October 28, 2021

Trespass under Law of Torts

Law of Torts

Trespass to the Person

a) Assault and Battery

An assault is an intentional and unlawful threat to cause bodily injury to another by force. In case of an assault, the plaintiff is under reasonable apprehension of receiving a physical injury inflicted on him by the defendant. An assault is committed even when there is no actual contact with the plaintiff. However, mere verbal threat will not amount to assault unless there is a presumption of immediate use of force.

A battery on the other hand is the intentional application of force against a person in opposition to his will. The use of force thus will be without any lawful justification. The quantum of force is immaterial in an event of battery even if it does not cause any actual harm. Even a minimum physical contact with another person in anger may constitute a battery. It can be mentioned here that assault and battery are intentional torts where the defendant actually intends to put the plaintiff under apprehension of physical injury, or intends to wrongfully touch the plaintiff. Thus, to show a fist to a person may amount to assault, but inflicting the blow physically will result in a battery.

In most cases assault precedes battery.

b) False Imprisonment

False imprisonment can be defined as the intentional confinement of a person, without lawful justification, for an appreciable length of time, however short it might be. It is an act of the defendant, which causes unlawful confinement of the plaintiff. The length of time of confinement is of no relevance to constitute an offence of false imprisonment. Moreover, the place of detention may be the plaintiff’s own house or even a street, provided the restraint was total and legally unjustified. Further, physical confinement is also not necessary to constitute unlawful detention.

Remedies for False Imprisonment-

• Habeas Corpus: The writ of Habeas Corpus is issued by the Supreme Court (vide Article 32) or by the High Courts (vide Article 226) to ensure the release of a person detained wrongfully

• Self-Help: A person who is unlawfully detained may use ‘Self-Help’ to escape from such detention even by applying reasonable force.

• Action for Damages: The person who has been detained unlawfully can bring an action for compensation in the form of damages.

Trespass to Land

Definition- Trespass to land occurs where a person directly enters upon another’s land without permission, or remains upon the land, or places or projects any object upon the land.

This tort is actionable per se without the need to prove damage. By contrast, nuisance is an indirect interference with another’s use and enjoyment of land, and normally requires proof of damage to be actionable.

The way in which tress may occur

1. Entering upon land- Walking onto land without permission, or refusing to leave when permission has been withdrawn, or throwing objects onto land are all example of trespass to land.

2. Trespass to the airspace- Trespass to airspace above the land can be committed. E.g D committed trespass by allowing an advertising board to project eight inches into P’s property at ground level and another above ground level.

Note- that s76(1) of the Civil Aviation Act 1982 provides that no action shall lie in nuisance or trespass by reason only of the flight of an aircraft over any property at a height above the ground which is reasonable. However, s76(2) confers a statutory right of action in respect of physical damage caused by aircraft, actionable without proof of negligence.

3. Trespass to the ground beneath the surface- e.g.  the Ds mined from their land through to the P’s land. This was held to be trespass to the subsoil.

POSSESSION OF LAND- This tort developed to protect a person’s possession of land, and so only a person who has exclusive possession of land may sue. Thus, a landlord of leased premises does not have exclusive possession, nor does a lodger or a licensee. However, a tenant or subtenant does.

CONTINUING TRESPASS- A continuing trespass is a failure to remove an object (or the defendant in person) unlawfully placed on land. It will lead to a new cause of action each day for as long as it lasts.For example,  Ds built supports for a road on P’s land. The Ds paid damages for the trespass, but were held liable again in a further action for failing to remove the buttresses.

MISTAKEN OR NEGLIGENT ENTRY- Trespass to land is an intentional tort. However, intention for the act is required, not an intention to trespass. Consequently, deliberate entry is required and lack of knowledge as to trespass will not be a defence.

Mistaken entry- the D owned land adjoining P’s, and in mowing his own land he involuntarily and by mistake mowed down some grass on the land of P, he is not held liable.

Involuntary entry- An involuntary trespass is not actionable: where D was carried onto the land of P by force and violence of others; there was trespass by the people who carried D onto the land, and not by D.

Negligent entry- A negligent entry is possible and was considered in League Against Cruel A v. B. The Ps owned 23 unfenced areas of land. Staghounds used to enter the land in pursuit of deer. The Ps sued the joint Masters of the Hounds for damages and sought an injunction against further trespasses. Park J issued an injunction in respect of one area restraining the defendants themselves, their servants or agents, or mounted followers, from causing or permitting hounds to enter or cross the property. Damages for six trespasses were awarded. The judge said:”Where a master of staghounds takes out a pack of hounds and deliberately sets them in pursuit of a stag or hind knowing that there is a real risk that in the pursuit hounds may enter or cross prohibited land, the master will be liable for trespass if he intended to cause the hounds to enter such land or if by his failure to exercise proper control over them he causes them to enter such land.”


Licence- A licence is a permission to enter land and may be express, implied or contractual. A dictionary definition is as follows:If a licensee exceeds their licence, or remains on the land after it has expired or been revoked, the licensee becomes a trespasser. Such a person is allowed a reasonable time in which to leave If a licensee exceeds their licence, or remains on the land after it has expired or been revoked, the licensee becomes a trespasser . Such a person is allowed a reasonable time in which to leaveThere is also the defence of estoppels by acquiescence, that is, consent which is expressed or implied from conduct, eg, inactivity or silence  mere delay in complaining is not acquiescence).”In land law, a licence is given by X to Y when X, the occupier of land, gives Y permission to perform an act which, in other circumstances, would be considered a trespass, e.g., where X allows Y to reside in X’s house as a lodger. A bare licence is merely gratuitous permission. A licence may be coupled with an interest, as where X sells standing timber to Y on condition that Y is to sever the timber; in this case the sale implies the grant of a licence to Y to enter X’s land.

Rights of entry- A person may exercise a lawful right of entry onto land, for example:

  • A private right of way granted to the defendant;
  • A public right of way;
  • A right given by the common law, such as the right to abate a nuisance; and
  • A right of access given by statute,


Remedies include

  • Damages (which will be nominal if there is only slight harm to land).
  • An injunction to prevent further acts of trespass (at the discretion of the court).
  • An action for the recovery of land if a person has been deprived of lawful possession of the land (formerly known as ejectment).


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