Law

of Torts including MV Accident and Consumer Protection Laws II

Torts Against Person and Personal Relations:
Assault and Battery – Part II




Prof (Dr.) C J Rawandale, Symbiosis Law School, NOIDA



Battery

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 2


¡  Battery is an act of the defendant that directly and intentionally causes
some physical contact with the person of the claimant without the
claimant’s consent.

¡  The tort of battery corresponds to the offence “the use of criminal force”
in Section 350 of the Indian Penal Code.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 3

¡  Cole v. Turner, (1704) 6 Mod 149

¡  Holt, C.J. declared:

¡  “First, that the least touching of another in anger is a battery. Secondly,

if two or more meet in a narrow passage and without any violence or
design of harm, the one touches the other gently, it will be no battery.
Thirdly, if any of them uses violence against the other, to force his way in
a rude inordinate manner, it will be a battery; or any struggle about the
passage to that degree as may do hurt will be a battery”.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 4

¡  Criticism: There is nothing inherently wrong with this statement as if A
touches B in anger his act will generally amount to a battery. But some
behaviour not committed in anger will still be a battery such as
unwarranted kiss or unwarranted hug.

¡  Better approach was suggested by Lord Robert Goff in Collins v Wilcock

(1984) 1 WLR 1172 – ‘a touching will only amount to a battery where it
does not fall within the category of physical contacts generally
acceptable in the ordinary conduct of general life’.

¡  Lord Goff reaffirmed it in F v. West Berkshire Health Authority [1989] 2 All

ER 545 : Any deliberate touching of another’s body, beyond the bounds
of acceptable everyday conduct, is, in the absence of lawful excuse,
capable of constituting a battery.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 5

¡  The plaintiff must prove in an action for battery the following essential
ingradients:

¡  a. the use of force to him, either to his body, or bringing an object in

contact with his body.

¡  It is the actual striking of another person, or touching him in a rude,

angry, revengeful, or insolent manner.

¡  Notably, battery does not have to involve a fist fight – it could involve
force transferred by other means, such as pint of beer thrown into
someone else’s face.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 6

¡  Illustration 1: Spitting in the face, The Queen v. Cotesworth, (1704) 6
Mod 172

¡  Illustration 2: Throwing over a chair or carriage in which another person

is sitting, Hopper v. Reeve, (1817) 7 Taunt 698

¡  Illustration 3: Taking a person by the collar, Wiffin v. Kincard, (1807) 2 B &

P N R 471

¡  Illustration 4: To throw water at a person is an assault; if any drops fall

upon him it is a battery, Pursell v. Horn, (1832) 3 N & P 564

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 7

¡  Directness of Touching: Historically, a cause of action in trespass only
where the touching was the direct or immediate result of the defendant’s
act.

¡  Blackstone J in Scott v. Shepherd (1773) 2 Black W 992 – ‘where the injury

is immediate, an action in trespass will lie; where it is only consequential,
it must be an action on the case’.

¡  Illustration: Where a person throws a log of timber onto the highway and
another person falls over it and is injured, this injury is only consequential
and an action for trespass will not lie. By contrast, if the log were to hit
someone that would give rise to an action in trespass because the
contact would be direct and immediate.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 8

¡  b. that the use of force was intentional i.e. without lawful justification

¡  Meaning of ‘intentional act’

¡  If battery constitutes an intentional tort it stands to reason that the

defendant must act intentionally. However, what is an intentional act?
Must the defendant intend the outcome of his or her behaviour? It is
enough that the result is simply foreseeable?

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 9

¡  Letang v. Cooper [1965] 1 QB 232

¡  The plaintiff was sunbathing in a hotel car park when the defendant
drove in and accidently ran over the legs of the plaintiff. Because the
limitations period for negligence had expired by the time the plaintiff
brought her case, she attempted to frame her cause of action as trespass
to the person instead, since the limitations period for trespass longer.

¡  In denying her cause of action, the Court of Appeal ruled that courts
should look at the substance of the claim, not the way the plaintiff
framed it.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 10

¡  Lord Denning: 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. ‘The least touching of another in
anger is a battery,’ per Hold CJ in Cole v Turner (1704) 6 Mod. 149. 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 cares. If the plaintiff cannot prove want of reasonable care, he
may have no cause of action at all.

¡  Thus, it is not enough nowadays for the plaintiff to plead that ‘the
defendant shot the plaintiff.’ He must also allege that he did it
intentionally or negligently. If intentional, it is the tort of assault and
battery. If negligent and causing damage, it is the tort of negligence.
Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 11
¡  In determining the meaning of ‘intentional act’ in this context there are
two broad possibilities:

§  D intended only to act in the way he did
§  D intended both to act in the way that he did and that the resulting
contact with C take place

¡  If A aims to punch at B and succeeds in striking B, there is nothing to
separate A’s act from the out come of the act.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 12

¡  However, in some circumstances, A may do a thing without intending a
particular outcome

¡  Illustration: if D aims his rifle at C, then pulls the trigger, there is no

doubt that he intended to shoot C. But if D aims his rifle at a partridge on
a hunting trip but accidently shoots C, it is clear that D intended the act
(firing the gun) but not necessarily the outcome (C’s injury).

¡  In such circumstances it may be stretching the tort too far to hold D liable
in battery. But if D aimed his gun at a third party, T, then pulled the
trigger missing T and shooting C, standing next to T, we might well wish
to hold D liable.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 13

¡  Hostility: One needs to understand that another ingredient in the tort of
trespass is that of hostility.

¡  If there is hostile intent, that will by itself be cogent evidence of hostility.

But the hostility may be demonstrated in other ways.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 14

¡  When is a touching to be called hostile?

¡  Hostility cannot be equated with ill will or malevolence. It cannot be

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.

¡  The term ‘hostility’ is not to be equated with ill will or malevolence. It

means merely that the defendant is doing something to which the
claimant may object, something that the claimant may regard as an
unlawful intrusion on his rights to physical integrity.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 15

¡  Illustration: Batsman is walking up the pavilion steps after making a
century. He receives hearty slaps of congratulations on his back. He may
not want them. Some of them may be too heavy for comfort. No one
seeks his permission, or can assume he would give it if it were asked. But
would an action for trespass to the person lie?

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 16

¡  Wilson v. Pringle [1987] QB 237

¡  A 13-year-old boy allegedly jumped on another 13-year-old boy as they

were playing, injuring the second boy.

¡  The Court of Appeal stated that the defendant’s act must constitute a
‘hostile’ touching before it can be considered battery. The Court of
Appeal denied recovery by the plaintiff, finding that the act in question
was not hostile.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 17

¡  This approach of proving ‘hostility’ undergone a change in F v. West
Berkshire Health Authority [1989] 2 All ER 545

¡  A 36-year-old woman with a mental age of five to six was a voluntary
resident of a mental hospital and was thought to have been engaging in
sexual relations with another patient. The staff of the hospital came to
the Court to request that she be sterilized.

¡  The House of Lords unanimously agreed, proving an important decision

for a number of reasons.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 18

¡  First Lord Goff further explained the definition of battery described in
Wilson v. Pringle [1987] 1 QB 237.

¡  A surgeon operating on a patient to preserve her life and health may be

motivated by his judgment as to her best interests, not hostility towards
her. Yet if she is competent to do so, and has refused to consent to a
particular course of treatment, the surgeon commits a battery.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 19

¡  According to Lord Goff, any move by the physician to operate on a
patient over the patient’s objections constitutes battery, no mater how
well intentioned the surgeon may be. Thus, the term ‘hostile touching’ is
inappropriate in this context, since the physician intends a positive,
rather than a negative.

¡  So, rather than rely on the definition of battery in that case, Lord Goff
decided to define battery as involving (1) the deliberate touching of
another person’s body which is beyond the bounds of acceptable
everyday conduct and (2) the absence of a lawful excuse.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 20

¡  Collins v. Wilcock, [1984] 1 WLR 1172

¡  A woman police officer suspecting that a woman was soliciting contrary to

the Street Offences Act 1959, tried to question her. The woman walked
away, and was followed by the police officer. The officer took hold of her
arm in order to restrain her. The woman scratched the officer’s arm. She
was arrested, charged with assaulting a police officer in the execution of
her duty, and convicted.

¡  On appeal by case stated, the appeal was allowed, on the ground that the
officer had gone beyond the scope of her duty in detaining the women in
circumstances short of arresting her. The officer had accordingly
committed a battery as she touched the woman deliberately, but without
an intention to do more than restrain her temporarily. Nevertheless, she
was acting unlawfully and in that way was acting with hostility. She was
acting contrary to the woman’s legal right not to be physically restrained.
Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 21
¡  R v. Santa-Bermudez (2003) EWHC 2908

¡  The defendant was stopped by police office and told he was going to be
searched. He was asked whether he had anything sharp, such as drug
needles, in his pockets and replied ‘No’. Inevitably the defendant did
possess drug needles and police officer’s had was pierced by a needle. At
the end of the prosecution case a submission was made on behalf of the
respondent that he had no case to answer on the charge of assault
occasioning actual bodily harm.

¡  The submission was to the effect that an omission to act cannot amount
to an assault or battery and that there was no evidence of any at on the
part of the respondent capable of amounting to an assault.

¡  The Court came to the reluctant conclusion that this submission was well
founded.
Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 22
¡  The divisional court allowed that prosecutor’s appeal and remitted the
case to the crown court. While the court accepted that a true omission
could not give rise to liability for assault, here it could not be said that this
was truly a case of a failure to act.

¡  Rather the defendant had created a situation of danger and had stood by
and indeed encouraged the police office to expose her to the danger. In
such a case, liability in battery can arise.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 23

¡  What, then, turns a friendly touching (which is not actionable) into an
unfriendly one (which is)?

¡  Reg v. Sutton (Terrence) [1977] 1 WLR 182

¡  It was a case concerning alleged indecent assault on boys who consented

in fact although in law they were too young to do so. They were asked to
pose for photographs. The only touching of the boys by the appellant
was to get them to stand in poses. It was touching on the hands, arms,
legs or torso but only for the purpose of indicating how he wanted them
to pose; it was not hostile or threatening.

¡  Lord Widgery CJ held that these were therefore not assaults.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 24

¡  Hurst v. Pictures Theatres Ltd. (1915) 1 KB 1
¡  The Plaintiff has purchased a ticket for a seat at a cinema show. He was
forcibly turned out of his seat by the direction of the manager, who was
acting under a mistaken belief that the plaintiff had not paid for his seat.
¡  It was held that the purchaser of a ticket for a seat at a theatre or other
similar entertainment has a right to stay and witness the whole of the
performance, provided he behaves properly and complies with the rules
of the management.
¡  Thus the plaintiff was entitled to recover substantial damages.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 25

¡  Nash v. Sheen, (1953) CLY 3726

¡  A lady went to a hair dressing shop in order to obtain wave in her hair.
The shop keeper applied “Two Riuse”, which not only dyed her hair in an
unpleasing colour but also provoked painful rash all over her body.

¡  It was held that to be battery, as she had consented only for obtaining of
wave and not for the application of colouring matter.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 26

¡  Phool Chand v Jai Devi, 1965 Indlaw ALL 232

¡  The plaintiff-respondent, Smt. Jai Devi alleged that the defendant

entered the plaintiff's house and caught hold of her arm and dragged her
with the intention of committing sexual intercourse with her. She
contended that the defendant by this act had committed the tort of
battery and claimed a sum of Rs. 1, 000 as damages. The defendant-
appellant resisted the suit and denied that he had assaulted or attempted
to assault the plaintiff, or that he ever went to the house of the plaintiff
on the alleged date. His version was that the plaintiff's husband and his
companions had beaten him and then filed this complaint to counteract
any complaint by the defendant.

¡  Award of compensation for Rs. 600 by the lower court was confirmed by
the Allahabad High Court stating that ‘the damages awarded to the
wronged woman are not as compensation for any injury as there is no
injury, but for mental pain and shock’.
Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 27
¡  Saheli v. Commissioner of Police, Delhi, AIR 1990 Sc 513

¡  The petitioner and her minor son were beaten by landlord and police in
order to get the tenement, in which they were living, vacated. As a
consequence the son dies. The petitioner was held entitled to get
compensation for the death of her son from Delhi Administration
because the death of the petitioners son was caused by the beating and
assault by the agency of the sovereign power acting in violation and
excess of the power vested in such agency.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 28

¡  Ali (Late) v Sumesh, 2010 Indlaw KER 171

¡  The plaintiff an eight-year-old second standard school student, was

standing outside his classroom. The defendant came and asked about the
whereabouts of his brother and immediately without any reason or
provocation slapped on the face of the plaintiff resulting in grievous
injury on his right eye.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 29

¡  The Kerala High Court observed:

¡  ‘Minor has no protection but where the minor is very young and the act
complained of requires malice etc. the age has to be taken into
consideration for the same. Therefore what is to be found out is whether
the boy was in a position to understand the consequences of his action…
the incident had taken place within the premises of the school and the
boy was a student of third standard and there was no provocation from
the plaintiff inviting him to slap. The boy of third standard should have
behaved in a better manner and his irresponsible act has resulted in the
loss of eye sight of the plaintiff…the action is wrong and the first
defendant is liable’.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 30

¡  c. The force must be applied against the plaintiff without his consent,
express or implied.

¡  The absence of Consent is an element of the cause of action in battery

and, consequently, the claimant must prove that he did not acquiesce to
the contact with his person.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 31

¡  Part of the rationale for this approach would potentially have posed
severe problems for doctors generally, not just prison medical officers.

¡  Any contact with a patient- for example, vaccinations or even examining

sore throats with a spatula- would prima facie constitute battery. To
escape liability, the doctor would have to justify the intrusion by proving
that the patient consented.

¡  This might be extremely difficult in cases involving minor procedures

where no written consent had been obtained, or if records had been lost,
or if the doctor had died.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 32

¡  On the other hand, in the context of actions by suspects against the
police, or prisoners against prison authorities, casting the burden of proof
on the claimant might vitiate the effectiveness of a battery action as a
mechanism for vindicating their civil liberties.

¡  In such circumstances, cases would turn on the contest between the

word of the prisoner and the word of ‘respectable’ members of society in
a position of responsibility.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 33

¡  Freeman v. Home Officer (No 2), [1983] 3 All ER 589

¡  A prisoner alleged that he had been injected with powerful mood-

changing drugs against his will.

¡  The judge held that, since the essence of battery is a specific and
unpermitted intrusion on the claimant’s body, it was for the claimant to
establish that he did not agree to the intrusion. This he failed to do so no
battery could be proven.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 34

¡  It is a central tenet of medical law that a competent adult patient may
not be treated without consent. A person is entitled to refuse any
treatment, even that which is necessary to save life.

¡  Re F (Mental Patient: Sterlisation) [1990] 2 AC: Airedale NHS Trust v

Bland [1993] 1 All ER 821

¡  It is battery to administer medical treatment to an adult, who is

conscious and of sound mind, without his consent.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 35

¡  F v West Berkshire Health Authority, (1989) 2 All ER 545

¡  A Surgeon operating on a patient to preserve her life and health may be

motivated by his judgement as to her best interests, not hostility towards
her. Yet if she (patient) is competent to do so, and has refused to consent
to a particular course of treatment, the surgeon commits a battery.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 36

¡  Airedale NHS Trust v Bland [1993] 1 All ER 821

¡  Lord Mustill observed, ‘‘If the patient is capable of making a decision on

whether to permit treatment and decides not to permit it his choice must
be obeyed, even if on any objective view it is contrary to his best
interests’.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 37

¡  Exception: However, where a person by reason of some permanent or
temporary mental incapacity cannot himself consent to medical or other
necessary procedures, the requisite lawful excuse may have to be found
in principle of necessity.

¡  In United Kingdom, Sections 2 and 3 of the Metal Capacity Act 2005

provide for statutory definition of mental incapacity. The gist of this
definition is that the defendant is incapacitated when unable to make a
decision for himself because of impaired brain function, where the
inability to make a decision is to be understood in terms of an inability to
understand, retain, or evaluate the information.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 38



Interrelationship between Assault & Battery

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 39

¡  A battery includes an assault which briefly stated is an overt act
evidencing immediate intention to commit a battery. But there are some
points of distinction between assault and battery, as follows:

¡  a. In Assault actual contact is not necessary. Physical contact is

necessary to accomplish battery

¡  Pulling away a chair, as a practical joke, from one who is about to sit on it
is probably an assault until he reaches the floor, for while falling he
reasonably expects that the withdrawal of the chair will result in harm to
him.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 40

¡  b. An assault is an attempt at battery, or a threat to commit battery

¡  If a person angrily advances, it will be an assault; but if he comes in actual

contact with the other person, then it would be battery.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 41




Defences to an action for Assault and Battery

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 42

¡  Self defence
¡  Expulsion of trespasser
¡  Retaking of goods

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 43

¡  4. Exercise of parental and quasi parental authority

¡  Traditionally it is held that parents have the legal right to smack their
children as part of administering of reasonable punishment. However any
force used to restrain or punish a naughty child must always be
reasonable or it will amount to tort.

¡  In United Kingdom, corporal punishments was first banned in state

schools in 1987 and has been banned in all schools since 1998.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 44

¡  A v. United Kingdom, (1998) 2 FLR 959

¡  A 48 year old Scottish teacher who pulled down his eight year old
daughters pants and spanked her at a health centre was convicted of
assault and battery. He had exceeded the bounds of reasonableness.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 45

¡  R (on the application of Williamson) v. Secretary of State for
Education & Employment, (2005) UKHL 15

¡  The banning of corporal punishment was challenged as being

inconsistent with Christian Faith (Article 9 of the European Convention
on Human Rights). The Court held that abolition of corporeal punishment
in schools under s 548 of the Education Act, 1948 did not infringe
parental rights of those parents who believed that such punishment was
consistent with Christian faith (Article 9 of the European Convention on
Human Rights).

¡  The Court held that the ban did interfere materially with parental rights
under Art 9, but that interference was necessary in a democratic society
for the protection of the rights of the vulnerable children.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 46

¡  5. Leave and license

¡  6. Preservation of public peace.

¡  7. Legal process: Illustration - Arresting a person, feeding one who is on

hunger strike to save his life etc.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 47




Remedy

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 48

¡  A civil action lies for an assault, and criminal proceedings may also be
taken against the wrong doer.
¡  Akhil Chandra Biswas v. Akhil Chandra Dey, (1902) 6 CWN 915
¡  The fact that the wrong-doer has been fined by a Criminal Court for
assault is no bar to a civil action against him for damages.
¡  Ali Buksh Doctor v. Sheikh Samiruddin, (1869) 4 Beng LR (ACJ) 32
¡  The previous conviction of the wrongdoer in a criminal Court is no
evidence of assault. The factum of the assault must be tried in a civil
court which is not bound by conviction or acquittal in a criminal
proceeding.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 49


¡  Schloendorff vs. Society of New York Hospital, 211 N.Y. 125, 129-30,
(1914)

¡  Justice Cardozo observed: "Every human being of adult years and sound
mind has a right to determine what shall be done with his own body, and
a surgeon who performs an operation without his patient's consent
commits an assault, for which he is liable in damages."

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 50

¡  Aruna Ramchandra Shanbaug v Union of India and others, 2011 Indlaw
SC 148

¡  Mr. T. R. Andhyarujina, learned senior counsel and the Amicus Curiae

submitted:

¡  “…In general in common law it is the right of every individual to have the
control of his own person free from all restraints or interferences of
others. Every human being of adult years and sound mind has a right to
determine what shall be done with his own body. In the case of medical
treatment, for example, a surgeon who performs an operation without
the patient's consent commits assault or battery’.

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 51

 ¡  Thank You!

Prof. (Dr) C J Rawandale, Director, Symbiosis Law School, NOIDA 52