Tuesday, 31 May 2022

Trespass

 Trespass


The chief forms of Trespass are: battery, assault and false imprisonment.


Battery:

A battery is “intentional and direct application of force on another person without any lawful justification”. Use of force, however trivial it may be, physical hurt need not be there.

Least touching is of another in anger is a battery.

Battery requires actual contact (may be indirect) with the body of another person so a sizing and laying hold of a person so as to restrain him, spitting in his face, throwing over a chair or carriage in which another person is sitting, throwing water over a person, taking a person by the collar, causing another to be medically examined against his or her will, are all held to amount to battery.

The force may be used through any object like stick, bullet, or any other missile, infection of heat, light, electricity, gas, odour, etc. would probably be battery if it can result in physical injury or personal discomfort.

Mere passive obstruction, like a door or wall, however, cannot be considered as the use of force, a policeman unlawfully prevented the plaintiff from entering the club premises. The plaintiff who had purchased a ticket for a seat at a movie show, was forcibly turned out of a seat by the direction of the manager, who was acting under a mistaken belief that the plaintiff had not paid for his seat.

It was held that the plaintiff was entitled to recover damages for battery and assault. If the plaintiff had been without ticket the use of force would be justified.


Assault:

Assault is an act of the defendant which causes the plaintiff reasonable apprehension of the infection of battery on him by the defendant. 

Assault is an attempt or a threat to do a corporeal corporate another, coupled with an apparent present ability and intention to do the act.

The menacing attitude and hostile purpose go to make the assault unlawful; the actual contact is not necessary in an assault.

The word “assault” is incorrectly used by the laymen as meaning the actual infliction of force by one person on another such as when A beats B. 

Thus, “popular assault begins when legal assault ends”.

The wrong consists in an attempt to do the harm rather than the harm being caused thereby.

Pointing a loaded pistol at another is an assault. If the pistol is not loaded then even it may be termed as assault. If the pistol is not loaded then even it may be termed as an assault, If pointed at such a distance that, if loaded, it may cause injury. (R. v. S. George). 

The test is whether an apprehension has been created in the plaintiff's mind that battery is going to be committed against him. If the plaintiff knows that the pistil is unloaded there is no assault.


Distinction between Assault and Battery:

In assault, actual contact or infliction of force is not necessary though it is in a battery. Generally assault proceeds battery. 

Showing clenched fist is an assault but actually striking amounts to battery. Throwing water on a person is an assault but as soon as the water falls on him, it becomes battery. If a person is about to sit on a chair and chair is pulled, there is an assault so long as he is in the process of falling on the ground but as soon as his body touches the floor it will be battery. It is, however, not necessary that every battery should include assault. 

A blow from behind without the prior knowledge of the person who is hit, results in a battery without being preceded by an assault.

It may be noted that besides civil action for an assault and battery the criminal proceedings may also be taken against the wrongdoer.

Assault is defined in the Indian Penal Code Section. 351, while battery is equivalent to criminal force which is defined in Section. 350, Indian Penal Code.


False imprisonment:

False imprisonment consists in the imposition of a total restraint for some period, however short, upon the liberty of another, without sufficient lawful justification.

“Every restraint on the liberty of one person by another is in law and imprisonment and, if imposed without lawful cause, constitutes a false imprisonment which is both a criminal offence and an actionable tort.


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