Malaysian Tort Trespass

The liability involved is trespass to person which consists of assault, battery and false imprisonment. The first issue is whether the act of Alice showing her fist to Robert constituted to assault. Assault is according to Winfield can be interpreted as an act of the defendant which causes to the plaintiff reasonable apprehension of the infliction of the battery on him by the defendant. There are four elements which needs to be established before saying that person is committing an assault which are the defendant state of mind, reasonable apprehension, immediate action and capacity to carry out the act. 1

The first element is the defendant state of mind. The defendant must intend to do the act, with the intention to frighten the claimant, not that he intended to use violence and cause harm. This can be clearly seen in the case of R v St George. In this case, the act of the def pointing out an unloaded gun towards the plaintiff is constituted as assault because the plaintiff didn’t know that the gun was unloaded. The defendant act of pointing an unloaded gun towards the plaintiff clearly shows that the defendant has intention to frighten the plaintiff.

In this case, the act of Alice showing her fist toward Robert and said “…better watch out next time! ” means that she intended to frighten Robert so that that guy won’t jostles her again. Therefore, there is intention. The second element is reasonable apprehension. It means that Robert must “expect” force will be inflicted towards him. It is also can be determined by, if a reasonable man, faced with the same situation that Robert was in, would he feel apprehensive that a force would be inflicted upon him? The force here means some force that would put a reasonable man in a reasonable fear of such attack.

In the case of R v St George, it is held that pointing an unloaded gun without the plaintiff knowing it, is constituted as assault. It is because it is reasonable to feel apprehension when someone pointing out a real gun although he didn’t intend to shoot. In this case, the act of Alice showing her fist toward Robert doesn’t amount to reasonable apprehension because Alice doesn’t appear to be threatening as Robert only smiles after she threaten him. If Robert feel apprehensive with Alice’s act, he couldn’t have smiled in the first place.

The third element is Immediate. The plaintiff must have reason to believe that the act must be carried immediately or in the near future. An example is in the case of Tuberville v Savage. 2 The defendant placed his hand on his sword hilt and told the victim, "If it were not assize-time, I would not take such language from you. " This was held not to be an assault. The words accompanying the action (of placing the hand on the sword) clearly demonstrated that because the assize judge was in town, the defendant was not going to use his sword.

There could thus be no apprehension of immediate force. In this case, it is reasonable to assume no immediate force inflicted by Alice to Robert. It is stated in her words “…better watch out next time” which means Alice will hit Robert if Robert jostled her again which can be anytime. There is no specific time and if Robert doesn’t jostle her, she wouldn’t hit him. The last element is capacity to carry out the threat. It means that Alice must have capacity to carry out the threat.

Even though there is no actual contact was made, it does mean that he actually capable of carry out such act. In the case of Stephen v Meyer, the act of defendant advance towards plaintiff but was stopped half by a third party does constitute assault as he had the capacity to hit the plaintiff. In this case, Alice clearly capable of carrying act which is to hit Robert with her fist because she was standing near Robert. In a conclusion, there is presumably no assault established between Alice and Robert because certain element doesn’t fulfill.

The second issue is whether Alex can take action against Siva under the law of tort for battery. Battery may be defined as the intentional and direct application of force to another person without that person’s consent. This touching need not necessarily involved violence. Battery is established when this three element is fulfilled namely the defendant state of mind, contact and without consent. The first element is the defendant state of mind. The defendant must have applied the force with intention.

Although it’s always related to the direct act of the defendant, but the scope has widen and thereby extending the possible liability of the defendant. This illustrated in the case of Scott v Shepherd. In this case, the defendant threw a “lighted squib” into a marketplace. The squib landed near Willis, picked up the squib and threw it across the room. It landed near Ryal, Ryal picked up the squib and threw it again across the market. In so doing, the squib struck Scott (plaintiff) in the face and exploded. It put out one of Scott’s eyes. Scott brought suit against Shepherd for assault.

It was held that the defendant was liable for battery although his act doesn’t directly toward the plaintiff as Willis and Ryal has no intention to hurt the plaintiff as they fear for their safety. Meanwhile, the defendant clearly meant to harm someone although it wasn’t towards the plaintiff initially. In this case, Although Siva originally wanted to hit Robert, but he still has the intention to harm someone and too bad, he hit Alex. Therefore, Siva has intention to hit, even though his initial gesture doesn’t direct towards Alex. The second element is contact.

There will be no battery if there’s no contact or application of force on the plaintiff’s body or clothing. The word force is equivalent to unwanted. Violence is unnecessary. Generally physical and active part of defendant is essential. In the case of Innes v Whylie, the Claimant was a member of a Society which tried to expel him. Under orders from the Defendant a police officer stopped the Claimant entering a room where the Society was having dinner. The question was whether the police officer had been passive i. e. not moving like a wall or a door, or had actively tried to stop the Defendant.

The jury held for the Claimant. So it is clear that a positive act is required on the part of the Defendant. In this case, there is contact between Siva and Alex which is at the moment Siva’s fist touches any part of Alex’s body (includes cloth) it is to say that the contact is established. The last element is without consent. One doesn’t simply touch other person without their consent. However, there are touching where it is presumed implied consent exist. Such tapping a person’s shoulder in order to get attention or touching occurs in a crowded place.

In Collin v Wilcock, Robert Goff LJ said “In each case, the test must be whether the physical contact was so persisted in has in the circumstances gone beyond generally acceptable standards of conduct; and the answer to that question will depend on the facts of the particular case. ” In that case, the police officer’s act of grabbing a woman’s arm because he suspected her soliciting is amounted to battery because the touching is done without her consent. Law also doesn’t give authority to grab hold other people’s hand on the ground suspicion.

Alex is a mere passenger in that LRT and he unfortunately had become the victim of the dispute between Siva and Robert. Because he was hit by Siva, he startled and swung his bag but missed Siva. The act of Alex swung the bag can be meant as self-defense or reflexes and shows that he didn’t consent towards Siva’s action of hitting him. In a conclusion, there is presumably battery towards Alex by Siva as he fulfilled the entire requirement of the elements of battery. The last issue is whether there is false imprisonment inflicted towards Alice and Siva by the security guard.

In Termes de la Lay, false imprisonment is defined as the restriction of a person’s freedom of movement. The person so restrained is “imprisoned” so long as he cannot move to another place in accordance with his wishes. There are four element needs to be fulfilled before false imprisonment is established which is without lawful authority, confinement must be complete, the defendant state of mind and the act must be caused directly by the defendant. The first element is without lawful authority or the imprisonment must be false.

As in the case of John Lewis Co Ltd v Tims, the act of restraining the respondent by the detective (private citizen) until the manager had heard their explanation doesn’t amounted to false imprisonment as the police were called later and their imprisonment has no necessary delay. Unlike in this case, although security guard is a lawful authority, the imprisonment of Alice and Sive has unnecessarily delayed as the security guard didn’t even called the police while held both of Alice and Siva in confinement. The second element is the confinement must be complete. This means there’ll be confinement and total restriction of freedom of movement.

In Bird v Jones, the act of defendant stopping the plaintiff from using the part of the bridge while directed him to take another route doesn’t constitute to false imprisonment as the restrain was not complete. Per Patteson J, “…But imprisonment is, as I apprehend, a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience it may bring on him…” In this case, Alice and Siva were told to wait in a room and this can be indicates that they were restricted to move while the guards wrote a report, and they were locked in.

Hence, false imprisonment is established. The third element is the defendant’s state of mind. The defendant must intend to do an act which results in the claimant’s detention. In W Elphinstone v Lee Leng san, it was held that false imprisonment cannot be established through negligence. Intention of the doer is a prerequisite. In this case, the act of security guard locking both Siva and Alice indicates that they have intention to false imprison both of them.

The last element is the act must be directly caused by the defendant. In the case of Sayers v Harlow, there is no false imprisonment established as there is no direct act from the defendant towards the plaintiff. The defendant is merely negligent. In this case, there is direct act from the security guard as they told Alice and Siva to wait in a room and locked them in. However, does knowledge from the claimants is essential in establishing false imprisonment. This can be seen in Meering’s case.

Per Lord Atkin LJ “…I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious, and while he is lunatic… “This clearly point out that knowledge of being false imprisoned is not necessary. Therefore, there is presumably false imprisonment established by the security guard towards Alice and Siva.


  • All Answers Ltd. (n. d. ). Retrieved December 16, 2012, from http://www. lawteacher. net/tort-law/cases/trespass-to-person-cases. php
  • Talib, N. (2012). Law of Torts in Malaysia. Petaling Jaya: Sweet & Maxwell Asia.