1. Mistake Inevitable accident
This defence refers to actions where the defendant did not act either intentionally or negligently. Sir Frederic Pollock said of inevitable accident:1 “An accident not avoidable by any such precautions as a reasonable man doing such an act there and then could be expected to take.” The onus of proving that the defendant acted intentionally or negligently is today on the plaintiff.
In Fowler v. Lenning: in an action for damages for trespass to the person, the plaintiff alleged simply “that the defendant shot the plaintiff and that by reason thereof the plaintiff sustained personal injuries and suffered loss and damage. The defendant pleaded that the statement of claim was bad in law and disclosed no cause of action against him on the ground that it did not allege that the said shooting was intentional or negligent. The issue for detenination was on whom fell the “onus of proof of the negligent nature of the shooting; the plaintiff or the defendant? Held: No trespass if the injury to the plaintiff, though the direct consequence of the act of the defendant, was caused unintentionally and without negligence.
Onus of proving negligence, for unintentional trespass, lies on the plaintiff.
So the plaintiff must allege and prove either that the defendant acted intentionally or negligently or plead facts which show that he acted negligently. Where an occurrence could not have been avoided by the exercise of reasonable care on the part of the defendant, i.e. inevitable, then there is no trespass, if not done intentionally: see Letang v. Cooper. So that inevitable accident is not a defence as such but rather than an important element of trespass is missing, example: A hits you with his car because of a defect in the steering wheel, which no amount of care would have prevented, he will not be liable; for, in this case, he neither acted intentionally nor could he have avoided doing so by taking precaution.
2. Consent
As a general proposition of law, anyone who consents to an act cannot complain of trespass: volenti non fit injuria. Consent may be given expressly by words or inferred from conduct, e.g. a boxer cannot complain when he is hit in the ring. Also a footballer cannot complain if he is kicked in a match; but if the opponent does something completely out of the game, e.g. going out for the eye, no consent can be said to have been given to that.
The consent which will be a defence must relate to the act complained of. It must be freely given. In the case of children, consent by parents or guardians will be enough. Consent may be vitiated by fraud, where the fraud relates to the real act of the defendant. But this is not so where the fraud merely relates to a collateral aspect of the defendant’s act.
The decision in Hegarty v. Shine illustrates this point.4 In this case, the plaintiff and the defendant had been living for two years in a state of concubinage and the defendant being infected with venereal disease, of which the plaintiff was ignorant, had sex with and infected her with the venereal disease. In an action by the female plaintiff for: (a) breach of promise of marriage; and (b) assault of the plaintiff and infecting her with venereal disease, the trial judge directed the jury that: “As a matter of law, an assault implied an act of violence, committed upon a person against his or her will and that as a general rule, when the person consented to the act, there was no assault; but that if the consent was obtained by the fraud of the party committing the act, the fraud vitiated the consent, and the act became, in view of the law an assault, and that therefore if the defendant knowing that he had venereal disease, and that the probable and natural effect of his having connection with the plaintiff would be to communicate to her venereal disease, fraudulently concealed from her his condition, in order to induce, and did thereby induce her to have connection with him; and if but for that fraud she would not have consented to have had such connection; and if he had with her the connection so procured and thereby communicated to her such venereal disease, he had committed an assault, and one for which they might on the evidence award substantial damages.”
It was held that this charge amounted to a misdirection. Sexual intercourse with the consent of the female cannot be an assault. There was no deceit as to the nature of the act to be done, but a lengthened cohabitation of the parties, and deliberate consent to the act or acts out of which the cause of action had arisen. On the facts, the plaintiff consented to have sexual intercourse with the defendant, who then, but without her knowledge, was affected with venereal disease. In law, the consent proved extends to both the act and its consequence.
Per Palles, C.B. “An action is brought for trespass to the person. That is denied and accordingly the plaintiff must show that an assault was committed. The evidence proves that the act was done by the consent of the plaintiff and therefore that she was not assaulted. In order to avoid the consent, she relies upon fraud. She asks the court to relieve her from the consequences of a consent which she in fact gave. This is not open to her, because if the contract be an immoral one, neither party can be allowed to enter into the consideration for it, whether to sustain the cause of action or to avoid the consent…”
Cf.R. v. Williams: In this case, the appellant was the choirmaster at a Presbyterian Church. It was arranged that he should teach two girls, (one sixteen years, the other nineteen) singing and voice production. On two occasions when he gave lessons he had sexual intercourse with, the sixteen year girl and, on two other occasions, committed indecent assault on the nineteen year old. He was charged with rape, convicted and he appealed arguing that he ought not to have been charged on the evidence with rape .The evidence established that on the first day he told the sixteen she was not singing as she should and was not getting her notes properly and told her to lie down on a settee. He then removed a portion of her clothing and placed upon the lower part of her body an instrument which was defective anyway and could not have been affected by the breathing. He asked the girl to take a deep breath thrice. He looked at the instrument and purported to write down something in a book. He then dropped on her and proceeded to have sex with her. She asked: “What are you doing?”
He said: “It is quite alright, do not worry. I am going to make an air passage. This is my method of training. Your breathing is not quite right and I have to make an air passage to make it right. Your parents know all about it, it has all been arranged: before God, Vera, it is quite alright I will not do you any harm.”
With the second girl, on the same pretext, he fingered her saying he was making an opening for the air to pass. The girl submitted, believing what he told her. She did not know what he did was wrong; nor did she know he was sexing her. Held dismissing the appeal, that the consent was fraudulently obtained. So no consent
Consent obtained by show of authority, threat of force or actual application of force is not consent in law, e.g. a policeman or woman who tells plaintiff to follow him or /her to the station, has no defence, if plaintiff goes because of show of authority
The authority is Latter v. Braddell. The plaintiff was a housemaid of Mrs B On returning from holidays, Mrs. B accepted the evidence of the chairwoman that the plaintiff was pregnant. The plaintiff denied that she was. Mrs. B sent for the doctor to come and examine her. The doctor asked her to undress. She protested and wept but took off her clothes and submitted to the examination. She was not pregnant but was dismissed all the same. She sued Mr. and Mrs. B and the doctor. At the trial the judge withdrew from the jury the case against the Bs and the jury found in favour of the doctor The plaintiff obtained a rule nisi for a new trial. In the Common Pleas Division, Lindley J upheld his own trial decision, Lopes J dissenting.
On appeal to the Court of Appeal, the Court of Appeal unanimously upheld the decision of Lindley J (i.e. plaintiff lost). Bramwell, L.J., said: “Very likely plaintiff thought defendants had a right to have her examined- but the truth is, she submitted to it, and it is impossible to say the jury were wrong in finding that she submitted. She may have submitted under an erroneous notion of law, but it was not through fear of violence…”
The decision in this case is questionable because the impact of the employed-employee relationship on the maid’s supposed consent does not appear to have been given sufficient consideration.
If the plaintiff is drunk or otherwise incapable of giving consent, he cannot give consent.
As noted earlier, consent must relate to the act complained of, e.g. Beatty v. lllingworth. The plaintiff who was being operated on for removal of a diseased ovary, instructed the defendant surgeon: “If you find both ovaries diseased you must remove neither,” to which he replied, as she was going under the anaesthetic, “You may be sure I shall not remove anything I can help.” He removed both ovaries, which were diseased, whereupon her fiancée refused to marry her. Hawkins, J., directed the jury that they were still at liberty to infer her tacit consent, and they accordingly found for the defendant.
This case only shows the law’s willingness to be more liberal with doctors to enable them do what they consider best for patients. However as St. George’s NHS Trust v. S shows, it is a trespass to operate upon a pregnant woman who refuses to allow her child to be born by Caesarean section. And in Airedale NHS Trust v. Bland Lord Keith stated that instructions that a person, brought to a hospital unconscious, does not want a surgical operation would be effective unless it was thought not to cover the particular situation or that, if confronted with the reality of the situation, he or she would change his or her mind.
The Court of Appeal stated: “Where the patient has given an advance direction before becoming incapable, treatment and care should normally be subject to the advance directive. However, if there is reason to doubt the reliability of the advance direction (e.g. it might sensibly be thought not to apply to the circumstances which have arisen) then an application for a declaration may be made.”
3. Self defence
For a defendant to succeed under this defence he must show that he committed the trespass in order to: (1) defend himself; (2) that in the circumstances it was reasonable for him to do so; and (3) that he used reasonable force.
In Codd v. Cabe: Lord Bramwell held that no more force than was reasonable was used, and therefore there was no trespass. But this is no licence for revenge. If after the first act of violence against a defendant, there is no reasonable threat of further violence, a trespass will be actionable.
Cockroft v. Smith: The plaintiff sued for trespass for assault, battery, and mayhem. The defendant pleaded self defence. It was admitted to be a good defence. But it was argued that the act which was claimed to be in self-defence must not be disproportional to the initial assault, e.g. for every assault, it is not reasonable to bang a man with a cudgel. The facts were that the clerk of a court sued an attorney for biting off his forefinger in a scuffle in court. The evidence showed that the plaintiff first tilled the form on which the defendant sat. Then second, the plaintiff ran his finger towards defendant’s eye, who bit it off. Holt C.J. held that, in itself, it was not a defence that the plaintiff first pointed his finger towards the defendant’s eyes, for a man must not “in case of a small assault, give a violent or unreasonable return.”
What is reasonable force is a question of fact to be decided in each case. E.g. Street’s example:
A pins Miss B to the wall and repeatedly kisses her against her will, and the only means by which Miss B can compel A to desist is by lacerating his wrist with scissors. Does she have any defence to an action of trespass by A?
4. Defence of the person of another
A servant may justify a battery in defence of his master and vice versa. The illustrative case is Barfoot v. Reynolds which was an action of trespass, assault and battery against Reynolds and Westwood. Reynolds in his defence pleaded assault on his son, while Westwood pleaded that he was a servant to Reynolds and that the plaintiff having assaulted his master in his presence, he, in defence of his master struck the plaintiff. The plea was held ill, for the assault on the master might be over and the servant cannot strike by way of revenge but in order to prevent injury. The right way of pleading is that the plaintiff would have beaten the master if the servant had not intervened.
The second case Seaman v. Cuppledick was an action for assault and battery. The defendant justified no action on the grounds that he had acted in defence of his servant; that the plaintiff assaulted his servant and would have beaten him but for his intervention. The court held: “A man may use force in defence of his goods, if another will take them; and so if a man will strike your cattle, you may justify in defence of them; and so a man may defend his son or servant but he cannot break the peace for them: but if another does assault the servant, the master may defend him and strike the other, if he will not let him alone.”
Cf. Leward v. Basely, an action for assault and battery on the wife of the plaintiff by the defendant husband and wife. The defendant pleaded that the plaintiff first assaulted his wife. The plaintiff replied that the defendant was going to wound her husband. To this the defendant demurred. The court held that a wife might justify an assault in defence of her husband. So might a servant of his master but not a master of his servant because he might have an action per quod servitium amisit. If the defendant was holding his hand to strike the husband, the wife might make an assault to prevent the blow.
These cases seem to limit the right to use force to members of one’s family. But there is no reason why we should read them so narrowly. A total stranger can also be defended against felonious acts. We may support this point with the case of Handcock v. Baker. Here the plaintiff brought action for trespass to his house and assault on him as well as false imprisonment. The defendants averred that they entered the house and took hold of the plaintiff to prevent him from murdering his wife. It was held that this was justification enough, i.e. good defence.
5. DEFENCE OF ONE’S PROPERTY
A person may use reasonable force to defend land or chattel in his possession against any person threatening to commit or committing trespass to the property. But if the threat is not imminent or has passed, force is not justified. The principle is illustrated by Creswell v. Sirl. In that case the plaintiff’s dog and another dog chased sheep in a field at night, and as a consequence, several of the sheep aborted. The defendant, to whose father the sheep belonged, went into the field and thinking the dogs were fierce and wild and that it would not be safe to catch hold of them, shot and killed the plaintiffs dog, when it had left the sheep and was coming towards him. The plaintiff sued for trespass to the dog. The county court held that the defendant’s defence failed because die dog had stopped attacking the sheep at the time he shot it. The defendant appealed.
The appellate court held that the test applied by the county court judge was too narrow. The proper test, per Scott L.J. should be:
“The onus of proof is on the defendant to justify the preventive measure of shooting the dogs. He has, by proof, to establish two propositions, but each proposition may be established in either of two ways:
(1) That at the time of shooting, the dog was either
a) actually attacking the animals in question, or
b) if left at large would renew the attack so that the animals would be left presently subject to real and imminent danger unless renewal was prevented.
(2) That either —
a) there was in fact no practical means, other than shooting, of stopping the present attack or preventing such renewal, or
b) that the defendant, having regard to all the circumstances in which he found himself, acted reasonably in regarding the shooting as necessary for the protection of the animals against attack or renewed attack.”
Bird v. Holdbrook is a further illustration of the principle. In this case, the defendant, for the protection of his garden of flower-roots and tulips, some of which had been stolen, set a spring gun, without notice, in a walled garden, at a distance from his house, with the express intention of catching the thief. The plaintiff who climbed over the wall in pursuit of a stray fowl was injured. It was held that the defendant was liable in damages because the method used to protect the garden, i.e. the spring gun, in the circumstances was not reasonable.
Clearly then the use of force to protect interests in property is harder to justify than use of force in self defence. So, if a guy is trespassing on your land, you are not entitled to shoot him with an arrow, as a way of defending your land.
6. NECESSITY
One may justify a trespass on the grounds of necessity. Our authority is Mouse’s case.
It was an action for trespass brought by Mouse for a casket and a hundred and thirteen pounds. The facts were that the ferryman of Gravesend took 47 passengers into his barge to London, among whom was Mouse. There was a big storm which threatened both passengers and luggage. So the luggage were thrown into the water to save the men. It was held: In case of necessity, for the saving of the lives of passengers, it was lawful for the defendant, being a passenger, to cast the casket of the plaintiff out of the barge with the other things in it.
If the ferryman should overload the ferry, it is a valid defence in such circumstances as above for any passenger to cast things out of the barge and the ferryman will be liable to the luggage owners for the loss of their goods for it was his fault. But where the danger is the result of an act of God, e.g. storm, then everyone ought to bear his loss.
7. ABATEMENT OF NUISANCE
It is a defence to an action in trespass that it was to abate a nuisance: see Lemnion v. Webb. In that case it was said that the owner of land which is overhung by trees glowing on his neighbour’s land is entitled, without notice, if he does not trespass on his neighbour’s land, to cut the branches so far as they overhang, though they have done so for (a long time) more than twenty years. The facts were that the appellant and the respondent were adjoining landowners. On the appellant’s land near the boundary were several large old trees, whose branches overhung the respondent’s land and had done so for more than 20 years. The respondent, without giving notice and without trespassing on the appellant’s land, cut off a number of branches to the boundary line. The appellant sued him, inter alia, for damages for trespass.
It was held per Lord Macnaghten:”I think it is clear that a man is not bound to permit a neighbour’s tree to overhang the surface of his land, however long the space above may have been interfered with by the growth of the tree. Nor can it, I think, be doubled that, if he can get rid of the interference or encroachment, without committing a trespass or entering upon the land of his neighbour, he may do so whenever he pleases, and that no notice or previous communication is required by law.”
8. DISCIPLINE
Trespass might also be justified on the grounds that it was to discipline the person complaining or on whose behalf the complaint is lodged provided tire force used is reasonable.
Ash v. Ash, was an action for assault, battery and false imprisonment. According to the facts Lady Ash pretending that her daughter, the plaintiff, was troubled in mind, brought an apothecay to give her physick; she was bound and would have been compelled to lake physick and was confined for about two or three hours. The jury gave her £2000 damages. On a motion for a new trial because of the excessiveness of the damages, the motion was granted. In other words, while it was agreed that trespass may be justified on grounds of discipline, on this occasion the defendant would fail because excessive force was used.
Ryan v. Fildes, the plaintiff, a schoolboy of 10 years, attending a non-provided school was by reason of indiscipline boxed on the ear by his schoolmistress. As a result of the blow which was found not to have been a violent one, the boy became deaf in one ear. The class in which the boy was working at the time of the incident consisted of 46 boys. He sued for damages, for assault, i.e. battery.
It was held, per Tindal J, that he must succeed against Fildes. What she did exceeded reasonable and proper punishment. “The blow struck was moderate in the sense that it was not a violent blow, but, as punishment, it was not moderate punishment, because not proper way of punishing a child to strike it on the head or the ear. “It appeals … by the Law of England, when a parent sends his child to school, he delegates to teachers at the school the power to inflict reasonable and moderate corporal punishment when required, in the same way as he, as parent, would have power to inflict moderate and reasonable corporal punishment in a proper case and that he delegates to the teacher the taking of such steps as arc necessary to maintain discipline with regard to the child committed to the teacher’s care. …”
Finally, we may look at Hook v. Cunard. Here, the plaintiff sued for damages for false imprisonment and indecent assault. It seemed that he was confined on the allegations of the daughter of a passenger on a ship. The evidence did not suggest that the captain of the ship believed in the allegation but confined the plaintiff to please the passenger and to avoid unwelcome publicity. It was held, per Slade J., that the master of a merchant ship is justified at common law in arresting and confining in a reasonable manner and for a reasonable lime any sailor or other person on board his ship only if he has reasonable cause to believe, and if he docs in fact believe, that the arrest and confinement arc necessary for the preservation of order or discipline, or for the safety of the vessel or persons or property on board. This ruling, it must be noted, will apply equally to the driver of a vehicle or the pilot (captain) of an aircraft.
Lane v. Holloway. ‘ Is contributory negligence a defence to trespass? Yes, in Barnes v. Naye