Highlights on Battery in Tort

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Battery Defined (Per Kumado)

the tort of battery is committed by the intentional application of force to another by direct means or through an unwelcome physical contact, irrespective of whether intent to harm or hostility is involved.


Elements of the Tort of Battery:

1. Positive Act: Not doing does not constitute trespass, and this applies to battery. See Inness v Wylie.

2. Voluntariness: The defendant must be in control of their actions. Using someone’s hand to hit another does not make them liable for battery.

3. Mental Blame Worthiness: The defendant must have acted negligently (thus recklessly) or intentionally.

4. Lack of Consent: see Nash v Sheen, Wiffin v Kincard;

5. Direct Act: The plaintiff must prove that the damage to himself was a consequence of the direct act of the defendant. See Scott v Shepherd.

6. Physical Contact: This is what distinguishes assault from battery. For a case of battery to succeed, the defendant must touch the plaintiff or an object to which the plaintiff is intimately attached.


Touch can be through a Medium: Fagan v Metropolitan Police Commissioner

Fagan stepped on the foot of a police officer with his car wheel. Court held it was battery despite even though no physical contact between the body of Fagan and the police officer. Principle: Battery can be committed through a medium such as car


Battery is Actionable Per Se: Seigel v. Long

Defendant placed his hand on plaintiff's face to push his hat away for purpose of identification. Court held it was battery despite no physical harm to plaintiff.


Intentional Act

For the tort of battery, the defendant must have intentionally touched the plaintiff. If the defendant's hand was used by a third-party to touch the plaintiff, the third party and not the defendant is liable for battery. See Gibbons v Pepper and Wilson v Pringle. Note that it is the act that must be intentional not the injury resulting from the act. Intentionally touching someone and unintentionally causing them harms still makes the party doing the touch liable.


Physical and Intentional touch: Miller v Attorney General

A police officer shot the plaintiff. Principle: battery is committed when a harmful or offensive touch is intentional. If the defendant sets in motion an object that touches the plaintiff, he is deemed to have touched the plaintiff.


Livingstone v Minister of Defence

A police officer aimed and shot at a protester, but the bullet hit another protester. Court held the police officer had committed battery against the other protester.


Consent in the Tort of Battery

If a person consents to being touched, he/she cannot sue for battery after the touch.


Inability to Consent to Touch: F v West Berkshire Health Authority (in Re F)

Some persons cannot give consent, and it is still lawful to touch them if the touch is considered beneficial to them. In F v West Berkshire Health Authority, the court held that a 36 year old mentally disabled person can be sterilized after her mother gave consent.


Role of Hostility in Battery: Cole v Turner (Previous Position)

Per Holt CJ, "the least touching of another in anger is a battery. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it is no battery. If any of them use violence against the other, to force his way in a rude inordinate manner, it is a battery; or any struggle about the passage, to that degree as may do hurt, is a battery"


Role of Hostility in Battery: Wilson v Pringle

A case on two 13 year old school boys. Plaintiff was injured by defendant's pull on his bag, court held that a touch must be hostile to constitute battery.


Hostility Not Required For Battery:Re F v West Berkshire Health Authority

Court dismissed the requirement that a touch must be hostile to constitute battery. Per Goff, the suggested qualification [hostility] is difficult to reconcile with the principle that any touching of another's body is, in the absence of lawful excuse, capable of amounting to a battery and a trespass.


Positive Action: Innes v Wylie

Not doing does not constitute battery; A policeman stood at the door to block the plaintiff from entering. But policeman pushed the plaintiff when he tried to enter. The jury was instructed that if the policeman merely acted as a blockade for the plaintiff, known as an omission, then there would be no assault.


Voluntariness: Gibbons v Pepper

A man riding a horse, horse got frightened and bolted with him, plaintiff injured by horse.Holding: "if I ride upon a horse, and J. S. whips the horse, so that he runs away with me and runs over any other person, he who whipped the horse is guilty of the battery, and not me. In the same manner,if A. takes the hand of B. and with it strikes C., A. is the trespasser, and not B."


Lack of Consent: Nash v Sheen

Defendant is a hairdresser, was asked by the plaintiff for a permanent wave. Instead, the defendant applied tone rinse to the plaintiff's hair without her agreement. The plaintiff got rashes. Holding: Defendant guilty for battery for lack of consent


Privileged Consent: Wiffin v Kinkard

A person may be touched to gain their attention without the touch constituting battery. A police officer touched the plaintiff with his constable staff to gain his attention. Court held it was not battery


Direct Act: Scott v Shepherd

Defendant was liable for battery for throwing a squib which was further thrown by two other persons which eventually hit the plaintiff and caused him injury. The injury to the defendant was the direct act of the plaintiff despite the two intermediaries.


Physical Contact: Fisher v Carrousel Motor Hotel

Touching an object to which the plaintiff is intimately attached constitutes touch to the plaintiff. Employee of defendant pulled plate from plaintiff. Court held it was battery