BATTERY

The tort of battery is committed by the intentional application of force

to another by direct means or through an unwelcome, physical
contact, irrespective of whether intent to harm or hostility involved.

The elements of this tort are:

1.) DIRECT ACT OF THE DEFENDANT

2.) VOLUNTARY ACT

3.) STATE OF MIND OF THE DEFENDANT

4. THERE MUST BE PHYSICAL CONTACT WITH THE PERSON OF THE

PLAINTIFF.

5. LACK OF CONSENT

6. POSITIVE ACT IS BATTERY AND NOT THE OMISSION TO ACT

1.) DIRECT ACT OF THE DEFENDANT

a) SCOTT V SHEPHERD (not lawfulness or unlawfulness test but

direct or indirect that is, the chain of causation).
b) LEAME V BRAY
 c) MILLER V ATTORNEY GENERAL
d) COVELL V LAMING.

From the cases, we can see that this element is not a 'directional.'
Point is an issue of "causation”. The defendants conduct must have
caused the basis in the case of battery that would be the physical
contact.

2.) VOLUNTARY ACT

This refers to controllability, not whether the defendant acted

willingly.

This is illustrated by the case of GIBBONS V PEPPER.

3.) STATE OF MIND OF THE DEFENDANT

To succeed, the plaintiff must establish that the defendant acted

either intentionally or negligently. As noted earlier, intentionally here
means deliberately; negligently refers to inadvertence or
recklessness.

That there can be a thing like negligent trespass or battery, however,

was doubted by Lord Denning in LETANG V COOPER.

Lord Denning's view noted above was supported in WILSON V PRINGLE

However, the orthodox view remains that trespass and the torts
deriving from it, e.g. battery, can be committed by intentional or
unintentional conduct.

Does the intention (state of mind) for trespass relate to the contact or
injury?

In WILSON V PRINGLE, the Court of Appeal said that it is intention to

make contact that constitutes trespass, not the formulation in one's
mind of a design.

Additional Cases:

MILLER V ATTORNEY GENERAL: intentionally applied force to the

plaintiff.

STANLEY V POWELL

FOWLER V LANNING

HOLMES V MATHER
 4. THERE MUST BE PHYSICAL CONTACT WITH THE PERSON OF THE
PLAINTIFF.

This contact can be person to person or through an instrument or a

medium that is controlled by the defendant.

The following cases illustrate the principle:

a) R V COTES WORTH
b) DUMBELL V ROBERTS
c) FAGAN V METROPOLITAN POLICE COMMISSIONER
d) AGBOVI V SETORDZIE
e) COLE V TURNER
f) MILLER V ATTORNEY GENERAL

But how about removing his hat or throwing water on his clothes? The
case in point is PURSELL V HORN

5. LACK OF CONSENT

The plaintiff must prove that he or she did not consent to the contact.
This can be proved in three ways:

I.) EXPRESS CONSENT

It is not a battery, if the defendant proves that the plaintiff expressly
agreed or submitted to the contract. Many events of everyday
occurrence, e.g. a haircut, a surgical operation or a passionate embrace
will be battery but for the fact that consent operates as a defence to
action in battery.

(Football, boxing etc. but not boxing during football — but man
nodding during a header will be, covered).

A good example is —

a) CHRISTOPHERSON V BARE

The defendant suggested in the pleadings that the plaintiff was

assaulted with his consent. It was held: Assault must be an act against
the will of a party assaulted: therefore it cannot be said that a party
has been assaulted with his own permission.

b) NASH V SHEEN

II.) PRESUMPTION OF CONSENT

There is a presumption, in general, of consent to all non-hostile

contacts merely incidental to living in a community.

COLE V TURNER

HOLT CJ; "if two or more meet in a narrow passage and without any
violence or design of harm, one touches the other gently, no battery.
But if one in a desire to gain advantage shoves another aside in an
inordinate and violent manner, this is a trespass."
 III.) PRIVILEGED CONTACT

Privileged contact (allowed by law), may be illustrated by

WIFFIN V KINCARD

In COWARD V BADDELEY it was held that to determine whether a

contact is privileged, look at:

a) Nature of the act. — a blow or a pat

b) Intention with which the act was done.

Sexual touching can amount to a battery. The case in point is GUARRO

V U.S e.g. pinching a person's buttocks.

6. POSITIVE ACT IS BATTERY AND NOT THE OMISSION TO ACT

Liability depends on an act, not a failure/omission/refusal to act. The

maxim is: 'Not Doing Is Not Trespass'.

The case of INNES V WYLIE illustrates the point.

ADU KOFI V AMANADO

Questions "Come and kill me today" says a wife to her husband who
then administers a slap to her face: Does this amount to consent?
 DIRECT ACT OF THE DEFENDANT

SCOTT V SHEPHERD (1773)

Defendant threw a lighted squib into a crowded market, but it was

reflexively rebounded by two others until it hit the plaintiff’s face,
blinding him in one eye. He sued defendant for trespass and assault.
The defendant argued that since the squib had been thrown by two
others before it caused the injury, it was not his direct act and as a
matter of principle, he was not liable.

Defendant liable because, the act causing the injury was the direct act
of the defendant. The act of the other two was not sufficient enough to
break the chain of causation since they acted out of intuition.

The two persons did not with or in combination with the defendant,
and their removal of the squib for fear of danger to themselves was
seems to be a continuation of the first act of the defendant until the
explosion of the squib.
 LEAME V BRAY (1803)

The defendant whilst driving on the wrong side of the road at night
accidentally caused his carriage to collide with that of the plaintiff.
Plaintiff jumped out for his life and as a result injured his collarbone.
Plaintiff sued for trespass but the defendant argued that since the
accident happened out of negligence and not willfully the proper action
was in case and not trespass.

Plaintiff’s action was in trespass and not in case.

Where injury is the immediate result of an act of force done by the

defendant, the remedy was in trespass. Where the injury is only
consequential to the act of the defendant, the remedy is in case.

Lord Ellenborough observed:

"it is a settled distinction that where the immediate act itself occasions
a prejudice or is an injury to the plaintiff's person, land etc. trespass vi
et armis will lie: where the act itself is not an injury but a consequence
from that act is prejudicial to the plaintiffs person goods etc., trespass
will not lie ... If the injury be committed by the immediate act
complained of, the action must be trespass; if the injury be merely
consequential upon act, an action upon the case is the proper
remedy."
 MILLER V A-G

Plaintiff suffered head and brain injuries as a result of being shot by the
defendant, a police officer. The defendant suspected the plaintiff to be
a thief and shot at him in the head when the plaintiff ignored the calls
on him to stop.

The police committed unjustifiable assault and battery on the plaintiff.

Assault and battery is committed where there is a direct and intentional

application of physical force to the person of the plaintiff by the
defendant either by hands or by means of a weapon.

ABBAN J

In order to found an action in assault and battery, there must have

been a direct and intentional application of physical force to the person
of the plaintiff by the defendant such as a blow inflicted by hand or
with a weapon or some other object.

To point a loaded revolver at someone in such a hostile manner and

within shooting distance and which conduct puts that other person in
fear or apprehension of an immediate battery constitutes an assault.
 COVELL V LAMING

The defendant rode his ship against that of the plaintiff and caused
injury to it thereby. The defendant had apparently tried to steer clear of
the plaintiff’s ship but run into it (according to the report either through
negligence or ignorance or lack of skill). It was argued that, unless the
plaintiff could show that the defendant intended to bring his ship into
the plaintiffs and did so willfully, the action in trespass must fail. Lord
Ellenborough:

"... Whether the injury complained of arises directly or follows

consequentially, from the act of the defendant, I consider as the only
just and intelligible criteria of trespass and case. If, in the dark, I
ignorantly ride against another man on horseback, this is undoubtedly
trespass, although I was not aware of his presence till we came into
contact. It makes no difference that here the parties were sailing on
shipboard. The defendant was at the helm, and guided the motions of
his vessel. The winds and waves were only instrumental in carrying her
along in the direction which he communicated. The force, therefore,
proceeded from him; and the injury which the plaintiff sustained was
the immediate effect of that force."
THE ACT MUST BE THE VOLUNTARY ACT OF THE DEFENDANT.

GIBBONS V PEPPER

Defendant rode a horse which took fright and took off with him running
over and injuring the plaintiff in the process. The defendant argued
that he could not stop the horse but had shouted to those on the path
to give way but the plaintiff had refused to do so.

Defendant was liable as he was in control of the horse.

Trespass lies when an injury inflicted results from an instrument or

medium controlled by the defendant. Therefore the defendant is liable
to the plaintiff if a frightened horse upon which the defendant sat
strikes the plaintiff. The case rest on the idea that a person’s animal is a
passive instrument of the person.

If A rides upon a horse and B whips the horse so that it runs away with
A and struck C , B who whipped the horse is liable and not A. Also if A
takes the hand of B and strikes C, A is the trespasser and not B.
STATE OF MIND OF THE DEFENDANT

LETANG V COOPER

The plaintiff whiles sunbathing was injured when the defendant

unintentionally drove his car over her leg. The action under negligence
was statute barred but the plaintiff argued it was an action of trespass.

The plaintiff’s action was not trespass but rather negligence since the
act that caused the injury was unintentional but reckless. The plaintiff
was however statute barred under the Limitation of Actions Act.

Trespass to a person is restricted to intentional acts.

LORD DENNING

The truth is that the distinction between trespass and case is obsolete.
We have a different sub-division altogether. 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. 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. If he does not inflict injury intentionally, but
only unintentionally, the plaintiff has no cause of action today in
trespass. His only cause of action is in negligence, and then only on
proof of want of reasonable care. If the plaintiff cannot prove want of
reasonable care, he may have no cause of action at all. If the basis of
your complaint is that the defendant had acted negligently, the
foundation for your action is the tort of negligence by establishing that
the defendant owed a duty of care to the plaintiff, there was a breach
of that duty of care and injury arose out of it.

LORD DIPLOCK

A cause of action is simply a factual situation the existence of which

entitles one person to obtain from the court a remedy against another
person. If A., by failing to exercise reasonable care, inflicts direct
personal injuries upon B., it is permissible today to describe this factual
situation indifferently, either as a cause of action for negligence or an
action for trespass to the person, though "negligence" is the expression
to be preferred.

HOLMES V MATHER

The defendant’s horses were so startled by the barking of dogs and run
away such that the defendant’s servant could not stop but did his best
to guide the horses safely. The plaintiff got run over and injured. He
sued for trespass.

The action of trespass was not maintainable since there was no

negligence and the horses hadn’t be spurred by the defendant but
rather guided.
To maintain an action of battery to the plaintiff, the injurious act must
be intentional or the result of negligence.

Per Bramwell B:

"If the act that does an injury is an act of direct force vi et armis,
trespass is the proper remedy (if there is any remedy) where the act is
wrongful, either as being willful or as being the result of negligence...
where the act is not wrongful for either of these reasons, no action is
maintainable, though trespass would be the proper form of action if it
were wrongful."

STANLEY V POWELL

During a shooting party, pellets from the defendant’s gun glanced of a

tree and wounded the plaintiff. The plaintiff was carrying the party’s
cartridges and game.

The defendant was not liable as the act was not intentional and the
plaintiff could not prove negligence on the part of the defendant.

Trespass to the person not actionable if it be neither the intentional nor

the result of negligence.
 FOWLER V LANNING

During a shooting party, the defendant shot the plaintiff. The plaintiff’s
statement of claim for an action in trespass only stated that the
defendant shot him. The defendant argued that since the plaintiff did
not allege that the shooting was intentional or negligent, there was no
cause of action against him.

There was no cause of action since the plaintiff failed to allege whether
the shooting was intentional or negligently was not liable.

Trespass to the person does not lie if the injury to the plaintiff was
caused unintentionally and without negligence. And in the cause of
action for trespass, the burden of proof lies with the plaintiff.

MORRRIS V MARDSEN & ANOTHER

The defendant whilst suffering from a mental disease attacked and

injured the plaintiff. The court found that the defendant knew of the
nature and quality of the act but did not know that what he doing was
wrong.

The defendant was liable since he knew the nature and quality of his
act.

Knowledge of wrongdoing is an immaterial averment and that where

there is capacity to know the nature and quality of the act, that is
sufficient although the mind directing the act that did the wrong was
diseased.

BRESLIN & OTHERS V MCKEVITT & OTHERS

The defendants planted a bomb in the boot of a car which exploded,

killing some people and injuring others.

The use of missile to cause injury was battery. Although the defendants
did not deliberately set out to kill and injure the victims, they were
liable in trespass for having acted recklessly.

The tort of trespass to a person is also committed if a defendant acts

recklessly and in that regard it is immaterial whether it was not the
intention of the actor. Also physical contact does not necessarily mean
person to person but may be with the aid of a tool or weapon.

WILSON V PRINGLE

The plaintiff alleged that the defendant jumped him whilst the
defendant alleged that he had only pulled the plaintiff’s bag out of
horseplay. The defendant argued that for the plaintiff to succeed, he
must prove that the defendant intended to cause injury.
Intention to cause injury is not an element of trespass but rather is the
intention to make contact which is an element.

In the action of trespass, the plaintiff must only prove that the
defendant did the act intentionally, and not that the defendant
intended that his act cause injury. It is the act and not the injury which
must be intentional. Therefore the hostile touching of another is
battery and the physical application of force regardless of intention is
enough to constitute trespass to the person.

However the court allowed the appeal.

The court held that there is a general defence in an action embracing

all generally acceptable physical contact, but it is not practicable to
define battery as contact which is not generally acceptable.

LIVINGSTONE V MINISTRY OF DEFENCE

A soldier fired a baton round which struck and injured the plaintiff. The
plaintiff sued in assault and battery. It was not disputed that the baton
round was fired deliberately but the defendant argued that he was not
liable since it had not been fired with the intent of hitting the plaintiff.
The defendant would be liable if the baton round was fired to strike
someone although the plaintiff was not the intended person.
In an action for battery, it is not necessary to show that the plaintiff was
the intended target of the act. It is enough to show that the defendant
intended that the force be applied to another person.

THERE MUST BE PHYSICAL CONTACT WITH THE PERSON OF THE

PLAINTIFF.

FAGAN V METROPOLITAN POLICE COMMISSIONER

The defendant accidentally drove his car onto a police constable’s foot
but the defendant also ignored the police constable’s pleas to get the
car off his foot.

That although the initial act was not intentional, the act of leaving the
car on the constable’s foot was intentional and as such the defendant
was held liable for battery
In the case of battery, injury should result either from personal contact
or through the medium of an instrument controlled by the defendant.
In the case, it was therefore held that the car being controlled by the
defendant was a medium through which the battery was committed.

R V COTESWORTH

The defendant spat into the face of the complainant.

The defendant was liable for battery, through an instrument controlled

by him. In this case, the saliva is an extension of the defendant’s body.

The injury caused should arise from the direct physical contact or
through an instrument controlled by the defendant.

PURSELL V HORN

An action was brought for trespass against the defendant for assaulting
the plaintiff, and throwing water upon him, and also wetting and
damaging his clothes. The declaration stated that the defendant
Elizabeth, on, &c, assaulted the plaintiff, "and then cast and threw
divers large quantities of boiling water on the plaintiff, and also then
wetted, damaged, and spoiled the clothes and wearing apparel, to wit,
one great coat," and the value "which the plaintiff then wore: "by
means of which he was hurt, scalded, &c, and forced to expend money
in endeavouring to cure himself."

Lord Denman C J. I think that a battery does not necessarily mean

something done cominus. But it must imply personal violence; and I
think that the matter justified by this plea is not a battery. The rule
must be absolute. Littledale J. The argument for the plaintiff on the first
point would go the length of saying that to shoot at a person and hit
him would be no battery. Patterson and Williams JS. concurred. Rule
absolute.

HOOPER V REEVE

The defendant drove his gig into the carriage in which the plaintiff’s
wife was sitting. It overturned and injured her. The plaintiff sued for
trespass but the defendant argued that the action was for case and not
trespass.

The defendant was liable in trespass.

A person commits trespass if he drives his carriage against the carriage

of another when that person is sitting in it. Here, the carriage is a
medium through which trespass can be committed.
 COLE V TURNER

It was in action of battery by husband and wife, for a battery upon the
husband and wife, ad dampnum ipsorum.

The least touching of another in anger is battery.

Battery is the offensive or harmful touching of another person without

the complainant’s consent.

PER Holt C.J.

1.) That the least touching of another in anger is a battery.

2.) If two or more meet in a narrow passage and without any
violence or design of harm, the one touches the other gently, it is
not battery.
3.) If any of them use violence against the other, to force his way in a
rude inordinate manner, it is a battery; or any struggle about the
passage, to that degree as may do hurt, is a battery.

HAYSTEAD V CHIEF CONSTABLE OF DERBYSHIRE

The defendant struck a woman whilst she was holding her child. As a
result, the child fell on the ground and was injured. He was charged
with assaulting the child and accordingly convicted. He appealed on the
ground that he had no direct physical contact with the child either
through his body or a medium.
The injuries to the child resulted from the direct physical contact of the
defendant and there was physical contact through the body of the
mother of the child which was hit by the defendant. Here, the
movement of the mother which caused the child to fall was entirely and
immediately the result of the appellant’s action in punching her.

RVH

The defendant grabbed the complainant by the bottom of her tracksuit

and tried to pull her towards him but she broke free and run. The
question was whether the defendant touched the complainant for
purposes of conviction for sexual assault.

The defendant touched the complainant.

The touching of the clothes on a person amounted to touching the

person.

DUMBELL V ROBERTS

The plaintiff while on his way home in his employer's uniform, was
stopped by two defendants (police constables) and questioned
concerning a bag containing some soap flakes he was carrying. Soap
flakes were rationed goods during the war. The constables were
dissatisfied with the plaintiffs answers; they arrested and detained him,
but made no inquiries as to his name or address as required by law.
They also took his fingerprints without his consent. The plaintiff sued
for false imprisonment.

In an action for false imprisonment, Scott L.J held that the taking of the
fingerprints of a person before he is committed to stand trial or
convicted is trespass if it is done without the consent of the person and
following upon an unjustifiable arrest, it may become an element in the
false imprisonment and then if found, if found on the facts to be the
consequence of the arrest, it may be properly be taken into account on
the assessment of damages.

GUARRO V US

The defendant touched the private parts of the police officer who was
not in uniform. He argued that a non-violent sexual touching did not
amount to battery.

The defendant’s act constituted battery but since the complainant had
appeared to have consented to the act, it was not battery.

Non-violent sexual contacts may constitute an assault if it is done

without the consent of the other person. In such a case, threat or
danger of physical injury or suffering in the ordinary sense is not
necessary. The injury suffered by the innocent person may be the fear,
shame, humiliation and mental anguish caused by the assault.
 DIRECTOR OF PUBLIC PROSECUTIONS V SANTA BERMUDEZ

The defendant had told the police officer who was going to examine
him that he had no pins or needles or sharp object in his pocket. But
when the police officer dipped his hands into the plaintiff’s pocket, he
was pierced by a needle. The defendant argued that since he had not
acted, he was not liable.

Since the defendant exposed the officer to the risk of injury which
materialized, he was liable for assault occasioning actual bodily harm.

If a person by word or by deed or both creates danger another to a

reasonable foreseeable risk of injury, that person acts for purposes of
liability under assault.

LACK OF CONSENT

DONNELLY V JACKMAN
The police officer suspected the defendant of having committed an
offence. He tried to stop him to question him but the defendant
ignored him. The police officer then touched the shoulder of the
defendant with the intention of stopping him, whereupon the
defendant struck the officer with force.

The defendant was liable for assault on an officer executing his duty.

Where a police officer acts in his duty, he is not liable for trespass
although he might touch the body of another and provided that the
touch was reasonable for the execution of his work.

ELKINGTON V DIRECTOR OF PUBLIC PROSECUTION

The defendant had a verbal and physical confrontation with a police

officer. The police officer pulled the defendant’s arm to prevent him
from hitting him and pushed him out of the police car. The defendant
later went into the car and the officer told him that he was under
arrest. He was charged with assault on a police officer.

Since the police officer had committed the assault on the defendant
before putting him under lawful arrest, he was acting outside his duty.
He therefore committed the assault first on the defendant and the
defendant was not liable.
Where a police officer works outside the realms of his duty, he will be
liable for trespass.

CONSENT

NASH V SHEEN

The plaintiff asked a hairdresser for a permanent weave; instead the

hair was given tone rinse which dyed the plaintiff’s hair an unpleasing
colour and caused him a painful rash all over his body.

Held: dye was applied without the plaintiff's express consent; the
consent which was given was for a permanent wave. So there was a
battery.
 NON-MARINE UNDERWRITERS, LLOYDS OF LONDON V SCALERA

The plaintiffs sued the defendants for sexual battery committed on her
by the defendants. The question arose as to who bears the burden of
proving consent or lack of consent.

Consent being a defence, it is the duty of the defendant to prove that

the plaintiff consents to the act complained of.

As in all intentional tort actions, the onus of proving the defence of

consent is on the defendant. Therefore it is of those who violate the
physical integrity of others to justify their actions. If the defendant does
not dispute that the contact took place, he bears the burden of proving
that the plaintiff consented to the act or that a reasonable person in
the position of the defendant would have thought that the plaintiff had
consented.

THE CREUTZFELDT-JAKOB DISEASE LITIGATION

The plaintiffs were treated with a hormone alleged to be derived

illegally from the people who had died under a program administered
by the defendants. 14 of the people who had been treated with the
hormone contracted the C-J disease because of the infected hormones.
The victims together with the other plaintiffs who feared infection sued
the defendants for battery on the grounds that they had given their
consent to the treatment under the assumption that the procedure
used was lawful and since the procedure was not lawful, the consent
was vitiated. They also alleged that the defendants had failed to inform
them of the risks involved in the treatment and to that extent; the
plaintiffs did not give informed consent.

The consent was valid and was not vitiated.

With consent with respect to battery, it is enough if the plaintiffs

consented to the nature of the act. The law does not require an
informed consent. A perform may only succeed in a claim for failure to
inform if only that failure amounted to negligence.

FREEMAN V HOME OFFICE

The plaintiff whilst in prison was administered some medicine. He sued

on his release for battery on the ground that the medicine was
administered to him without his informed consent. The consent
required as a defence to an action in battery was not informed consent.

Consent is valid if the plaintiff knew in broad terms what he was

consenting to because otherwise his consent would not be real. The
reality of such consent can only be vitiated by fraud or mis-description.
 BLAKE V GALLOWAY

The plaintiff engaged in horseplay with his friends including the

defendant. In the course of the game, the defendant threw a bark at
the plaintiff which caused injury to his eye. The plaintiff sued in battery
and negligence and the defendant claimed that he had consented to
the battery by engaging in the game.

The defendant was not liable in battery since the plaintiff had
consented.

A person who engages in a game is deemed to have consented to any

reasonable force that would be used on him. In a sport which inevitably
involves the risk of some physical contact, the participants are taken to
impliedly to consent to those contacts which can reasonably be
expected to occur in the course of the game and to assume the risk of
injury from such contacts. However a hostile or unreasonable act within
the context of that particular game can amount to battery.

R V BARNES

The defendant tackled the victim in an amateur football match and the
victim suffered serious injuries. The prosecution alleged that the force
used had gone beyond what was legitimately required for the game
and thus the defendant should be held liable.

The defendant was not liable as the jury could not determine what
“legitimate force” for the sports was.
A person engaged in sports may be liable for assault or battery if he
used force that goes beyond the threshold of the game. The threshold
required for a game is determined on a case by case basis and may
depend on the type of game, the nature of the act, the extent of the
risk of injury and the state of mind of the defendant. The level is
therefore an objective one and does not depend on the views of the
individual players. If the act goes beyond what a reasonable player can
be regarded as having accepted by taking part in the sport, then the
conduct if the defendant will not be covered by the defence.

R V TABASSUM

The defendant misrepresented to some women that he was a breast

cancer specialist and that he worked with a famous breast cancer
hospital. The women consented to a breast screening exercise being
undertaken by the defendant where the defendant touched their
breasts. He was charged with indecent assault and convicted. On
appeal, he argued that the women had consented to the act.

The women had consented to the nature of the act and not the quality
of the act and as such, the defendant was held liable.

True consent requires consent to both the nature and quality of the act.
Consent given on a mistaken belief is void.
 R V RICHARDSON

The defendant was a registered dentist who had been suspended. But
he continued to give treatment to people who did not know that he
had been suspended. He was charged with assault occasioning actual
bodily harm. He was convicted on the account that the consent given
was vitiated by his fraud. He appealed.

Since the fraud related to his qualifications rather than his identity or
the nature and quality of the act, the consent was not vitiated. In
summary, whether there is consent to actions on the part of the person
in the mistaken belief that he was other than the person whom he truly
was, in which case there is assault. Short of this, there is no assault.

PRIVILEGED CONTACT.

WIFFIN V KINCARD

it appeared that a number of persons being assembled in consequence

of an alarm occasioned by a mad ox, the Defendant, who was a
constable, was sent for; that the Plaintiff had posted himself upon some
rails before a gentleman's house, which place he refused to quit,
though frequently desired; that the Defendant, in order to draw his
attention, touched him with his constable's staff, but without hurting
him, and desired him to get down ; and the Plaintiff still refusing, the
Defendant, at the desire of several persons, took him by the collar and
carried him to the watch-house, from which he was discharged as soon
as he could be brought before a justice.

The Court were clearly of opinion that the touch given by the
constable's staff, in order to engage the Plaintiff's attention, did not
amount to a battery ; but there was some doubt whether the taking by
the collar did not, Sir J. Mansfield Ch. J. saying, that taking the Plaintiff
by the collar without any improper violence, though an imprisonment,
was no battery, which is a beating; and Chambre J. saying that
imposition of hands, in order to imprison, is a battery. The Court
agreed, however, that whether the evidence amounted to proof of a
battery or not, it would not prevent the Judge from certifying with
respect to the imprisonment that the Plaintiff was not entitled to full
costs for the assault and battery,

The touch in order to engage the plaintiff’s attention was not battery.

There is a general assumption of consent to all non-hostile acts merely

incidental to living in the community.

COWARD V BADDELEY

The plaintiff sued for assault and false imprisonment. The defendant
justified his action on the ground that he was first assaulted by the
plaintiff. The facts show that the defendant was engaged in
extinguishing a fire. The plaintiff told him he was doing it badly. The
defendant told him to mind his own business. The plaintiff then put his
hand on the defendant's shoulders, turned him round to show him how
the hose should be managed. Thereupon defendant gave plaintiff into
custody. The jury was told that in the circumstances, the defendant's
arrest of the plaintiff were unjustified unless plaintiffs act had been
hostile. This direction was held to be correct. It was also held that there
was absence of intent for criminal assault such as to justify an arrest:
the court expressed the view that perhaps the plaintiff could be liable
for battery because the defendant could not be said to have consented
to the way he was handled by the plaintiff.

The defendant was liable since the plaintiff did not touch him in a
hostile manner.

A touch to draw one’s attention is not battery if not done hostilely.

AGBOVI V SETORDZI

The plaintiff reported himself for an offence. However the plaintiff was
put in custody and beaten up by police officers.

The court held that it constituted battery and found for the plaintiff.

Police refusal to grant bail where evidence of malice exists results in

civil liability.
 COLLINS V WILOCK

A police officer took hold of a woman’s arm to stop her walking off
during questioning. The woman scratched the police officer.

Since the police officer was not exercising his power of arrest at the
time of the incident, and since he had exceeded the acceptable physical
contact required, his act constituted battery on the defendant which
justified her actions.

An act in excess of the duty conferred will be battery if done without

the consent of the other person. Therefore if the policeman is under a
duty to investigate a crime and in doing so engages the attention of the
other person, it may in the circumstances be regarded as acceptable.
But if taking into account the nature of his duty, his use of physical
contact in the face of non-operation of persists beyond generally
accepted standards of conduct, his action will be become unlawful and
if a police restrains a man, by gripping his arm or shoulder, then his
action will also be unlawful unless lawfully exercising his power of
arrest.

MEPSTEAD V DIRECTOR OF PUBLIC PROSECUTIONS

The defendant parked his car at a place which caused an obstruction.

While the police officer attempted to fix a penalty notice on the car, the
defendant returned and attempted to drive off. A confrontation ensued
and the defendant became rude. The policeman held his hand to draw
his attention to what was being said to him and calm him down but the
defendant kicked him. He was charged with assault on a police officer.
The question was whether a police officer can lawfully touched a
person without intending to arrest him.

The police officer had that power.

An act lawfully in the execution of a duty is not assault if the force

applied is reasonable.

RE F

A mentally ill woman who had become sexually active was incapable of
giving a valid consent for sterilization. Doctors sought a declaration for
her to be sterilized.

The declaration was granted.

Trespass will not lie if the doctors have a lawful excuse to operate on
the person. That means that medical treatment in the best interest of
the patient who cannot give or refuse consent is not battery provided it
is done in the best interest of the patient.

There are however cases where adult patients cannot give or refuse
their consent to an operation or other treatment as a result of
unconsciousness or comatose or a person of unsound mind or mental
disability. The common law would be seriously defective if it failed to
provide a solution to the problem created by such inability to consent.
Therefore the solution to the problem which the common law provides
is that a doctor can lawfully operate on or give other treatment to adult
patients who are incapable of giving their consent provided that the
operation or other treatment concerned is in the best interests of the
patient. The operation or treatment will be in their best interest if and
only if it is carried out in order to save their lives and to ensure their
improvement or to prevent deterioration in their physical or mental
health.

F V WEST BERKSHIRE HEALTH AUTHORITY

The parties considered the propriety of the sterilization of a woman

who due to mental incapacity was unable to give her consent.

The medical operation will be lawful if the doctors considered it to be in

the best interest of the patient.

The least touching of another’s body in the absence of lawful excuse is

tantamount to battery and trespass.
 POSITIVE ACT NOT OMISSION TO ACT

INNES V WYLIE

The plaintiff being a member of a society tried to enter a room for their
meeting and dinner and upon the orders of the defendant, the police
man stopped the plaintiff from entering the room by standing in the
doorway. The policeman gave evidence that the plaintiff pushed his
way into the room and he prevented him. The plaintiff alleged that the
policeman pushed him back when he tried to enter the room.

Lord Denman, CJ instructing the jury said at 263:

"You will say, whether, on the evdence, you think the policeman
committed an assault on the plaintiff, or was merely passive. If the
policeman was entirely passive like a door or a wall put to prevent the
plaintiff from entering the room, and simply obstructing the entrance of
the plaintiff, no assault has been committed on the plaintiff and your
verdict will be for the defendant. The question is did the policeman
take any active measures to prevent the plaintiff from entering the
room, or did he stand in the doorway passive, and not move at all."

They found for the plaintiff. So presumably they found that the
policeman had taken active measures to block the plaintiffs way.

Since the policeman acted and was not merely passive, he was liable for
assault on the plaintiff.

Trespass requires a positive act from the defendant. A person does not
commit trespass if he is only passive and does not act. If the policeman
was entirely passive like the wall or door put to prevent the plaintiff
from entering the room, and simply obstructing the entrance of the
plaintiff, no assault had been committed.

ADU KOFI V AMANADO & OTHERS

The chief of the village sent for the plaintiff but he refused to go. The
chief then ordered for the deportation of the plaintiff and a group of
men jointly seized the plaintiff and forced the plaintiff out of town.

The defendants were jointly liable to the plaintiff.

Trespass will lie if a group jointly applies force to a person. A person

who acts in concert with others is jointly liable for battery with the
others if the evidence showed that at least some of the people had
committed the tort. Also the chief as the principal is vicariously liable
for the tort committed by his servants or agents in the execution of his
request.

XA V YA

The plaintiff alleged that as a child he had been assaulted several times
by his father. He brought an action against his mother as a joint
tortfeasor. He alleged that his mother’s action was part of a concerted
action towards a common end. He also alleged that his mother also
assaulted him.

The mother was not a joint tortfeasor.

For a person to be held as a joint tortfeasor, it must be shown that he

or she had been involved in the commission of the tort. Therefore since
it could not be proven that the defendant’s conduct was not part of a
concerted action towards a common end, she was not liable. The
underlying concept for joint tortfeasance is that the joint tortfeasor has
been so involved in the commission of the tort as to make himself liable
for the tort.

SHALE V GALE
The defendant was asked by some people to show them the house of X.
she mistakenly pointed to the house of Y and the house and assaulted
the occupant of the house resulting in his death. The relatives of the
deceased sued the defendant on the ground that she was a joint tort
feasor to the fatal battery committed on the deceased.

The defendant was a tortfeasor though not liable for the knife attack
inflicted on the deceased.