Battery can be defined as ‘the actual infliction of unlawful force on another person’ Collins v Wilcock [1984] 1 WLR 1172, 1177 (Robert Goff LJ).
To constitute battery, there must be some contact with or some infliction of force to the claimant’s body. So in R v Ireland [1998] AC 147, both Lord Steyn and Lord Hope said that the infliction of psychiatric injury by means of silent telephone calls could not amount to battery as there was no physical contact (see at 161 and 165 respectively). The House of Lords in that case however held that D’s actions might amount to assault.
The defendant, D, must perform a positive act to be liable for trespass, although the distinction between act and omission is not always easy to draw.
D unwittingly drove his car so that one of its wheels came to rest on a police officer’s foot. The officer asked D to move the car, but D initially responded by shouting abuse and switching off the car’s engine. Subsequently, he moved the car. A majority of the Divisional Court (Lord Parker CJ and James J) held that D was guilty of criminal assault. There was a continuing act which amounted to assault as soon as D formed the intention to inflict unlawful force on the officer. But Bridge J dissented:
‘I have been unable to find any way of regarding the facts which satisfies me that they amounted to the crime of assault. This has not been for want of trying. But at every attempt I have encountered the inescapable question: after the wheel of the appellant’s car had accidentally come to rest on the constable’s foot, what was it that the appellant did which constituted the act of assault? However the question is approached, the answer I feel obliged to give is: precisely nothing. The car rested on the foot by its own weight and remained stationary by its own inertia. The appellant’s fault was that he omitted to manipulate the controls to set it in motion again.’ (446).
D will not be liable where he had no control over the act. In Gibbons v Pepper (1695) 2 Salk 637 the Court of King’s Bench held that there was no battery by D where the horse which he was riding took fright and bolted, subsequently knocking over a bystander. But provided that the act was voluntary, D will not escape liability merely because he did not know that his action was ‘wrong’:
During a catatonic episode, D, a schizophrenic, violently attacked C, the manager of the hotel in Brighton where D was staying. C brought an action for damages for assault and battery against D. Stable J found that D had not been in a condition of automatism, that his mind had directed the blows he struck against C but that D had not known that what he was doing was wrong. Stable J said that serious injury inflicted by ‘a person in a condition of complete automatism . . . would not be actionable’ (928). But Stable J held that it was sufficient to establish liability for assault and battery that D had known ‘the nature and quality of his act’, and that it was immaterial that D had had no knowledge of wrongdoing.
As has been seen, the majority of the Court of Appeal in Letang v Cooper thought that battery was an intentional tort – that it was not sufficient to prove that the contact resulted from the defendant’s carelessness. Whether intention is a necessary element of liability for battery remains uncertain: (‘Fowler v Lanning remains authority for the proposition that a civil trespass may be committed negligently. Breslin v McKenna [2009] NIQB 50 at [11] (Morgan J)). But, assuming that intention is a requirement, what does the claimant have to show?
Firstly, what is it that the claimant must intend? Broadly there are three possibilities: (1) an intention to do the act (without intending contact); (2) an intention to do the act and bring about contact (without intending that the contact cause harm) (3) an intention to do the act, bring about contact and cause injury. It seems clear that the correct formulation is (2): ‘[I]n the action for trespass, to constitute a battery, [the physical contact] is deliberate’ (Wilson v Pringle [1987] QB 237, 247 (Croom-Johnson LJ)); ‘an intention to do the thing complained of must be alleged and proved’ Morriss v Marsden [1952] 1 All ER 925, 928 (Stable J).
As such, the gist of battery may be seen as the deliberate, or intentional, infliction of force on, or contact with, the claimant’s body. There is no requirement that the defendant intends to harm the claimant and often there will be no harm in the sense of physical injury: ‘[a]n intention to injure is not essential to an action for trespass to the person’ (Wilson v Pringle [1987] QB 237, 248 (Croom-Johnson LJ)).
Wilcock, a police officer, suspected that Collins was soliciting men for the purpose of prostitution. W asked C to get into W’s police car. C refused and began to walk away. W got out of the car and asked C for her name and address. C again walked away. W said to C that she had not finished talking to her. C told W to ‘fuck off’ and walked away. W then took hold of C’s arm to restrain her. In response, C scratched W’s arm with her fingernails. C’s conviction for assaulting a police officer acting in the execution of her duty was quashed on appeal. By taking hold of C’s arm, W had committed a battery. As such, W had been acting unlawfully, not lawfully and so not in the execution of her duty, when the ‘assault’ by C had occurred.
In Collins v Wilcock, when the police officer took hold of the suspect’s arm, the officer had not intended to hurt the suspect: she merely wanted to stop her from walking away. What mattered was that the contact with the suspect’s arm had been a deliberate act by the officer.
An important qualification to the intention requirement is the concept of transferred intent. The effect of the concept of transferred intent is that liability for battery can arise where D makes unlawful contact with C notwithstanding that D intended that the contact be with a third party, T, and not C.
A fight erupted at a parish dinner. James alleged that Campbell hit him leaving him with two black eyes. Campbell argued that he could not be liable to James for assault and battery as he had intended to strike Paxon and not James. Bosanquet J directed the jury that even if they thought Campbell had struck James, Campbell was liable, whether or not he had intended to hit James.
The same principle was applied more recently in the Bici case:
C1 and C2 were being driven in a car while celebrating the withdrawal of Serbian forces from Pristina. C2 was sitting in the rear passenger seat. C1 was on the roof of the car with another man, T, who was firing a Kalashnikov automatic rifle. The car approached three British soldiers who were part of the UN Peacekeeping force. The soldiers, fearing for their own safety, opened fire aiming their weapons at T. T and another occupant of the car were killed. C1 was hit and injured. C2 was not physically hurt but subsequently suffered psychiatric injury as a result both of the fear he experienced for his own safety and of what he witnessed. Elias J held that D was liable to both C1 and C2 in negligence. Applying the criminal law doctrine of transferred intent (or malice), Elias J further held that D was liable to C1 for battery. Even though the soldiers had not intended to hit C1, they were nevertheless liable as their intention to hit T could be treated as if it had been an intention to hit C1.
Compare the James and Bici cases with Ball v Axten:
D intended to strike a farmer’s dog, but ended up hitting the farmer’s wife. This was held to amount to trespass to the person.
In the Bici case, Elias J questioned whether, given the development of the law of negligence, the same result would be reached in Ball v Axten today.
In Bici v Ministry of Defence Elias J accepted that subjective recklessness would suffice to establish the necessary intention for battery: D must have appreciated the potential harm to the claimant, C, and been indifferent to it. ([2004] EWHC 786(QB) at [67]. See also Pritchard v Co-operative Group Ltd [2011] EWCA Civ 329 at [33] where Aikens LJ said that ’[i]n this context, “intentional” must embrace “recklessness”’).
For subjective recklessness to be made out in the context of battery, it must be shown that the defendant had realised that his act would result in contact with the claimant and that he proceeded to perform that act notwithstanding that bringing about contact was not his aim or purpose.
(Subjective recklessness may be contrasted with objective recklessness. Objective recklessness is made out where, although the defendant had not realised that his act would produce a particular result, the ordinary reasonable person would have so realised. It seems that objective recklessness will not suffice to establish intention for the purpose of trespass to the person).
The infliction of force on, or the contact with, C’s person must be the direct result of C’s act. Rogers notes (The Law of Tort, 2nd edition, Sweet & Maxwell 1994, 148) that while ‘flesh to flesh contact is unnecessary . . . there must be something at least resembling a blow’. As such, it seems that no action for battery will arise where C consumes food which D had poisoned. And while there will often be direct contact between D and C (such as where D punches C), battery also extends ‘to acts directly likely to cause such interference, such as hitting the plaintiff’s horse, causing him to fall off . . .’ Wainwright v Home Office [2001] EWCA Civ 2081 at [67] (Buxton LJ).
D struck a woman who was holding a 12-month-old baby, C. The blow caused the woman to drop C onto the ground. The Divisional Court upheld D’s conviction for assault against C: the dropping of C was the immediate result of D’s blow.
Note that while the Haystead case may at first sight appear to the same as James v Campbell and Bici Ministry of Defence, note that in Haystead there was no contact as between D and C,
In various cases, both old and recent, the courts may be seen to have adopted a fairly liberal approach to the directness requirement.
During the evening of the day of the fair at Milborne Port, D threw a lighted squib containing gunpowder into the covered market building. The squib was picked up by X who, acting in self-defence, threw it on. It was, in turn, thrown on by another trader, Y, acting to save his goods. The squib struck C in the face, causing him to lose an eye. A majority of the Court of King’s Bench held that an action for trespass and assault by C against D would lie.
D, a pupil at Stowe school, took a quantity of sulphuric acid in a boiling tube out of his chemistry lesson. He went to the toilets. Hearing approaching footsteps, he panicked and put the sulphuric acid in a hand-dryer, the nozzle of which was pointing upwards. When the footsteps had passed, D decided to return to his class, leaving the acid in the hand-dryer until he could return later to dispose of it. Before he could return, another pupil used the hand-dryer and suffered a permanent scar when the acid hit his face. The CA gave a direction to the magistrates to convict D of the offence of assault occasioning actual bodily harm: ‘a defendant, who pours a dangerous substance into a machine, just as truly assaults the next user of the machine as if he had himself switched the machine on’ Parker LJ at 1071.
The case arose out of the Omagh bombing in 1998. The Northern Ireland Court of Appeal held that the trial judge, Morgan J, had ‘applied the correct test in determining whether trespass had been committed by those who planted the bomb which was intended to and did explode causing injury and death’ (at [20]). Morgan J had stated (Breslin v McKenna [2009] NIQB 50 at [12]) that ‘impact caused by the detonation of the bomb is . . . direct injury and a delay in detonation makes no difference as long as the mental element required for the tort is established . . .’
Rogers argues (The Law of Tort, 2nd edition, Sweet & Maxwell 1994, 148) that it would be desirable to drop the directness requirement and unify ‘all harmful or offensive intentional interference with the plaintiff’s person under one head’. However, desirable or not, there seems little sign of any such development in the immediate future.
Suppose that X is in a coffee shop when the man at the next table, Y, gets up to leave. X notices that Y has forgotten to pick up his phone. Y is listening to music on his headphones so he doesn’t hear X when she tries to get Y’s attention. Just before Y gets to the exit, X taps him on the shoulder to get his attention and gives him his phone. Here the contact brought about by X’s tap on Y’s shoulder is deliberate and direct but it is clear that it does not amount to a battery. But why not?
Rogers notes (148) that the the final requirement of liability for battery has ‘proved elusive’. Perhaps the best formulation is that given by Robert Goff LJ in Collins v Wilcock [1984] 1 WLR 1172, 1177 when he said that the best explanation for the fact that ‘most of the physical contacts of ordinary life are not actionable’ as batteries is the recognition of ‘a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life’.
In Wilson v Pringle the Court of Appeal preferred a requirement of hostility: for battery to occur, the contact or touching must be ‘hostile’, although this did not mean that there had to be malevolence or ill-will.
C and D, both aged 13, were in a school corridor between lessons when D pulled the bag which C was carrying over his shoulder. This caused C to fall to the ground sustaining injury. C claimed that D had intentionally jumped on him, causing serious injury. D denied liability and claimed that he had merely pulled C’s bag off C’s shoulder as an act of horseplay. The judge awarded summary judgment in favour of C on the ground that D had admitted a battery. The CA allowed D’s appeal and gave him unconditional leave to defend the action. The judge had taken too narrow a view of trespass to the person. According to the Court of Appeal, in a claim for battery, the claimant must prove that the contact was intentional and hostile. Here, there were a number of matters which needed to be investigated in evidence.
‘In our view, the authorities lead one to the conclusion that in a battery there must be an intentional touching or contact in one form or another of the plaintiff by the defendant. That touching must be proved to be a hostile touching. That still leaves unanswered the question “when is a touching to be called hostile?” Hostility cannot be equated with ill-will or malevolence. It cannot be governed by the obvious intention shown in acts like punching, stabbing or shooting. It cannot be solely governed by an expressed intention, although that may be strong evidence. But the element of hostility, in the sense in which it is now to be considered, must be a question of fact for the tribunal of fact. It may be imported from the circumstances.’ (Croom-Johnson LJ at 252-253).
Subsequently, in F v West Berks HA [1990] 2 AC 1, 73 Lord Goff reiterated his earlier approach and disapproved of the requirement of ‘hostility’. Lord Goff said hostility did not fit with the fundamental principle that ‘any touching of another’s body is, in the absence of lawful excuse, capable of amounting to a battery and a trespass’. An advantage of Lord Goff’s formulation is that it avoids reliance on the concept of implied consent. As Lord Goff noted, implied consent cannot apply where C is incapable of giving consent (eg, a young child).
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