General Principles of Intellectual Property: Concepts of Intellectual Proper...
Tort trespass to person, suit for false imprisonment, suit for malicious prosecution
1. Trespass to person
(assault, battery, mayhem)
False Imprisonment;
Suit For Malicious Prosecution
Dr. Khakare Vikas
Asso. Prof.
Narayanrao Chavan Law College,
Nanded, India
2. Assault
• It is the unlawful laying of hands on another or
attempt to do a corporeal hurt to another,
coupled with present ability and intention to the
act.
• Sir Fredrick Pollock, ‘the essence of the wrong
of assault is putting a man in present fear of
violence, so that any act fitted to have that effect
on a reasonable man may be an assault.
3. .
• Arnold C.J., ‘any gesture calculated to excite in
the party threatened a reasonable apprehension
that the part threatening intends immediately to
offer violence or about to use criminal force.’
• E.g. aiming with a loaded gun, riding after a
person and obliging him to take shelter.
• Neither mere words not mere gestures do not
constitute assault.
4. Ingredients of assault
1. There was some gesture or preparation which
constituted a threat or force.
2. The gesture or preparation was such as to cause
a reasonable apprehension of force; and-
3. There was a present ostensible ability on the
defendant’s part to carry out a threat into
execution immediately.
5. Battery
• Battery is actual striking of another person or
touching him in rude, angry, revengeful or
insolent manner.
• In battery, actual touch is essential. But mere
touch is not enough.
6. Ingredients of battery
1. Use of force to him, either to his body e.g. slapping,
pushing or bringing an object with contact of body.
2. Use of force was intentionally.
7. Difference between assault and
battery
1. Battery includes assault, but assault does not include battery.
2. In assault actual contact is not essential but in battery contact is
essential.
8. Defence in assault and battery
1. Defence of person.
2. Defence of property.
3. Expulsion of trespasser.
4. Retaking of goods.
5. Exercise of parental and quasi parental authority.
6. Leave and licence.
7. Preservation of public peace.
8. Legal process
9. Mayhem
• Mayhem is bodily harm whereby a man is deprived of the use of
any member of his body or of any sense which he can use in any
fighting or by the loss of which he is generally and permanently
weakened.
11. .
• False imprisonment is the intentional
confinement of plaintiff by another within
fixed boundaries without legal justification.
• It is intentional putting a total restraint on
the liberty of a person, for however shorter
time, without lawful justification.
12. Essential condition
1. Defendant must have acted with intent to confine or restrain the
plaintiff.
2. The confinement has to be total.
3. The restraint may be a physical barrier or it may consist of
threats of force which intimidate of coerce the plaintiff to comply
with orders.
13. Defences
1. Self defence.
2. Assisting officers of law.
3. Confinement of lunatics.
4. Parental authority
5. Consent
6. Public authority
7. Judicial authority
8. Authority at time of war
15. .
• Malicious prosecution is the institution
against an innocent person of
unsuccessful criminal, bankruptcy, or
liquidation proceeding without reasonable
and probable cause and in a malicious
spirit.
• If a person institutes such malicious (legal
proceedings) without just and probable
cause, the person against whom the
action was taken can file a suit for
malicious prosecution and claim damages.
16. Essential
1. A prosecution of the plaintiff by the defendant.
Defendant should have set the law in motion
against the plaintiff but it is not necessary that
he should be a party to the prosecution. It is not
necessary that defendant should conduct the
prosecution.
2. Prosecution must have ended in favour plaintiff.
There is no need of acquittal on the basis of
merit or his innocence.
17. .
3. Want of reasonable and probable cause.
Defendant in so prosecuting, acted without
reasonable and probable cause.
4. The defendant must have acted
maliciously i.e. with an improper motive
and not to further the ends of justice.
Malice in this may be express malice.
18. .
5. As a result plaintiff has suffered damage.
If the it is not criminal proceeding, it is
necessary to show some special damage.
Such damage may be damage to fame,
person, property.
