Trespass – Law of Tort

In the present time, everyone wants to protect his or her body and property from external intrusion and from another’s wrongful purpose to harm or destroy it. Trespass means as the wrongful act done directly and willfully to cause the harm to another property can be termed as trespass. It is of two kinds of civil and criminal wrong.

Types of Trespass

1. Trespass to person

Trespass to person applies to those cases where there is a wrongful apprehension of one’s body or person causing harm or injury done with malafide intention. There are three types of trespass.

i). Battery

The use of force against someone in such a way that it results in having a physical injury can be termed as a battery.

Example-

It can be direct like Mr. A slaps Mr. B then it is direct while the other is indirectly like pulling off a chair while the other is sitting. In this is that there should be physical contact between the persons. Sec 350 of I.P.C. holds the person criminally liable for battery.

However, the use of force against a trespasser is justified and the person won’t be held liable for any action. As in the case of, Pratap Daji vs. B.B. & C.I. Ry. , in this case, the plaintiff entered in a carriage of the defendant’s railway but had skipped buying a ticket for his travel. On one of the stops of the carriage, he attempted to buy the ticket but didn’t get any. After some time, he was asked for the ticket which he didn’t have and hence he was asked to get out of the carriage. He refused to do so. On his denial, the defendant used force to get him out of the carriage. He bought an action against the defendant for use of force. It was held that the defendant was not liable, as he used force against the person who was not having a ticket and therefore was a trespasser, and therefore he couldn’t be held liable.

ii). Assault

Assault means illegal apprehension of fear in the mind of other persons causing him to suffer injury can be termed an assault. For proving assault there is no need for having suffered any physical harm.

Example-

Mr. X carries out the gun pretending it to be loaded, in front of Mr. Y. Mr. Y in the apprehension of fear experiences a shock. Then Mr. X would be held liable for assault on Mr. Y, even if the gun wasn’t loaded. But, it is important to acknowledge the foreseeability of a person that is he should have apprehended the fear due to the act is done and not because he thought. That is, if Mr.X holds a gun behind Mr. Y, so be won’t be able to be apprehended because of that and therefore Mr. X won’t be liable for any assault.

In the case of R vs. Constanza, the defendant transferred 800 threatening letters to the plaintiff, wrote offensive words on her frontal door. This leads her to suffer from clinical panic. It was held that the defendant was liable for assault and was punished under the Offences against the Person Act 1861.

Sec 351 of I.P.C. also talks about the criminal liability of Assault.

iii). False Imprisonment

False imprisonment refers to restricting the movement of a person for still for short interval it may, without any lawful justification.

The thing which is important is that the person is deprived of his personal freedom, either by being confined within the four walls or by restraining him from moving out of the particular place. The essential for this is:

– There should not be any lawful justification for the same.

– There should be a total restraint on the liberty of a person

2. Trespass to Land

Trespass to land leads to the wrongful interception of one over the property of another without any legal justification. It should be a direct and physical interception. The person who is having genuine possession over the property can even have a claim against the owner of that property for trespass to land. 

Example

Mr. A and Mr. B both are good friends. Mr. B calls Mr. A for dinner. After dinner, Mr. B went for any important work and called Mr. A to wait for him. But Mr. A entered Mr. B Bed room and the other rooms as same. So, Mr. A liable for trespass to land because Mr. A didn’t have any lawful consideration.

3. Trespass to goods

Trespass to goods refers to the accidental or intentional interference with the goods which are in the possession of others, without any lawful justification that can be termed as trespass to goods. Unlike trespass to land trespass to goods are also wrong against the possession of goods.

Example

Mr. A gives his watch for repairing to Mr. B for 2 days, then he can’t silently take his watch out of Mr. B’s possession without his permission. If in case Mr. A takes his watch without permission of Mr. B then Mr. A could be held liable under the trespass to goods, even if he is the real owner of the same.

Defenses

1. Consent of Plaintiff

There can be no case of trespass if there is the given consent from both parties.

Example

If A and B willingly agree to play a football match, then if while playing A hits B bedroom glass then B cannot have any claim for trespass to the person. Peters vs. Prince of Wales Theatre Ltd. in this case, the defendant employed the sprinkler system in the building for the prevention of fire in a building. The plaintiff and defendant were living in the same home. After some interval of time there was some damage to the plaintiff, so she sued the defendant for trespass to land. It was held that the sprinkler system was profiting both, therefore, it defendant couldn’t be held liable for the same.

2. Necessity

There can be also no case for trespass where it is necessary for the defendant to break the line set up by law against which there can be a case for trespass.

Example-

If Mr. A caught fire in their house after then he called the fire brigade. As on the working of a firefighter, Mr. A’s Wall got damaged. So that, Mr. A can not get remedy of Trespass against Firefighter because it count as Act of Necessity.

3. Self Defence

If at any point of time defendant found himself at such a risk that he can’t find any other help and his property or person is at its stake then in that situation the defendant can use force provided it should be reasonable.

Example-

If there is a theft at home than to save the property use of force is justified. The thief then can’t have the claim for assault or battery because theft is the case of sheer intrusion of a person without any lawful justification and therefore the defendant at that time won’t be held liable.

4. Statutory authority

Acts which can be considered as trespass but it won’t if it is legally justified. That is, if the law permits some authorities to carry out the task of search and captures then in that condition there can be no trespass against the authorities. Elias vs. Pasmore, in this case, the police lawfully enter at plaintiff’s house, to arrest a man. From there they also took some documents some of which were unlawfully taken. It was held that entering the house couldn’t constitute trespass but taking away documents constitutes a trespass to goods and therefore the police were held liable.

Author: Shubham siwach

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