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 involved. The elements of this tort are:
1. Direct act of defendant– The defendants conduct must have caused the basis in the case of battery that would be the physical contact.
SCOTT V SHEPHERD
Facts: the defendant on the 28th day of October through a lighted squib into a market place where it landed near one William Yates who was selling pastries. Recognizing what it was, one Mr. James Willis to protect himself and the wares threw it across the market in another direction where it fell near one James Ryall, James also threw it instinctively in another direction where it unfortunately exploded on Mr. Scott’s face.
Procedure: appeal against decision that the defendant was liable for the damages received by the plaintiff
Holding: the damages against the defendant was affirmed as he was liable being that the act in itself was unlawful and though was a consequential act was instigated by the defendant’s actions. The two people who came between the actions are not liable as they reacted instinctively. Blackstone dissented mainly because the damage was consequential and holds view that the third person should have taken better care in throwing the lighted squib. De Grey CJ
LEAME V BRAY
Facts: the two parties were driving carriages in the night past each other. The defendant’s carriage caused the plaintiff’s own to topple over and startle the horses. The plaintiff out of fear jumped down and broke his collar bone
Procedure: Appeal against verdict of trespass against the defendant
Holding: the question about willfulness does not come into play as that was no a requirement for a situation to qualify to be trespass. The only requirement was that the act by the defendant directly resulted in a damage against the plaintiff. Here the defendant was driving his carriage with enough force to propel it and it was a direct act of his that resulted in the damage suffered by the plaintiff and therefore trespass lies. Lord Ellenborough- where immediate act causes injury to plaintiff trespass vi et armis would lie where it was consequential action upon the case is a proper remedy.
MILLER V AG
Facts: the plaintiff was given a piece of kente cloth by the father to which he expressed displeasure and with the father’s consent decided to sell it. He went to the cantonments area with the idea that the residents there were well to do. He was accompanied by his friend. After no success they arrived at the defendant’s residence. There they expressed their desire to sell the cloth. The defendant decided not to buy it after hearing the price with the excuse that it was old. He then questioned them about the ownership of the cloth to which the plaintiff replied that it belonged to his father. They then decided to leave and was later approached by a man they met at the defendant’s house that the defendant had changed his mind. They ignored and was later approached by the defendant in the car where the defendant fired a shot. This scared the plaintiff and his friend and they started running. A second shot hit the plaintiff in the head and he was rushed to the hospital while his friend was taken to the police station.
Procedure: Action by the plaintiff against the Republic for damages for head and brain injuries suffered at the hands of a police officer
Holdings; A preliminary action was rose against the plaintiff that the action was statute barred and all were stroke down because the plaintiff filed the charges with the time limit specified, the government did not fall into the category of being a public officer and a specified law did not apply to the plaintiff’s case as it did not exist at the time the case was filed. There was no struggle between the defendant and the plaintiff as the defendant was well built and could have easily over powered them. Also, he did not report it in the station diary when he first went to the police station. All evidence leads to the point that he is lying. There was no justification in the defendant using violence on the boys as they did not attack him. He fired the first shot when he could have effectively arrested them prior to that. Also, at the time there were many options available to him to effect the arrest of the boys. He was there for liable as he intentionally fired the shot and it was his shot that resulted in the injuries suffered by the boy.
COVELL V LAMING
Facts: the defendant steered his ship into the plaintiff although evidence shows that he made efforts to steer away from the plaintiff’s ship.
Procedure; action of trespass against defendant
Holding: it does not matter whether the act was willful. The most important thing is that it was direct. The defendant is therefore liable for trespass. Lord Ellenborough
From the cases, we can see that this element is not a ‘directional’ point but an issue of “causation”.
2. The act complained of must be voluntary– This refers to controllability, not whether the defendant acted willingly. This is illustrated by the case of. GIBBONS V. PEPPER.
State of mind of defendant- To succeed, the plaintiff must establish that the defendant acted either intentionally or negligently. As noted earlier, intentionally here means deliberately; negligently refers to inadvertence or recklessness.
LETANG V COOPER
(to succeed plaintiff must establish if the act was done intentionally of negligently)
Facts: the defendant drove his car over the legs of the plaintiff while she was sunbathing on the grass which doubled as a parking lot. More than three years after the incident the plaintiff brought actions against the defendant
Procedure: appeal against decision concerning the action against defendant for trespass and negligence
Holding: the appeal was allowed as the act amounted to case and had a limitation of three years. Even if it was not case, it amounted to negligence as there was a breach of duty for the defendant to drive over the legs of the plaintiff. This made her action statute barred as breaches of duty covered both trespass and case. The act was considered negligent as it was not intentional. Lord denning did not believe there was such a thing as negligent trespass or battery and was supported in Wilson v Pringle
HOLMES V MATHER
Facts: a servant could not stop his horses which had run away but could to an extent guide them. The defendant asked his servant who was sitting next to him not to interfere with the driving. While turning the corner he accidentally knocked down the plaintiff
Procedure: action against defendant for trespass and negligence
Holding: the defendant was not liable even though the act could have resulted in trespass had it not been for the fact that all efforts of the defendant were geared towards protecting himself and people on the street. The horses almost run into the shop but he prevented that from happening by guiding them to turn a curve and made efforts to prevent them from running into the plaintiff. In this case he did not choose the lesser of the two evils and therefore was not liable for trespass even though his action directly resulted in the injury of the plaintiff. In other words the act was neither willful nor negligent.
Where a master gives direction to a servant and the servant causes injury to another the master is liable for a trespass in case but where it is shown that the servant clearly told the master not to interfere, the master is not liable
STANLEY V POWELL
Facts: the defendant was pheasant shooting when one of his pellets struck the plaintiff in the eye, the gun was not pointed in the plaintiff’s direction and appeared to have bounced of a tree and hit the plaintiff
Procedure: action against defendant for negligence
Holding: the act did not amount to negligence as it was not shown that the injury resulted from a lack of skill by the defendant. The jury therefore rejected this claim. The act did not also amount to trespass as it was not intentional or negligent. Judgment was made for the defendant.
FOWLER V LANNING
Facts: the plaintiff alleges that he was shot by the defendant. The defendant denies this and objects to the plaintiff’s statement of claim.
Procedure: action against plaintiff claiming damages for trespass
Holding: the preliminary action rose by the defendant against the plaintiff that he did not state in his statement of claim whether the act by the defendant was intentional or negligent and therefore having no cause of action was allowed. The onus of proof was on the plaintiff and he therefore had to establish whether the act by the defendant was done intentionally or negligently. His statement of claim did not show this and therefore he had no cause of action- per Brambell B
3. There must be physical contact with the person of plaintiff– This contact can be person to person or through an instrument.
FAGAN V METROPOLITAN POLICE COMMISSIONER
Facts: the defendant was reversing at a zebra crossing when the plaintiff, a constable asked him to pull over so he could produce documents relating to his driving. The defendant drove on the plaintiff’s foot and stayed there for a while even after the plaintiff yelled at him several times to get of his foot.
Procedure; appeal against conviction of assault on a constable
Holding: the initial act of the defendant may not be intentional and thus may not amount to assault by the continuation of the act after he realized the car was on the plaintiff’s foot amounted to an assault because it was clear that he did so intentionally. The assault is synonymous to battery and it matters not whether the battery is inflicted directly by the body of the offender or through a medium of some weapon controlled by the offender.
The Divisional Court agreed that assault cannot be committed by an omission. However, in this case, the crime was not an omission to move the car; rather, it constituted a continual act of battery. The offence was not complete until the moment Fagan realized that he had driven onto the foot of the officer and, in deciding not to cease this continual act, formed an intent amounting to the mens rea for common assault. Since both mens rea and actus reus were present, an assault had been committed, and Fagan’s conviction was upheld.
R V COTESWORTH
Facts: the defendant spat in the plaintiff’s face
Holding: battery per Holt CJ
COLE V TURNER
The least touching of another in anger is battery. But should the touching be hostile for it to amount to trespass? the judges in Wilson v Pringle said yes but was rejected by Collins v Wilson and In Re F
HOPPER V REEVE
The slightest touching of another in anger would amount to battery
DUMBELL V ROBERTS
Facts: the plaintiff on his way home was stopped by the defendant who enquired about the soap flakes he was carrying. Not satisfied with his answer, the defendants arrested and detained him without warrant and had no reasonable ground on which to detain him. He also did not enquire as to his name or address. He was charged with two counts of unlawful possession of soap flakes
Procedure: action of false imprisonment against defendant
Holding: the powers to arrest without warrant came with limitations. The defendants did no enquire about the name and address of the plaintiff and therefore his arrest was unlawful as well as unreasonable and they had no cause to suspect him of a crime. Where it is obvious that the person is not making any attempts of escaping enquiries should be made ascertain whether the person may be innocent or guilty. Scott LJ- it was trespass to even take a person’s finger prints who has not yet been convicted without his consent
4. Lack of Consent– The plaintiff must prove that he or she did not consent to the contact. This can be proved in three ways:
–Express consent– It is not a battery, if the defendant proves that the plaintiff expressly agreed or submitted to the contract. Many events of everyday occurrence, e.g. a haircut, a surgical operation or a passionate embrace will be battery but for the fact that consent operates as a defence to action in battery.
CHRISTOPHER V BARE
(if the defendant proves that the plaintiff expressly agreed to the contact it would serve as a defense to battery)
Facts: the plaintiff was imprisoned against his will for a period of one month and twenty five days. The defendant claims the plaintiff consented to it
Procedure: action against defendant for trespass and false imprisonment
Holding: a plaintiff is not said to have consented to be assaulted or imprisoned if it was against his will
NASH V SHEEN
The plaintiff asked the hairdresser for a permanent wave but was instead given a tone rinse which dyed the plaintiff’s hair an unpleasing color and caused him a painful rash all over his body. It was held that the act amounted to battery because the consent was for a permanent wave.
–Presumption of consent-There is a presumption, in general, of consent to all non-hostile contacts merely incidental to living in a community. Thus, in COLE V. TURNER, Holt C.J. said: “if two or more meet in a narrow passage and without any violence or design of harm, one touches the other gently, no battery. But if one in a desire to gain advantage shoves another aside in an inordinate and violent manner, this is a trespass.”
DONELLY V JACKMAN
The defendant while on duty asked to speak to the appellant. The appellant refused and the defendant lightly tapped him on his shoulder. The appellant turned around and slapped the defendant yelling that he was now even. Held- it is not every slight interference of one’s liberty that would amount to course of conduct sufficiently to take a police officer out of his course of duties. Appeal was dismissed.
WILSON V PRINGLE
The plaintiff alleges that the defendant jumped on him and as a result he fell down and sustained injuries. The defendant denies this accusation and states that he merely pulled on the bag of the plaintiff in an act of ordinarily horseplay which has begun by the plaintiff and as result fell down and sustained the injuries. Held- although certain acts may amount to battery, allowances need to be made as everybody is subject to some form of battery in everyday life. Some form of punishment is allowed when parents are punishing their kids, pats received on the back whether consented or not at a social event and so on. In an action of battery it had to be proved that such contact went beyond what normally occurs in everyday life and that the act was deliberate or negligent. In the circumstances surrounding the event it was not proved that the defendants act was in hostile manner. The judge took a narrow view as to what would amount to trespass. Appeal was allowed.
–Privileged contact– this is contact permitted by law. To determine whether a contact is privileged, look at:
a) Nature of the act. — a blow or a pat?
b) Intention with which the act was done.
Sexual touching can amount to a battery — GUARRO V. US
WIFFIN V KINCARD
The plaintiff had posted himself against some rails to view a mad ox when the defendant, a constable tapped him with his staff to get his attention. The defendant asked him to get down to which he refused. The defendant grabbed him by the collar and took him to a watch house where he was kept before he was made to appear. Held- the tapping of the shoulder with the staff did not amount to battery. They were not sure as to whether grabbing of the collar could amount to battery. The plaintiff was however not entitled to full costs of assault and battery unless the Judge certified it and this was not done. In respect to the imprisonment, it was certified which the Plaintiff was deprived of his costs.
COWARD V BADDELEY
The defendant was hosing down a burning house when the plaintiff passed by and made comments to the displeasure of the plaintiff. He went away and came back repeating those words. The defendant then handed him over to the police who was standing nearby. The defendant claims he asked the plaintiff to mind his business but then he (plaintiff) grabbed him by the shoulder and violently turned him around and thereby turning the hose away from the fire. Held- the touching of the defendant by the plaintiff was to get his attention and was not done in a hostile manner. Also, there was the absence of intent for criminal assault. Appeal allowed
AGBOVI V SETORDZIE
The plaintiff damaged a fence a warrant was put in for his arrest. He turned himself in a few days later and claims to have been assaulted by the police to which he provided a medical report showing the injuries he sustained. The police claimed their actions fell into the category of them exercising their duties. Held- the defendant failed to send the plaintiff t court on the day he was imprisoned and also investigation were not made into the incident coupled with refusal of bail amounted to malice. The compensation must bear a reasonable relationship to the ferocity of the assault. Considering the circumstances, the plaintiff was awarded damages
COLLINS V WILLCOCK
The appellant was suspected by the defendant to be a prostitute as the woman she was walking with was a known prostitute and their behavior was suspicious. The respondent asked the appellant to get into the car where she would be questioned to which the appellant paid no mind. The respondent got out of the car and grabbed the appellant’s hand and she was scratched. Held- the police woman’s action amounted to battery because in cautioning the appellant she did not have the authority to detain her. The appellant’s action of scratching her was in self-defense.
RE F
F was a 36 year old woman. She had a serious mental disability caused by an infection when she was a baby. She had been a voluntary in patient in a mental hospital since the age of 14. She had the verbal capacity of a child of two and the mental capacity of a child of 4. She developed a sexual relationship with a fellow patient. Her mother and medical staff at the hospital were concerned that she would not cope with pregnancy and child birth and would not be able to raise a child herself. Other methods of contraceptives were not practical for her. They sought a declaration that it would be lawful for her to be sterilized. F was incapable of giving valid consent since she did not appreciate the implications of the operation. Held-The declaration was granted. It would be lawful for the doctors to operate without her consent.
5. Positive act not omission to act– In battery, liability depends on an act, not a failure/omission/refusal to act. The maxim is: ‘Not Doing Is Not Trespass’.
INNES V WYLIE
Earlier the plaintiff had made some menacing comments to the defendants and his refusal to apologize made them remove him from their society group. They were having a dinner when the plaintiff appeared there uninvited and made attempts to enter the room but was prevented from doing so as he was gently pushed out. He was prevented from entering by a policeman under the orders of the defendant. Held- the plaintiff was still a member of the group even though those who were for his eviction had no paid their dues. They had until the end of the month. Also, he was not called to defend his charge and therefore his removal from the society was not valid. However trespass requires a positive act. Just standing there and preventing someone from entering constitutes an omission. To amount to battery the action must be positive