Assault & Battery in Tort
Battery is defined as any intentional, direct and hostile touching of the claimant, no matter how slight: Wilson v Pringle  QB 237.
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  1 WLR 1172;
- Touching which is not acceptable conduct in ordinary daily life: Collins v Wilcock  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  QB 237. Examples include:
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  QB 439.
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  1 WLR 1067. The notion of ‘directness’ is therefore quite malleable and context-specific.
Assault is any action which reasonably causes the claimant to apprehend an imminent battery.
The relevant action can be words, conduct or even silence in the right circumstances: R v Burstow  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  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  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  AC 147.