Assault & Battery in Tort

Battery

Defining Battery

Battery is defined as any intentional, direct and hostile touching of the claimant, no matter how slight: Wilson v Pringle [1987] QB 237.

Hostility

Hostility is an ill-defined notion (and often not mentioned by the courts), covering but not restricted to:

Touching in anger or with ill-will: Cole v Turner (1704) 90 ER 958;
Touching without lawful basis (such as exceeding powers of arrest): Collins v Wilcock [1984] 1 WLR 1172;
Touching which is not acceptable conduct in ordinary daily life: Collins v Wilcock [1984] 1 WLR 1172.

In most cases, hostility is assumed based on the fact that the claimant was touched without consent. However, in some cases hostility will need to specifically be proven: Wilson v Pringle [1987] QB 237. Examples include:

Surgery, necessary, surgeon, doctor, medicine

Necessary surgery on an unconscious patient who has not given prior consent.

Ordinary jostling in crowded public places (this is sometimes also explained on the grounds that the defence of implied consent applies).

Unexpected friendly gestures such as hand-shaking or back slaps.

Intention and Continuing Acts

What if a defendant touches the claimant by accident, but then refuses to stop touching the claimant when asked? Their touching will be considered a ‘continuing act’ of touching, and intentional. It will therefore be a battery: Fagan v Metropolitan Police Commissioner [1969] QB 439.

Directness

Touching can be direct even if the defendant uses an object or another person, such as by pushing a third-party into the claimant: Hopper v Reeve (1817) 7 Taunt 698. It also does not matter that there is a short delay between the defendant’s act and the touching.

Where the defendant sets a trap for another, even a long delay is not fatal to a finding of directness: DPP v K [1990] 1 WLR 1067. The notion of ‘directness’ is therefore quite malleable and context-specific.

Assault

Defining Assault

Assault is any action which reasonably causes the claimant to apprehend an imminent battery.

Relevant ‘Actions’

The relevant action can be words, conduct or even silence in the right circumstances: R v Burstow [1998] AC 147. The courts assess the meaning a reasonable person would understand from the defendants words, conduct or silence to determine whether it constitutes assault.

If an action does not convey the meaning that the claimant may be subject to imminent battery, it will not be assault. For example, words can negate an assault. ‘If the judge was not in town, I would hit you’ is not an assault: Tuberville v Savage (1669) 1 Mod 3, 86 ER 684.

When is Apprehension ‘Reasonable’?

There is no reasonable apprehension of battery if a reasonable person would know the defendant cannot carry out the threat: Stephens v Myers (1830) C&P 349. If a reasonable person would not know this, the apprehension will be reasonable: Logdon v DPP [1976] Crim LR 121.

An example is where the defendant points a gun at the claimant, which is secretly not loaded. Since a reasonable person would apprehend battery, it is irrelevant that the defendant could not shoot.

The Meaning of ‘Imminent’

The requirement of ‘imminence’ will normally only be met if the claimant reasonably anticipates that the battery will occur immediately: Mbasogo v Logo Ltd [2007] QB 846.

It does not matter that the threat is conditional on the claimant taking or not taking some action. A conditional threat is a battery as long as the claimant must choose immediately or suffer immediate consequences. ‘If you do not leave right now, I will hit you’ is an assault, for example: Read v Coker (1853) 13 CB 850.

What if a reasonable person would not know how close the defendant was? For example, what if the claimant receives threatening telephone calls and thinks an attack could be imminent but isn’t certain? This can still be a battery. The apprehension of battery can still be imminent even if the defendant is actually miles away: R v Burstow [1998] AC 147.

Personal Torts Quiz

Test yourself on the principles of the torts against the person - assault, battery, false imprisonment and intentional infliction of harm.

1 / 21

When will the defendant be liable for the tort of false imprisonment as a primary defendant (not vicariously) where the detention was imposed by a third-party?

Where it was reasonably foreseeable that the third-party might act on the defendant's instructions

Where the third-party acted as their agent, not exercising independent discretion

Where the defendant subjectively foresaw that the third-party might act on the defendant's instructions

Where the third-party was acting in the course of their employment for the defendant

2 / 21

Does the claimant need to be aware they are being detained to establish the tort of false imprisonment?

Yes

Authority is conflicted

3 / 21

If the defendant touches the claimant accidentally but refuses to end the contact when asked, has the defendant committed the tort of battery?

4 / 21

The tort of false imprisonment is actionable per se. True or false?

True

False

5 / 21

When determining if the defence of self-defence or defence of others applies in tort, what facts may be taken into account to judge whether the force was necessary?

Any facts the defendant honestly believed

Any facts the defendant honestly and reasonably believed

Any facts the defendant honestly and correctly believed

The law is unclear

6 / 21

When is a child competent to give consent to an action which would otherwise constitute a personal interference tort?

If they understand the what the act is and its purpose and consequences and have been informed of all material risks

If they understand the what the act is and its purpose and consequences

If they understand the what the act is and its purpose and consequences and have sufficient exposure to other worldviews to appreciate moral and family issues involved

7 / 21

The defendant performed surgery on the claimant. They first informed the claimant about the nature and purpose of the surgery, but did not inform them of serious risks of injury involved. The claimant agreed to the surgery. The claimant then sues the defendant in the tort of battery, claiming that they did not give valid consent. Is the claimant correct?

8 / 21

Can a claimant give valid consent to an action which causes actual bodily harm or greater in tort?

Yes, but not if grievous bodily harm is inflicted

Yes

Yes, if the force was proportionate to what was expected

9 / 21

For the purposes of the tort of false imprisonment, in which of these scenarios is the claimant 'detained'?

Where the claimant is completely obstructed from leaving an area by any route for a long period of time

Where the claimant is obstructed from leaving an area by a reasonable route for a long period of time

Where the claimant is completely obstructed from leaving an area by any route for any period of time

Where the claimant is obstructed from leaving the area by a reasonable route for any period of time

10 / 21

What must the claimant show to establish the tort of assault?

That the defendant touched the claimant intentionally or recklessly and with hostility

That the defendant touched the claimant intentionally, directly and with hostility

That the defendant acted in a way which reasonably caused the claimant to apprehend an imminent battery

That the defendant acted in a way which caused the claimant to apprehend an imminent battery

11 / 21

The claimant has sued the defendant for false imprisonment. They claim that they initially consented to the detention, but later withdrew their consent. The defendant shows that it would be very costly and inconvenient to put this withdrawal of consent into effect. Is the defendant liable for false imprisonment?

12 / 21

The claimant moves through a toll booth operated by the defendant. They then decide they want to leave, but the defendant will not let them past unless they pay a small fee. Has the defendant committed the tort of false imprisonment?

Authority is conflicting

Yes

13 / 21

The police may normally rely on their powers of arrest and stops as a defence to a personal interference tort claim. When is this not the case?

With respect to the tort of assault

There are no circumstances in which these powers are not a defence

Where their actions are completely outside the lawful scope of the power

Where they have used their powers in an unlawful manner

14 / 21

In what three situations will the courts label touching as 'hostile' for the purposes of the tort of battery?

The touching was not acceptable conduct in ordinary daily life

The touching was done with anger or ill-will

The defendant did not acquire prior consent for the touching

The defendant exceeded a lawful basis for the touching

The touching was unexpected

The touching causes personal injury

15 / 21

To establish the tort of battery, what three elements must the claimant show?

That the defendant intended to touch them

That the defendant directly touched them

That the defendant intended to touch them or was objectively reckless as to the touching

That the touching was hostile

That the claimant suffered personal injury or property damage

That the touching was significant or substantial

16 / 21

Which of the following three scenarios cannot constitute an assault?

The defendant tells the claimant, in person, "If you were not old, I would thump you"

The defendant telephones the claimant, remaining silent throughout

The defendant telephones the claimant, breathing heavily and ominously down the line

The defendant threatens the claimant with a gun, in circumstances where a reasonable person would know it was not loaded

The defendant tells the claimant, in person, "if you do not get out of my way, I will kill you"

The defendant shouts at the claimant from across the street that he is coming to beat him up, but a passing car means that the claimant does not hear

17 / 21

For the purposes of the tort of battery, has the defendant 'directly' touched the claimant if they do so through an object or by setting a trap to later trigger and touch them?

18 / 21

What three elements must a claimant show to establish the tort of intentional infliction of emotional harm?

The defendant intended to cause severe or significant distress or was subjectively reckless as to that harm

The claimant suffered a recognised psychiatric illness or disorder

The defendant intended to cause severe or significant distress or was objectively reckless as to that harm

The claimant suffered emotional harm

The defendant intended to cause severe or significant distress

The defendant's actions were extreme, outrageous or unjustifiable

19 / 21

When is an adult competent to give consent to an action which would otherwise constitute a personal interference tort?

If they understand the what the act is and its purpose and consequences and have sufficient exposure to other worldviews to appreciate moral issues involved

If they understand the what the act is and its purpose and consequences

If they understand the what the act is and its purpose and consequences and have been informed of all material risks

20 / 21

What state of mind must the defendant possess before a claimant can establish the tort of false imprisonment?

Intention to detain

Intention to detain or that detention was objectively foreseeable

Intention to detain of subjective foresight of detention

21 / 21

A member of the public has the power to enact a citizen's arrest for any offence. True or false?

Your score is

Tort: Assault & Battery

Assault & Battery in Tort

Battery

Defining Battery

Hostility

Intention and Continuing Acts

Directness

Assault

Defining Assault

Relevant ‘Actions’

When is Apprehension ‘Reasonable’?

The Meaning of ‘Imminent’

Like this:

Assault & Battery in Tort

Battery

Defining Battery

Hostility

Intention and Continuing Acts

Directness

Assault

Defining Assault

Relevant ‘Actions’

When is Apprehension ‘Reasonable’?

The Meaning of ‘Imminent’

Share this:

Like this: