Wiffin v Kincard
Court of Common Pleas
Citations: (1807) 2 Bosanquet and Puller (NR) 471; 127 ER 713.
The defendant was a police constable attempting to disperse a crowd. The claimant was climbing on the railings of a house, and refused to leave when told. The defendant touched the claimant with his constable’s staff in order to get his attention. When the claimant continued to refuse to come down, the defendant took him by the collar and escorted him to the watch-house.
The claimant sued the defendant for battery, assault and false imprisonment. He succeeded before a jury. Among the matters on appeal, the defendant contested whether touching the claimant with his staff constituted battery.
- Did the defendant commit battery when he touched the claimant with his staff?
The Court held that touching the claimant, without hurting him, to get his attention, did not amount to a battery.
This Case is Authority For…
This case indicates that some kinds of non-consensual touching can be lawful, such as touching someone to get their attention.
The judges disagreed on whether taking the claimant by the collar was a battery, with one judge thinking that there could be no battery without a ‘beating’. This is no longer true under modern law – any touching, no matter how slight, can in principle constitute battery.