil cases, the plaintiff must prove every element of their claim, including the defendant's fault. Trespass works differently.

Once the plaintiff proves that the defendant's voluntary act directly caused contact (for battery), apprehension (for assault), or restraint (for false imprisonment), the burden shifts. The defendant must then prove they weren't at fault - that they acted neither intentionally nor negligently.

Why this reversal? Defendants usually have better access to evidence about their own state of mind and level of care. Additionally, the acts that constitute trespass - touching someone, restraining them - are generally things people shouldn't do without good reason. The burden shift recognises this by requiring defendants to explain why their prima facie wrongful act should be excused.

The Highway Exception: When Roads Change the Rules

There's one major exception to these burden rules: accidents on public highways.

The court reasoned that anyone using public highways voluntarily accepts inherent risks. Roads are dangerous places where perfect safety is impossible. This exception covers collisions between vehicles, vehicle-pedestrian accidents, vehicles leaving the road, and contact between transported goods and road users. As of this, the burden shifts to the plaintiff to prove fault on the part of the defendant.

The Core Definition and Its Rationale

Battery is the direct, intentional or negligent causation of harmful or offensive contact with another person. The breadth of this definition might surprise you - "the least touching of another" can constitute battery.

Why such strictness? Lord Goff explained in Collins v Wilcock (1984) that battery protects the fundamental value of physical integrity - each person's right to determine who touches their body and how. This right is so basic to human dignity that law cannot start distinguishing between "serious" and "trivial" violations. Additionally, attempting to draw such distinctions would be practically impossible - how would courts measure the seriousness of different touches?

The Social Reality: Implied Consent and Acceptable Contact

The strict definition of battery creates an obvious problem in our crowded society where physical contact is inevitable. Courts have developed two overlapping concepts to address this.

First, the doctrine of implied consent recognises that by voluntarily entering situations where contact is inevitable, we implicitly consent to normal, incidental touching. When you board a crowded train at peak hour, you can't later sue everyone who brushed against you. But implied consent has limits - it covers only contact reasonably expected in that situation.

Second, law excludes contact that's "generally acceptable in the ordinary conduct of daily life." This flexible phrase allows courts to apply contemporary social standards. What's acceptable varies by context.

Beyond Violence: Why Hostility Doesn't Matter

One crucial point: battery doesn't require hostility, anger, or any negative emotion. The Rixon court emphasised that requiring hostility would exclude too many important protections - medical procedures without consent and well-meaning but unwanted assistance. Good intentions don't override the fundamental requirement of consent.

Understanding Apprehension: The Mental Element

"Apprehension" doesn't mean fear in the colloquial sense - it means anticipation or expectation. A professional boxer who sees a punch coming "apprehends" it even if they feel no fear. The law protects the right to go about life without threatening behaviour creating anticipation of violence, regardless of subjective courage.

The apprehension must be reasonable, measured objectively: would a reasonable person in the plaintiff's position have apprehended imminent contact? This considers the plaintiff's situation and knowledge. If someone points an unloaded gun at you, your apprehension is reasonable if you didn't know it was empty.

The Expanding Concept of Imminence

Traditional assault required immediate threats, but courts now recognise that ongoing fear deserves protection too.

Words, Gestures, and Conditional Threats

Words alone can constitute assault and also negate assault in certain cases. If the words used show no violence will be carried out, then the words alone are not enough to constitute assault.

For conditional threats ("Do X or I'll hurt you"), courts use a two-part test from Rozsa v Samuels:

Total Restraint: The Boundary Principle

The restraint must be complete - partial restrictions don't suffice.

Conditional Liberty: Reasonable Conditions versus Imprisonment

Known, reasonable conditions on exit don't create imprisonment.

Physical versus Psychological Restraint

Restraint needn't involve physical barriers. Complete psychological submission suffices.

Reasonable Means of Escape

Courts assess whether available exits are reasonable enough to negate imprisonment.

Knowledge and Lawful Authority

Awareness of restraint isn't required. The key insight from SA v Lampard-Trevorrow is that it actually establishes two separate points:

This distinction is crucial - the court used the case to clarify that awareness isn't required for false imprisonment, but then found that Bruce Trevorrow wasn't actually falsely imprisoned at all. He was simply a child receiving normal parental supervision from foster parents, which isn't the kind of restraint that creates liability.