Tipp FM Legal Slot – 29th July 2014 – Trespass to the Person and Attending Court
On Tipp FM, John M. Lynch, Solicitor, spoke to Seamus on “Tipp Today” continued his previous discussions and addressed the issue of Trespass to the Person and attending court after suffering Personal Injuries.
Listen to John’s discussion:[soundcloud id=’160948841′]
One of the interesting and most important things that we always talk about in taking cases for clients are the strict time frames that are there to do so. Essentially, depending on what type of case you are taking the law will have a time limit on how long you have to make a claim. If it is not made within that time then you lose your right completely in most instances.
Usually when we talk about personal injuries the law provides for a time limit of 2 years to begin court proceedings. This means that contacting your solicitor within that time is not enough, the only thing that will stop the clock is lodging official papers with the courts to state that you are taking a case.
This two year window for personal injuries is very narrow but a recent case has highlighted the extended time that is available to those who have suffered what is called a “trespass to the person”.
What is a trespass to the person?
A Trespass is essentially a wrongful act where intention is involved – it is different to negligence or recklessness where the person committing it may be unaware they are doing so or not have the will to do it – really there is a mental element to trespass where the trespasser wants va certain act to happen.
Also with trespass the conduct complained of involves a direct injury (as opposed to indirect/consequential injury). Trespass is a distinct ’cause of action’.
In the High Court, the plaintiff can opt to have a trespass action determined by a judge and jury.
The Core elements of trespass are:
- D’s conduct must be voluntary
- P must prove a direct interference
- Trespass is actionable per se (without proof of actual damage).
- Basis of liability? The act and not the injury must be intentional; an intention to injure is not essential.
Trespasses to the person include assault, battery, intentional or reckless infliction of emotional suffering, and false imprisonment.
What time limits apply to these cases?
Cases where personal injuries have been sustained on foot of a trespass to the person are subject to a six-year limitation period (section 11(2) (a) of the Statute of Limitations 1957). The Civil Liability and Courts Act 2004 states that a ‘personal injuries action’, does not include a claim where damages for trespass to the person are sought, and such claims are not bound by the requirement to commence proceedings on a personal injuries summons within the usual two year statute of limitation period. The courts have also confirmed that such cases also technically do not have to be sent to the Injuries Board for assessment like most other personal injuries matters would.
A recent High Court decision of Justice Baker in PR v KC, involved a plaintiff who brought a claim for damages for assault and battery, trespass to the person, the intentional infliction of emotional suffering, and breach of the plaintiff’s constitutional right to bodily integrity. It was alleged that the plaintiff had been wrongfully sexually assaulted and abused by the defendant. The accused sought to dismiss the claim on the basis that the plaintiff had not sought an Injuries Board authorisation prior to issuing proceedings.
The judge drew a distinction and looked at whether the plaintiff’s claim was in reality an action for trespass to the person and assault – or if it was really a civil action for personal injuries.
She noted how the absence of PIAB authorisation in a case to which the PIAB Act applied is not a mere fault in procedure, but goes to the root of the court’s jurisdiction to hear and determine the claim.
The judge noted how trespass to the person is a claim founded in a tort that is actionable per se (without proof of actual damage or injury) and that such a claim is one that “does not as a matter of law require the plaintiff to establish personal injury”. No proof of actual damage is required to succeed in recovering damages arising from the tort of trespass to the person or assault.
A plaintiff is entitled to damages merely on account of having been subjected to the trespass and, in those circumstances, it was held the plaintiff did not have to show that any injury resulted from the assault.
Cases will still have to go to the Injuries Board within two years in claims that include damages for trespass to the person where personal injuries sustained are the only cause of action however.
Injuries Board authorisation is not required in a trespass to the person claim where the cause of action is other than personal injuries, where there is a claim for damages for any other cause of action together with the personal injuries claim, and in cases where a breach of constitutional rights are asserted.
The recent decision of Justice Baker highlights how the courts are required to establish the real substance of a trespass to the person claim.