INTENTIONAL

TORTS
Dr Nadhratul Wardah Salman
Faculty of Law, University of Malaya

INTRODUCTION
Intentional Torts include:
1. Trespass to person
2. Trespass to land
3. Interference with goods
The common element in these torts is the
mental state of the defendant
i.e. intention

INTRODUCTION
Letang

v Cooper [1965]: intention must exist

at the time the defendant does his act. If the
defendant was careless in acting as he did,
the cause of action would lie in negligence
and not in trespass.
Therefore, intention is an important element,
without it an action should not be brought in
trespass

INTRODUCTION
3 Elements of trespass:
1.
2.
3.

A positive act (and not omission); and

A direct act of the defendant to the plaintiff
or his land/goods; and
The tort is proven without requiring plaintiff
to prove any injury/loss (actionable per se)

INTENTIONAL TORTS:

TRESPASS TO PERSON

TRESPASS TO PERSON
3 types of trespass to person:
1.
2.
3.

Assault
Battery
False imprisonment

.Liability

under the principle of Wilkinson v

Downton (another tort that of intentional
physical harm other than trespass to person)
will also be discussed in this topic.

TRESPASS TO PERSON:

ASSAULT

ASSAULT - Definition
The

old view was that assault was an

incomplete battery
The modern definition is: Intentionally and
directly causing a person to fear being a
victim of an imminent battery.

The plaintiff must also allege that he did it intentionally

or negligently. If intentionally, it is assault and battery. If
negligent and causing damage, it is negligence (Lord
Denning in Letang v Cooper [1965])

ASSAULT - Elements
4 elements:
1.
2.
3.
4.

The mental state of the defendant

The effect on the plaintiff
Capability to carry out the threat
Bodily movement

ASSAULT - Elements
1. The mental state of the defendant
Intention refers to the impression it will produce
in plaintiff, not as to what defendant intends to
do.
Turberville v Savage [1669]

ASSAULT - Elements
2.The effect on the plaintiff
The plaintiff must be fearful of an impending
battery.
R v St George [1840]
Blake v Barnard [1840]

ASSAULT - Elements
3. Capability to carry out the threat
An attempt to commit a battery which is
thwarted is still an assault (Stephen v Myers
[1840]) but there is no assault if it is impossible
to carry out a battery since there could be no
apprehension to it (Thomas v National Union of
Mineworkers [1985])

ASSAULT - Elements
4. Bodily movement
Requires active behaviour, so merely barring
entry is no assault (Innes v Wylie [1844])

TRESPASS TO PERSON:

BATTERY

BATTERY
Def: The intentional and direct application of
force to another person without that persons
consent.
Since her action went beyond the generally
acceptable conduct of touching a person to engage
his or her attention, it must follow that her action
constituted a battery (Lord Goff in Collins v Wilcock
[1984])

BATTERY
The

rationale of the law is that protection

must be given to the unlawful touching of
ones body.

The

touching need not necessarily involve

violence.

Battery

is also a crime under the Malaysian

Penal Code.

BATTERY Elements
4 elements:
1.
2.
3.
4.

The mental state of the defendant

Control
Contact
Without consent

BATTERY Elements
1. The mental state of the defendant
The defendant applies the force with intention.
It is widen by the application of the doctrine of
transferred intent, thereby extending the
possible liability of the defendant.
Scott v Shepherd [1773]
Abd Malek Hussin v Borhan Hj Daud & Ors [2008]

BATTERY - Elements
2. Control
The defendants act must be done voluntarily
and within his control.
Gibbons v Pepper [1695]

BATTERY - Elements
3. Contact
Its not battery if there is no physical contact.
There must be an application of force
(unwanted) on the plaintiff (or his clothing).
The contact arising from the touching, must
give rise to an insult/ indignity.
The least touching of another in anger is a battery
(Lord Holt in Cole v Turner [1704])

BATTERY - Elements
The contact must be in hostile manner
Wilson

v Pringle [1987]: There must be hostile

touching before it amounted to a battery.

As

long as defendant understands that he is

doing something that the plaintiff may object
to, hostile touching would be established.
Differs from one society to another
Consider facts & circumstances of the case

BATTERY - Elements
4. Without Consent
Nobody is allowed to touch another person
without his/her consent or lawful justification.
Nash v Sheen [1953]
Tiong Pik Hiong v Wong Siew Gieu [1964]

However,

the contact in the conduct of daily

life is acceptable, although it may involve
harshness but not amounting to hostility
(Collins v Wilcock).

BATTERY - Elements
Medical

treatment without consent has

always been a battery

Ms

B v NHS Hospital Trust [2002]: A patient having

full capacity can refuse life-sustaining treatment even if it

leads to death.
Re F (Mental Patient: Sterilisation) [1990]

Can you now distinguish

assault from battery?
consent
apprehension Vs physical contact
protecting what?

TRESPASS TO PERSON:

FALSE IMPRISONMENT

FALSE IMPRISONMENT
This

tort is committed where the defendant

imposes intentionally and directly a total restraint
on the liberty of the plaintiff.
The law is protecting a persons freedom from
confinement.
It is usually associated with wrongful arrests by
police, security guard or store detective.
Def: The infliction of bodily restraint which causes the
confinement of the plaintiff within an area determined by the
defendant, which is not expressly or impliedly authorised by
law (Meering v Graham White Aviation [1919])

False Imprisonment
ELEMENTS
3 elements:
1. The mental state of the defendant
2. A direct consequence of the
defendants act
3. The restraint must be complete

False Imprisonment
ELEMENTS
1. The mental state of the defendant
The act to restraint must be committed intentionally
.W Elphinstone v lee Leng San [1938]

False Imprisonment
ELEMENTS
2. A direct consequence of the defendants act
Only the person who directly causes the confinement
may be successfully sued
Harnett v Bond [1925]
Quinland v Governor of Swaleside Prison & Others [2003]
R v Governor of Brockhill Prison [2000]

False Imprisonment
ELEMENTS
3. The restraint must be complete
The restraint must be total
Bird v Jones [1845]

No false imprisonment if a safe means of escape exists

Wright v Wilson [1699]

False Imprisonment
OTHER CONSIDERATIONS
a)
b)
c)

Plaintiffs knowledge
Entering premises under a contract
Arrest & restraint by the authorities

False Imprisonment
OTHER CONSIDERATIONS
a) Plaintiffs knowledge
.Herring v Boyle [1834]
.Meering v Graham-White Aviation [1919]

Re-emphasised in:
.Murray v Minister of Defence [1988]:
I cannot agree that it is an essential element of the tort
of false imprisonment that the victim should be aware of the
fact of denial of liberty(Lord Griffiths).

False Imprisonment
OTHER CONSIDERATIONS
b) Entering premises under a contract
Robinson v Balmain New Ferry Ltd [1910]
Herd v Weardale Steel Coal & Coke Co Ltd [1913]

False Imprisonment
OTHER CONSIDERATIONS
c) Arrest & restraint by an authorities
i.
Police officer
ii.
Penghulu
iii.
Magistrate / Justice of the Peace
iv.
Private citizens
.John Lewis & Co v Tim [1952]
.PP v Sam Hong Choy [1996]

INTENTIONAL TORTS:

LIABILITY UNDER THE

PRINCIPLE IN WILKINSON V
DOWNTON

Liability under the principle in

Wilkinson v Downton
Categorised

as intentional harm other than

trespass to person
This is an action for indirect but intentional harm
(intentional indirect harm)
Wilkinson v Downton [1897]
Held: Since there was no direct interference, an action in trespass to
person was not possible. However, the court found that there was an
intentional act that was calculated to cause harm indirectly for which the
defendant must be liable, since it was reasonable to assume that the
harm was of a type that could be expected of a reasonable person in
the circumstances.

LUTPIWvD - ELEMENTS
4 elements:
1. A positive act / statement (not an
omission)
2. The act must be wilfully and deliberately
done.
3. The act is calculated (foreseable) to
cause some harm
4. Plaintiff suffers actual damage

LUTPIWvD - Application
The

application of the similar principle were

seen in the following cases:
Janvier v Sweeney [1919]
Khorasandjian v Bush [1993]
Burris v Azadani [1995]
However, it was held in Wainwright v Home
Office [2003] that the principle in WvD should
disappear within negligence except where
actual psychiatric injury has been caused.

JUST A REMINDER

THANK YOU

The lecturer can be contacted at:

wardah.@um.edu.my