Torts against persons – Law of Torts
- Tort wrongs refer to as the civil wrongs that occur in the society apart from breach of contract and breach of trust. There are various types of torts, but the torts against persons is called trespass to a person.
- The principle of trespass was that any direct invasion of a protected interest from a positive act actionable subject to justification. If the invasion was indirect, although foreseeable or if the invasion was from an omission as distinguished from a positive act, there might be no liability in trespass through the wrong-doer may need been liable in another sort of action.
- There are two important rules of trespass: (1) it is not for the defendant to plead and prove justification and not for the plaintiff to show that the defendant’s conduct was unreasonable; and (2) damage is not an essential element and need not be proved by the plaintiff.
- The trespass is mainly of three forms, which are assault, battery, and false imprisonment. The importance of trespass lies in that it can be used for protection of one’s liberty and vindication of constitutional rights. “Trespass trips up the zealous bureaucrat, the eager policeman and therefore the officious citizen.”
2. Torts against Persons:
- An assault is an attempt or a threat to do a corporeal hurt to another, coupled with an apparent present ability and intention to do the act.
- Actual contact isn’t necessary in an assault, though it’s during a battery. But it’s not every threat, when there’s no actual personal violence that constitutes an assault; there must, altogether cases, be the means of carrying the threat into effect.
- “ Any gesture calculated to excite within the party threatened an inexpensive apprehension that the party threatening intends immediately to supply violence, or, within the language of the Indian Penal Code is ‘about to use criminal force’ to the person threatened, constitute, if including a gift ability to hold such intention in execution, an assault in law.
- The intention as well as the act makes an assault.
- Therefore, if one strikes another upon the hand, or arm, or breast in discourse, it is no assault, there being no intention to assault; but if one, intending to assault, strikes at another and misses him, this is often an assault; so if he holds up his hand against another during a threatening manner, and says nothing, it is an assault.
- A battery is the intentional and direct application of any physical force to the person of another. It is actual striking of another person, or touching him in a rude, angry, revengeful, or insolent manner.
- A battery includes an assault which is briefly stated is an overt act evidencing an instantaneous intention to commit A battery . It is mainly distinguishable from an assault within the incontrovertible fact that physical contact is important to accomplish it. It cannot mean merely an injury inflicted by an instrument held within the hand, but it includes all cases where a celebration is struck by any missile thrown by another.
- It doesn’t matter whether the force is applied on to physical body itself or anything coming in touch with it. In order to establish the tort of battery, the plaintiff must however prove that force used was without lawful justification. Thus, to throw water at an individual is an assault, if any drops strike him, it’s A battery .
- So too, of riding a horse at a person is an assault; riding it against him is battery. Pulling away a chair as a practical joke, from one who is about to sit on it is probably an assault until he reaches the floor, for a while falling he reasonably expects that the withdrawal of the chair will end in harm to him. When he comes in touch with the ground , it’s battery.
- The term assault is commonly used to include battery. But every laying on of the hands is not a battery. The party’s intention must be considered. Touching a person, for instance so as merely to call his attention, is not battery.
- Mayhem- is another most serious form of battery.
(iii) False imprisonment:
False imprisonment may be a total restraint of the freedom of an individual , for, however, short time, without a lawful excuse. The word “false” means wrong or erroneous. It is a tort of strict liability and therefore the plaintiff has to not prove fault on the a part of the defendant. To constitute this wrong two things are necessary:
(1) The total restraint of the liberty of the person: The detention of the person may be either actual or physical and constructive, i.e., by mere show of authority.
(2) The detention must be unlawful. The period that the detention continues is immaterial. But it must not be lawful. If one compels another to stay in a given place against his will, he imprisons that other just as much as if he locked him up in a room; compelling a person to travel during a given direction against his will may amount to imprisonment; but if one man merely obstructs the passage of another during a particular direction, whether by a threat of private violence or otherwise, leaving him at the freedom to imprison him. Imprisonment may be a total restraint of the freedom of the person, for however short a time, and not a partial obstruction of his will whatever inconvenience it’s going to bring to him.
A person may be liable for false imprisonment not only when he directly arrests or detains plaintiff, but also when he was “active in promoting or causing” the arrest or the detention. Apart from the cases where the liability can be fastened vicariously when the wrong is committed by a servant or agent, liability can also arise when arrest or detention is procured through the instrumentality of some officer.
Author: Vaishnavi Makne,
Symbiosis Law School, Nagpur