ASSAULT & BATTERY

An assault is an act which causes another person to apprehend the infliction of

immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force
on another person. [Collins v Wilcock [1984] 1 WLR 1172 ]

Elements of Battery

1. The mental state of the defendant

2. The defendant’s act was under his control
3. Contact
4. Without the plaintiff’s consent

1. The mental state of the defendant

a. Scott v Shepherd [1773] 2 Wm Bl 892

According to the court A and B reacted for their own safety, and so they did not
have the required ‘intention’ to commit the act.

“In order to maintain trespass it was not necessary for the defendant personally
to have touched the plaintiff; he gave the mischievous faculty to the squib and
the mischief remained in it until the explosion; an innocent person (as W and R
were) was justified in removing the danger from himself to another; the injury to
the plaintiff was, therefore, the direct and immediate act of the defendant for
which he was liable.”

2. The defendant’s act was under his control

a. Gibbons v Pepper [1695] 2 Salk 637

The defendant was riding a horse when someone hit the horse from behind,
causing the horse to bolt. The horse collided with the plaintiff, and in an action
against the defendant, the court found the defendant not liable as the incident of
the horse bolting and colliding with the plaintiff was outside his control.
3. Contact

a. Wilson v Pringle [1986] 2 All ER 440

The Court of Appeal held that there must be hostile touching before it amounted
to a battery.

“In our view, the authorities lead one to the conclusion that in a battery there
must be an intentional touching or contact in one form or another of the plaintiff
by the defendant. That touching must be proved to be a hostile touching. That
still leaves unanswered the question, when is a touching to be called hostile?
Hostility cannot be equated with ill-will or malevolence. It cannot be governed
by the obvious intention shown in acts like punching, stabbing or shooting. It
cannot be solely governed by an expressed intention, although that may be
strong evidence. But the element of hostility, in the sense in which it is now to be
considered, must be a question of fact for the tribunal of fact. It may be imported
from the circumstances.”

b. Collins v Wilcock [1984] 1 WLR 1172

The respondent touched the appellant deliberately, but without an intention to

do more than restrain her temporarily. Nevertheless, she was acting unlawfully
and in that way was acting with hostility. She was acting contrary to the
woman's legal right not to be physically restrained.

“Finally, counsel for the respondent submitted that the question whether the
respondent was or was not acting in the execution of her duty was a question of
fact for the magistrate to decide; and that he was entitled, on the facts found by
him, to conclude that the respondent had been acting lawfully. We cannot agree.
The fact is that the respondent took hold of the appellant by the left arm to
restrain her. In so acting, she was not proceeding to arrest the appellant; and
since her action went beyond the generally acceptable conduct of touching a
person to engage his or her attention, it must follow, in our judgment, that her
action constituted a battery on the appellant, and was therefore unlawful.”

4. Without the plaintiff’s consent

a. Tiong Pik Hiong v Wong Siew Gieu [1964] MLJ 181

The defendant was found liable in battery for scratching the plaintiff’s face and
hitting the latter, due to her jealousy of the plaintiff’s friendship with her husband.
 MALAYSIA’S CASES WITH ALMOST SIMILAR FACT OF THE CASE

1. Ismail bin Mohd Saaid & Anor v DSP Hj Mohd Ali bin Bujang @ Mohd Bujang [2010]
1 MLJ 414

The first plaintiff a police Lance Corporal and his teacher wife, the second plaintiff
were neighbours to the defendant a police DSP. The defendant was also the first plaintiff's
commanding officer at the material time. The defendant and his wife cared for a number of
stray cats in the neighbourhood. The first plaintiff, upset at the mess the stray cats were
causing to his house compound, caught the defendant's favourite cat and dumped it away
from the neighbourhood. Subsequently, the defendant discovered that the cat, which was
pregnant, had been killed by villagers.
On 26 April 2002, the first plaintiff was sitting on his motorcycle outside his house
when the defendant rushed towards him and assaulted him, whilst accusing him of
throwing away the cat. The first plaintiff immediately lodged a police report.
He received outpatient medical treatment for minor injuries sustained in the
assault. The medical report on the first plaintiff confirmed soft tissue injuries on the first
plaintiff's face and abdomen.

“The first plaintiff is claiming RM51 for special damages and unspecified general
damages. The special damages were incurred for the medical expenses and report. There is
no challenge on this expense.
.
However, counsel is right to submit that he is entitled to compensation for his
injured feelings and humiliation as well. The defendant was his superior officer and that
was the probable reason the first plaintiff did not offer any resistance. I take judicial notice
that uniformed bodies such as the police force are hierarchical organisations where
enlisted men are trained to obey their superiors without question. In the circumstances it
is not difficult to imagine helplessness and humiliation suffered by the first plaintiff when
he was punched by his own superior who was also his neighbour. Therefore aggravated
damages which are not meant to punish the defendant but to compensate the first plaintiff
are in order. After having considered all the circumstances of the case, including the
provocation given to the defendant and the overreaction of the defendant, I award
RM5,000 as general damages.
.
In conclusion, I awarded RM5,000 for general damages for the assault and battery
committed against the first plaintiff, and special damages of RM51.”
 2. Roshairee Abd Wahab v Mejar Mustafa Omar & Ors [1997] 1 CLJ Supp 39

The plaintiff was ragged and assaulted by the first two defendants while undergoing
an orientation programme shortly after reporting for duty with the Royal Malay Regiment.
The first incident, according to the plaintiff, was that the first defendant had ordered him to
hold a heavy object with his hands outstretched and when he could not continue, the first
defendant punched him in his head and ear. Later, after the first defendant had left, the
second defendant grabbed the plaintiff by his necktie and dragged him until he fell, choking
and screaming.
The second incident alleged was that while the plaintiff was on the floor doing some
push ups, the first defendant kicked and punched his right ear. The plaintiff then attempted
to escape by running but the first defendant pursued him. The plaintiff eventually reached
the door of the VIP quarters at which point he fell to the ground and shouted for help.
As a result of the assaults, the plaintiff sought medical treatment and upon
examination by an ENT specialist, it was found that the plaintiff suffered profound deafness
to his right ear with mild deafness to his left.

“For the nature of the plaintiff’s injuries, a sum of RM18,000 seems to be the
accepted quantum - see Ibrahim bin Mat Yatim & Anor. v. Gan Jiuk Tiam [1985] 2 MLJ and
Cheam Yut Cheong v. Chung Meng Sum [1982] 2 MLJ Xlviii. Without any competing
authorities tendered by the defendants this Court hereby awards a sum of RM18,000 to the
plaintiff for the loss of hearing.
.
In the opinion of this Court, the plaintiff may at the material time be weaker, less
experience and lower in rank to the lst and 2nd defendants, but he was entitled, as all
young officers do to self respect and dignity. By the acts of the lst and 2nd defendants he
has suffered humiliation, loss of pride and self esteem. Instead of being encouraged,
advised and protected by these two seniors, the plaintiff was insulted and assaulted by
them. To compensate the plaintiff for the injury to his feelings, this Court awards a sum of
RM50,000 as aggravated damages.
.
The total amount of damages hereby awarded is a sum of RM68,000. This sum
should be apportioned into equal shares, with the lst and 3rd defendants responsible to
pay the plaintiff a sum of RM34,000, and the 2nd defendant responsible for the other
RM34,000. This Court hereby also orders the defendants to pay the plaintiff costs.”
 STRENGTHS OF THE CASE

1. There is medical report to prove the injuries inflicted to the plaintiff

2. There are many witnesses during the incident such as Ketua Jurulatih PULADA,
pegawai and others as captured in the picture.
3. it is likely that there were traces of plaintiff's DNA on defendant's ring if tested
because it was worn during the assault.
4. The defendant was hated and disliked by many officers of PULADA (refer to Aduan
Perbuatan Salah Laku Pemerintah di PULADA)

WEAKNESS OF THE CASE

1. Is there any possibility that subordinate officers will keep quiet on this matter in
this case to continue to be cronies to the Defendant?