Overview of Trespass to the Person
Trespass to the person is a recognised category of tort in English law comprising three distinct forms: battery, assault, and false imprisonment. For the purposes of this article, the focus is on battery and assault, as false imprisonment, whilst acknowledged as the third form, falls outside the scope of examinable content in the present context.
A foundational principle governing both battery and assault is that the defendant's conduct must be intentional. Where the defendant's actions are merely careless — that is, negligent — rather than deliberate, the appropriate cause of action lies in the tort of negligence rather than trespass to the person. This distinction was confirmed in Letang v Cooper [1964].
Critically, both battery and assault are actionable per se: the claimant need not prove any tangible physical harm in order to bring a successful claim. The very commission of the act, if it satisfies the relevant requirements, is sufficient to found liability.
Battery
Definition
Battery is defined as an intentional, direct application of unlawful force to another person. Each element of this definition carries legal significance and must be satisfied independently.
Requirement 1: Unlawful Force
The force applied must be unlawful. Not every physical contact will satisfy this element: some degree of physical contact is generally acceptable in the ordinary conduct of everyday life. For example, touching a person lightly on the shoulder to attract their attention in order to ask the time or directions would not constitute battery. As established in F v West Berkshire Health Authority [1989], physical contacts that are reasonably necessary or socially acceptable in everyday life are excluded from the scope of unlawful force.
Requirement 2: Intentional Conduct
The defendant's conduct must be intentional. Importantly, it is not necessary for the defendant to intend the specific consequences of their actions; it is sufficient that the actions themselves are intentional. This was confirmed in Wilson v Pringle [1986]. Accordingly, if a defendant deliberately pushes someone but does not intend to cause injury, battery may still be established, provided the other requirements are met.
Requirement 3: Direct Application of Force
The application of force must flow directly and immediately from the defendant's actions. There must be no intervention by another person, object, or significant time gap between the defendant's act and the contact with the claimant. Where such an intervening factor is present, the directness requirement may not be satisfied, and the claim in battery may fail.
Assault
Definition
Assault is defined as an intentional act by the defendant that causes another person reasonably to apprehend the immediate infliction of a battery upon them. It is important to note that actual physical contact is not required for assault; the tort is complete upon the creation of that reasonable apprehension.
Requirement 1: Reasonable Apprehension of Immediate Battery
The claimant must be able to reasonably apprehend the immediate infliction of a battery as a result of the defendant's conduct. Both the apprehension and its immediacy must be objectively reasonable in the circumstances. A mere future threat or conditional threat that is temporally remote will not suffice.
Requirement 2: Intentional Conduct
As with battery, the defendant's conduct must be intentional. It is not necessary for the defendant to intend that the claimant apprehend the infliction of a battery; it is sufficient that the acts themselves are deliberate.
Assault by Words Alone
The Historical Position
Historically, English law took the position that words alone were incapable of amounting to an assault. The relevant case law, exemplified by Read v Coker (1853), demonstrated that some accompanying physical act or gesture was generally required to give rise to a reasonable apprehension of immediate battery.
The Modern Position
More recently, the courts have moved away from the strict historical rule. In R v Ireland [1998], the courts accepted that words alone — including, in that case, silent telephone calls — are capable of causing a claimant reasonably to apprehend the immediate infliction of a battery. Accordingly, assault may now be committed through words alone, without any accompanying physical act or gesture.
Words That Negate a Threat
Words may equally operate to negate what might otherwise constitute an assault. In Tuberville v Savage (1669), the defendant placed his hand upon his sword and stated words to the effect that he would strike the claimant if they were not currently being watched by the police. The court held that no assault was committed, because the accompanying words themselves demonstrated that no immediate battery was intended. The conditional nature of the statement — expressly negating the threat by reference to the prevailing circumstances — prevented the claimant from reasonably apprehending an immediate battery.
The Rigidity of Trespass to the Person
Harm Falling Outside the Law
A notable characteristic of trespass to the person is its rigidity. Where the harm suffered by a claimant does not fall within the recognised forms of battery or assault, the claim will fail regardless of how serious or distressing that harm may be. Consider, for example, a situation in which a defendant verbally threatens a claimant that the defendant will soon inflict physical harm upon a third party rather than upon the claimant directly. In such circumstances, no assault is committed against the claimant — there is no reasonable apprehension of an immediate battery directed at the claimant — and no battery is committed either. The claimant is left without a remedy under the law of trespass to the person.
It is precisely this rigidity that creates the need for the supplementary rule discussed below.
The Wilkinson Rule
A Judge-Made Tort
Where neither assault nor battery can be established, English law has developed a judge-made tort — commonly referred to as the Wilkinson Rule — to fill the gap left by the strict requirements of those two forms of trespass to the person. The rule derives from Wilkinson v Downton [1897], in which the defendant, acting with malice, caused the claimant to suffer serious physical illness as a result of a deliberately false and shocking statement. The court allowed the claim despite the fact that neither assault nor battery was made out on the facts.
Requirements and Limitations
Under the Wilkinson Rule, a claimant may succeed even in the absence of an assault or battery, provided the following conditions are met:
| Requirement | Explanation |
|---|---|
| Malice | The defendant must have acted with malice — that is, the conduct must be deliberate and not merely negligent or careless. |
| Tangible and actual damage | The claimant must have suffered tangible and actual damage, such as a medically recognised illness or injury. Unlike battery and assault, the Wilkinson Rule is NOT actionable per se; the claimant must prove the damage actually suffered. |
The limitation of this rule was made plain in Wainwright v Home Office [2004]. In that case, the court rejected the claim under the Wilkinson Rule on the basis that the harm suffered did not amount to a medically recognisable condition. This illustrates that the rule, whilst it provides a degree of flexibility, sets a meaningful threshold that the claimant must satisfy.
Causation and Remoteness
Even where all the requirements of the applicable tort — whether battery, assault, or the Wilkinson Rule — are established, the claimant must further demonstrate that the defendant's tortious conduct caused the loss suffered, and that the loss is not too remote from the defendant's conduct. These general principles of causation and remoteness apply to trespass to the person in the same way as they apply across the law of tort more broadly.