Legal Remedies for Trespass to Person

Author: Arsh Singh, Law Student at University of Petroleum and Energy Studies, Dehradun.

Edited by: Shruti Mayur, Law student at Amity University.


Trespass to a person is considered to be a direct interference with a person’s body or liberty without any lawful justification. It is tried under tort which is civil law. Such torts are committed nowadays frequently in everyday life so this article aims to be aware of its stringent punishment and consequences in depth so they do not take it as a light medium and treat it seriously and abide it like every law so that the number of cases of trespass reduces. It is essentially defined as unjustified interference with a person’s body, which can be done by inflicting physical damage or by raising the fear of force. In this article we will be studying its background from where it is derived, we will be focusing on what rights a person can exercise to prevent trespass to himself keeping in light its difference with nuisance which people often confuse it with, also we would be focusing on the types of trespass to persons understanding with some famous case laws.  We will also be comparing the legal remedies of trespass, whether they are flexible more in India or more in foreign countries or helping in an in-depth analysis. My Main reason for writing this article is to reduce the number of cases of trespass by making people aware of its value and its consequences.

KEYWORDS: Trespass to person, tort, unlawful interference, physical damage, force.

 1. Meaning, Definition & Explanation

Trespass to a person is an unreasonable interference with bad intention which is committed either by causing physical force or by creating an apprehension of fear in the mind.  It comes under tort law. Law of tort is a branch of law of obligations where the law obliges to refrain from harm to another and if harm is done then to repair it or compensate it which are imposed not by agreement but independently of agreement by force of general law. Trespass to a person can be further divided into assault, battery, and false imprisonment. Assault and battery under trespass can be tried under civil as well as also under criminal depending upon the severity. The foremost condition for trespass to a person is that the force used should be without any lawful justification or confinement should be unlawful.  Trespass includes not only to persons but also to goods and to land.  Legal remedies have become a must to oust such trespassers and create fear amongst them such that they do not commit trespass.

2. Historical Background / Evolution 

This concept has a long historical background in English common law which influenced tort law. The development of legal remedies is traceable only through the early common law system.

In medieval England, this concept was applied to all heinous acts involving land and property. Its definition was earlier only limited to land however with development in time legal principles evolved and this concept started including actions that affected a person’s body or his/her personal belongings leading to the proper difference between assault battery and unlawful imprisonment becoming more defined after which judicial decision started to refine elements of trespass to the person establishing a clear standard for liability and defenses.

This concept was later adapted into Indian tort law leading India to develop its own jurisprudence while considering local customs and practices

In recent times legal remedies for trespass to a person are shaped by historical influences and modern development. Henceforth, the protection of individual rights against physical interference has remained a fundamental concept within tort law.

  1. Comparison with other Countries

In India the main remedy for trespass to a person under tort law is damages.  These damages may include physical injury, pain and suffering, medical earnings, loss of earning capacity, etc, however, the court has also granted exemplary damages in some cases. Although these torts are also governed under the Indian penal code such as assault (Section 351), criminal force (Section 350), wrongful restraint (Section 339), and wrongful confinement (Section 340). If prosecutors are found guilty under criminal trial they may face penalties such as imprisonment or fines as prescribed by law.

However, when remedies are compared with other countries we see some variations such as countries like Australia, Canada, United States following principles derived from English common law precedent. This includes countries like Australia, and Canada where elements of battery and assault form part of their tort laws, and France or Germany which have codified laws that govern torts which include those that relate to the injury caused by others’ conduct towards another’s body/persons. Some countries like Ireland have a mixed legal system that is not only derived from English Common Law but also incorporates certain statutory provisions. For Islamic countries to address liability for personal injuries they incorporate Shariah principles.

4. How trespass is different from nuisance

Many people are confused between them thus it is important to state the difference between them. Nuisance is an unlawful interference with a person’s use or enjoyment of land or some right in connection with it. In trespass, physical interference is direct however in nuisance it is consequential. Planting trees on another land is trespassing but when a person plants in his land and it projects into another land it amounts to nuisance. In trespass, interference is with the plaintiff’s possession of land whereas in nuisance it is with the plaintiff’s enjoyment of land.

5. Types / Kind

The following are the types of trespass to a person-

  • Assault- is an act of the defendant which causes to plaintiff reasonable apprehension of infliction of battery upon him by the defendant. If the apprehension of infliction of battery is created upon the plaintiff which is intentional by the defendant and has the prima facie ability of being performed. For eg, if a person advances in a threatening manner to use force this is assault.
  • Battery- it is an intentional application to another person without any lawful justification.  There should be use of force without any lawful justification however it is pertinent to note that mere passive obstruction is no force. Unintentional harm or harm caused by a pure accident is no battery.
  • False imprisonment- it is the imposition of total restraint for some period however short upon the liberty of another without sufficient lawful justification. When a person is deprived of his liberty whether by being confined over the four walls or by leaving the place from where he is false imprisonment is constituted if one is deprived of his personal liberty. Under criminal law, whether the restraint is total or partial both are punishable under IPC however position in tort law is only false imprisonment when the restraint is total.
  • It is pertinent to note that if there are means of escape restraint can’t be considered a total and there is no false imprisonment. This means, however, that it is intelligible or reasonable to the person detained. Knowledge of the person being falsely imprisoned is not required in false imprisonment.    
  1. Forms of trespass
  • Trespass to person – It is essentially defined as unjustified interference with a person’s body, which can be done by inflicting physical damage or by raising the fear of force
  • Trespass to goods- It is direct physical interference with goods that are in the plaintiff’s possession without any lawful justification.
  • Trespass to land- It means interference with the land without a lawful justification.
  1. Essentials


  • There should be the use of force irrespective of whether it causes harm or not the wrong is still constituted. It is not mandated there should be physical hurt. For eg least touching another is the battery.
  • Use of force should be intentional and without any lawful justification. It is pertinent to note that harm voluntarily suffered is no battery. Also, harm is unintentional and caused by pure accident.


  • Assault can be determined if reasonable apprehension is committed in the mind of the plaintiff that battery is going to be committed against him provided the defendant had the intention to cause reasonable fear in the mind of the plaintiff. Eg pointing a loaded gun at another.
  • The second essential is that there should be prima facie ability to do harm which means that the act should be such that it is capable of creating apprehension in the mind of the plaintiff for eg showing a fist from a distance would not amount to assault since it is not capable enough to create an apprehension.

     False imprisonment

  • There should be total restraint on the liberty of the person. Whether the restraint is total or partial both are punishable under criminal law however under tort law false imprisonment is constituted only when there is a total restraint i.e when a person is completely deprived of his/ her liberty in which time is of no essence.
  • It should be without any lawful justification.
  1. Defences

           Defences of assault and battery: –

  • Statutory Authority: When an individual with legal authority tries to obstruct them while they are performing their duties, they may be stopped by using force.
  • Lawful Correction: When used to modify someone’s behavior, assault and battery are occasionally acceptable. For instance: correcting a child or learner. But the remedial action shouldn’t be overly harsh or unjustified.
  • Maintaining the peace: Reasonable force may be used to halt someone who is stirring up disorder at a public house of worship if they are doing so.
  • Kicking someone off your property: You have the right to use as much force as necessary to eject someone who enters another person’s property without authorization and doesn’t leave when asked. It is appropriate to use force in this circumstance.
  • Retaking of goods: The rightful owner or a person designated to look after the owner’s property may request the return of any items that have been wrongfully taken. Depending on the circumstances, the legitimate owner and authorized person may use reasonable force to reclaim it if the wrongdoer refuses.

. Defences of false imprisonment

  • Consent to Restraint: – A person cannot argue they are a victim of imprisonment if they voluntarily consent to be confined without using any deceit or trickery.
  • Valid arrest: – It is not deemed false imprisonment when someone is detained for an unlawful act and there is a good reason for the detention
  •  Probable Cause: – In order to prevent wrongful imprisonment, it is essential to establish probable cause through acts. It is crucial to remember that the criteria used to determine probable cause is centered on objective proof of a person’s wrongdoing rather than on an actual crime.

9. Remedies for Trespass to Person

  • Action for damages: – If someone’s body has been trespassed, they have the right to bring a legal action and claim damages. These damages aren’t just for physical injuries but also for any harm to their personal freedom. So, when someone’s body is violated, they can seek monetary compensation for both the physical and emotional impact it has caused.
  • Self-help: – It is the remedy available to a person who has wrongfully restrained. The person can be free himself instead of waiting for a legal action.
  • Habeas Corpus: – The Supreme Court under Article 32 and the High Court under Article 226 can issue writs for a person who is wrongfully detained by this individual who is detaining is required to produce the detained person before the court and rationalize his detention. The person would release immediately if the court finds the reason for detention unreasonable.

Case Laws / Precedents (if any)


  • Stephen v Myers, the plaintiff was chairman at the Paris meeting, the defendant sat at the same table but there were 6-7 between them. A very large meeting decided that the defendant be expelled from the meeting. The defendant moved towards the plaintiff with a clenched fist saying he would rather pull the chairman out of the chair however he was stopped by the churchwarden. He was held liable for assault.
  • Stanley v Powell, Powell who was a member of the shooting party fired at a pheasant but a pellet from his gun glanced off the tree and accidentally wounded Stanley who was another member of the party. Powell was not held to be liable since the act was not wilful.


  •  Kader v. K. A. Alagarswami court held that putting handcuff on an undertrial prisoner and then chaining him like a dangerous animal with a neighboring window is unjustifiable use of force and the police officer imposing such force is liable for trespass to the person.


  • Bird v Jones a part of a public footway as opposed to a carriageway was wrongfully enclosed by the defendant. Seats were put there and entry to the enclosure was allowed only to those who made the payment to watch rowing there. The plaintiff assented his right to use the footway and climbed over the fence but was prevented from going further he was there for half an hour and brought an action for false imprisonment. The court held there was no false imprisonment as restraint was not total.
  • Mee v Cruikshank, after the acquittal of the plaintiff he was taken to a cell and was detained there for a few minutes while some questions were put to him by warders it was held to be false imprisonment.
  • Bhim Singh v State of J. & K where the petitioner an MLA of the jk assembly was wrongfully detained by police in order to prevent him from attending assembly session. It was held to be unjustifiable detention and exemplary damages were granted.
  • In Rudal Sah v. State of Bihar Supreme Court granted such compensation in writs of habeas Corpus where the petitioner was acquitted by the court in 1968 but was released from jail in 1982, i.e., 14 years thereafter. The State tried to justify the detention by pleading that the detention was for the medical treatment of the petitioner for his mental imbalance. The plea was rejected.

Doctrines / Theories

  • The Doctrine of Directness states that the defendant’s actions must directly result in the interference.
  • The Doctrine of Illegal Restraint: In order for a person to be falsely imprisoned, their freedom must be unlawfully and unconsentedly restricted.
  • The principle of proportionality in self-defense: Self-defense actions must be appropriate for the threat being faced.
  • Doctrine of Intent: Even when the defendant did not intend the precise harm, they must have intended the act that caused the interference.

Maxims / Principles

  • Volenti nonfit injuria:- To a willing person, no harm is done.
  • Injuria sine damno: – Injury without damage This principle holds that a legal wrong (injuria) can be actionable even if no physical damage(damno) occurs.
  • Damnum sine injuria: – Damages without legal injury this tells that not all harm results in a legal claim there must be a violation of the right.


The origins of trespass, including trespass to the person, are still a bit of a mystery despite all the research done on the subject. Even though there have been theories proposed, like the idea that trespass actions evolved from the jurisdiction of the old popular courts, there’s not enough surviving evidence from those times to back up these claims. So, we can’t say for sure if they’re true or not. We do have a better understanding of how trespass actions developed over time thanks to the rise of the king’s courts and the increase in documented legal proceedings. But when it comes to the very earliest origins of trespass to the person, we still have limited information. In the end, the historical background of this tort remains elusive. The action of trespass, in its different forms, seems to have slowly taken shape within the common law system, drawing from various earlier legal traditions. But we can’t definitively pinpoint where the idea of trespass to the person first came from.

The fact that there’s no clear, undisputed origin story shows us that the common law is an organic and evolving system. Trespass to the person, like many other important legal concepts, emerged through a complex historical process that can’t be boiled down to just one event or influence. As legal scholars, we need to be aware of the limitations of the historical record and not jump to firm conclusions about these murky origins.


  1. Books / Commentaries / Journals Referred
    • Law of torts RK Bangia
    • Harvard Law Review
    • Law of Torts by Ratanlal and Dhirajlal
  2. Online Articles / Sources Referred
  1.      Cases Referred
  • Stephen v. Myers
  • Stanley v. Powell
  • Kader v. K.A. Alagarswami
  • Bird v. Jones
  • Mee v. Cruikshank
  • Bhim Singh v State of J. & K
  • Rudal Sah v. State of Bihar