Wilson v Pringle
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CROOM-JOHNSON |
| Judgment Date | 26 March 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0326-4 |
| Docket Number | 86/0288 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 March 1986 |
[1986] EWCA Civ J0326-4
Lord Justice O'Connor
Lord Justice Croom-Johnson
Lord Justice Balcombe
86/0288
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
WALSALL DISTRICT REGISTRY
Royal Courts of Justice
MR J. P. WADSWORTH, Q.C., and MR N. R. DAVIDSON, instructed by J. T. Flanagan, Esq., appeared for the Appellant (Defendant).
MR P. WEITZMAN, Q.C., and MR J. J. MASON, instructed by Messrs Haden & Stretton (Cannock), appeared for the Respondent (Plaintiff).
This is a judgment of the court.
This is an appeal from His Honour Judge Wilson-Mellor QC sitting as a Deputy High Court Judge, giving judgment under Order 14 rule 3, in favour of the plaintiff for damages to be assessed. It is necessary to set out the facts.
On 4th December 1980 the plaintiff and defendant were both schoolboys aged 13. On that day at school the plaintiff had a fall which caused an injury to his left hip, from which he still suffers. In the Statement of Claim it is alleged: "the Defendant jumped on the Plaintiff, causing him to suffer personal injury, loss and damage. The matters aforesaid constitute a trespass to the person of the Plaintiff and/or were caused by the Defendant's negligence." In further and better particulars it is said that the defendant jumped on the plaintiff intentionally.
The defendant put in a defence. It is there denied that the defendant jumped on the plaintiff. Trespass to the person and negligence are both denied. The defendant's version of what happened is set out in paragraph 5. It reads as follows: "The Defendant will aver that…after a Maths class which both Plaintiff and Defendant had attended, the Plaintiff was in front of the Defendant in a corridor and was carrying his school bag over his right shoulder. The bag was of the hand grip type, and the Plaintiff was holding the handle in his right hand and holding the bag over his shoulder so that the bag hung down over his back. The Defendant on this occasion pulled the bag off the Plaintiff's shoulder. The Defendant will aver that this act was one of ordinary horseplay as between pupils in the same school and the same class, and that it was induced by the Plaintiff because it was a school regulation that bags should not be carried over the shoulder."
The plaintiff took out a summons under Order 14. It can be rare indeed that actions for damages for personal injuries are suitable for proceedings under Order 14. This summons was argued on the ground that the defendant had committed a trespass to the person of the plaintiff. If it had been argued on the basis that the defendant had been guilty of negligence there could have been no question of the plaintiff obtaining summary judgment. The question of foreseeability alone would have required a trial on the facts. And whether the argument were based on trespass to the person or on negligence, the first triable issue would be how the plaintiff came to fall. The plaintiff filed an affidavit in which he stated that "the defendant jumped on to me in a way that was consistent with an attempt to grab my sports bag causing me to fall to the ground." On behalf of the defendant an affidavit was filed denying that he had jumped on the plaintiff.
The hearing came before the District Registrar. He refused leave to sign judgment. The plaintiff appealed to the judge. The judge was not able to reconcile the two accounts of the incident. He adjourned the hearing with a view to further evidence being filed. It is recorded that on the resumed hearing "On behalf of the Defendant it is admitted that when the Defendant pulled the sports bag off the Plaintiff's shoulder the Plaintiff fell to the ground and apparently suffered injury." The note of the judgment continues as follows: "Therefore I only address myself to whether paragraph 5" of the defence "leads to an arguable basis for suggesting the Defendant's act did not involve battery or was done with consent express or implied, or justification. I say without hesitation that the pleading as to the school regulations is not one I regard as sufficient to justify the exercise of discipline over the Plaintiff, and is inconsistent with horseplay. The assertion in paragraph 5 of horseplay…might be well-founded but does not raise any averment that the Plaintiff was playing or horse-playing with the Defendant so as to suggest reciprocation. The assertions in paragraph 5 of the Defence amount to an express admission that the Defendant was doing something in relation to the Plaintiff and his bag which brought the Plaintiff to the ground. In the absence of any allegation of express or implied consent it is a clear admission on the part of the Defendant of an unjustified trespass amounting to a battery.…There is no basis for saying that the Defendant has an arguable case that he was not responsible in law for the results of his acts in seizing the Plaintiff's bag and bringing him to the ground." He accordingly gave leave to the plaintiff to sign judgment. Since we have decided that the judge was wrong, we must state our reasons for the guidance of whoever tries the action.
The action of trespass to the person, in its sense where there is an assault to or a battery of the plaintiff, is of great antiquity. The court has been referred to a number of authorities in which the ingredients constituting that tort have been discussed and ruled upon. In the early days the result of the case sometimes depended on whether a particular issue had been raised in the pleadings. Even if it had been raised, it might not amount to a defence to the action. The technicalities were great. One can detect in the reports the development not only of the action of trespass on the case (leading to the modern action of negligence) but also of the action of trespass to the person itself.
A convenient starting point is Weaver v Ward (1617) Hobart 135 (80 ER 284.) The plaintiff and defendant were exercising in the trained band with live ammunition. The defendant shot the plaintiff. The plaintiff sued the defendant in trespass. The defendant confessed and avoided. He pleaded that he had not shot the plaintiff intentionally. That plea was held to be demurrable. The defendant could not be excused of trespass "except it be judged utterly without his fault". In other words the defendant would be liable in trespass if he acted negligently, even though he had no intention to shoot the plaintiff. Nowadays an action such as that could only be brought in trespass on the case, in negligence.
Tuberville v Savage (1669) 1 Mod. 3 (86 ER 654) was an action for assault. The defendant clapped his hand upon his sword and said to the plaintiff, "If it were not assize-time, I would not take such language." The court ruled that there was no threat, and accordingly no assault. This case is authority that there must be not only a deliberate threat (in an assault) or a deliberate touching (in battery) but also hostile behaviour. If the intention is obviously hostile, that will suffice, but it was recognised that there are many circumstances in life where contact with one's fellow men is not only unavoidable but even if deliberate may also be innocent.
It was said, "If one were to strike another upon the hand, or arm, or breast in discourse, it is no assault, there being no intention to assault…but if one, intending to assault, strike at another and miss him, this is an assault."
Cole v Turner (1704) 6 Mod 149 (87 ER 907) was an action in trespass for assault and battery. Holt C.J. ruled that the least touching is a battery if it is done in anger, but that touching without violence or design of harm is no battery, and that violence in a rude and inordinate manner is a battery. Again, the case is authority for the proposition that for a battery there must be either an intention to harm or overt hostility.
Perhaps the most technical of the old cases is Williams v Jones (1736) Cas. 7 Hard 299 (95 ER 193.) The report bristles with pleading points especially on the subject of what makes an arrest lawful. What it does support is that the use of only a slight degree of force is not a battery every time. The intention of the defendant and the degree of force used are both relevant. A slight degree of force is no battery if done by way of a joke, or in friendship. As Lord Hardwicke expressed it, "a molliter manus in joke is no battery." It also indicates that the onus of proof in an action for trespass is on the plaintiff, a matter which was eventually clearly decided by Diplock J. in Foster v Lanning (1959) 1 Q.B. 426.
Cases in the nineteenth century such as Stanley v Powell (1891) 1 Q.B. 86 (a shooting accident) and Holmes v Mather LR 10 EX. 261 (a non-negligent highway accident) are of interest for present purposes in that they illustrate the distinction which has to be drawn between an unintended accident (when the action must be brought in negligence) and a deliberate accident (when it may be brought in trespass to the person). In the later cases some of the dicta are not easy to follow because of the synonymous use of words like "wilful", "direct", and "wrongful".
It is not possible, even if it were desirable, to ignore the distinction between torts of negligence and torts of trespass strictly so called. This distinction has to be borne in mind in view of a submission made on behalf of the defendant, which would have had the effect of blurring the lines of demarcation between the two causes of action. In a situation (such as the present) in...
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