Tort Law Reading Week 1 Part 2

INTENTIONAL TORTS: SOME THOUGHTS ON
ASSAULT AND BATTERY

F . A. TRINDADE#
This article is about two torts, assault and battery, which together with false
imprisonment1 constitute the action of trespass to the person which has survived
to the present day. Assault and battery are not fashionable or popular torts in the
Downloaded from http://ojls.oxfordjournals.org/ at University of Bristol Library on September 13, 2013

sense that they are not much used to vindicate rights as is the modern tort of
negligence, even when they are capable of being so used. Indeed, it is fairly
unusual today to see reported cases of civil assault and battery. Why is this so ?
First of all, many of the cases of intentional2 assault and battery are also crimes
and recent developments3 in compensating victims of crimes, which have generally
made it easier to obtain compensation, are naturally relied upon by the victims of
such crimes rather than the civil actions for assault and battery—especially as
there is some evidence to suggest that many of those who commit these
intentional torts are impecunious and therefore not in a position to pay the
damages that may be awarded against them.4 Secondly, there is, or so it would
seem, a certain confusion, perhaps even ignorance, about the ingredients of the
intentional torts of assault and battery. Quite recently a Canadian judge expressed
the view that 'the distinction between assault and battery had been blurred, and
that when we now speak of an assault, it may include a battery'.5 The
requirements of directness, the nature of an 'intentional* act, the kind of contact
required for battery, the kind of threat required for assault, the sort of
apprehension sufficient for assault, the relevance of the knowledge of the plaintiff
and defendant of the assault and battery and the question of consent are all
matters which are not dealt with adequately or with sufficient clarity in the
textbooks. This may have contributed to what appears to be a certain reluctance
•Associate Professor of Law, Monash University, Melbourne, Australia.

1 The tort of false imprisonment though one of the three torts of trespass to the person is very
different from assault and battery both in the ingredients of the tort and in the interest which it
attempts to protect. It is being dealt with separately in another article.
2 It is assumed in this article that the action for trespass to the person is confined to direct
intentional acts even though this writer has argued elsewhere that trespass also lies for direct
negligent acts. See 'Some Curiosities of Negligent Trespass to the Person—A Comparative Study'
20 Int'I and Comp LQ 706-731 (1971).
3 The two recent developments in England and Wales are compensation orders under the Criminal
Justice Act 1972 and the Powers of Criminal Courts Act 1973 ss 35-38 (as amended by the
Criminal Law Act 1977 s 60) and the Criminal Injuries Compensation Scheme which applies to
Great Britain and which came into operation on 1 August 1964 and which has been revised on
21 May 1969 and again from 1 October 1979.
4 'Sentencing: Reform Options' ALRC Discussion Paper No. 10 June 1979 para 108. Also Royal
Commission on Civil Liability and Compensation for Personal Injury, Cmnd 7054, Vol I para 332.
5 Gambriell v CapaTelti(i<)-j$) 54 DLR (3d) 661, 664.
211
212 INTENTIONAL TORTS
in the profession to plead an action in intentional trespass to the person even

where it would be proper and appropriate to do so. An illustration of this is found
in the recent case of Williams v Humphrey.6 The plaintiff a forty-nine year old
surveyor and the defendant who was a boy just under sixteen years of age were
family friends. The plaintiff took the defendant together with his own family to a
swimming pool which both families frequented. After swimming for a while in the
pool the plaintiff and defendant both came out and the plaintiff was standing at
the edge of the pool when the defendant deliberately and without warning pushed
the plaintiff into the swimming pool as a joke. Unfortunately the plaintiffs left
foot hit the concrete edge of the pool as he fell in and the result was that he

sustained very serious injuries to his left ankle and foot and he was crippled.
The plaintiffs claim was laid in negligence though in his final address, almost as
an afterthought, plaintiffs counsel said that he was also relying upon a claim for
trespass to the person, i.e. intentional battery. Yet it is quite clear that there was a
direct intentional act by the defendant plainly sufficient to constitute a battery for
as Talbot J said 'there is no doubt in my mind that the defendant intended to push
[the plaintiff] in'7 and much more significantly 'the defendant said that he intended
to push [the plaintiff] in in order to make as big a splash in the water as possible'.8
Talbot J however allowed the claim to be pleaded both in negligence and
intentional trespass (battery) and found for the plaintiff on both counts. The claim
in negligence was the more difficult9 of the two and prolonged the argument and
no doubt increased the costs of the action.
Should the plaintiff have been allowed to bring an action in negligence for what
was clearly an intentional direct act ? In Williams v Holland10 Tindal CJ said:
' . . . a plaintiff is at liberty to bring an action on the case, notwithstanding the act
is immediate, so long as it is not a wilful act'.11 But that was before the Common
Law Procedure Act 1852 and the Supreme Court of Judicature Act 1873-75 (ist
Schedule Order XIX). More recently in Letang v Cooper11 in 1964, Lord
Denning MR in dealing with the application of force directly to another said:
' . . . if intentional it is the tort of assault and battery. If negligent and causing
damage, it is the tort of negligence'. But Glanville Williams and Hepple in
6 The Times 13 February 1975-1 am grateful to L. Bingham & Co, Solicitors, for providing me with
the transcript of the judgment delivered by Talbot J on 12 February 1975.
7 Transcript, 5.
8 Ibid.
9 The following problems were raised by the claim in negligence. Had the plaintiff taken such part
in the activities at the pool that it could be found that he willingly accepted such risks of personal
injury as were reasonably foreseeable? Was it negligent to push someone into a swimming pool in
the circumstances appertaining to the case? Was there a foreseeable risk of injury? What is the
standard of care to be applied to the defendant who was 15 years and 11 months old? As the
plaintiff fell into the pool he hit the side of the pool with his ankle—could the defendant have
foreseen the type of injury received ?
10 (i833)2LJCP(NS)i9o; ioBing 112; 131 ER 848.
11 10 Bing 117.
12 [1965] 1 QB 232,239.
F. A. TRINDADE 213
Foundations of the Law of Tortn specifically refer to this statement and say
' . . . this should not be taken to mean that an intentional tort cannot be pleaded as
negligence ...'. However they appear to have overlooked the statement by Lord
Denning MR in Gray v Barr in 1971—seven years after Letang v Cooper—where
he said:14 'Whenever two men have a fight and one is injured, the action is for
assault, not for negligence. If both are injured, there are cross-actions for assault.
The idea of negligence—and contributory negligence—is quite foreign to men
grappling in a struggle*. The position is therefore not as clear as Williams and
Hepple suggest and the courts may well take the view, if the question is
specifically raised, that for an intentional direct act trespass is the only action that

should be brought just as the Court of Appeal decided in Letang v Cooper that for
a negligent direct act the tort of negligence and not the tort of trespass is the only
remedy.
Sometimes of course intentional trespass is the only action that can be brought.
Unfortunately there is no decision from the British Commonwealth to illustrate
this proposition but the recent American case, Mink v University of Chicago,1' is
an excellent illustration. The plaintiffs while students at the University of Chicago
between 1950-52 were given a drug ('DES') in the University pre-natal clinic, as
part of a medical experiment conducted by the defendants, the University of
Chicago and Eli Lilly & Co. The plaintiffs were not told that they were part of an
experiment nor were they told that the pills administered to them were DES.
Some twenty years later in 1971 the relationship between DES and cancer was
established but the defendants made no efforts to notify the plaintiffs until 1975
when the University sent letters to the women in the experiment informing them
of the possible relationship between the use of DES in pregnant women and
abnormal conditions in the genital tracts of their offspring. The plaintiffs"6 suit
was based on three causes of action: battery, by conducting a medical experiment
on them without their knowledge or consent; products liability against the
manufacturer for the manufacture of DES as a defective and unreasonably
dangerous drug, and breach of duty against the University in failing to notify the
plaintiffs and their children of the experiment and of the precautions which the
children should take to minimize the risk of contracting cancer as soon as they
became aware of the relationship between DES and cancer in 1971.
The defendants moved to dismiss the plaintiffs' suit for failure to state a claim.
The court17 decided that the action for battery (intentional trespass) should
proceed but that the actions for products liability and breach of duty should be
dismissed 'since the plaintiffs have not alleged physical injury to themselves'.18
13 Butterworths, London 1976, 44 n 3.

14 [1971] 2 QB 554, 569. Emphasis added.
15 460 FSupp 713 (1978).
16 Three women suing on behalf of themselves and some one thousand other women.
17 US District Court, ND Illinois; E. D. Grady, District Judge.
18 460 F Supp 713, 713 (1978). Emphasis added. The question of whether there was a sufficiently
direct act to constitute battery is discussed infra p 218.
So actions for intentional trespass may succeed where other actions fail and it is
useful to know when one can and should be able to bring a civil action for battery
and assault. Naturally, there will be people who will continue to rely upon
compensation orders made by the criminal courts or the various criminal injuries
compensation schemes which have come into existence in Britain, Canada,
Australia and New Zealand. But most compensation orders are confined to cases
where there has been a criminal offence and a conviction for that offence, and they
also seem to be 'confined to simple, straightforward cases... where no great
amount is at stake'.19 In England and Wales in 1978-79 there were 992 such
orders made with a face value of isfy^^.20 By contrast, during the same period

the British Criminal Injuries Compensation Board made 16,357 awards to victims
of intentional torts to the person amounting to £i3,045,64i.21 It is premature
however to suggest that 'the law relating to intentional torts to the person has
already been superseded'22 for it is becoming increasingly dear that it is not
always possible to rely upon these schemes or to rely upon them with advantage
for several reasons.
First, a criminal injuries compensation board may come to the conclusion that
there is no crime of violence even though there is clearly a civil battery. An
example is provided in the Fifteenth Report of the British Criminal Injuries
Compensation Board published in November 1979. The applicant was in a crowd
of about fifty people walking through a subway on his way to work. A youth ran
through the subway in the opposite direction, bulldozed his way through the
crowd and struck him with his right shoulder on his right arm midway between
the elbow and shoulder. The applicant was knocked over and it was later
discovered that his injuries were quite severe. No award was made because 'the
applicant had not satisfied the Board on the balance of probabilities that he was a
victim of a crime of violence'.23 This would certainly be a civil battery and Smith
and Hogan24 seem to suggest that it is even a criminal battery but there was no
criminal injuries compensation because it was not felt to be 'a crime of violence'.
Secondly, the criminal injuries compensation scheme will not avail an applicant
where there is no crime even though there may be a civil battery, as in Mink v
University of Chicago, or where, perhaps, immigration officials order children to
be X-rayed for the purpose of establishing their ages.25 Thirdly, in every criminal
injuries compensation scheme there appears to be a provision which permits
19 R v Kneethaw [1974] 1 All ER 896 per Lord Widgery CJ.

20 Criminal Injuries Compensation Board, Fifteenth Report. HMSO Cmnd 7752, November 1979.
21 Ibid.
22 Veitch and Miere, 'Assault on the Law of Tort' 38 Mod L Rev 139,152(1975).
23 CICB Fifteenth Report, supra n 20, 13.
24 Criminal Law 4th ed (1978) 357 The shoulder charge delivered in a game of football would
clearly be a battery if it were inflicted on an unwilling passer-by'.
25 See report in the Guardian, 24 October 1979, and Immigrant Children: A Code for their
Protection (1979X published by the UK Association for the International Year of the Child. It is
arguable that forcibly to X-ray someone is a battery. See Irtoin v Arrendale 159 SE 2d 719
(1967)-
F. A. TRINDADE 215
compensation to be withheld or reduced if 'having regard to the conduct of the

applicant before, during or after the events giving rise to the claim or to his
character and way of life... it is inappropriate that a full award, or any award at
all, be granted'.26 And 'provocative words or behaviour (including immoral
conduct) may result in a reduced award being made or in the rejection of a
claim'.27 Awards in actions in tort for intentional battery and assault are not
subject to reduction (at least of compensatory damages) even where there has been
provocation,2* although in Murphy v Culhane19 Lord Denning suggests that in
actions for assault and battery the judge or the jury can take into account not only
circumstances which go to aggravate damages but also those which go to mitigate

them. Fourthly, unlike awards in the tort action, awards under the criminal
injuries compensation scheme have to take account of all social security benefits
received and receivable. As the Chairman of the British Board pointed out recently
'it must always be borne in mind that the value of the social security benefits
which have to be deducted is often very considerable. In actions for personal
injuries in the courts the amount deductible is limited to 50 per cent of the value of
benefits paid up to five years after the date of injury. The Scheme provides for
100 per cent of all benefits paid or payable for life to be taken into account'.30
Fifthly, it is submitted that a plaintiff in an action for intentional trespass to the
person will be able to recover much more than an award under the criminal
injuries compensation scheme in those cases where a technical assault or battery is
accompanied by insult, indignity; disgrace or humiliation,31 even though
compensation, at least in Great Britain, is assessed on the basis of common law
damages. Take the factual situation in R v George.3* The defendant on two
separate occasions attempted forcibly to remove a girl's shoe from her foot. He did
this because it gave him a kind of perverted sexual gratification. He was
prosecuted for attempted larceny of a shoe and indecent assault. Streatfield J
decided that the assault could not possibly amount to an indecent assault and so
the prosecution accepted the defendant's plea to common assault and agreed not
to proceed on the count charging attempted larceny. It is doubtful whether the girl
would receive much compensation, if any, from the criminal injuries compensation
26 The quotation is from the British Board's explanation of the Scheme in its Fifteenth Report,
Cmnd 7752, 45.
27 Cmnd 7752, 55 paras E and G. Atiyth, Accidents, Compensation and the Law 3rd ed (1980) 353
says that 'it is clear that the connection between the applicant's past conduct and his injuries
need only be a pretty tenuous one to debar compensation'. See also Mien, Responses to
Victimisation (1978) Chap 5.
28 See Fontin v Katapodis (1962) 108 CLR 177 and Lane v Holloway [1968] 1 QB 379. Atiyah,
Accidents, Compensation and the Law 2nd ed, 308-309 suggests that the plaintiff in the latter
case would probably have got no award from the Board, or at best a reduced award and that
explains why the plaintiff chose to sue the defendant at law rather than pursue the simpler course
of claiming from the Board.
29 [1976] 3 WLR 458, 460-461. See also Gray \Barr[ 1971] 2 QB 554,569.
30 Fifteenth Report, Cmnd 7752, 8 para 6.
31 See e.g. Fogg v McKnight [1968] NZLR 330.
32 [1956] CrimLR 52.
2l6 INTENTIONAL TORTS
board. However in an action for intentional battery33 the trespass would be

actionable per se and the court would take into account the indignity and
humiliation which the girl had to suffer in order to satisfy the perverted sexual
desires of the defendant. Sixthly, in many criminal injuries compensation schemes,
awards cannot be made beyond a certain maximum sum.34 It goes without saying
that no such limitations exist in relation to the tort action.
The purpose of the last few paragraphs has not been essentially to criticize
criminal injuries compensation schemes but rather to show that the intentional
torts of battery and assault still have a useful function to perform and that they
have been far from superseded by the coming into existence of the schemes. It is

to the essential ingredients of the intentional torts of battery and assault that we
now turn and a definition of each tort will be offered followed by comments on
some of the matters in the definitions.
BATTERY
A battery is a direct act of the defendant which has the effect of causing contact
with the body of the plaintiff without the latter's consent. At the present time
battery is usually brought only for intentional acts though actions for reckless or
even careless33 acts are not precluded.
It is felt that comment is necessary on at least five matters. First, what is meant
by a direct act? Secondly, what is meant by an intentional act? Thirdly, what sort
of contact is sufficient for the purposes of the tort of battery ? Fourthly, we will
comment on the question of the knowledge of the contact, both the knowledge of
the plaintiff and the knowledge of the defendant. Finally, we shall comment briefly
on the question of consent.
Direct act
The first ingredient of the tort of battery is that whatever has to be done to the
plaintiff by the defendant to make the activity actionable as a battery must be
done directly. It is an ingredient which is common to all three torts of trespass to
the person, assault, battery and false imprisonment but it is not sufficiently
emphasized in the textbooks. As Street writes, 'although this requirement is not
usually stated in the textbooks it seems clear t h a t . . . the act must be a "direct"
one'.36 However there is some confusion creeping in and a leading Canadian
textbook writer suggests that 'a battery can be committed by intentionally causing
physical harm, however indirectly it is brought about'.31 There appear to be two
reasons for the confusion. First, it can be traced to a statement by Lord Denning
33 It will be shown later, pp 226-227, th*1 thi* >• clearly a civil battery.
34 E.g. every Australian State has a maximum award of 810,000 or less. In addition, there are other
ceilings on compensation for pecuniary loss. See e.g. Fifteenth Report, Cmnd 7752, 47 para 14
concerning the scheme in Great Britain.
35 This article will not concern itself with direct careless acts—see n 2 supra.
36 Street, The Law of Torts 6th ed (1976) 20.
37 Linden, Canadian Tort Law (Toronto 1977) 38.
F. A. TRINDADE 217
MR in Letang v Cooper where he said 'instead of dividing actions for personal

injuries into trespass (direct damage) or case (consequential damage), we divide
the causes of action now according as the defendant did the injury intentionally or
unintentionally'.38 Secondly, the American Restatement (Second) of Torts in 1965
indicates that in America the element of 'directness' is no longer necessary for the
intentional torts of assault, battery or false imprisonment. Prosser says 'the shift
was a gradual one and the courts seem to have been quite unconscious of it'.39 The
American Restatement position, however, does not apply in England, Australia,
Canada or New Zealand where, it is submitted, a 'direct' act is still necessary in
trespass. But what is a 'direct' act ?

The example given by Fortescue CJ in Reynolds v Clarke*0 of tumbling over a
log left unlawfully on a highway (consequential) and being hit by a log being
thrown unlawfully onto the highway (direct) emphasized the element of immediate
contact with which 'direct' acts came to be associated. But it was not only hits by
something thrown at you which were regarded as 'direct'. An act which set in
motion an unbroken series of continuing consequences, the last of which
ultimately caused contact with the plaintiff was still regarded as sufficiently
'direct' for the purposes of trespass. So when the defendant rode his motorcycle
into B who collided with the plaintiff who was thrown to the ground, it was held
that the facts constituted a 'direct' act for an action in trespass.41 To throw over a
chair or carriage in which another person is sitting, is to commit 'a direct trespass
against the person of him who is sitting in that carriage or chair*.42 To set a mad
ox loose in a crowd makes the person who turns him loose answerable in trespass
(battery) for any contact that is made with any plaintiff.43 To set a dog upon a
plaintiff is a sufficiently 'direct' act to constitute a trespass against the defendant
who gives the dog the order. If D strikes a horse on which P is sitting and the
horse throws P off, there is a sufficiently 'direct' act by D to constitute a battery.44
Even if P jumps off the runaway horse, D will still be liable in battery.43 But the
flexibility of the doctrine of 'directness' in trespass is perhaps best illustrated by
Scott v Shepherd.*6 The defendant threw a lighted squib made of gunpowder onto
the stall of Y whereupon W instantly and to prevent injury to himself picked up
38 [1965] 1 QB 232, 239. However, it is not reasonable to suggest that Lord Denning MR was
discarding the traditional common law requirement of directness for in the very next sentence he
says, 'if one man intentionally applies force directly to another, the plaintiff has a cause of action
in assault and battery or, if you so please to describe it, in trespass to the person'.
39 The Law of Torts, 4th ed (1971)30.
40 (1725) 18^634,636.
41 Hillier v Leitch [1936] SASR 490.
42 Hopper v Reeve (1817) 7 Taunt 698, 700 per Gibbs CJ. To pull a chair out deliberately from
under the plaintiff while she is in the act of sitting down is definitely a battery. Garralt v Bailey
279 P 2d 1091, 1094 (1955).
43 An example given by Nares Jin Scott \ Shtpherd (1773)2 WBI892.
44 Dodwell v Burford (1670) 1 Mod Rep 24.
45 L*anwv Bray (1803)3 East 593.
46 (1773) 2 WB1 892.
2l8 INTENTIONAL TORTS
the lighted squib and threw it across the market-house upon the stall of R who
instantly to save his goods picked up the still lighted squib and threw it to another
part of the market-house where it struck the plaintiff and the combustible matters
bursting put out one of the plaintiffs eyes. The defendant was held liable in
trespass (battery) to the plaintiff and the injury to the plaintiff was held to be from
a 'direct* act of the defendant. It should be noticed that the acts of intervention by
W and R were not regarded as breaking the chain of directness for W and R were
not regarded as free agents but as acting under a compulsive necessity for their
own safety and preservation.47 What if a plaintiff is given pills, which he takes,
without knowing about their dangerous qualities? In Mink's case the judge said:

The act of administering the drug supplies the contact with the plaintiffs person . . . had
the drug been administered by means of a hypodermic needle, the element of physical
contact would clearly be sufficient. We believe that causing the patient to physically ingest
a pill is indistinguishable in principle.*8
But in America, as we have seen, there isn't the same necessity for a 'direct' act as
there is in England, Canada, New Zealand and Australia. In Hutchins v
Maugham,*9 the Chief Justice of Victoria thought that trespass would lie against a
defendant who threw poisoned meat to a dog which subsequently ate it. He
thought the injury to the dog could properly be regarded as 'directly' occasioned
by the act of the defendant.
The requirement of a 'direct' act certainly causes many problems30 and it would
simplify many actions of trespass to the person if we could somehow get rid of
that traditional requirement of the common law.31 In Chic Fashions (West Wales)
Ltd v Jones*1 Salmon L) (as he then was) said 'the common law is not static . . . it
is a growing organism which continually adapts itself to meet the changing needs
47 Ibid, 900 per De Grey CJ.

48 460 FSupp 713, 718(1978).
49 [1947] VLR 131 'Had the baits been thrown by the defendant to the complainant's dog, then no
doubt the injury could properly have been regarded as directly occasioned by the act of the
defendant, so that trespass would lie'. Per Herring CJ, 134.
50 E.g. (1) An old woman of 83 is about to get off a bui at a bus-stop when the defendant, another
passenger on the platform behind the woman, intentionally presses the bell so that the bus starts
to move causing her to fall onto the road. Is there a 'direct' act for battery? (2) Defendant adds
methyl alcohol to home-made beer. A young woman suffers severe brain damage as a result of
drinking, at a party, the home-made beer laced with methyl alcohol. Is there a 'direct' act for
battery? The examples are from the English Criminal Injuries Compensation Board's n t h and
9th Reports.
51 The English Law Reform Committee on Conversion and Detinue has expressed the view that:
The requirement under the existing law of trespass that the interference must be direct could,
we think, with advantage be abolished. Such distinctions as that between giving poisoned meat
to a dog (trespass) and leaving poisoned meat for a dog (case) do not seem to us to have any place
in a rational system of law and, in our view, if an intentional act causes injury to a chattel it
ought not to matter whether the result is brought about by direct or indirect means'. Of course
we could say the same thing in relation to trespass to the person.
52 [1968] 2 QB 299, 319.
F. A. TRINDADE 219
of time'. Perhaps the time has come to abolish the requirement of a 'direct' act in
actions for intentional trespass to the person.
The requirement of directness does however serve one particular purpose and
that is that it sometimes removes the necessity to invoke the doctrine of
'transferred intent'33 which has been developed in America. In Scott v Shepherd,
which was discussed earlier,54 it was not necessary for the court to transfer the
intent to injure Y (the first stall-holder) to the plaintiff because the court was
simply able to say that there was a 'direct' act from the defendant to the plaintiff.
If the requirement of a 'direct' act and the learning associated with it were to go, it

might be necessary in some cases to import the doctrine of 'transferred intent'.
Intentional act
At the present time, for a battery, the act must not only be 'direct', it must also be
an 'intentional' act. But before we consider the various acts which are considered
by the courts as 'intentional', we should point out that the courts will only go on to
consider whether there has been an 'intentional' act if there is a 'voluntary' act on
the part of the defendant. Voluntary here means that the defendant must
consciously bring about the bodily movement for which he is being held liable.
Though an impaired or clouded consciousness will, it seems, suffice, acts done in a
state of automatism are regarded as 'involuntary'." So, if a sleepwalker stepped on
your face while you were lying on the floor he would not be liable in battery as
there would not be a voluntary act.56 Similarly, if you are asleep on the back seat
of a car and in your sleep you push the front seat forward, so that the driver is
thrown into the steering wheel or runs into P because he loses control of the car,
neither will be successful in an action in battery against you.57 It goes without
saying that if A takes B's hand forcibly and strikes C with it, B is not liable
because B has done no voluntary act.58 But assuming you have a voluntary act,
when is the act for the purposes of the tort battery said to be intentionalf
If the act is deliberate or wilful, if the defendant 'meant to do it',59 it will be
regarded as intentional, as when D punches P in the face with his fist because P
has insulted him or D takes a gun, points it at P, fires and hits him. But cases are
not always as simple as that. For example, D throws a stone at P meaning to hit
him in the eye but either because D's aim is bad or because P moves at the vital
moment P is struck on the ear and not the eye. There is little doubt that despite
what D meant to do, D will be regarded as having committed an intentional
battery against P. Again, if D under the mistaken impression that P has a wooden
53 The doctrine of 'transferred intent' is discussed infra pp 223-124.

54 Supra p 217.
55 See Roberts v Ramsbottom [1980] 1 All ER 7 where in a negligence case Neill J suggests that
automatism means a total loss of consciousness.
56 See Morris v Marwfen [1952] 1 All ER 925, 927.
57 See Stokes v Carlson 240 SW 2d 132 (1951).
58 Weavers Ward(1616)Hob 135.
59 Per Fox J in McNamara v Duncan (1979) 26 ALR 584, 587.
left leg strikes him deliberately on that leg there will be a battery if P has no
wooden leg.60 In America, D was held liable in trespass for shooting P's dog
believing it to be a wolf." So a defendant will be liable in battery if he runs over
the plaintiff under the mistaken impression that he was 'a bundle of rags, a dead
dog or a dead kangaroo'62 or a large piece of brown paper;63 or if he fires at and
hits a moving object in long grass thinking it is a rabbit he had just lost sight of
and it turns out to be a couple engaged in sexual intercourse in the long grass.64
Take another situation: if D intends to shoot O but instead shoots P who is
wearing O's distinctive suit at the time, there is little doubt that there will be an
intentional battery and D's mistake65 will not prevent him from being held liable

for the contact which he intended. In battery what is required is intentional
contact not an intention to do harm—and it is not correct to say that trespass can
be brought 'only for the direct physical infliction of harm'.66 As Talbot J said in
Williams v Humphrey:61 'it was argued that for the act to be a battery, there must
be an intent to injure. I do not accept this contention. The intention goes to the
commission of the act of force. This seems to be the principle in the many cases of
trespass to the person'.
What if a defendant can foresee a risk of contact but does not necessarily desire
contact with anyone? Can an intentional act still be imputed to him if contact
takes place? Quite recently a boy of thirteen pushed a television set from the tenth
floor of a tower block of flats and killed an eight year old girl who was struck by
the set seventy feet below. The girl had run out from beneath the flats as the set
was falling. As reported,68 the boy said in his statement 'I know what I did was
bad and someone might be hurt or killed, but I didn't mean to hurt anyone' and 'I
wouldn't have pushed it over if there was somebody there, honestly'. The judge
60 Perhaps even if be has. See infra pp 226-227.
61 Ranton v Kiiner 31 111 App 241 (1888).
62 Lam v Viuer (1961) QSR 46—a case brought in negligence. The defendant Visser cannot escape
liability on the ground that he did not know the nature of the large object he made no attempt to
avoid' per Mack J, 58.
63 Public Transport Comm v Perry (1976-77) 14 ALR 273 (a case in occupier's liability and
negligence).
64 The case is Hammerton v Daritnxa (unreported). It is a decision of Mr Justice Bristow.
Regretfully I am obliged to rely upon a report in the Melbourne Herald of July 1978 in relation to
this English decision.
65 The only occasion on which mistake may be relevant is in cases of mistaken self-defence. Thus if
D erroneously but reasonably believing that P is about to attack him uses force to defend himself
there will be no liability provided that P uses no more force than he believed on reasonable
grounds to be necessary.
66 See Williams and Hepple, op cit, 36: T h e plaintiff could not have brought an action for trespass,
which lay only for the direct physical infliction of harm' (emphasis added).
67 Supra n 6, 20.
68 The Guardian, 31 October and 1 November 1979. See also R v Franklin (1883) 15 Cox CC 163
where the defendant took up a good sized box from a refreshment stall on Brighton pier and
wantonly threw it into the sea. Unfortunately the box struck the deceased, who was at that
moment swimming underneath the pier, and so caused his death. The jury returned a verdict of
guilty of manslaughter.
F. A. TRINDADE 221
directed the jury to return a verdict of not guilty of manslaughter. Would the girl
have succeeded in a civil action in battery if she had survived the impact? Could it
be said that the direct act was intentional? Unfortunately there are no
authoritative decisions to guide us, but in America cases such as this one would be
decided by what might be called for convenience the doctrine of substantial
certainty. Prosser describes it in the following way:69
The man who fires a bullet into a dense crowd may fervently pray that he will hit no
one, but since he must believe and know that he cannot avoid doing 80, he intends it.
The practical application of the principle has meant that where areasonableman in the

defendant's position would believe that a particular result was substantially certain to
follow, he will be dealt with by the jury, or even by the courts, as though he had intended
it.
The doctrine has been applied in Garratt v Dailey.10 A boy who moved a chair in
which the plaintiff, a heavy arthritic person, had formerly been sitting was held
liable in intentional battery when the plaintiff returned a few minutes later and in
attempting to sit down at the place where the chair formerly had been, fell to the
ground sustaining serious injuries. In coming to this conclusion the court said:71
A battery would be established if, in addition to plaintiffs fall, it was proved that, when
[defendant] moved the chair, he knew with substantial certainty that the plaintiff would
attempt to sit down where the chair had been The mere absence of any intent to injure
the plaintiff or to play a prank on her or to embarrass her, or to commit an assault and
battery on her would not absolve him from liability if in fact he had such knowledge.
There is some support for the doctrine in England. Glanville Williams says, 'there
is one situation where a consequence is deemed to be intended though it is not
desired. This is where it is foreseen as substantially certain';72 and Street writes 'if
in the circumstances [a defendant] had knowledge that his conduct was
substantially certain to result in that act (not merely that he might have foreseen
the result) his act would still be deemed to be intentional'.73 It seems therefore
that actions in intentional battery will succeed if plaintiffs can persuade the court
that contact with their person was substantially certain to follow from the acts of
the defendant. In the law of torts that test must surely be objective. So the test
would be not whether the defendants recognized that their acts were substantially
certain to result in contact but whether all sober and reasonable people would
69
70 279 P 2d 1091 (Supreme Court of Washington) (1955).
71 Ibid, 1094.
72 Criminal Law: The General Part 2nd ed O961) 38. He goes on: 'It may be objected that
certainty is a matter of degree. In a philosophical view, nothing is certain; so-called certainty is
merely high probability... . We do in fact speak of certainty in ordinary life; and for the purpose
of the present rule it means such a high degree of probability that common sense would
pronounce it certain. Mere philosophical doubt, or the intervention of an extraordinary chance, is
to be ignored' (pp 38—40).
73 Op cit, supra n 36, 16.
recognize those acts to be substantially certain to result in contact. Using that test,
a defendant, who on being refused service, fires through the window of a
restaurant wounding a customer in the face, would be liable in intentional battery
even though he does not know that the customer is there.74 Similarly a defendant
who, while standing on a parapet of a bridge crossing a railway line, pushes a
piece of paving stone over the parapet onto the front part of an approaching train,
would be liable in intentional battery if the stone crashes through the glass
window of the train driver's cab and strikes the guard.75 In both cases, the contact
which in fact occurs is substantially certain to occur and the acts in both cases

would therefore be regarded as intentional, even though the defendants may not
have known of the existence of the plaintiffs until after the contact had occurred.
Using the same test, if Miss Stone had brought an action in intentional battery
against the batsman76 who hit the ball she would not have succeeded because
although there was 'a conceivable possibility that someone would be hit'77 it was a
bare possibility and not a substantial certainty.
What about reckless acts? Could they be regarded as 'intentional' acts for the
purpose of the tort of battery? Fleming78 says that battery is reserved for
intentional wrongs but the recent decision in R v Venna,19 though a criminal case,
shows that the dividing line between intention and recklessness is sometimes
barely distinguishable. The defendant while resisting arrest, and after he knew he
was being arrested, continued to kick, to 'lash out', wildly with his legs and in
doing so kicked the hand of a police officer who came to the aid of two colleagues
to assist in picking up the defendant from the ground. The kick caused a fracture
of a bone and was the subject of a charge of assault occasioning actual bodily
harm. The Court of Appeal upheld a conviction for assault on the basis that a
reckless application of unlawful physical force was sufficient to constitute criminal
assault and added:
In so far as the editors of text-books commit themselves to an opinion on this branch of
the law they are favourable to the view that recklessness is or thould logically be sufficient
to support the charge of assault or battery . . . in our view the element of mens rea in the
offence of battery is satisfied by proof that the defendant intentionally or recklessly applied
force to the person of another... we see no reason in logic or in law why a person who
recklessly applies physical force to the person of another should be outside the criminal law
of assault80
74 Rv Holder [1967] Crtm LR 66.

75 DPPvNewbury[igyb]2 All ER 365.
76 The question is posed in Weir,i4 Casebook on Tort 4th ed (1979) 266.
77 Bolton v Stone [1951] AC 850,858 per Lord Porter.
78 Law of Torts, 5th ed (1977) 24, n 26.
79 ['976] 1 QB 421. 'In many cases the dividing line between intention and recklessness is barely
distinguishable'. Per James LJ, 429. See also R v Catdtoell[lgSi] 1 All ER 961. '"Intention" and
"recklessness" are more than birds of a feather, they are blood-brothers; so much so that Austin
included "recklessness" within the term "intention".' (See Jurisprudence 4th ed Vol i, 436, 441,
442) Per Lord Edmund-Davies, 970.
80 Ibid, 428-429.
F. A. TRINDADE 223
If there is no reason in logic or in law why a person who recklessly applies force
to the person of another should be outside the criminal law of assault and battery
there is surely no reason in logic or in law why a person who recklessly applies
force to the person of another should be outside the civil law of battery (or
assault). There is a good case for regarding reckless acts of a defendant, which
have the effect of causing contact with the body of the plaintiff without his
consent, as constituting the intentional tort of battery and it may be a better way
of dealing with some defendants than using the doctrine of substantial certainty.
There is even some authority for suggesting that the courts are prepared to treat
reckless acts as intentional acts. In Beats v Hayward, McGregor J said:11 'Now

deliberately firing a gun in the direction of another person is presumably done
intentionally or recklessly, not caring whether the person was hurt or not, and if
an act of this nature is done recklessly, that would itself amount to sufficient
intention to commit an assault'. A reckless act therefore which is sufficient to
amount to an intentional act, for the purposes of the tort of battery, is any act
where the defendant knowing that bodily contact with the plaintiff might ensue
from his act has yet gone on to take the risk of it, not caring whether the contact
took place or not It is further submitted that 'deliberately closing his mind to the
obvious' will not allow a defendant to escape the obvious consequences of bis
action for as the Court of Appeal said in R v Parker?2'... that type of action, that
type of deliberate closing of that mind, is the equivalent of knowledge and a man
cannot escape the consequences of his action . . . by saying, "I never directed my
mind to the obvious consequences".. .'.83
The great value of treating reckless acts as intentional acts is seen particularly
when one deals with those types of cases which in criminal law are called cases of
transferred malice84 and in tort (at least in America) are called cases of transferred
81 [ig6o]NZLR 131.
82 (1976) 63 Crim App R 211, 214.
83 Both these uses of the wOTd 'reckless' (i.e. deciding to ignore a risk of bodily contact or closing
one's mind to the obvious consequences of one's acts) have recently been approved by Lord
Diplock in the House of Lords decision in R v CaUhcell[igSi] 1 All ER 961, 966, where he said
that 'reckless' was an ordinary English word and that the meaning it bore in ordinary speech,
' . . . surely includes not only deciding to ignore a risk of harmful consequences resulting from
one's acts that one has recognised as existing, but also failing to give any thought to whether or
not there is any such risk in circumstances where, if any thought were given to the matter, it
would be obvious that there w a s . . . ' . In the later case of R v Lawrence [1981] 1 All ER 974, 982
Lord Dipkxk suggests that the consequences must be both obvious and serious: 'Recklessness on
the part of the doer of an act does presuppose that there is something in the circumstances that
would have drawn the attention of an ordinary prudent individual to the possibility that his act
was capable of causing the kind of serious harmful consequences that the section which creates
the offence was intended to prevent, and that the risk of those harmful consequences occurring
was not so slight that an ordinary prudent individual would feel justified in treating them as
negligible. It is only when this is so that the doer of the act is acting "recklessly" if, before doing
the act he either fails to give any thought to the possibility of there being any such risk or having
recognised that there was such risk, he nevertheless goes on to do it'.
84 See Ashworth, Transferred Malice and Punishment for Unforeseen Consequences' in Reshaping
the Criminal Law ed P. R. Glazebrook (1978) 77—94.
intent Thus when the defendant chased an adversary into a supermarket, picked
up a bottle from a shelf and, in attempting to strike the adversary over the head
with the bottle in the supermarket, missed and instead hit the plaintiff, an
ordinary shopper, a painful blow to the elbow, the defendant was held liable in a
civil action of intentional battery and the court said that the defendant was liable
to the plaintiff 'to the same extent as if he had been the intended victim'.83 The
intent was 'transferred', the court approving the statement in the 1932 decision in
Carnes v Thompson:
If one person intentionally strikes at, throws at, or shoots at another, and unintentionally

strikes a third person, he is not excused, on the ground that it was a mere accident, but it
is an assault and battery of the third person. Defendant's intention, in such a case, is to
strike an unlawful blow, to injure some person by his act, and it is hot essential that the
injury be to the one intended."
Apart from Scott v Shepherd which has been described as 'the first case of
transferred intent in tort'87 there are only two other cases in English law88 where it
could be said that the doctrine has been applied, though in neither case was there
any indication that it was being consciously applied. In James v CampbelP9 the
defendant who was fighting with a third party, swung his hand and
unintentionally hit the plaintiff. The defendant was held liable in battery.90 And in
Ball et Uxor v Axten91 the defendant was attempting to strike at the plaintiffs
dog with the handle of his riding whip when one of the blows fell upon the
plaintiffs wife who had come up to the spot and was trying to shield her dog from
the blows. The report indicates that Cockbura CJ told the jury that 'even though
the defendant had not aimed the blow at the woman, there was no doubt an
assault'.92 All of these cases, it is suggested, could be much more easily decided on
the basis of a reckless, therefore intentional, act of the defendant rather than by
relying upon the fiction of 'transferred' intent. The doctrine of transferred intent
would then become unnecessary.
Finally, there is another shade of meaning that the word intentional conveys. It
appears that infants can intend an act for the purposes of the tort of intentional
battery even though they may not have the mental capacity for negligent conduct.
In the American case of Ellis v D'Angelo93 a four year old boy violently impelled
85 Fordyce v Montgomery 424 SW 2d 746, 751 (1968).

86 48 SW 2d 903, 904 (1932).
87 Prosser, Transferred Intent' 45 Texas L Rev 650, 654 (1967).
88 There do not appear to be any cases of transferred intent in tort in Australia, Canada and New
Zealand. However, in Bunyan \ Jordan (1936-1937) 57 CLR 1, 12, Latham CJ suggests that the
doctrine of transferred intent is part of the law of Australia: 'If A, intending to hit B unlawfully,
in fact hits C, there is no doubt as to A's liability to C.
89 (1832) s C & P 372.
90 Though that might have been a case of negligent battery.
91 (1866)4 F & F I 0 I 9 -
92 No doubt a battery, as the woman was struck. Note however that Weir, op cit, supra n 76, 286
places the case under assault and not battery. Why?
93 253 P 2d 675 (1953).
F. A. TRINDADE 225
the adult baby sitter onto the floor causing her to break bones in both arms and
wrists. The court held that the boy was capable of intending, and had intended,
the battery even though he lacked the mental capacity to recognize the
wrongfulness of his conduct A writer who has examined this question in some
detail has come to the conclusion that in the intentional tort of battery 'the defence
of incapacity to have the requisite intention is confined to very young children . . .
[and] that somewhere about the age of four a child is capable of the intention
necessary to commit this tort.94

Contact with the body of the plaintiff
One of the ingredients of the tort of intentional battery is said to be contact with
the body of the plaintiff by the defendant. Originally, of course, this contact would
have been 'hand to hand' e.g. by the defendant striking the plaintiff or hitting him
with a stick. But in 1838 Lord Denman pointed out that 'a battery does not
necessarily mean something done commut"9' and in the well known case of Leame
v Bray,96 where the defendant ran against the plaintiffs curricle causing the
horses to run away with the curricle so that the plaintiff to preserve his life
jumped out of the curricle and fractured his collar-bone, it was held that there was
sufficient contact with the body of the plaintiff by the defendant to maintain an
action in battery. But is any contact, however slight, enough to constitute a
battery? Everyone is familiar with the dictum of Holt CJ in Cole v Turner91 that
'the least touching of another in anger is a battery" but one might well ask whether
the qualification implied by the words 'in anger* truly represents the legal position
today. Street says that kissing a sleeping lady in the presence of her friends would
be a battery98 and the editor of Salmond reinforces this opinion.99 Quite recently
in America, a 'friendly unsolicited hug' was held to be a battery.100 Some contacts
however do not attract any liability. One must put up with the everyday
unintentional and even intentional jostling which is part of our ordinary life. As
Holt CJ said in Cole v Turner 'if two or more meet in a narrow passage, and
without any violence or design of harm, the one touches the other gently, it will be
no battery101 but 'if any of them use violence against the other to force his way in
a rude inordinate manner, it will be a battery*.102 Again, in some sports forcible
body contact is often part of the rules of the game and such contacts will not lead
94 Alexander, Tort Liability of Children and their Parents' in Studies in Canadian Family Laic
(1972) Vol 2, 845, 854.
95 I.e. hand to hand, in Purtell v Horn (1838) 8 Ad & E 602, 604.
96 (1803) 3 East 593.
97 (1704) 6 Mod Rep 149.
98 Opcit, 20 n 12.
99 Salmond on the Law of Torts 17th ed by R. F. V. Heuston (1977) 120: 'Nor is anger or hostility
essential to liability: an unwanted kiss may be a battery'.
100 Spivey v Battaglia 258 So ad 815 (1972).
101 (1704) 6 Mod Rep 149.
102 Ibid.
to liability in battery if they find justification in the rules and usages of the game.
Contacts which are prohibited, or acts not within the rules and usages of the
game, will be regarded as unpermitted contacts. The defendant footballer in
McNamara v DuTican103 who deliberately 'felled' the plaintiff footballer during a
game but after the plaintiff had parted with possession of the ball was held liable
to the plaintiff in an action of intentional battery. The question of unpermitted
contacts also arises in relation to surgical and dental treatment. A patient might
consent to a certain operation but not to another104 or to the removal of a certain
tooth but not another. Perhaps this last matter is best dealt with later in relation

to the question of consent.
For a battery the contact must be active and not passive. As Denman CJ said in
Innes v WyIie,iOi if a defendant is 'entirely passive like a door or wall put to
prevent the plaintiff from entering the room' and simply obstructs the entrance of
the plaintiff then no battery has been committed on the plaintiff by the defendant.
This active contact however can take many forms. Not only is spitting106 on the
plaintiff, pulling away the chair he is about to sit on so that he falls to the
ground,107 forcibly taking a blood test108 and firing a gun so close to his face as to
burn him,109 a battery but it is also suggested that the transmission of any force to
the body of the plaintiff will constitute a battery. Thus forcibly to X-ray a person
would be battery and it has been so held in America.110 To snatch a book from a
person111 or to grab a plate from his hand" 2 would also constitute a battery and
the argument for regarding it as a battery is that 'the intentional snatching of an
object from one's hand is as clearly an offensive invasion of his person as would be
an actual contact with his body'.113 So, in addition to actual bodily contact with
103 (1979)16 ALR 584.

104 In Schtceiser v Central Hospital (1975) 53 DLR (3d) 494 the plaintiff went into hospital for an
operation on his toe and a spinal operation was performed instead. The consent to the toe
operation did not mean he consented to the spinal fusion. In Chatterton v Gerton [1981] 1 All
ER 257, 265, Bristow J mentions a case of a boy admitted to hospital for tonsilectomy who, due
to administrative error was circumcised instead. Bristow J thought trespass would be the
appropriate cause of action against the doctor.
105 (1844) 1 C&K257.
106 R v Cotetworth (1704) 6 Mod Rep 172; Alcorn v Mitchell 63 111553(1872).
107 Garratt v Bailey 279 P 2d 1091 (1955). Where American cases such as this one is used, it is
submitted that they are persuasive and that there are no doctrinal differences which would
preclude their use as persuasive authorities in Australia, Canada, England or New Zealand.
108 See e.g. S v McC; W v W [1972] AC 24 (at least in relation to an adult); Rossell v City and
County of Honolulu 579 P 2d 663 (1978) and Bednarik v Bednarik 16 A id 80,90 (1940).
109 Rv/7ami7ton(i89i)i2LR(NSW)m per Windeycr J, 114.
n o See Irvoin v Arrendale 159 SE 2d 719 (1967). An injury to sensitive eyes caused by floodlights
used by a television crew can also be a battery. See Stafford v Hayes 327 So 2d 717 (1976).
111 See S. H. Kress v Brashier 50 SW id 921 (1931).
111 See Fisher v Carousel Motor Hotel Inc 414 SW id 617 (1967). The defendant's employee
grabbed the plate from the plaintiffs hand while the plaintiff was standing in a luncheon queue
because the plaintiff was black.
113 Ibid, 629.
F. A. TRINDADE 227
the plaintiff, it is suggested that either contact with the clothing114 of the plaintiff
or with an object closely identified"5 with the body of the plaintiff will suffice to
constitute contact for the purposes of the tort of battery.
If the contact is reasonably necessary for a purpose recognized by the courts
then there will be no battery. In Donelly v Jackman116 the defendant struck a
police officer when he touched the defendant on the shoulder intending to stop
him for questioning. It was held that the defendant had committed an assault
(battery) on the police officer while in the execution of his duty but that there was
no battery by the police officer. Similarly, where a minor plaintiff persistently told
the defendant doctor that 'his role in society could best be described by the sound

of a duck' and the defendant intentionally and gently touched the plaintiff to call
attention to his dislike of the plaintiffs repeated suggestions, a finding by the jury
that there was not that kind of intentional touching which would amount to a
battery was held to be perfectly good.117 Equally to hold down a motorist who is
about to attack another motorist after an accident or to hold back a person from
running into his burning house would, it is submitted, be regarded by the courts
as contacts which are reasonably necessary to the common intercourse of life. This
further category of permissible contacts however should be narrowly confined to
those intentional and forcible contacts which are reasonably necessary to assist
public officials in the execution of their duties118 and to those contacts which are
necessary to prevent a breach of the peace from occurring.
Knowledge of the contact

Knowledge of the contact either by the defendant or the plaintiff (at least at the
time of contact) is not a necessary requirement for the tort of battery. Usually, of
course, both the plaintiff and the defendant will have knowledge of the contact but
there will be circumstances when this will not be so.
There will be liability for a battery even though at the time of contact the
plaintiff is unaware of the contact. The lady who is kissed while she is asleep, the
man who is punched while he is in a drunken stupor and the person who while
under an anaesthetic has a different operation performed than that consented to
will all be able to bring successful actions in battery. The plaintiff need not know
of the contact at the time of the contact but he will need to show evidence of
contact, e.g. a broken jaw, or provide evidence of those who have seen the contact
take place.
The defendant will usually have knowledge of the contact for which he is being
held responsible but there may be circumstances where the defendant has no
114 E.g. defendant putting his hand in the pocket of plaintiff woman's dress. See Piggly-Wiggly
Alabama Co v Ricklei 103 So 860 (1925). Or on clothing covering the private parts of the
plaintiff, Skonten v Nitty 367 P id 248 (1961).
115 See the examples in nn m and 112. Also see Siegel v Long 53 So 753 (1910).
116 [1970] 1 WLR562.
117 Morgan v Pittone 475 P 2d 839 (1970). See also Wiffin vKmcard( 1807) 2 B & P(NR) 471.
118 Rote vKempthorru (1910) 103 LT 730.
knowledge that a contact with the plaintiff has taken place. For example, a
defendant may run over the plaintiff under the mistaken impression that he is 'a
bundle of rags, a dead dog or a dead kangaroo'.119 Or a defendant might throw a
stone to frighten X and the plaintiff, of whose presence the defendant is unaware,
might be struck by the stone.120 Or the defendant might recklessly throw a
television set from the top of a block of flats and it might injure the plaintiff
walking below.121 In all these cases even though the defendant is unaware of the
identity or even the presence of the plaintiff he will be liable in battery.122 His lack
of knowledge of the plaintiff will not affect his liability.

Consent
There is little doubt, that if there is consent to the acts of the defendant then an
action of trespass to the person whether battery, assault or false imprisonment will
not succeed. An important question, however, on which there is some doubt is
whether it is for the plaintiff to prove absence of consent or whether it is for the
defendant to exculpate himself by alleging and proving consent to the act in
question.
Several writers take the view that the onus of proving absence of consent is
upon the plaintiff. The authors of one of the recent Australian casebooks123 on the
law of torts are of the view that 'lack of consent is the very gist of trespass, and the
plaintiff bears the onus of proving that the defendant's direct contact with his
person . . . occurred without his consent'. Fleming124 takes the same view: 'strictly
speaking, consent is not a privilege at all, because lack of it is the very gist of
assault, battery [and] false imprisonment...'. And Street123 has consistently
maintained that 'on principle it would seem that the absence of consent is so
inherent in the notion of a tortious invasion of interests in the person that the
absence of consent must be established by the plaintiff.
There is no authoritative decision of the courts in England, Australia or New
Zealand on the question but the Canadian courts have on two recent occasions, in
Schweizer v Central Hospital126 and in Kelly v Hazlett,111 held that the onus of
establishing a sufficient and effective consent in actions for trespass to the person
rests upon the defendant and that he can discharge that onus by proving facts that
indicate a valid consent. These decisions have been subjected to some academic
119 Sec Late v Vitter (i96i)QSR 46 and the other examples tupra pp 219—220.
120 See Alteiri v Colasso 362 A id 798 (1975). Also White v Sander 47 NE 90 (1897). Where
applying the doctrine of recklessness, it is submitted, there would be success.
121 See n 68 tupra.
122 See pp 219-222.
123 Lunti, Hambly & Hayes, Torts: Cases and Commentary (1980) 592.
124 Opcit,77.
125 Street's position has not changed from his first edition in 1955 (pp 16-17) t 0 h ' 9 «i*tli edition in
1976 (p 19).
126 (1974) 6 OR (2d) 606, S3 DLR (3d) 494 (Ont HQ.
127 (1976) 75 DLR (3d) 536 (Ont HC).
F. A. TRINDADE 229
criticism128 but it is suggested here that they should be followed in England,

Australia and New Zealand for the following reasons.
First, if an intentional trespass (e.g. battery) was pleaded in negligence—if it
was possible to do so129—the defendant would have to allege and prove the
defence of consent or volenti non fit injuria, as it is commonly called. In view of
this, there is no reason why the onus of proving no consent in an action of trespass
should be on the plaintiff. The whole thrust of the intentional torts to the person is
to make it easier130 for a plaintiff to succeed when the plaintiff can show a direct
invasion of his person by the defendant. To put the onus of proving absence of

consent to the trespass on the plaintiff would run counter to that thrust. Secondly,
such meagre authority as there is suggests that consent is a defence and like all
defences in the law of tort must be raised and substantiated by the defendant.
Fox J in McNamara v Duncan131 referred to consent as 'the defence of consent'
and so did Bristow J in the recent decision in Chatterton v Gerson.131 Thirdly, in
jurisdictions like Australia and Canada the courts have repeatedly held in recent
years that in an action for trespass to the person once the plaintiff proves a direct
act on the part of the defendant the burden of proving absence of intention or
negligence shifts to the defendant. The plaintiff has done enough by proving a
direct act, it is for the defendant to exculpate himself. In view of this, to require
the plaintiff to prove absence of consent is much too onerous a requirement,
particularly as it involves proving a negative. It is therefore submitted that the
Australian courts would be unlikely to require the plaintiff to prove absence of
consent in an action for trespass to the person. At the very most, Australian courts
might insist that there be an allegation (not proof) of no consent in the pleadings
but even that is doubtful. There is- no good reason why the position in England
and New Zealand should be different, and nothing in Diplock J's judgment in
Fowler v Lanning133 prevents the English courts from accepting the Canadian
position that the onus of establishing a sufficient and effective consent in actions
for trespass to the person rests upon the defendant.
ASSAULT
An assault is any direct threat by the defendant which places the plaintiff in
reasonable apprehension of an imminent contact with his person either by the
defendant or by some person or thing within the defendant's control. At the
present time assault is usually brought for intentional threats though actions for
reckless or even careless threats are not precluded.
128 See T w o Views on Consent in Trespass to the Person' 27 Alberta L Rev 318—322 (1979). The
contribution by Hertz is critical, Picard supports the decisions and so does Linden, Canadian
Tori Lam (1977) 58.
129 See pp 212—213.
130 I.e. easier than in an action for the tort of negligence.
' 3 1 (1979) 26 ALR 584, 588.
132 [1981] 1 AD ER 257, 265.
«33
23O INTENTIONAL TORTS
It is felt that comment is necessary on at least three matters. First, what threats
are sufficient to constitute the tort of assault? Secondly what is meant by
reasonable apprehension of imminent contact and thirdly we will comment on the
question of knowledge of the threat.
Before we do that however we should say that the word assault is often used to
describe what is essentially a battery. This is because most assaults culminate in
contact and therefore a battery, and the result is often described as an assault and
battery or simply as an assault. An example of this is provided by the recent
Australian decision in Butchard v Barnett, where a judge found that the

defendant deliberately kicked the plaintiff in the head whilst the plaintiff was on
the ground, that the blow was not by any means an accidental blow occurring in a
normal passage of play and that the kick was administered some appreciable time
after the plaintiff had punched the ball away. He said he was satisfied that the
defendant did assault the plaintiff.134
Without any attempt at pedantry, it should be said, that the distinction between
assault and battery is quite clear. Assault is the threat of force to the person of
another, while battery is the actual application of that force. Strictly speaking,
dierefore, the word assault should be reserved for those threats which though they
were not followed by contact with the person of the plaintiff nevertheless placed
the plaintiff in reasonable apprehension of receiving an imminent contact with his
person. T h e confusion between assault and battery is not peculiarly Australian. As
we pointed out earlier, a Canadian judge has expressed the view that 'the
distinction between assault and battery had been blurred, and that when we now
speak of an assault, it may include a battery'. 1 3 3 And in an even more recent case
where the defendant threw the plaintiff down the stairs, the plaintiff framed his
action in assault. T h e judge said that 'battery should properly have been
pleaded' 136 but held that a failure to do so was not fatal to the claim.
In the vast majority of cases assault and battery go together but you can get a
battery without an assault and an assault without a battery. An example of the
first is provided by the decision in Gambriell v Caparelli where the defendant
swiftly and silently crept up to the plaintiff and struck him. As the judge said: 137
It is clear on the facts of the case with which I am dealing that, prior to the actual striking
of the plaintiff by the defendant, there was no immediate apprehension of violence by the
plaintiff as far as the defendant was concerned, for the simple reason that the plaintiff had
not seen the defendant, as he was struck from behind, and the act of the defendant, if not
justified, was a battery.
There are several examples of an assault without a battery. 138 A good example is
provided by Stephens v Myers.139 During a parish meeting it was resolved by a
134 (i98o)86LSJS + 7,s 3 .
135 Gambriell v Ca/xjr«//i (1975) 54 DLR (3d) 66i, 664.
136 Doyle v Garden of the Gulf Security & Investigation Inc and Gallant (1980) 65 APR 123.
137 (1975) 54 DLR (3d) 661, 664.
138 See e.g. Martin v Shoppee (1828) 3 C & P 373 and Read v Coker (1853) 13 CB 850.
139
F. A. TRINDADE 231
large majority to eject the defendant who was constantly interrupting the
proceedings. The defendant advanced in a threatening manner towards the
plaintiff, who was acting as chairman of the meeting, to strike him but was
stopped by the Churchwarden before he was near enough to strike the plaintiff. It
was held that the act of the defendant amounted to an assault in law. We shall
now examine our definition of assault in greater detail.
The meaning of direct threats

Threats which constitute assaults are usually by acts accompanied by words, for

example, in Stephens v Myers (discussed above) the defendant said he would
rather pull the chairman out of the chair than be turned out of the room and
immediately advanced with his fist clenched towards the plaintiff chairman. But
words are not necessary for an assault if the act clearly places the plaintiff in
reasonable apprehension of receiving a battery. Thus where the defendant went
riding after a person with an uplifted whip so as to compel him to run into his
garden for shelter to avoid being beaten, this was adjudged to be an assault.140 If
words are not necessary for an assault can words alone without any act or gesture
be sufficient to constitute an assault? In Mead's and Belt's case in 1823,
Holroyd J in his direction to the jury said that 'no words or singing are equivalent
to an assault"41 but in Barton v Armstrong1*2 Taylor J in the Supreme Court of
New South Wales held that threats made over the telephone were capable in law
of constituting an assault. He accepted however that it was 'clear from the many
authorities cited on this subject that mere words themselves are not sufficient to
constitute an assault' but he felt that it would be open to a jury to take the view
that there was more involved in the threats made over the telephone than mere
words. As he said:143
I am not persuaded that threats uttered over the telephone are to be properly categorized
as mere words. I think it is a matter of the circumstances. To telephone a person in the
early hours of the morning, not once but on many occasions, and to threaten him, not in a
conversational tone but in an atmosphere of drama and suspense, is a matter that a jury
could say was well calculated to not only instil fear into his mind but to constitute
threatening acts, as distinct from mere words....
One of the difficulties with threatening words (whether they be words uttered
inter praesentes or over the telephone) is that they might threaten an indirect act.
For example, D might say to P 'I shall tell TP (a third party) that you have
seduced his daughter and he will then surely beat you up' or D might telephone P
and say 'I have set up a trap for you and as soon as you leave the room you will set
off my carefully set spring gun'. Now both these examples are, in a sense, offers of
140 Martin v Shoppee (1828) 3 C & P 373 per Lord Tenterden CJ. See also Vaughn v Baxter 488 P
zd 1234 (1971) (chase with automobile). See also TurberviUt v Savage (1669) 1 Mod Rep 3: 'So
if he hold up his hand against another in a threatening manner and say nothing, it is an assault'.
141 (1823) 1 Lew 184,185.
142 [i969]
143 Ibid, 455.
bodily contact, imminent bodily contact if you like, but they are offers of indirect
bodily contact and could only come within the description of assault if the
threatening words themselves or the threatening telephone call itself were
regarded as the direct threat necessary for the tort of assault. To treat the
threatening message as the direct threat however involves an illogicality for one
would have to say that to set a spring gun which injures the plaintiff is not a
trespass (battery) because the act is indirect as the contact has been held to be
indirect or consequential (see Bird v Holbrook)144 but to tell the plaintiff that one
has set up a spring gun would be trespass (assault) because the threatening speech

(message) has been conveyed directly to the plaintiff. And what if the threat is
conveyed by a recorded message or by a note left for the plaintiff? Obviously, the
requirement of a direct threat causes serious problems and it would be preferable
if directness was no longer required by the courts in actions of trespass. Until that
traditional requirement of the common law disappears, however, it is submitted
that the only threats which can be classified as direct threats for the purposes of
the tort of assault are, first, those threats which by some act alone or by some act
coupled with words place the plaintiff in reasonable apprehension of an imminent
and direct bodily contact,143 and, secondly, those threats by words alone which
lead the plaintiff reasonably to apprehend an imminent and direct contact to his
person by the defendant or by some person or thing within the defendant's
control. For example, a telephone call by the defendant telling the plaintiff that he
is telephoning from just outside his office and that as soon as he puts the telephone
down (imminent) he will come around and shoot him (direct bodily contact) would
be an assault. So would a statement 'You're next' by the defendant who proceeds
immediately to beat up a father in the presence of his daughter.146 Though the
only threat to the daughter is by words it would be sufficient to constitute an
assault as the threat raises in the mind of the plaintiff daughter a reasonable
apprehension of imminent bodily contact.147 If, however, the threatening words
threaten an indirect contact (e.g. when the defendant telephones the plaintiff and
says that he has set up a spring gun which the defendant is bound to set off if he
moves from the room) then it will not be an assault. Assault being a trespass
requires a direct threat which means a threat of imminent and direct bodily
contact.
When considering the nature of threats which constitute an assault, the
distinction today, it is submitted, depends not so much upon the difference
between threats by positive acts and threats by words but on whether the threat
144 (i828) 4 Bing628.

145 The same direct bodily contact required for the tort of battery.
146 See e.g. Purdy v Wostnesemky [1937] 2 WWR 116. See also, Glanville Williams, 'Assault and
Words' [1957] Crim L Rev 219 and P. R. Handford, Tort Liability for Threatening or Insulting
Words' 54 Can B Rev 563 (1976).
147 Even if the imminent bodily contact was to be effected by the defendant's burly servant acting
under his orders or by a dog acting under the defendant's control that would not make the direct
threat in any way indirect.
F. A. TRINDADE 233
conveys the apprehension of an imminent and direct bodily contact. If the threat
does convey the apprehension of an imminent and direct bodily contact then it is
an assault whether the threat is by deed, by deed and words or by words alone.148
Sometimes words have the effect of unmaking or neutralizing a threat made by
a positive act. In Turberville v Savage1*9 T, after an exchange of words with S, put
his hand upon his sword and said 'If it were not assize-time, I would not take such
language from you'. These words were held to prevent what would otherwise be
an assault (putting his hand upon his sword) from coming into being. The court
took the view that T was in effect saying that he would not assault S as the judges

were in town.150
Statements like the one in Turberville v Savage must however be distinguished
from what are called conditional threats. If D gets a gun and says to P '111 shoot
you if you turn off the water' or 'if you cut off the electricity', then there is clearly
an assault if P has authority to turn off the water or cut off the electricity. The fact
that D makes it clear to P that no bodily contact will ensue if he obeys his
instructions and does what he requires him to do will not prevent it from being an
assault, for it is no different from the threat of the highwayman 'Your money or
your life' which both Taylor J in Barton v Armstrong and North P in Police v
Greaves1'1 thought would clearly be an assault. To threaten to shoot a trespasser
or a burglar who refuses to leave your property would not, it is submitted, be an
assault. They are examples of what might be described as lawful threats of force.
It should be added that for a direct threat there must be a positive offer of
imminent bodily contact whether by deed or word. No amount of preparation for
an imminent bodily contact, such as purchasing a gun, sharpening a knife or hiring
a thug will constitute an assault unless the defendant follows it up with an offer of
imminent bodily contact, makes an attempt towards a battery or exhibits an
intention to assault as in Read v Coker.152
Reasonable apprehension
The word apprehension has two meanings, to anticipate with fear or with
knowledge, and both of them are relevant to the tort of assault. When we say that
the plaintiff must be placed in reasonable apprehension of an imminent contact
148 'In the age in which we live threats may be made and communicated by persons remote from
the person threatened. Physical violence and death can be produced by acts done at a distance
by people who are out of sight and by agents hired for that purpose. I do not think that these, if
they result in apprehension of physical violence in the mind of a reasonable person, are outside
the protection afforded by the civil and criminal law as to assault'. Per Taylor J in Barton v
Armstrong [1969] 2 NSWR451, 455.
149 (1669) 1 Mod Rep 3; 86 ER 684.
150 In fact T was the plaintiff because S on hearing T's remarks actually drew his sword and poked
T in the eye. The success of T's action in battery depended on whether T was guilty of assault.
Weir points out that 'in these cases one justifies self-defence by calling the other party a
"wrongdoer".' Op cit, 260.
151 [1964] NZLR 295.
152 (1853) 13 CB 850.
with his person it is not necessary (though it usually is the case) that he must
anticipate with fear or be frightened by the possible contact. It is sufficient if he
just knows and expects that it is about to take place. As Chubb J said in Brady v
Schatzel:1" 'In my opinion, it is not material that the person assaulted should be
put in fear... if that were so, it would make an assault not dependent on the
intention of the assailant, but upon the question whether the party assaulted was a
courageous or timid person.' It should be noticed that because actual fear of
imminent bodily contact is not necessary for the tort of assault, the tort also
protects individuals from those threats which are more in the nature of insulting

interferences or even annoyances. The various criminal injuries compensation
schemes really compensate persons only for those intentional assaults which are
serious and cause fear and shock but the tort of assault can perform an additional
role.
The apprehension of imminent contact must be reasonable. If it is quite clear
that the person making the threat has the present actual ability to carry out that
threat then the apprehension is reasonable. But if D who is in a train moving out
of the station shakes his fist in a threatening manner at P who is standing on the
platform there will be no assault as there is no actual ability to carry out the
threat. If the defendant has a present actual ability to carry out the threat, but is
prevented from carrying it out by a third party, it would still be an assault as in
Stephens v Myers.134 If the defendant exaggerates his present actual ability, he
alone is to blame if it raises in the mind of a plaintiff a reasonable apprehension of
imminent contact. Thus if D points a gun at P and says that it is loaded when it is
not, or points a toy replica of a gun at P which P does not recognize to be a toy
replica, it will be an assault in both cases'" if P does not know or has no reason to
believe that the gun is not loaded or that it is a toy replica. It seems therefore that,
apart from present actual ability, even apparent present ability to carry out the
threat will suffice. So, if on a lonely street X walks towards Y with his hand in his
pocket and a protruding bulge aimed in Y's direction, it is submitted that Y would
be entitled to commit a battery on X on the ground that he thinks that X is
pointing a gun at him.156 It must be acknowledged, however, that to accept
apparent ability as sufficient to raise a reasonable apprehension of contact
transfers the relevant inquiry from the actual conduct of the defendant to the
mental state of the plaintiff or victim and that this is being done in respect of an
intentional tort.
We have said that for assault the contact apprehended must be imminent. How
•53 [ 1911] StRQd 206, 208 (a case of criminal assault).

154 (1830) 4 C & P 350.
155 See R v St George (1840) 9 C & P 483. Street says that the ratio of this criminal case is that to
point an unloaded gun at the plaintiff is an assault. In 1977, in Melbourne, a 19 year old youth
was convicted of assault when he aimed an imitation .38 snub-nosed revolver out of a car
window at a police officer. See Tht Agt 11 March 1977. See also Lowry v Standard Oil Co 146
P 2d 57, 60 (1944) and State vMachmuller 246 NW 2d 69 (1976).
156 See Anthony v US 361 A lA 202 (1976).
F. A. TRINDADE 235
immediate in time must that be? Taylor J offered an answer to this question in
Barton v Armstrong:1"
In my opinion the answer is it depends on the circumstances. Some threats are not capable
of arousing apprehension of violence in the mind of a reasonable person unless there is an
immediate prospect of the threat being carried out. Others, I believe, can create the
apprehension even if it is made clear that the violence may occur in the future, at times
unspecified and uncertain. Being able to immediately carry out the threat is but one way of
creating the fear of apprehension, but not the only way. There are other ways, more subtle
and perhaps more effective.

This seems to leave the question of time rather open and the most that can be
said is that it is still reasonable to apprehend a bodily contact even though it is not
to take place at once.
Knowledge of the threat

In an action for an assault the plaintiff must have knowledge of the threat at the
time it is made, unlike battery where a plaintiff can bring an action in respect of a
contact even though he was unaware of the contact at the time it was made.158 As
you cannot fear an imminent bodily contact unless you know about it, the
knowledge of the plaintiff of the threat is essential for the tort of assault.
Subsequent knowledge of the threat will not avail a plaintiff because then there
would not be an apprehension of imminent contact. So if D walks behind P with
an uplifted stick to beat him but before P sees him D changes his mind and walks
away there will be no assault even if a third party sees the whole incident and
accurately informs P of what has happened. If D shoots at a wax image of P' 39 or
strikes at a dummy placed in the bed by P who anticipates an attack by D, it is
suggested, there would be no assault as P knows there is no possibility of an
imminent bodily contact and therefore cannot fear one. There might be a statutory
offence of some kind (e.g. discharging a firearm with intent to endanger life) but
there would be no tort of trespass to the person.
The knowledge of the plaintiff is also relevant to the question of actual and
apparent ability to carry out the threat. In Logdon v DPP160 (a criminal case) the
defendant was convicted of assault because while holding a VAT inspector
hostage he opened the drawer and showed her a pistol. When she asked if the
pistol was loaded the defendant answered in the affirmative. Not only was the
pistol not loaded but it was a toy replica of a pistol. Dismissing the defendant's
appeal against the conviction for assault the court held that the offence was
committed when by some physical act the threatener intentionally or recklessly
caused the other to believe that unlawful force was about to be inflicted on her. It
•57 [1969] *NSWR 451, 455.

158 See the examples supra p 227.
159 In The Empty Room, Sherlock Holmes' enemy, Colonel Moran, was induced to fire at a wax
image of the detective silhouetted in the window.
160 [1976] CrimLR 121.
was the knowledge of the inspector that mattered, not the knowledge of the
defendant. If the inspector had known that the gun was not loaded or had
recognized it as a toy replica, there would have been no assault. Certainly this
would be the position in tort. This leads us to consider the question of the
knowledge of the defendant.
In MacPherson v Brown161 a university lecturer while in the university grounds
was surrounded by a group of student demonstrators, including the defendant,
who for some time prevented the lecturer from passing and caused him to be in
fear of physical danger from the group, even though no actual physical contact

was made. The Full Court of the Supreme Court of South Australia decided that
the lecturer had not been assaulted by the defendant. The defendant had been
convicted of assault by a magistrate who had taken the view that if a defendant
indulges in conduct which he knows or ought to know may harm or give cause for
belief of imminent harm he is deemed to have the necessary intention for assault
But the Full Court felt that 'actual knowledge is necessary' on the part of the
defendant to constitute the offence.162 There is of course no authority in tort.
Smith and Hogan indicate that the factual situation in MacPherson v Brown
would probably warrant a civil action in negligent assault163 but it is arguable that
it is an intentional assault if it is reckless.164 Suppose D rushes into a crowded
lecture theatre brandishing a gun and shouting 'I have come to kill Dick Lee'. If
there are two students both165 called Dick Lee would both have an action in
assault against D if they reasonably apprehend contact with their person ? If the
answer to that question is in the affirmative then a defendant may be liable in
assault even in the absence of knowledge of the plaintiff and, at least in relation to
one of them, even though he did not intend to threaten him. If, as in battery,166 we
can say that a man must be regarded as intending his reckless acts then it is
certainly arguable that the courts should impose liability in the case of reckless
assaults, treating them as intentional assaults. So both Dick Lees would be able to
recover in assault Again, if when D's progress is blocked by a group of
demonstrators, he reverses his car and then at full speed drives into the group,
would not D be liable in assault to any one of the group who apprehend imminent
bodily contact ? Or must D know about the existence and identity of each member
of the group before they can bring an action for assault? It is suggested that at
least in relation to reckless (intentional) assaults, the knowledge by the defendant
of the existence of the plaintiff is not a necessary requirement.
161 [1975] 12 SASR 184.

162 In MacPherson v Beath [1975] 12 SASR 174 it was held that the conviction for assault was
justified because the defendant was a knowing party to the physical and mental pressure which
was brought on the university lecturer.
163 See Criminal Law 3rd ed (1973) 284.
164 See pp 222—224 tupra.
165 See Lee v Wilson (1934) 51 CLR 276 (a case in defamation)—where a defamatory statement
about one 'Detective Lee' enabled another to sue in relation to the defamatory statement.
166 See pp 222—224 supra.
F. A. TRINDADE 237
SUMMARY AND CONCLUSIONS
There is a certain confusion about, perhaps even ignorance of, the ingredients of
the intentional torts of assault and battery. An attempt has been made in this
article to explain how the various requirements of directness, intentional acts,
contact, knowledge of the contact, consent, threats (by acts and by words),
apprehension of imminent contact and knowledge of the threat have been
developed by the courts in England, Australia, Canada and New Zealand. An
attempt has also been made in this article to show how the courts in these various
jurisdictions could be persuaded by a judicious use of precedents and logic to

develop these torts into valuable tools for the protection of the physical and mental
integrity of the person. The tort of battery can be used not only to protect
someone from actual physical injury but also to protect him from intentional or
reckless contacts with his person which would generally be regarded as
objectionable. The tort of assault on the other hand protects a person from threats
(by acts or even by words alone) which cause that person to expect an imminent
contact with his person by either the person making the threat or by someone
acting under his control. This tort is extremely important in protecting the mental
integrity of the person because the anticipation of physical harm and sometimes
even the anticipation of mere physical contact may be traumatic for the person
who is forced to anticipate it.
The torts of assault and battery (together with false imprisonment) not only
provide compensation for the victims of these torts but they also have an
important role to play in the vindication of constitutional rights.167
The compensatory function of these torts may be of slightly less significance
today168 in view of certain recent developments in compensating victims of crime,
but the other function continues to be of considerable importance. The traditional
torts of assault and battery adapted to meet the changing needs of our time are
therefore worthy of our consideration and it is well to dispel such ignorance as
there is about them.
167 See Weir,^4 Casebook on Tort 3rd ed (1974) 256.

158 It is suggested, however, supra pp 214-216, that this function has not been superseded.

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INTENTIONAL TORTS: SOME THOUGHTS ON

ASSAULT AND BATTERY

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•Associate Professor of Law, Monash University, Melbourne, Australia.

in the profession to plead an action in intentional trespass to the person even

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13 Butterworths, London 1976, 44 n 3.

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19 R v Kneethaw [1974] 1 All ER 896 per Lord Widgery CJ.

compensation to be withheld or reduced if 'having regard to the conduct of the

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board. However in an action for intentional battery33 the trespass would be

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MR in Letang v Cooper where he said 'instead of dividing actions for personal

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47 Ibid, 900 per De Grey CJ.

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53 The doctrine of 'transferred intent' is discussed infra pp 223-124.

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74 Rv Holder [1967] Crtm LR 66.

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85 Fordyce v Montgomery 424 SW 2d 746, 751 (1968).

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103 (1979)16 ALR 584.

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Knowledge of the contact

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criticism128 but it is suggested here that they should be followed in England,

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The meaning of direct threats

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144 (i828) 4 Bing628.

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•53 [ 1911] StRQd 206, 208 (a case of criminal assault).

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Knowledge of the threat

•57 [1969] *NSWR 451, 455.

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161 [1975] 12 SASR 184.

SUMMARY AND CONCLUSIONS

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167 See Weir,^4 Casebook on Tort 3rd ed (1974) 256.

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