Tort: Assault & Battery

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.

Crowd, public concert, jostling

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

Friendly couple laughing

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: Stephens v Myers (1830) 4 C&P 349. 

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 immediatelyMbasogo 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.


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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

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

2 / 21

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

3 / 21

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

4 / 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?

5 / 21

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

6 / 21

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

7 / 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?

8 / 21

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

 

9 / 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?

 

10 / 21

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

11 / 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?

 

12 / 21

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

13 / 21

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

 

14 / 21

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

15 / 21

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

16 / 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?

 

17 / 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?

18 / 21

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

19 / 21

Which of the following three scenarios cannot constitute an assault?

20 / 21

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

21 / 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?

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