LAW OF
TORTS
TRESPASS TO THE PERSON
Trespass to the Person is
considered an intentional tort
and there are three main
forms:
1. Assault
2. Battery
3. False Imprisonment.
ASSAULT AND BATTERY
Battery is the intentional and direct
application of force to another person.
Assault is an act of the defendant
which causes to the plaintiff
reasonable apprehension of the
infliction of a battery on him on the
defendant.
Hence to throw water on a person is
an assault but if any drops fall on him
it is battery - Pursell v. Horne (1838)
ASSAULT
Assault is threatening to harm or
apply force to another person with
the present ability to carry out the
threat. It is any act which makes
another person to fear the
immediate application of unlawful
force. It is threatening to do violence
to a person short of actually striking
the person. Contact is unnecessary
to prove assault. What is important is
the reasonable fear of battery.
Examples of Assault
1. Threatening a person with a knife
2. Advancing towards a person and
shaking your fist and threatening to
beat him up.
3. Striking at a person with a stick
but missing the person.
Note that it is not necessary that the
victim’s state of mind should be one
of fear or alarm. It is sufficient if the
victim expects the application of
R. v. St. George (1840) 173 ER
The defendant pointed a gun he
knew to be unloaded at the plaintiff
who did not know that it was
unloaded at such a distance that the
latter could have been hurt if the gun
was fired. On a claim for assault the
court held that there was an assault
even though the gun was unloaded
because the plaintiff was put in fear
BATTERY
Applying force however slightly to the
person of another, hostilely or against his
will. It is the intentional application of force
to another person. This act is without
consent and legal justification. It includes
striking or touching a person in a rude,
angry or insolent manner. Also unlawfully
bringing an object into contact with another
person is battery. It includes the application
of heat, light, force, gas, odor etc. if applied
in a degree to impact the person, cause any
injury or physical discomfort.
POINTS TO NOTE
1. Contact is necessary: either body to body
contact or contact through an object.
Medical procedure or care in the interest of
the patient, without their consent is not
battery (general rule).
2. The least contact is battery
3. Battery need not be a hostile act (carrying
out a surgery without consent is battery)
4. Battery must be intentional, reckless or
negligent.
FALSE IMPRISONMENT
False imprisonment is denying a
person freedom of movement or
personal liberty without lawful
justification. It is the unlawful
bodily restraint, imprisonment or
arrest of a person. Any unlawful
bodily restraint or confinement of
a person, however short the period
of time, is false imprisonment.
Sir William Blackstone (1723-
1780)
“Every confinement of the
person is an imprisonment,
whether it be in a common
prison, or in a private
house, or in the stocks, or
even by forcibly detaining
one in the public streets.”
Confinement is not
necessary
For there to be false imprisonment
there need not be confinement in
a prison or a police cell. The mere
holding of the arm of a person is
sufficient. The important
requirement is for the person to
be made to remain where he does
not want to, or to go to where he
does not want to go.
Intention of tortfeasor is
irrelevant
The intention or malice of the
tortfeasor is irrelevant. Once there is
an act of false imprisonment, the
tortfeasor is prima facie liable in the
absence of lawful excuse. Thus
where a tortfeasor recklessly or
negligently locks a door or allows a
door to lock against another person,
he would be liable for false
imprisonment even though he did
not know that there was a person in
Restraint must be
total
For false imprisonment the
plaintiff must show that the
restraint is total and unjustifiable.
If there is an alternative route for
the plaintiff to go by, then the
restraint is not total. Where that
alternative route is one that would
expose the plaintiff to danger,
then the restraint is total.
Physical force is not
necessary
Physical force is not a
requirement for false
imprisonment and where an
invitation conveyed to a person
to report at a police station lacks
legal basis, it constitutes false
imprisonment.
See Aigoro v. Ancbunwa (1966)
NNLR 87
Also, use of authority,
influence, order or trick is
sufficient as long as the person
is available to his captor.
Is Knowledge of Plaintiff a
requirement?
In Herring v. Boyle (1834) court held
that since the plaintiff did not know
that his movement was restrained,
there was no false imprisonment.
However in Meering v. Grahame-
White Aviation Co. Ltd (1919), it was
decided that knowledge on the part
of the plaintiff of the restraint is not a
fundamental requirement in
establishing false imprisonment.
Per Atkin Lj…
“ It appears to me that a person can
be imprisoned without his knowing. I
think a person can be imprisoned
while he is asleep, while he is in a
state of drunkenness, while he is
unconscious, and while he is a
lunatic…of course, the damages
might be diminished and would be
affected by the question whether he
was conscious of it, or not.
Other points to note…
The shortest period of restraint or
confinement is false imprisonment.
However false imprisonment that is
for a very brief time may only attract
nominal damages.
Purpose of the Law of False
Imprisonment
To protect the right of personal liberty
and right to freedom of movement
from being taken away by
government or any person. Presence
of ill-will or malice is not a relevant
element of this tort. However where
intention or malice is proved by a
plaintiff additional damages may be
awarded on nominal or compensatory
damages.
DEFENCES FOR TRESPASS TO PERSON
1. Self-defence or Justification
2. Consent of the Plaintiff (Hellriegel v.
Tholl)
3. Medical Treatment
4. Inevitable Accident
5. Lawful Arrest
6. Statutory or lawful authority
9. Reasonable chastisement in exercise of
parental authority.
10. Necessity.
Attributes of a Reasonable
man
INTELLIGENCE
The court will measure the action of
the defendant against what is
expected of an intelligent person in
his shoes. He will not be excused if
he acted “to the best of his own
judgment “ if this “best” is below
what is expected of a man of ordinary
intelligence or reasonable person in
his position in life.
KNOWLEDGE
In law a person is expected to have the
degree of common sense and
knowledge of every day things of
life, which a normal adult in his
shoes would have. For e.g. a
reasonable man should know that;
1. Petrol is highly dangerous
2. Speed is dangerous
3. That children are generally less
careful than adults.
YACHUK V. OLIVER BLAIS CO LTD.
(1949)
A boy of 9 years persuaded a garage
attendant to let him have a tin of
petrol by a false tale that his
mother’s car had run out of petrol
some distance from the garage. The
boy poured it over some wood and
set it ablaze. The fire caused an
explosion, injuring the boy. Held: it
was negligence on the part of the
defendant to entrust a child with
such a dangerous thing as petrol.
GLASGOW CORPORATION V.
TAYLOR (1967)
A child of seven years picked some
attractive but poisonous berries
growing on a shrub in a public park
managed by the defendant city
corporation. The defendant knew
that the fruits were poisonous and
that children went to the park but
they had done nothing to give
warning of the danger to the children
or public. Held that the corporation
was liable for negligence.
WHYTE V. BASSEY
A five-year old child suddenly
ran onto a road and collided
with the defendant’s car
which was in motion. There
was no sign or notice
warning of children in the
vicinity. It was held that the
defendant was not liable in
negligence.
SKILL
As a general rule where a person does not
hold himself out as having a special skill,
it is sufficient if he exercises average skill
except in high risk endeavors such as
driving. When a person professes that he
possesses a particular skill such as a
specialist doctor, surgeon, accountant,
engineer etc., he is expected to exhibit
the degree of care expected of a
reasonable person in that profession,
vocation or calling.
Doctrine of Res Ipsa
Loquitor
Res Ipsa Loquitor is a Latin phrase
which means ‘the thing speaks for
itself.’ It is used to describe
circumstances that are self-
explanatory. It is a rule of the Law of
Evidence whereby the mere fact that
a thing has happened raises an
inference of negligence on the part
of the defendant so that there is a
prima facie case and he has to make
his defence.
RES IPSA LOQUITOR & PROOF OF
NEGLIGENCE
The general rule in evidence is that he
who alleges has the duty to prove his
allegation. In some cases like
accidents the plaintiff who suffers an
injury may not be able to explain how
it happened. However in such a case
where the circumstances can logically
point to the negligence of the
defendant, the plaintiff can rely on the
doctrine of res ipsa loquitor.
Points to note
1. The principle of res ipsa loquitor does
not apply when the facts of what
happened are sufficiently known. The
rule applies when there is no
explanation.
If the plaintiff suffers injury and he
cannot explain how it happened, his
claim would ordinarily fail. However if he
can fulfill the other requirements of res
ipsa loquitor, his chances of success
increase.
Application of the
Doctrine
Scott v. London & St Katherine’s Dock Co.
The Plaintiff, a custom officer was passing
in front of the defendant’s company
warehouse when he was injured by bags of
sugar which fell on him from the upper
floor. The plaintiff lacked evidence of the
defendant’s negligence and did not give
any. He relied on the doctrine of res ipsa
loquitor. The court held that the
defendants were liable for negligence
based on the doctrine.
Per Erle CJ
“Where the thing is shown to be
under the management of the
defendant or his servants, and the
accident is such as in the ordinary
course of things does not happen if
those who have the management
use proper care, it affords reasonable
evidence, in the absence of
explanation by the defendant, that
the accident arose from want of
care”
Requirements for the application
of Res Ipsa Loquitor
1. There must be an absence of
explanation of the occurrence by the
plaintiff.
2. The thing that caused the harm must
have been under the management or
control of the defendant or his servant.
3. The accident or injury must be one
which in the ordinary course of things
does not happen without negligence on
the part of the defendant.
Absence of Explanation by
Plaintiff
Whenever the court is able to find out
from the evidence adduced how and why
the injury took place, then there is no
need for the application of res ipsa
loquitor. Therefore when the facts of the
incident are sufficiently known, the
question ceases to be one where the
thing speaks for itself and the solution is
to be found by the court determining
whether on the facts established the
defendant is negligent or not.
Barkway v. South Wales
Transport co.
The tyre of an omnibus burst and the
bus mounted the pavement and fell
down a nearby embankment. The
court held that the doctrine of res
ipsa loquitor was not applicable as
the evidence of the circumstances of
the accident had been given to the
court and the court was satisfied that
the system of tyre inspection in the
garage of the defendant had been
negligent.
The thing was under the management or
control of the defendant or his
servant
Where the thing that caused
the injury was not under the
control or management of the
defendant or his servant, the
doctrine will not apply. The
determination of such will
depend on the circumstances
of each case.
The thing does not ordinarily
happen without negligence by the
defendant
Negligence is readily presumed
where human experience shows that
the type of accident or injury does
not usually happen unless the
defendant has been negligent. The
court has presumed negligence on
the defendant in the following cases.
1. Aircraft which crashed
immediately after take-off – Fosbroke
Hobbes v. Airwork Ltd. (1937)
2. Swab left in the body of a patient
after abdominal operation – Mahon v.
Osborne (1939)
3. Motor Vehicle knocking down a
person walking on the roadside from
behind – Ibekandu v. Ike (1992)
Effects of proving Res Ipsa
Loquitor
Where the doctrine of res ipsa loquitor is
successfully pleaded by a plaintiff and is
applied by the court, the effects of the
doctrine are as follows:
1. It affords prima facie evidence of negligence
on the part of the defendant. In such a case
the defendant can no longer escape liability
even though he makes a ‘no case’
submission. He has to proceed to defend
himself by adducing sufficient evidence to
rebut the inference of negligence.
2. it shifts the burden of proof to the
defendant whereby he has to establish he
has not been negligent by proving;
i. that he had observed reasonable care
required of him in the circumstances. or
Ii. That the harm was due to a cause which
did not involve negligence on his part such
as inevitable accident, fault of the plaintiff
or of a stranger.
Iii. By pleading such other defences that
may absolve him.
