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The tort of battery exists at common law. It may be defined as the intentional, direct and unlawful physical contact with a person. Battery is sometimes included in the term 'assault' or 'common assault' whereas no harm or contact is required for the tort of assault to be established. With assault there is no need for the use of force or contact and examples might include such conduct as shaking a fist or brandishing a knife or other weapon at the victim.
Unlike assault, therefore, contact is required for the tort to arise. The contact can be by one person (the tortfeasor) on another or by contact through the use of an implement or object by the tortfeasor such as by throwing a stick which hits the victim. The threatening behaviour directed towards the victim who apprehended that he was going to be attacked amounted to the assault and the subsequent throwing of the stick resulted in the battery.
Battery also exists under the criminal law and the criminal law must also take note of the the law relating to non-fatal offences against the person found in the Offences Against the Person Act 1861. The criminal law creates degrees of seriousness in terms of the injury or harm to the victim. This is not so in the case of the civil tort of battery and it is left to the court to set an appropriate level of damages in the event that the contact is particularly harmful or offensive.
As regards the tort of battery, the courts have determined that there are a number of elements to the tort. There are considered to be three key elements. These three elements are; intent, direct application and force. The courts have also added a requirement of "hostility" or lack of consent in many cases. It is worth considering these elements in turn.
It has been established that the contact can be intentional or negligent. In Letang v Cooper 1965 the Court of Appeal under Lord Denning held that a claim for trespass to the person could be founded on the defendant's negligence in driving his car. The basis of the plaintiff's claim being, that whilst sunbathing on a piece of grass, which was used as a car park, she was injured when the defendant drove his car over her legs.
The nature of the contact has been the subject of consideration of the courts and contact should be direct. However judges have accepted a broad interpretation of 'direct'. Such an approach was taken in the case of Nash v Sheen (1953) when a hairdresser used a tone rinse on the plaintiff's hair (when the plaintiff had given permission for a perm). The tone rinse caused a rash and the hairdresser was found liable in battery even though this had been done without the intent to cause harm.
Any contact is likely to be enough and it is not necessary to have to show that harm resulted. It is necessary however to show that what happened went beyond the 'ordinary collisions of life' (in other words - accidents do happen) Wilson v Pringle (1986). This is consistent with the case of assault where it is not necessary to show that damage resulted. The courts have accepted that any physical contact is likely to be enough and this was the case of Collins v Wilcox (1984). In that case a female police officer intending to talk to a woman on suspicion of soliciting contrary to the Street Offences Act 1959,took hold of the woman's arm. It was held that the female police officer had gone beyond her duties in grabbing the woman as she had formed the intention of not charging her with an offence at the time, but was still using force.
In some situations the presence of hostility is considered an essential ingredient for a successful claim but not everyone agrees. In Wilson v Pringle (1986) a schoolboy grabbed a bag from over the shoulder of the claimant. The boy defendant claimed that this was done in fun and that no intention or hostility was intended and this won favour with the court.
The defences of volenti, necessity and self-defence can come to the assistance of the tortfeasor and afford a defence.
In the case of volenti non fit injuria (Latin “to a willing person, no injury is done” or “no injury is done to a person who consents”) - the voluntary assumption of a risk. The nature of this defence is that where a person engages in an activity and accepts and is aware of the risks, then it would not be right and proper for them to later complain of harm resulting from the activity. This is rather like the principle of consent whilst participating in recognised recreational pursuits and pastimes in response to a claim as a result of a sports injury.
The nature of the defence of necessity in tort is that the individual is forced by the nature of circumstances to act in the way that they did including the use of the property of another due to circumstances. An example would include the case of a person who felt compelled to grab a person and drag them from the path of an oncoming vehicle and by doing so prevents them from serious injury or death. That person is unlikely to be liable in tort. In the event that such a defence is successful the property owner whose property may be damaged by necessity is unable to use force against the individual although such an individual may have to compensate the owner for any damage caused to property.
The doctor who performs an emergency operation to save the life of a patient who is unconscious and therefore unable to give their consent is likely to be excused liability, provided that they can show that they only did what was necessary to save the individual's life.
The defence of self defence to a large extent speaks for itself. The force used must not be excessive and reasonable in the circumstances to prevent personal injury or harm. The method of self defence must be proportionate. For example if someone attacks another using their fists it may not be reasonable for the other person to retaliate using a weapon.
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