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The Question of Trespass to the Person - Research Paper Example

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This paper focuses on issues of liability that arise out of the question of trespass to the person including harassment, false imprisonment, assault and battery under the law of tort. On the facts of the case for discussion, it appears that Mick has a viable claim against Paul for harassment…
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The Question of Trespass to the Person
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Download file to see previous pages The issue of consent also arises as it appears the Mick did not consent to the doctor’s treatment and whether or not the absence of consent will render the doctor’s medical treatment a battery. Each of these issues is discussed in detail below. Assault arises out of conduct that puts the victim in fear of immediate or instant harm or force to his person. In order to substantiate a claim of assault, it is not necessary to prove that actual physical contact was made. Similarly, the intention to cause harm is not a necessary element of the tort of assault. All that is necessary is a reasonable apprehension of harm is sufficient to substantiate the tort of trespass to the person on a claim of assault. Whether or not the victim is afraid or capable of truncating or thwarting an assault is immaterial. This is because the test is an objective test and largely depend on what a reasonable man would reasonably perceive. In Stephens v Myers (1830) a man was asked to leave a meeting and in response he launched toward the chairman but was quickly interrupted by the warden, preventing any contact. Even so, the court found that the conduct amounted to the tort of assault and ruled that: Though he was not near enough at the time to have struck him, yet if he was advancing with the intent, I think it amounts to an assault in law (Stephens v Myers (1830) 4 C & P 349). Be that as it may, not every threatening gesture will amount to an assault. In Thomas v Num [1986] Ch 20, picketing protesters made threats of violence in circumstances where police were able to hold them back. It was held that no assault was made because in the circumstances the defendants were not in a position to carry out their threats regardless of how determined they may have seemed (Thomas v Num [1986] ). Applying the reasoning in Thomas and Stephens, it is entirely unlikely that Mick would be successful in a claim against Paul for assault. ...Download file to see next pagesRead More
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