Tort of Trespass

Trespassers will be prosecuted”, are four words which you must have seen ‘n’ number of times, written on a board, and hung on a gate or a boundary wall.

Now, who is this “trespasser”? For the uninitiated, a trespasser is a person who commits the act of trespass, i.e., the wrongful interference with another’s possessory rights in property.

So, the right in question, which is infringed, is a possessory right.

Why that’s important to be highlighted is because there are mainly two kinds of rights which we need to differentiate between – the other being ownership rights.

The difference is seen in a tenancy agreement – the tenant is in possession of the flat, while the landlord is the owner of the flat. Possession, or ‘actual possession’, means to have physical possession/control over the property.

Apart from that, under property law, ownership additionally means actual control of a property, including the power to sell the property, which is not vested in a person who only possesses the property.


Under the law of tort, if the landlord were to interfere with the possessory rights of the tenant, the latter would have a claim in trespass, despite the landlord being the owner of the flat.


This is something that you need to be careful about – the tort of trespass is against possession, irrespective of ownership. The possessor of the property might well be an illegal occupant, but will nonetheless have a claim under the tort of trespass.

Now, how does this interference occur?

The most popular mode is when a person X goes onto a land possessed by person Y (which explains the signboards that you have seen).

Prima facie, it seems that no right has been infringed, but possessory rights imply that barring cases of necessity or justified cause, no one can enter a property possessed by another without their permission.

So, again, even if no tangible harm has been caused, the fact that the possessors right to enjoy his property without any interference whatsoever has been infringed gives rise to a cause of action.

This is because the ‘damage’ actionable under the law of tort is the infringement of a legal right of a person, irrespective of the presence of actual damages. So, logically, even the most harmless of interferences with another’s possessory right is actionable.


Trespass can occur in more ways than one; that’s right. The one which we have been discussing above is what we broadly term as trespass to property. The other broad category is called trespass to person.

Trespass to person occurs simply upon violation of a person’s ‘physical space’. This violation of, let’s say, Y’s physical space by X occurs when X commits the torts of:

1. Assault.
2. Battery.
3. False Imprisonment.

The above are the subsets of trespass to person.


Assault occurs when X intentionally causes a) a reasonable apprehension of b) an immediate harm to Y.

An apprehension means an impression/notion/idea in that other person’s mind. Thus, assault does not necessitate the occurrence of actual contact, but merely the (reasonable) notion that there will be actual contact.

The harmful contact perceived here must be one which intends to injure, disfigure, impair or cause pain. It could also be a contact which the other person perceives to be offending his/her sense of dignity.

In the case of Rupan Deol Bajaj v. KPS Gill, a criminal law case where the defendant was accused of sexual harassment through physical gestures/acts. Under the law of torts, this can be treated as contact which offends the sense of dignity of a person.

An immediate harm means such, that there is little or no opportunity to save oneself from that harm.

The best example used to explain assault is the unwarranted act of throwing water by one person, on another. Imagine this in slow motion – starting from the moment when you notice the perpetrator swinging the glass, full of water, in your direction until the penultimate moment before it completely soaks you (or not, depending on your reflexes), is assault.

What happens once the water lands on you, is the tort of battery. Battery is the actualization of an assault, and thus, follows from an assault.

The victim, however, need not be aware of the act, i.e., there need not be any apprehension caused to the victim, since such acts may be one of surprise or otherwise where the victim is unaware of it until it actually occurs, for example, hitting someone from behind.

Since there is actual contact, there should also be ‘harm’.

The nature of this harm caused, however, need not be serious. That is because the tort of battery (and assault) depends on the intention of the perpetrator, so if s/he intends to cause serious harm and has done the penultimate act within his/her control to cause the harm (hurling the water from the glass), but fails, and instead just brushes against the body of the victim, s/he would still be liable for battery. Of course, if there is no contact altogether, the claim for battery will fail.

A lack of intention, such as a harmless tap on the shoulder, does not amount to battery.

An exception to the tort of assault or battery would be where such apprehension or contact is lawful or justified, such as a policeman threatening a fleeing thief against it, and finally pinning him down. 

Also included in this is the right of the parents to chastise their children – unnecessary abuse would amount to battery.

The elements of assault are, thus:

1. intention to cause harm
2. reasonable apprehension in the mind of the victim
3. imminent harm

(4. actual contact, upon which the perpetrator commits the tort of battery)


False Imprisonment means the total restraint on the liberty of a person, without any lawful or justifiable excuse; ergo, ‘false’!

This imprisonment can be either actual or constructive, the latter being the case where the person is wrongly told s/he is not free to move about and thus kept in custody (custody means under ones authority, and not always police custody), but there is no physical restrictions such as being locked in a room or a cell.

Total restraint only occurs when a person’s movement is restricted to a small, well-defined area (such as a room). Conversely, if a passageway to a hall is blocked, and a person has to take another passage which is some distance away, it will not amount to ‘total restraint’. That is because there is an alternative here, i.e., another way to move about.

The alternative means/means of escape should be one which is reasonable. Thus, a locked room with a window on the steep edge of canyon is not an option.

Additionally, the claimant needs to be aware of, or be able to make out that means of escape, which means – a secret exit behind a bookshelf which can be moved only by using a secret code, does not fall under the ‘reasonable’ category.

Therefore, total restraint restricts the movement of a person completely, just like the phrase suggests. The passageway situation is one of partial restraint.

This restraint can be for any period of time – however short or long.

This is probably because what is a “short” amount of time, and what is “long”, is a very subjective question; but, a matter pertaining to an individual’s personal space and liberty is very serious, so allowing for such vagueness to create loopholes would not have been prudent.

A defence for false imprisonment would be a voluntary act from the defendant to be ‘imprisoned’.

However, voluntary in certain cases includes knowledge, so if you are detained wrongly and you accept it unknowingly, that will not be a voluntary act. Referring to the personal liberty bit again, this is simply logical that it’s not a voluntary act, else it would be misused widely.



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