Intentional Torts: Some Thoughts on Assault and Battery

Author(s): F. A. Trindade
Source: Oxford Journal of Legal Studies , Summer, 1982, Vol. 2, No. 2 (Summer, 1982),
pp. 211-237
Published by: Oxford University Press

Stable URL: https://www.jstor.org/stable/764278

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 INTENTIONAL TORTS: SOME THOUGHTS ON
ASSAULT AND BATTERY

F. A. TRINDADE*

This article is about two torts, assault and battery, which together with false
imprisonment' 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
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'.' 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.

I 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'l 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 60o) and the Criminal Injuries Compensation Scheme which applies to
Great Britain and which came into operation on i August 1964 and which has been revised on
21 May 1969 and again from I October I979.
4 'Sentencing: Reform Options' ALRC Discussion Paper No. io June 1979 para io8. Also Royal
Commission on Civil Liability and Compensation for Personal Injury, Cmnd 7054, Vol I para 332.
5 Gambriell v Caparelli (1975) 54 DLR (3d) 661, 664.

211

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 212 INTENTIONAL TORTS

in the profession to plead an ac

where it would be proper and app
in the recent case of Williams v
surveyor and the defendant who
family friends. The plaintiff took
swimming pool which both famil
pool the plaintiff and defendant
the edge of the pool when the de
the plaintiff into the swimming
foot hit the concrete edge of t
sustained very serious injuries to
The plaintiffs claim was laid in
an afterthought, plaintiffs coun
trespass to the person, i.e. intent
direct intentional act by the defe
as Talbot J said 'there is no doubt
[the plaintiff] in' and much more
to push [the plaintiff] in in order
Talbot J however allowed the
intentional trespass (battery) and
in negligence was the more diffi
no doubt increased the costs of the
Should the plaintiff have been a
was clearly an intentional dire
'... a plaintiff is at liberty to brin
is immediate, so long as it is not
Law Procedure Act 1852 and the
Schedule Order XIX). More r
Denning MR in dealing with th
'... if intentional it is the tort of
damage, it is the tort of negl

6 The Times 13 February 1975. I am gra

the transcript of the judgment delivered
7 Transcript, 5.
8 Ibid.

9 The following problems were raised by the claim in negligence. Had the plaintiff taken such pa
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
the circumstances appertaining to the case? Was there a foreseeable risk of injury? What is t
standard of care to be applied to the defendant who was 15 years and 1I months old? As t
plaintiff fell into the pool he hit the side of the pool with his ankle--could the defendant ha
foreseen the type of injury received ?
io (1833) 2 LJCP (NS) 190; Io Bing I12; 131 ER 848.
ii xo Bing 117.
12 [1965] 1 QB 232, 239.

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 F. A. TRINDADE 213

Foundations of the Law of Tort'3 s

'... this should not be taken to mean
negligence...'. However they appear
Denning MR in Gray v Barr in 1971-
he said:'4 'Whenever two men have a
assault, not for negligence. If both ar
The idea of negligence-and contrib
grappling in a struggle'. The positio
Hepple suggest and the courts ma
specifically raised, that for an intenti
should be brought just as the Court o
a negligent direct act the tort of negl
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,15 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 court"7 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'.'s

13 Butterworths, London 1976, 44 n 3-

14 [1971] 2 QB 554, 569. Emphasis added.
15 460 F Supp 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, 723 (1978). Emphasis added. The question of whether there was a sufficiently
direct act to constitute battery is discussed infra p 218.

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 214 INTENTIONAL TORTS

So actions for intentional trespass may succ

useful to know when one can and should be a
and assault. Naturally, there will be peo
compensation orders made by the criminal
compensation schemes which have come
Australia and New Zealand. But most compe
where there has been a criminal offence and
also seem to be 'confined to simple, strai
amount is at stake'.19 In England and Wa
orders made with a face value of ?59,324.20
the British Criminal Injuries Compensation
of intentional torts to the person amountin
however to suggest that 'the law relating to
already been superseded'22 for it is becom
always possible to rely upon these schemes
for several reasons.
First, a criminal injuries compensation boa
there is no crime of violence even though
example is provided in the Fifteenth Rep
Compensation Board published in November
of about fifty people walking through a sub
through the subway in the opposite direc
crowd and struck him with his right should
the elbow and shoulder. The applicant w
discovered that his injuries were quite sev
applicant had not satisfied the Board on the
victim of a crime of violence'.23 This would
and Hogan24 seem to suggest that it is even
criminal injuries compensation because it w
Secondly, the criminal injuries compensatio
where there is no crime even though there
University of Chicago, or where, perhaps, im
be X-rayed for the purpose of establishing t
injuries compensation scheme there appe

19 R v Kneeshaw [I974] x All ER 896 per Lord Widge

20 Criminal Injuries Compensation Board, Fifteenth
21 Ibid.

22 Veitch and Miers, '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 (1979), 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 Irwin v Arrendale x59 SE 2d 719
(1967).

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 F. A. TRINDADE 215

compensation to be withheld or red

applicant before, during or after
character and way of life. .. it is in
all, be granted'.26 And 'provocat
conduct) may result in a reduced
claim'.27 Awards in actions in tor
subject to reduction (at least of com
provocation,28 although in Murphy
actions for assault and battery the j
circumstances which go to aggrava
them. Fourthly, unlike awards in
injuries compensation scheme have
received and receivable. As the Chai
'it must always be borne in mind t
which have to be deducted is oft
injuries in the de courts the amount
benefits paid up to five years after
ioo per cent of all benefits paid or
Fifthly, it is submitted that a plain
person will be able to recover m
injuries compensation scheme in tho
accompanied by insult, indignit
compensation, at least in Great Bri
damages. Take the factual situati
separate occasions attempted forcibl
this because it gave him a kind
prosecuted for attempted larceny
decided that the assault could not p
the prosecution accepted the defen
to proceed on the count charging at
would receive much compensation, i
26 The quotation is from the British Boar
Cmnd 7752, 45-
27 Cmnd 7752, 55 paras E and G. Atiyah,
says that 'it is clear that the connection
need only be a pretty tenuous one to
Victimisation (1978) Chap 5.
28 See Fontin v Katapodis (1962) io8 CL
Accidents, Compensation and the Law 2n
case would probably have got no award f
explains why the plaintiff chose to sue the
of claiming from the Board.
29 [1976] 3 WLR 458, 460-461. See also Gra
30o Fifteenth Report, Cmnd 7752, 8 para 6.
31 See e.g. Fogg v McKnight [1968] NZLR
32 [1956] Crim LR 52.

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 2 16 INTENTIONAL TORTS

board. However in an action for intent

actionable per se and the court would
humiliation which the girl had to suffer
desires of the defendant. Sixthly, in many
awards cannot be made beyond a certain m
that no such limitations exist in relation to
The purpose of the last few paragraph
criminal injuries compensation schemes b
torts of battery and assault still have a us
have been far from superseded by the com
to the essential ingredients of the intentio
now turn and a definition of each tort w
some of the matters in the definitions.

BATTERY

A battery is a direct act of the defendant which has the effec

with the body of the plaintiff without the latter's consent. A
battery is usually brought only for intentional acts though act
even careless3" acts are not precluded.
It is felt that comment is necessary on at least five matters. F
by a direct act? Secondly, what is meant by an intentional act?
of contact is sufficient for the purposes of the tort of battery
comment on the question of the knowledge of the contact, bot
the plaintiff and the knowledge of the defendant. Finally, we sh
on the question of consent.

Direct act

The first ingredient of the tort of battery is that whatever h

plaintiff by the defendant to make the activity actionable as
done directly. It is an ingredient which is common to all three
the person, assault, battery and false imprisonment but it
emphasized in the textbooks. As Street writes, 'although this
usually stated in the textbooks it seems clear that... the act m
one'.36 However there is some confusion creeping in and
textbook writer suggests that 'a battery can be committed by i
physical harm, however indirectly it is brought about'.37 The
reasons for the confusion. First, it can be traced to a stateme

33 It will be shown later, pp 226-227, that this is clearly a civil battery.

34 E.g. every Australian State has a maximum award of $xo,ooo or less. In a
ceilings on compensation for pecuniary loss. See e.g. Fifteenth Report, C
concerning the scheme in Great Britain.
35 This article will not concern itself with direct careless acts-see n 2 supr
36 Street, The Law of Torts 6th ed (1976) 20.
37 Linden, Canadian Tort Law (Toronto 1977) 38.

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 F. A. TRINDADE 217

MR in Letang v Cooper where he sa

injuries into trespass (direct damag
the causes of action now according as
unintentionally'.3A Secondly, the Am
indicates that in America the element
intentional torts of assault, battery o
was a gradual one and the courts seem
American Restatement position, how
Canada or New Zealand where, it is s
trespass. But what is a 'direct' act ?
The example given by Fortescue CJ
log left unlawfully on a highway (
thrown unlawfully onto the highway
contact with which 'direct' acts came
something thrown at you which wer
motion an unbroken series of con
ultimately caused contact with the
'direct' for the purposes of trespass.
into B who collided with the plaintiff
that the facts constituted a 'direct' ac
chair or carriage in which another pe
against the person of him who is sitt
ox loose in a crowd makes the person
(battery) for any contact that is mad
plaintiff is a sufficiently 'direct' act
who gives the dog the order. If D str
horse throws P off, there is a sufficie
Even if P jumps off the runaway hor
flexibility of the doctrine of 'directn
Scott v Shepherd.46 The defendant th
the stall of Y whereupon W instantly

38 [1965] I QB 232, 239. However, it is not

discarding the traditional common law requir
says, 'if one man intentionally applies force d
in assault and battery or, if you so please to
39 The Law of Torts, 4th ed (i97x) 30.
40 (1725) i Stra 634, 636.
41 Hillier v Leitch [1936] SASR 490o.
42 Hopper v Reeve (1817) 7 Taunt 698, 700
under the plaintiff while she is in the act of
279 P 2d 1o9I, Io94 (1955)-
43 An example given by Nares J in Scott v S
44 Dodwell v Burford (1670) 1 Mod Rep 24.
45 Leame v Bray (1803) 3 East 593.
46 (1773)2 W B1892.

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218 INTENTIONAL TORTS

the lighted squib and threw it across the m

instantly to save his goods picked up the st
part of the market-house where it struck t
bursting put out one of the plaintiff's e
trespass (battery) to the plaintiff and the inj
a 'direct' act of the defendant. It should be
W and R were not regarded as breaking the
not regarded as free agents but as acting u
own safety and preservation.47 What if a
without knowing about their dangerous qu

The act of administering the drug supplies th

the drug been administered by means of a hy
contact would clearly be sufficient. We believe t
a pill is indistinguishable in principle.48

But in America, as we have seen, there isn't

there is in England, Canada, New Zea
Maugham,49 the Chief Justice of Victoria t
defendant who threw poisoned meat to
thought the injury to the dog could prope
by the act of the defendant.
The requirement of a 'direct' act certainly
simplify many actions of trespass to the p
that traditional requirement of the comm
Ltd v Jones52 Salmon LJ (as he then was)
is a growing organism which continually ad

47 Ibid, 900 per De Grey CJ.

48 460 F Supp 713, 718 (i978).
49 11947] VLR 131 'Had the baits been thrown by th
doubt the injury could properly have been regard
defendant, so that trespass would lie'. Per Herring C
50 E.g. (i) An old woman of 83 is about to get off a
passenger on the platform behind the woman, inten
to move causing her to fall onto the road. Is there
methyl alcohol to home-made beer. A young wom
drinking, at a party, the home-made beer laced w
battery? The examples are from the English Crim
9th Reports.
5I The English Law Reform Committee on Conver
'The requirement under the existing law of trespas
we think, with advantage be abolished. Such disti
to a dog (trespass) and leaving poisoned meat for a
in a rational system of law and, in our view, if an
ought not to matter whether the result is brought
we could say the same thing in relation to trespass t
52 [1968] 2 QB 299, 319.

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 F. A. TRINDADE 219

of time'. Perhaps the time has come t

actions for intentional trespass to the
The requirement of directness does
that is that it sometimes remove
'transferred intent'53 which has bee
which was discussed earlier,54 it was
intent to injure Y (the first stall-ho
simply able to say that there was a 'd
If the requirement of a 'direct' act an
might be necessary in some cases to im

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'.55 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."8 But assuming you have a voluntary act,
when is the act for the purposes of the tort battery said to be intentional?
If the act is deliberate or wilful, if the defendant 'meant to do it',"5 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 223-224.

54 Suprap 217.
55 See Roberts v Ramsbottom [i98o] I All ER 7 where in a negligence case Neill J suggests that
automatism means a total loss of consciousness.

56 See Morris v Marsden [1952] I All ER 925, 927.

57 See Stokes v Carlson 240 SW 2d 132 (i950).
58 Weaver v Ward(16i6) Hob 135-
59 Per Fox J in McNamara v Duncan (1979) 26 ALR 584, 587-

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 220 INTENTIONAL TORTS

left leg strikes him deliberately

wooden leg.60 In America, D w
believing it to be a wolf.6' So a de
the plaintiff under the mistaken
dog or a dead kangaroo'62 or a la
hits a moving object in long gra
and it turns out to be a couple e
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:67 '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 he has. See infra pp 226-227.

61 Ranson v Kitner 31 Ill App 241 (i888).
62 Law v Visser (196i) 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 Darienza (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: 'The 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 I November I979. 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.

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 F. A. TRINDADE 221

directed the jury to return a

have succeeded in a civil acti
be said that the direct a
authoritative decisions to gu
decided by what might be
certainty. Prosser describes i

The man who fires a bullet in

one, but since he must believ
The practical application of th
defendant's position would be
follow, he will be dealt with by
it.

The doctrine has been applied in Garratt v Dailey.70 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:7"

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 Law of Torts 4th ed (1971) 32.

70 279 P 2d io91 (Supreme Court of Washington) (1955).
71 Ibid, 1094.
72 Criminal Law: The General Part 2nd ed (1961) 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 38-4o).
73 Op cit, supra n 36, 16.

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 222 INTENTIONAL TORTS

recognize those acts to be substantia

a defendant, who on being refus
restaurant wounding a customer in
even though he does not know that
who, while standing on a parapet
piece of paving stone over the parap
would be liable in intentional bat
window of the train driver's cab an
which in fact occurs is substantiall
would therefore be regarded as int
have known of the existence of the
Using the same test, if Miss Stone
against the batsman76 who hit th
although there was 'a conceivable po
bare possibility and not a substantia
What about reckless acts? Could th
purpose of the tort of battery? F
intentional wrongs but the recent d
shows that the dividing line betw
barely distinguishable. The defendan
was being arrested, continued to ki
doing so kicked the hand of a police
to assist in picking up the defendan
of a bone and was the subject of
harm. The Court of Appeal uphel
reckless application of unlawful phy
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 should 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 assault.s0

74 R v Holder [1967] Crim LR 66.

75 DPP v Newbury [1976] 2 All ER 365.
76 The question is posed in Weir, A Casebook on Tort 4th ed (1979) 266.
77 Bolton v Stone [i95i] AC 850o, 858 per Lord Porter.
78 Law of Torts, 5th ed (1977) 24, n 26.
79 [11976] I QB 421. 'In many cases the dividing line between intention and recklessness is barely
distinguishable'. Per James LJ, 429. See also R v Caldwell [1981] I All ER 96I. '"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.
8o Ibid, 428-429.

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 F. A. TRINDADE 223

If there is no reason in logic or in la

to the person of another should be ou
there is surely no reason in logic or
force to the person of another sho
assault). There is a good case for reg
have the effect of causing contact
consent, as constituting the intention
of dealing with some defendants than
There is even some authority for sug
reckless acts as intentional acts. In
deliberately firing a gun in the dire
intentionally or recklessly, not carin
an act of this nature is done reckles
intention to commit an assault'. A re
amount to an intentional act, for th
where the defendant knowing that b
from his act has yet gone on to take
took place or not. It is further submi
obvious' will not allow a defendan
action for as the Court of Appeal said
type of deliberate closing of that min
cannot escape the consequences of hi
mind to the obvious consequences"..
The great value of treating reckless
when one deals with those types of
transferred malice84 and in tort (at l
81 [196o]NZLR 13I.
82 (1976) 63 Crim App R 2II, 214-
83 Both these uses of the word 'reckless' (i.e
one's mind to the obvious consequences o
Diplock in the House of Lords decision in R
that 'reckless' was an ordinary English wor
'.. surely includes not only deciding to ign
one's acts that one has recognised as existin
not there is any such risk in circumstances
would be obvious that there was ...'. In the
Lord Diplock suggests that the consequence
the part of the doer of an act does presupp
would have drawn the attention of an ordin
was capable of causing the kind of serious h
the offence was intended to prevent, and t
was not so slight that an ordinary pruden
negligible. It is only when this is so that the
the act he either fails to give any thought to
recognised that there was such risk, he never
84 See Ashworth, 'Transferred Malice and P
the Criminal Law ed P. R. Glazebrook (1978

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224 INTENTIONAL TORTS

intent. Thus when the defendant chased an

up a bottle from a shelf and, in attempting
with the bottle in the supermarket, miss
ordinary shopper, a painful blow to the elbo
civil action of intentional battery and the co
to the plaintiff 'to the same extent as if he
intent was 'transferred', the court approving
Carnes v Thompson:

If one person intentionally strikes at, throws at,

strikes a third person, he is not excused, on the g
is an assault and battery of the third person. De
strike an unlawful blow, to injure some person
injury be to the one intended."86

Apart from Scott v Shepherd which has

transferred intent in tort'87 there are only tw
could be said that the doctrine has been app
any indication that it was being consciously
defendant who was fighting with a t
unintentionally hit the plaintiff. The defenda
Ball et Uxor v Axten9' the defendant was at
dog with the handle of his riding whip w
plaintiff's wife who had come up to the spot
the blows. The report indicates that Cockbur
the defendant had not aimed the blow at
assault'.92 All of these cases, it is suggested,
the basis of a reckless, therefore intentional
relying upon the fiction of 'transferred' inte
would then become unnecessary.
Finally, there is another shade of meaning
appears that infants can intend an act for th
battery even though they may not have the
In the American case of Ellis v D'Angelo93 a

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,
88 There do not appear to be any cases of transferred
Zealand. However, in Bunyan v Jordan (1936-1937)
doctrine of transferred intent is part of the law of A
in fact hits C, there is no doubt as to A's liability to C
89 (1832) 5 C & P 372.
90 Though that might have been a case of negligent bat
91 (x866)4 F&FIoI9.
92 No doubt a battery, as the woman was struck. No
places the case under assault and not battery. Why?
93 253 P 2d 675 (1953).

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 F. A. TRINDADE 225

the adult baby sitter onto the floor

wrists. The court held that the boy
the battery even though he lack
wrongfulness of his conduct. A wri
detail has come to the conclusion tha
of incapacity to have the requisite in
[and] that somewhere about the ag
necessary to commit this tort.94

Contact with the body of the plaintif

One of the ingredients of the tort o
the body of the plaintiff by the def
have been 'hand to hand' e.g. by the
with a stick. But in 1838 Lord De
necessarily mean something done co
v Bray,96 where the defendant ran
horses to run away with the curr
jumped out of the curricle and fract
sufficient contact with the body of
action in battery. But is any cont
battery? Everyone is familiar with t
'the least touching of another in ang
the qualification implied by the wor
today. Street says that kissing a slee
be a battery9" and the editor of Salm
in America, a 'friendly unsolicited h
however do not attract any liabi
unintentional and even intentional
Holt CJ said in Cole v Turner 'if
without any violence or design of ha
no battery0o' but 'if any of them us
a rude inordinate manner, it will b
body contact is often part of the ru

94 Alexander, 'Tort Liability of Children

(1972) Vol 2, 845, 854.
95 I.e. hand to hand, in Pursell v Horn (183
96 (1803) 3 East 593.
97 (1704) 6 Mod Rep 149.
98 Op cit, 20 n 12.
99 Salmond on the Law of Torts i7th ed by
essential to liability: an unwanted kiss may
Ioo Spivey v Battaglia 258 So 2d 815 (1972
101 (1704)6 Mod Rep 149.
Ioz Ibid.

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 226 INTENTIONAL TORTS

to liability in battery if they find justification in

Contacts which are prohibited, or acts not wit
game, will be regarded as unpermitted contac
McNamara v Duncan'03 who deliberately 'felled' t
game but after the plaintiff had parted with pos
to the plaintiff in an action of intentional batte
contacts also arises in relation to surgical and de
consent to a certain operation but not to another
tooth but not another. Perhaps this last matter is
to the question of consent.
For a battery the contact must be active and not
Innes v Wylie,'os if a defendant is 'entirely p
prevent the plaintiff from entering the room' and
the plaintiff then no battery has been committed
This active contact however can take many form
plaintiff, pulling away the chair he is about
ground,'07 forcibly taking a blood test'08 and fir
burn him,109 a battery but it is also suggested tha
the body of the plaintiff will constitute a battery
would be battery and it has been so held in Ame
person"' or to grab a plate from his hand1'2 wou
the argument for regarding it as a battery is tha
object from one's hand is as clearly an offensive i
an actual contact with his body'."3 So, in additio

103 (1979) 26 ALR 584.

104 In Schweizer v Central Hospital (1975) 53 DLR (3d) 494
operation on his toe and a spinal operation was perfor
operation did not mean he consented to the spinal fusio
ER 257, 265, Bristow J mentions a case of a boy admitted t
to administrative error was circumcised instead. Brist
appropriate cause of action against the doctor.
105 (1844) 1 C & K 257.
io6 R v Cotesworth (1704) 6 Mod Rep 172; Alcorn v Mitche
107 Garratt v Dailey 279 P 2d 1091 (1955). Where Ameri
submitted that they are persuasive and that there are n
preclude their use as persuasive authorities in Australia,
io8 See e.g. S v McC; W v W [1972] AC 24 (at least in re
County of Honolulu 579 P 2d 663 (1978) and Bednarik v
o09 R v Hamilton (1891) 12 LR (NSW) IIi per Windeyer J,
IIo See Irwin v Arrendale 159 SE 2d 719 (1967). An injury t
used by a television crew can also be a battery. See Staff
III See S. H. Kress v Brashier 50 SW 2d 922 (1932).
112 See Fisher v Carousel Motor Hotel Inc 424 SW 2d
grabbed the plate from the plaintiff's hand while the plain
because the plaintiff was black.
I113 Ibid, 629.

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 F. A. TRINDADE 227

the plaintiff, it is suggested that eit

or with an object closely identified"
constitute contact for the purposes of
If the contact is reasonably necess
then there will be no battery. In D
police officer when he touched the
him for questioning. It was held t
(battery) on the police officer while
no battery by the police officer. Sim
the defendant doctor that 'his role i
of a duck' and the defendant intent
attention to his dislike of the plaint
that there was not that kind of int
battery was held to be perfectly go
about to attack another motorist af
running into his burning house wou
as contacts which are reasonably nec
further category of permissible con
those intentional and forcible conta
public officials in the execution of
necessary to prevent a breach of the

Knowledge of the contact

Knowledge of the contact either by
time of contact) is not a necessary r
course, both the plaintiff and the de
there will be circumstances when th
There will be liability for a batte
plaintiff is unaware of the contact.
man who is punched while he is in
under an anaesthetic has a differen
will all be able to bring successful ac
of the contact at the time of the co
contact, e.g. a broken jaw, or provid
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 Rickles o103 So 86o (1925). Or on clothing covering the private parts of the
plaintiff, Skonsen v Nidy 367 P 2d 248 (i961).
115 See the examples in nn iii and 112. Also see Siegelv Long 53 So 753 (19Io).
xi6 [1970] I WLR 562.
117 Morgan v Pistone 475 P 2d 839 (1970). See also Wiffin v Kincard (1807) 2 B & P (NR) 471.
I18 Rose v Kempthorne (9gxo) o103 LT 730.

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 228 INTENTIONAL TORTS

knowledge that a contact with the plaint

defendant may run over the plaintiff under
bundle of rags, a dead dog or a dead kangaro
stone to frighten X and the plaintiff, of who
might be struck by the stone.'2o Or the d
television set from the top of a block of fla
walking below.1'2 In all these cases even tho
identity or even the presence of the plaintiff
of knowledge of the plaintiff will not affect h

Consent

There is little doubt, that if there is consent

action of trespass to the person whether batt
not succeed. An important question, howeve
whether it is for the plaintiff to prove absen
defendant to exculpate himself by allegin
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 casebooks'23 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'. Fleming'24 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 Street'25 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 Hospitall26 and in Kelly v Hazlett,'"2 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 See Law v Visser (1961) QSR 46 and the other examples supra pp 219-220.
120 See Alteiri v Colasso 362 A 2d 798 (1975). Also White v Sander 47 NE go (I897). Where
applying the doctrine of recklessness, it is submitted, there would be success.
121 See n 68 supra.
122 See pp 219-222.
123 Luntz, Hambly & Hayes, Torts: Cases and Commentary (1980) 592.
124 Op cit, 77.
125 Street's position has not changed from his first edition in 1955 (Pp 16-17) to his sixth edition in
1976 (p 19).
126 (1974) 6 OR (2d) 606, 53 DLR (3d) 494 (Ont HC).
127 (1976) 75 DLR (3d) 536 (Ont HC).

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 F. A. TRINDADE 229

criticism"2 but it is suggested her

Australia and New Zealand for the fo
First, if an intentional trespass (e.g
was possible to do so'29-the defen
defence of consent or volenti non fi
this, there is no reason why the onus
should be on the plaintiff. The whole
tomake it easier'31 for a plaintiff to
invasion of his person by the defend
consent to the trespass on the plaintif
such meagre authority as there is su
defences in the law of tort must be
Fox J in McNamara v Duncan'3' refe
and so did Bristow J in the recent de
jurisdictions like Australia and Canad
years that in an action for trespass t
act on the part of the defendant the
negligence shifts to the defendant. T
direct act, it is for the defendant to
the plaintiff to prove absence of c
particularly as it involves proving a
Australian courts would be unlikely
consent in an action for trespass to th
might insist that there be an allegati
but even that is doubtful. There is n
and New Zealand should be differe
Fowler v Lanning'33 prevents the E
position that the onus of establishing
for trespass to the person rests upon

ASSAULT

An assault is any direct threat by the defendant which plac

reasonable apprehension of an imminent contact with his pe
defendant or by some person or thing within the defend
present time assault is usually brought for intentional threat
reckless or even careless threats are not precluded.
128 See 'Two Views on Consent in Trespass to the Person' 27 Alberta L
contribution by Hertz is critical, Picard supports the decisions and so
Tort Law ( 977) 58.
129 Seepp 212-213.
130 I.e. easier than in an action for the tort of negligence.
131 (1979)26 ALR 584, 588.
132 [I981] I All ER 257, 265-
133 [1959] I QB 426.

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230 INTENTIONAL TORTS

It is felt that comment is necessary on at le

are sufficient to constitute the tort of a
reasonable apprehension of imminent contac
question of knowledge of the threat.
Before we do that however we should say t
describe what is essentially a battery. This
contact and therefore a battery, and the res
battery or simply as an assault. An examp
Australian decision in Butchard v Barne
defendant deliberately kicked the plaintiff i
the ground, that the blow was not by any m
normal passage of play and that the kick w
after the plaintiff had punched the ball aw
defendant did assault the plaintiff.'34
Without any attempt at pedantry, it should
assault and battery is quite clear. Assault is
another, while battery is the actual applicat
therefore, the word assault should be reserve
were not followed by contact with the perso
the plaintiff in reasonable apprehension of r
person. The confusion between assault and ba
we pointed out earlier, a Canadian judge
distinction between assault and battery had
speak of an assault, it may include a battery
where the defendant threw the plaintiff dow
action in assault. The judge said that 'ba
pleaded'"' but held that a failure to do so was
In the vast majority of cases assault and ba
battery without an assault and an assault wi
first is provided by the decision in Gambri
swiftly and silently crept up to the plaintiff a

It is clear on the facts of the case with which I am

of the plaintiff by the defendant, there was no i
plaintiff as far as the defendant was concerned, f
not seen the defendant, as he was struck from be
justified, was a battery.

There are several examples of an assault wit

provided by Stephens v Myers.'39 During a
134 (1980) 86 LSJS 47, 53-
i35 Gambriell v Caparelli(1975) 54 DLR (3d) 661, 66
136 Doyle v Garden of the Gulf Security & Investiga
137 (1975) 54 DLR (3d) 661, 664.
138 See e.g. Mortin v Shoppee (1828) 3 C & P 373 and
139 (I830)4 C & P 350.

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 F. A. TRINDADE 231

large majority to eject the defend

proceedings. The defendant advan
plaintiff, who was acting as chairm
stopped by the Churchwarden before
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 I823,
Holroyd J in his direction to the jury said that 'no words or singing are equivalent
to an assault'"14 but in Barton v Armstrong'42 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:'43

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
14o Mortin v Shoppee (1828) 3 C & P 373 per Lord Tenterden CJ. See also Vaughn v Baxter 488 P
2d 1234 (1971) (chase with automobile). See also Turberville v Savage (x669) I 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 1[969] 2 NSWR 451.
143 Ibid, 455-

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 232 INTENTIONAL TORTS

bodily contact, imminent bodily contact if y

bodily contact and could only come with
threatening words themselves or the thr
regarded as the direct threat necessary f
threatening message as the direct threat ho
would have to say that to set a spring gun w
trespass (battery) because the act is indirect
indirect or consequential (see Bird v Holbrook
has set up a spring gun would be trespass (a
(message) has been conveyed directly to the
conveyed by a recorded message or by a note
requirement of a direct threat causes seriou
if directness was no longer required by the c
traditional requirement of the common law
that the only threats which can be classified
the tort of assault are, first, those threats w
coupled with words place the plaintiff in rea
and direct bodily contact,'45 and, secondly,
lead the plaintiff reasonably to apprehend a
person by the defendant or by some pers
control. For example, a telephone call by the
is telephoning from just outside his office an
down (imminent) he will come around and sh
be an assault. So would a statement 'You're n
immediately to beat up a father in the pres
only threat to the daughter is by words it
assault as the threat raises in the mind of
apprehension of imminent bodily contact.'4
threaten an indirect contact (e.g. when the d
says that he has set up a spring gun which t
moves from the room) then it will not b
requires a direct threat which means a th
contact.

When considering the nature of threats which constitute an assault,

distinction today, it is submitted, depends not so much upon the diffe
between threats by positive acts and threats by words but on whether the th

144 (1828) 4 Bing 628.

145 The same direct bodily contact required for the tort of battery.
146 See e.g. Purdy v Woznesensky [1937] 2 WWR i16. See also, Glanville Williams, 'Assau
Words' [1957] Crimn L Rev 219 and P. R. Handford, 'Tort Liability for Threatening or Ins
Words' 54 Can B Rev 563 (1976).
147 Even if the imminent bodily contact was to be effected by the defendant's burly servant ac
under his orders or by a dog acting under the defendant's control that would not make the
threat in any way indirect.

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 F. A. TRINDADE 233

conveys the apprehension of an imminent a

does convey the apprehension of an immine
an assault whether the threat is by deed, by
Sometimes words have the effect of unma
a positive act. In Turberville v Savage'49 T,
his hand upon his sword and said 'If it were
language from you'. These words were held
an assault (putting his hand upon his swor
took the view that T was in effect saying t
were in town.'5o
Statements like the one in Turberville v S
from what are called conditional threats. I
you if you turn off the water' or 'if you cut
an assault if P has authority to turn off the
that D makes it clear to P that no bodil
instructions and does what he requires him
assault, for it is no different from the thr
your life' which both Taylor J in Barton v
Greaves'5 thought would clearly be an assa
or a burglar who refuses to leave your prop
assault. They are examples of what might b
It should be added that for a direct threa
imminent bodily contact whether by deed o
an imminent bodily contact, such as purcha
a thug will constitute an assault unless the d
imminent bodily contact, makes an atte
intention to assault as in Read v Coker."52

Reasonable apprehension
The word apprehension has two meanin
knowledge, and both of them are relevant t
the plaintiff must be placed in reasonable

148 'In the age in which we live threats may be ma

the person threatened. Physical violence and deat
by people who are out of sight and by agents hired
they result in apprehension of physical violence in
the protection afforded by the civil and crimina
Armstrong [1969] 2 NSWR 451, 455-
149 (1669) 1 Mod Rep 3; 86 ER 684.
15o In fact T was the plaintiff because S on hearing
T in the eye. The success of T's action in battery d
Weir points out that 'in these cases one justifie
"wrongdoer".' Op cit, 26o.
151 [1964] NZLR 295.
152 (1853) 13 CB 85o.

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 234 INTENTIONAL TORTS

with his person it is not necessary (though

anticipate with fear or be frightened by th
just knows and expects that it is about to
Schatzel: 53 'In my opinion, it is not mater
put in fear... if that were so, it would m
intention of the assailant, but upon the que
courageous or timid person.' It should b
imminent bodily contact is not necessary
protects individuals from those threats wh
interferences or even annoyances. The v
schemes really compensate persons only fo
serious and cause fear and shock but the to
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.'54 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."56 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

153 [1911 ] StRQd 206, 208 (a case of criminal assault).

154 (x830) 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 The Age 22 March 1977. See also Lowry v Standard Oil Co 146
P 2d 57, 60 (1944) and State v Machmuller 246 NW 2d 69 (1976).

156 See Anthony v US 36i A 2d 202 (1976).

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 F. A. TRINDADE 235

immediate in time must that be? Tay

Barton v Armstrong:'57

In my opinion the answer is it depends on

of arousing apprehension of violence in t
immediate prospect of the threat bein
apprehension even if it is made clear tha
unspecified and uncertain. Being able to im
creating the fear of apprehension, but not
and perhaps more effective.

This seems to leave the question of t

said is that it is still reasonable to app
to take place at once.

Knowledge of the threat

In an action for an assault the plaintif
time it is made, unlike battery where
contact even though he was unaware o
you cannot fear an imminent bodi
knowledge of the plaintiff of the
Subsequent knowledge of the threat w
would not be an apprehension of imm
an uplifted stick to beat him but befo
away there will be no assault even if
accurately informs P of what has hap
strikes at a dummy placed in the bed
suggested, there would be no assaul
imminent bodily contact and therefor
offence of some kind (e.g. discharging
there would be no tort of trespass to t
The knowledge of the plaintiff is als
apparent ability to carry out the thr
defendant was convicted of assault
hostage he opened the drawer and s
pistol was loaded the defendant answe
pistol not loaded but it was a toy rep
appeal against the conviction for as
committed when by some physical ac
caused the other to believe that unlaw

157 [I96912 NSWR 451, 455-

158 See the examples supra p 227.
159 In The Empty Room, Sherlock Holmes'
image of the detective silhouetted in the wind
160 [1976] Crim LR 121.

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 236 INTENTIONAL TORTS

was the knowledge of the inspector that mattered

defendant. If the inspector had known that the
recognized it as a toy replica, there would have be
would be the position in tort. This leads us to co
knowledge of the defendant.
In MacPherson v Brown'61 a university lecturer whil
was surrounded by a group of student demonstrator
who for some time prevented the lecturer from pas
fear of physical danger from the group, even thoug
was made. The Full Court of the Supreme Court of S
the lecturer had not been assaulted by the defendant
convicted of assault by a magistrate who had taken t
indulges in conduct which he knows or ought to know
belief of imminent harm he is deemed to have the ne
But the Full Court felt that 'actual knowledge is nece
defendant to constitute the offence.'62 There is of c
Smith and Hogan indicate that the factual situati
would probably warrant a civil action in negligent ass
it is an intentional assault if it is reckless.164 Suppos
lecture theatre brandishing a gun and shouting 'I hav
there are two students both'65 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,'66 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 supra.
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.

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 F. A. TRINDADE 237

SUMMARY AND CONCLUSIONS

There is a certain confusion about, perhaps even ignorance of,

the intentional torts of assault and battery. An attempt has b
article to explain how the various requirements of directness,
contact, knowledge of the contact, consent, threats (by ac
apprehension of imminent contact and knowledge of the
developed by the courts in England, Australia, Canada and
attempt has also been made in this article to show how the cour
jurisdictions could be persuaded by a judicious use of prec
develop these torts into valuable tools for the protection of the
integrity of the person. The tort of battery can be used n
someone from actual physical injury but also to protect him f
reckless contacts with his person which would genera
objectionable. The tort of assault on the other hand protects a p
(by acts or even by words alone) which cause that person to e
contact with his person by either the person making the thre
acting under his control. This tort is extremely important in pr
integrity of the person because the anticipation of physical h
even the anticipation of mere physical contact may be trauma
who is forced to anticipate it.
The torts of assault and battery (together with false impriso
provide compensation for the victims of these torts but
important role to play in the vindication of constitutional right
The compensatory function of these torts may be of slightl
today"6" in view of certain recent developments in compensatin
but the other function continues to be of considerable importa
torts of assault and battery adapted to meet the changing nee
therefore worthy of our consideration and it is well to dispel
there is about them.

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

168 It is suggested, however, supra pp 214-216, that this function has not be

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