Battery Flashcards
Elements of battery
- Direct
- Positive
- Intentional
- Touching
Direct
Reynolds v Clarke
Principle: The conduct must be a direct result of D’s conduct. Directness requires a close connection between the act and the interference
Facts: “If a man throws a log into the highway and in that act hits me: I may maintain trespass, because it is an immediate wrong: but if as it lies there I tumble over it and receive an injury, I must bring an action upon the case; because it is only prejudicial in consequence, for which originally I could have no action at all.”
Scott v Shepherd (the exception, rather than the rule. It should be seen as limited to its own special facts.)
Principle: In some cases, an act that sets a series of acts resulting in contact may be sufficiently direct.
The court clarified that intervening acts taken in self-defence or necessity do not necessarily break the chain of causation if the original act was unlawful and the intervening acts were a foreseeable consequence of it.
Positive
Innes v Wylie and Others
Principle: If the policeman was entirely passive like a door or a wall put to prevent the plaintiff from entering the room, and simply obstructing the entrance of the plaintiff, no (battery) had been committed on the plaintiff…
Fagan v Metropolitan Police Officer
Principle: The courts occasionally take a broad view of what constitutes a positive act if there is a duty to do something.
Intentional
A person’s state of mind is to be determined objectively i.e. intent is portrayed by evidence and what they say about their state of mind is only one factor to consider.
C.f. NSW V Ibbett
All that may be required is that the conduct of the defendant is voluntary and D intended contact with P.
D intends contact with P if D acts with a purpose of causing contact with P. E.g. D kisses P. consequence of contact to P is inextricably linked to D’s contact so that D must have anticipated contact would occur. Where contact is part and parcel of D’s contact it can be said D’s act need only be voluntary to satisfy the intent element, because the necessary as to contact flows from the act itself. It is impossible for D to argue this was not their purpose.
Cowell v Corrective Services Commission
Principle: D need not know the contact is unlawful or intend to harm P.
Robert v Ramsbottom
D does not have capacity to act voluntarily when temporary or permanent factors are at play. Impaired or clouded consciousness will suffice. Acts done in an automotive state are also regarded as involuntary.
Scott v Shepherd
Principle: D’s act may be voluntary, but contact is not intended (e.g. firing a gun not knowing there is a bullet in the chamber). this situation is different to that od Scott v Shepherd where D intended to throw a lighted firework, and the question was what consequences were intended. A person who pulls the trigger of a gun thinking it is unloaded does not voluntarily fire the gun.
Bolton v Stone
Principle: Actions in battery will lie when P can establish contact with their person was substantially certain to follow from the acts of the defendant although there was a conceivable possibility someone would be hit it was a bare possibility not substantial certainty as opposed to Scott v Shepherd.).
Rixon v Star City Pty Ltd
Principle: Hostility is not a necessary ingredient to battery. the placing of a hand on the shoulder could be a battery… however the absence of anger or hostile attitude is not a satisfactory basis for concluding that the touching was not battery.
James v Campbell
Principle: Subjective recklessness where D has knowledge of the risk may establish intention as D is taken to have intended the contact even though it was not their purpose. The action must create an unreasonable risk that contact would occur. If A fires a gun intending to hit B but hits C, A is liable to C in battery.
Facts: D was fighting a third party and unintentionally hit P, D was liable to battery).
Touching
Battiato v Lagana
Principle: direct intentional imposition of any unwanted physical contact.
Cole v Turner
Principle: Any touching can constitute battery
Re F (Mental Patient: Sterilisation)
Principle: Not every contact is actionable, however, since some physical contact with others is an inevitable consequence of human interaction, even when it is not consented to.
A broader exception has been created to allow for the exigencies of everyday life — jostling in a street or some other crowded place, social contact at parties, and such like. The exception embracing all physical contact which is generally acceptable in the ordinary conduct of everyday life.
Croucher v Cachia
Principle: Contact can be through the medium of an implement, such as a pair of gardening shears.
Kaye v Robertson
There can only be battery if the result of D’s contact is sufficient to produce a physical reaction. e.g. shining a bright light into somebody’s eyes.
SH Kress v Brashier or Fisher v Carousel Motor Inc
Contact with an object the plaintiff is holding may also constitute battery
Piggly Wiggly Alabama Co v Rickles
Facts: Contact with clothing where D placed their hand on the back pocket of P’s dress.
Rixon v Star City Pty Ltd
Principle: Knowledge of the contact by P at the time of contact is not a requirement for battery.
Reynolds v Clarke
ELEMENT: DIRECT
Principle: The contact must be a direct result of D’s conduct. Directness requires a close connection between the act and the interference
Facts: “If a man throws a log into the highway and in that act hits me: I may maintain trespass, because it is an immediate wrong: but if as it lies there I tumble over it and receive an injury, I must bring an action upon the case; because it is only prejudicial in consequence, for which originally I could have no action at all.”
Scott v Shepherd
ELEMENT: DIRECT
(the exception, rather than the rule. It should be seen as limited to its own special facts.)
Principle: In some cases, an act that sets a series of acts resulting in contact may be sufficiently direct.
The court clarified that intervening acts taken in self-defence or necessity do not necessarily break the chain of causation if the original act was unlawful and the intervening acts were a foreseeable consequence of it.
Facts: Shepherd threw a lighted squib (a firework) into a crowded marketplace. The squib landed near Yates, who, to avoid injury to himself and his goods, threw it away. It then landed near Ryal, who also threw
Innes v Wylie and Others
ELEMENT: POSITIVE
Principle: If the policeman was entirely passive like a door or a wall put to prevent the plaintiff from entering the room, and simply obstructing the entrance of the plaintiff, no (battery) had been committed on the plaintiff…
Facts: A policeman stood in a doorway where a subsequent meeting of the society was being held and prevented Innes from entering the meeting room. The policeman gave evidence that to prevent Innes entering the room he (the policeman) may have been unavoidably compelled to gently lay his hands on the plaintiff and unavoidably push and shove the plaintiff a little.
Fagan v Metropolitan Police Officer
ELEMENT: POSITIVE
Principle: The courts occasionally take a broad view of what constitutes a positive act if there is a duty to do something.
Facts: D had accidentally driven over a police officer’s foot. When D realised, he refused to move. The failure to move off the foot constituted a positive act. Driving the car onto the foot and failing to move it constituted a continuous positive act.
Bolton v Stone
ELEMENT: INTENTIONAL
Principle: Actions in battery will lie when P can establish contact with their person was substantially certain to follow from the acts of the defendant although there was a conceivable possibility someone would be hit it was a bare possibility not substantial certainty as opposed to Scott v Shepherd.).
Rixon v Star City Pty Ltd
ELEMENT: INTENTIONAL
Principle: Hostility is not a necessary ingredient to battery. the placing of a hand on the shoulder could be a battery… however the absence of anger or hostile attitude is not a satisfactory basis for concluding that the touching was not battery.
James v Campbell
ELEMENT: INTENTIONAL
Principle: Subjective recklessness where D has knowledge of the risk may establish intention as D is taken to have intended the contact even though it was not their purpose. If A fires a gun intending to hit B but hits C, A is liable to C in battery.
Facts: D was fighting a third party and unintentionally hit P, D was liable to battery).
Battiato v Lagana
ELEMENT: TOUCHING
Principle: direct intentional imposition of any unwanted physical contact.
“The direct intentional imposition of any unwanted physical contact on another person constitutes the tort of battery. There is no requirement to prove that the contact caused or threatened any physical harm.”
Re F (Mental Patient: Sterilisation)
ELEMENT: TOUCHING
Principle: Not every contact is actionable, however, since some physical contact with others is an inevitable consequence of human interaction, even when it is not consented to.
A broader exception has been created to allow for the exigencies of everyday life — jostling in a street or some other crowded place, social contact at parties, and such like. The exception embracing all physical contact which is generally acceptable in the ordinary conduct of everyday life.
Croucher v Cachia
ELEMENT: TOUCHING
Principle: Contact can be through the medium of an implement, such as a pair of gardening shears.
Kaye v Robertson
ELEMENT: TOUCHING
There can only be battery if the result of D’s contact is sufficient to produce a physical reaction. e.g. shining a bright light into somebody’s eyes.
SH Kress v Brashier
ELEMENT: TOUCHING
Principle: Contact with an object the plaintiff is holding may also constitute battery
Facts: D grabbed a plate from P because P was blac
Piggly Wiggly Alabama Co v Rickles
ELEMENT: TOUCHING
Facts: Contact with clothing where D placed their hand on the back pocket of P’s dress.
Rixon v Star City Pty Ltd
ELEMENT: TOUCHING
Principle: Knowledge of the contact by P at the time of contact is not a requirement for battery.
C.f. NSW V Ibbett
ELEMENT: INTENTIONAL
All that may be required is that the conduct of the defendant is voluntary and D intended contact with P.
Cowell v Corrective Services Commission
ELEMENT: INTENTIONAL
Principle: D need not know the contact is unlawful or intend to harm P.
Robert v Ramsbottom
ELEMENT: INTENTIONAL
D does not have capacity to act voluntarily when temporary or permanent factors are at play. Impaired or clouded consciousness will suffice. Acts done in an automotive state are also regarded as involuntary.
Defences to battery
Consent
Contact as in incident of everyday life
Consent
Marion’s Case
Principle: Consent ordinarily has the effect of transforming what would otherwise be unlawful into accepted, and therefore acceptable, contact.
Giumelli v Johnston
Principle: Participants in a football game are taken to consent to the physical force that is within the rules of the game and commonly encountered infringements of the rules. This implied consent does not extend to physical violence in contravention of the rules by a player who intends to cause bodily harm to another player.
Facts: P and D were opponents in an AFL match. While P had the ball, D collided with him and raised his elbow into P’s cheekbone. The blow constituted a battery.
McNamara v Duncan
Principle: Consent is a defence to battery rather than an element in the action. The onus of proof relies on D to prove that P consented to the conduct.
The intentional blow was not an acceptable act in the ordinary legitimate game of AFL. P did not consent to receive a blow, contrary to the rules of the game, eve though it may be known that such acts may and probably will occur.
Facts: P was injured during an AFL game after sustaining a sharp blow to the head.
