Trespass to Person


Why are we concerned with these causes of actions here?

In considering issues of consent it is important to realise that where consent is absent a person will have a right to make a civil law claim for compensation due to the invasion of his or her right to bodily integrity, or restraint without lawful justification.

In some cases, criminal law prosecution may also apply. (Although below the focus is upon the civil causes of action).

Three torts of trespass to the person exist to protect a person’s right to physical integrity at civil law:

  • The tort of battery is concerned with actual infliction of unlawful physical contact with the plaintiff.
  • The tort of assault deals with cases where the plaintiff is caused to apprehend the immediate (imminent) infliction of such a contact, and
  • False imprisonment is concerned with the deprivation of liberty.

Battery, assault, and false imprisonment are explained below.

Battery comprises a direct and intentional [or reckless] act of the defendant which causes some physical contact with the person of the plaintiff without the plaintiff’s consent. 1

“… The fundamental principle plain and incontestable is that every person’s body is inviolate, and that any touching of another person, however slight may amount to a battery…”

A direct act

‘Direct’ means whether the impact followed so closely on the defendant’s act that it could be considered part of the act. 2

  • NB. An act will also be considered direct if it sets in motion an unbroken series of consequences, the last of which causes contact with the plaintiff. 3

Physical contact

Physical contact involves immediate contact with a person. However, it is not necessary that the person committing the battery physically touches the person. For example, throwing something at someone, hitting them with a weapon, or spitting on them may constitute a battery. All are considered direct acts.

Note, the person also need not be aware of the unlawful contact at the time of the incident. For example, in medical contexts, a patient may be asleep, unconscious, comatose or anaesthetised. Any act that is not being conducted to preserve the patient’s life, and that he or she has not consented to, would be a battery.

Note also that the contact does not have to cause physical harm. Any touching of a person without consent may amount to a battery.

Does the act need to be intentional?

In Australia, the person committing the battery must have either intended to cause contact with the other person, or had reckless disregard for or been negligent with respect to the consequences of his or her actions. 4

Note also that the intent does not have to be to harm someone. In a medical context, a health practitioner may intend to help someone, but if they touch them without consent, that will still constitute a battery.

An involuntary act without intention, recklessness or negligence would not be actionable. (For example, fainting and falling on someone).

Are there any defences?


A person’s consent to the alleged battery is a total defence to a claim. Consent may be given expressly by words, or be implied from conduct (for example a person rolling up their sleeve and offering their arm to have their blood pressure taken).

A person is deemed to consent to a reasonable degree of physical contact as a result of social interaction. 5 However, it should not be assumed that just because someone has entered for example, a hospital or doctor’s office, that they consent to whatever might be done to them. A person may refuse treatment at any time, and should be free to leave when they wish.

Make sure you read the other Health Law Central topics on consent by adults, consent by minors, and consent by incapacitated patients.

Statutory authority, self-defence, necessity, emergency

Note other defences to battery include:

    • statutory authority
    • self-defence (no more force than necessary permitted)
    • protecting another person (no more force than necessary permitted)
    • defence of property (no more than what is reasonable and necessary)
    • emergency (most likely in situations to save somebody’s life)
    • necessity (although this usually relates to criminal prosecution; nevertheless has been mentioned in cases such as Rogers v Whitaker. 6

Case example

Click on the button below to read an example of a case in which the court found a dentist had committed battery by giving his patient unnecesary dental treatment without valid consent.

An assault occurs when a person intentionally creates apprehension of imminent harmful or offensive contact in another. 7

An assault may occur without a battery (if the threat to inflict unlawful force is not in fact carried out).

The effect on the victim’s mind is the crux, not whether or not the D intended to carry out their threat.

An assault comprises the threat of bodily contact with the person of another (not actual contact).

When considering whether an assault has occurred, it will be necessary to look at:

a) the nature of the threat (a mere expression of ill feeling is not an assault);

b) the content of the threat (essentially the threat necessary is a threat of battery – that is, that bodily contact will occur);

c) the means of making the threat (by words and/or conduct); and

d) whether the threat is conditional (eg. “if you do X, then I will do Y”), or unconditional.

Apprehension of battery

Apprehension has three components:
1. the person who alleges assault (the plaintiff) knows of the threat (you cannot fear, or expect imminent contact
2. unless you know about it!),
3. the person accused of assault (the defendant) appears to have the ability to carry out the threat,
the defendant appears to have the intent to carry out the threat.

A plaintiff must establish that the defendant’s conduct caused him or her to experience an apprehension of physical contact with his or her person. It is not necessary to prove that the person assaulted was put in fear. It is sufficient if the person knows and expects that contact is about to take place. The apprehension must be reasonable — that is, the plaintiff must prove that a person in the position of the plaintiff would have apprehended contact.

The focus is on the mind of the plaintiff not on whether the defendant was actually going to follow up the threat. Although note that the defendant must have an actual or apparent ability to carry out the threat; and must generally appear to have the intention to carry out the threat (whether or not they were going to).

False imprisonment is a direct and intentional act by the Defendant that totally deprives the Plaintiff of his or her liberty without lawful justification.

Total deprivation of liberty can be by means of:

* total geographical restraint; 8 * a threat to use force;
* psychological coercion (for example, the plaintiff submitted to the authority/control of the defendant.) 9

The restraint must be intentional and complete.

In a health care context this might occur if a voluntary patient is locked in a ward with no way to get out, or no freedom of movement is felt. It might also occur by using methods such as yelling; using chemical restraint (that is drugs) to restrict movement; threats to physically restrict a person; seclusion; use of physical restraints (for example the use of belts, harnesses, sheets, straps or a ‘straight jacket’ to restrain a persons body).

What does the Plaintiff need to prove?

The gist of the action of false imprisonment is the mere imprisonment.

The plaintiff need not prove that the imprisonment was unlawful or malicious, but establishes a prima facie case if he proves that he was imprisoned by the defendant.

The onus then lies on the defendant of proving a justification.

What defences are there?

A defendant will have committed false imprisonment if the person imprisoned was competent, did not consent and there was no legal justification for imprisoning/restraining their liberty.

A defence to an action for false imprisonment is therefore if the act of the defendant was authorised or justified for example, due to statutory or common law powers of arrest.

In a medical context legal justifications for restraining people may include self defence, powers under mental health legislation, powers under public health legislation, and child welfare legislation.

It would not be a defence to imprison/restrain a person because a health practitioner thought it was for the person’s own good.

Any lawful restraint also has to be proportional to what is needed, that is, it cannot be excessive, and there must be no reasonable alternative.

What award will the Court make?

In all of the above cases the Court will consider whether to award a person who has suffered an assault, battery and or false imprisonment:

Nominal Damages: Recall that all three kinds of trespass to person discussed above are ‘actionable per se’ which means there is no need for damage/loss/harm. Nominal damages, which are compensation in name and generally amount to a small sum may be awarded to recognise the invasion of right.

Compensation: The Court may award a sum of money when there has been actual damage (harm/loss). For example, economic loss associated with physical injury, psychiatric harm, medical costs, loss of wages, pain and suffering.

Aggravated damages: Compensation awarded for injuries to the Plaintiff’s feelings caused by injury, humiliation and the like.

Exemplary damages: This award goes beyond compensation: exemplary damages may be awarded as punishment to the guilty, to deter people from any such behaviour in the future, and as proof of the detestation of the judge/jury to the action itself. They are generally awarded:

  • ‘to teach a wrongdoer that tort does not pay’
  • serve to assuage any urge for revenge felt by victim
  • to make an example of the Defendant. 10

Injunction: Patients may be able to seek an injunction (an order of the Court) to prevent a health practitioner from giving them treatment the patient does not want.

Note regarding the criminal law

Note – the above discussion relates to civil law actions in trespass, which would be brought by an individual seeking compensation.

The criminal law is also relevant to acts/omissions that a health practitioner may engage in that may injure or lead to the death of a patient. In such instances the state prosecutes the accused in a criminal court, and penalties (such as fines or terms of imprisonment) may be imposed. It is noted here that assault, battery and false imprisonment are also crimes – and can be prosecuted in a criminal court. In addition, at criminal law, consent may not always be a defence — for example, if a medical practitioner intends to cause the death of a patient, regardless of consent, they may be prosecuted for murder.

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