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LA203

  Torts 1 - COURSE MATERIALS

TRESPASS TO PERSON: BATTERY
AND ASSAULT

By Professor Bob Hughes

In this unit we will examine the wrong of trespass to the person. It is one of the direct or intentional torts. These involve direct or intentional interference with the person of another, for example by striking or putting a person in fear of being struck, or by unlawfully restricting another person’s freedom of movement.

These are some of the oldest kinds of wrongdoing in tort. They are also perhaps still some of the most common types of torts. It is one area where there is considerable overlap with some of the criminal wrongs (i.e. criminal offences) as well.

Learning objectives

When you have completed this unit, you should be able to:

  • explain the general principles concerning the torts of battery and assault;
  • describe some of the factual situations in which a person will have the right of action for battery or assault, or both;
  • demonstrate your problem solving skills in the area of torts;
  • analyse some of the leading cases in the area of battery and assault and be able to apply them to other factual situations; and
  • list the range of defences available to battery and assault.

 Contents

Learning objectives *

Introduction *

Battery *

Culpability *
The legal concept of battery *
The technical elements in battery *

Assault *

When does a threat of striking constitute assault? *
Can words alone be an assault? *
Assault without bodily movement? *

Defences to Assault and Battery *

Consent *
Superior lawful authority *
Mistake (under some circumstances) *
Self-defence *
Necessity *
Involuntariness and duress *
Use of force or threats to recover property *
Provocation is not a defence *

Key Terms *

Hints to selected study tasks *

Review questions *

INTRODUCTION

In this unit we introduce the torts of assault and battery. Both are types of trespass against the person, and thus are intentional torts.

Most people use "assault" and "battery" interchangeably, as if these terms refer to the same thing. Some criminal law statutes define assault to include battery. However, in civil law (i.e. non-criminal law) there is a technical difference, which you must learn. That is, in torts:

  • battery* must involve striking the person or body of someone else; but
  • assault* involves putting another person in fear of being struck—it does not need to involve actual striking.

We look first at battery, which is one of the oldest torts.

 BATTERY

There is a widespread belief that battery is hitting or striking someone else. In a way, this view is partly right but, as you will see in this section, there is a lot more to it than that.

Many people would argue that it is clearly wrong to hit or strike someone else. In contrast, the legal system sometimes says that such behaviour is right or excusable. Many would say that it is wrong to kill someone else—perhaps basing this view on religious or moral beliefs. The law does not agree with that either. The crime of murder does not forbid all killing; instead it forbids unlawful homicide i.e. the killing of another in circumstances which are not excusable.

Culpability

The general question here is: when does the law treat some action as culpable (i.e. legally wrong or open to blame) and when does it not? Culpability* means that a person must bear legal responsibility for the action (or possibly inaction) in question. A culpable person exposes himself or herself to liability. If a person is culpable for a tort, he or she is a tortfeasor*.

Case law as basis for determining culpability

Issues of culpability are at the centre of questions about torts and crime and many other areas of law as well. Culpability sounds like a very simple idea. But, how do you determine it? You look to see whether there is an established legal wrong known to the legal system, and identify the principles that establish these wrongs. Statutes (i.e. Acts of Parliament) declare some actions or inactions to be wrong. More commonly (and especially in tort law as we have already indicated) actions or failures to act are legal wrongs because evolved case law has declared them to be so. In relation to basic principles of battery, it is definitely the cases rather than the statutes that provide the relevant source of law.

In addition to telling us that striking or touching another person is a legal wrong, the cases show:

  • that battery is an intentional tort, i.e. that intention* is an element which a plaintiff must prove in order for an action against the striker to be successful;
  • when it is excusable or permissible to strike another; and
  • when the striker might have a good defence to an action for battery.

Unfortunately for law students and law teachers alike, we can rarely find an explanation of all these issues in just one case. Instead, we have to read and digest several cases to find the basic principles that underlie the tort of battery (or any other tort for that matter).

Lawyers have to think through these issues. This is the process of critical thinking—which is really just a way of arguing things out in your own mind or perhaps with other people. Indeed such arguments are often what happen in courts. The law is developed by argument. An argument is a better argument if we think through all of the possibilities. It is people who are affected by laws, whether they are laid down by the parliament or by the courts. If we make a rule, we expect everyone to comply with it.

Now we are on the way to considering the law of battery.

The legal concept of battery

The discussion above raises some important issues. What form of contact ought to be sufficient to amount to battery? Should people be excused in cases where the contact was slight and does no physical harm? Should necessity be a defence? Can I be legally culpable if the other party consented to the contact? What if the contact was the result of a mistake?

Also, in our discussion above we did not mention self-defence. If I acted to save myself or someone near me from an imminent attack, surely I should be excused from liability? Obviously, yes. However, consider the following example.

Example 3.1: "I did it in self-defence"—a confession and an excuse

Sera: I was taking my dog for a walk down the street in Suva at about 7.30 p.m. last Tuesday. I have always loved my dog and I love to take her for walks. She is really like my child. I talk to her a lot. She is my best friend too. I was going past the Post Office. Some kids about 14 or 15 years old were coming towards me and they started to point at me and laugh at me and at my dog. There were four of them. Badly dressed. Big, loud-mouthed kids who were obviously on drugs. They all are. One of them was carrying a stick. I was scared but I kept on walking.

Sanjay: What happened next?

Sera: One of them, a big one, grabbed my dog and tore the leash right out of my hand. The one with the stick waved it at me and then threatened to strike my dog.

Sanjay: How dreadful! What disgusting, pathetic, ignorant, anti-social behaviour. These people have no respect for people or property. Did they hurt the dog? What happened? Did you call the police?

Sera: The one with the stick yelled out something rude like, "Let’s kill this sick dog". He raised the stick again. I yelled out, "Stop! Stop! Help! Police!" I was scared and angry. I have never been so angry in my life.

Sanjay. But he didn’t do it anyway.

Sanjay: Thank heavens! Why not though?

Sera: I shot them.

Sanjay: You what? You can’t be serious?

Sera: Yes, I shot them. All of them. The ones holding the dog and the other one. Four perfect shots. With my handgun. I just pulled it out of my handbag and bang! Bang! Bang! Bang!

Sanjay: They’re dead? How dreadful!

Sera: No they’re not dead. I only shot them in the kneecaps.

Sanjay: But wasn’t that an overreaction?

Sera: No way. I was only protecting my lovely dog and myself. I am an old woman remember. How else am I to defend myself and my dog against these thugs. What right do they have to threaten us. Thugs! Hoodlums!

Sanjay: But there would have been alternatives and a dog is just a dog, after all.

Sera: I will not stand for violence being threatened against me or my property. Others will learn from this. The streets will be cleared of criminals, hoodlums and gangsters. Anyway I didn’t hurt them that much. They’ll get over it. 

In one way, Sera’s last comment expresses a position which communities appear to be prepared to adopt. The principle is incorporated into the law relating to both battery and assault. That is, legitimate defence of yourself, other persons and your property against attack should excuse you from wrongdoing.

However, there must be limits to how much this defence can excuse your behaviour. Why? Because without limits, a person could overreact to almost any degree, and still the courts would excuse that behaviour on the ground of self-defence*. So the principle which must accompany the principle of self-defence is that the defence must only be such as was both necessary and appropriate to repel the attack. We will return to this idea later.

The technical elements in battery

Battery is constituted by the intentional and unjustifiable contact made by one person with the bodily person of another without the latter’s consent*.

As we have said before, battery is an intentional tort. If it is intentional, that implies an action other than accidental touching. It also implies that it is not an action which is the product of ordinary negligence—although note that negligence is also a tort and such an act of negligence might give rise to a separate cause of action if injury is involved.

Element of intention

Thus the plaintiff must prove intention as one element in a successful action for battery. That is, the plaintiff must show that the aggressor either desired the contact or knew that the action in question would most likely lead to the contact. There is authority to say that the plaintiff might establish intention if the aggressor recklessly undertook a course of action which led to contact. Intention could not be established if the aggressor merely intended to frighten the plaintiff and made contact accidentally. However, if the aggressor intended only to frighten and undertook a course of conduct which was highly risky or highly likely to produce contact, that would be sufficient to amount to intention.

Other elements which may be relevant to liability

Note that the only intention which a plaintiff needs to establish is that the aggressor intended to make contact. Battery does not require any intention to do harm or to inflict wounding onto the other person. The law deems that the contact itself is injury (legal injury). Hence a person can sue even though he or she has not experienced substantial injury or loss.

Note that the following elements of the case may also be relevant to the question of liability in battery:

  • the kind of conduct—e.g. if a man (or a woman) tries to attract a woman’s attention in a store by fondling her breasts, this action would be battery. Touching her arm to attract her attention would not be;
  • the social context in which the behaviour occurs—e.g. the expectations of people in a crowded bar might be different from the expectations of people elsewhere;
  • the relationship between the parties— sometimes the relationship can be seen as an implied consent to certain forms of contact. Obviously the contact between husband and wife, or even between close friends, is wholly different from the contact between total strangers; and
  • the means of contact—e.g. kissing a person without consent would be wholly different than tapping his or her shoulder without consent. But in other ways it does not matter how the contact is made. It could be through sexual intercourse, striking with a closed or open fist, kissing, spitting at a person, throwing an object which strikes a person, a bear hug, a headlock, cutting a piece of hair, a stiff-arm tackle, stroking a person’s hair, sticking a knife into a person, or shooting someone with a gun. The courts may hold that any one of these actions is battery.

The courts have also held that infecting a person with AIDS through sexual intercourse amounts to battery. In such a case, the plaintiff might have consented to sexual intercourse, but his or her partner did not disclose the risk of infection. Therefore, any consent that the plaintiff gave would not be effective, and the result would be battery. As we will see, the plaintiff’s consent must be real in order for the defendant to be able to use it as a defence.

Some cases also suggest that it is necessary to prove an element of hostility in battery? Do you agree?

Elements which are not relevant to liability

The following elements are not relevant to the question of liability in battery:

No liabilityfor ordinary humaninteraction

The law accepts that there may be contact which is excused as a part of the ordinary course of human society. We have considered this issue already. For example, if someone tries to attract your attention by tapping you on the shoulder, then there is no battery.

Think about this...

Some commentators have argued that this is not a just or logical result and that a person should be able to recover something for the loss of a chance of recovery, even if it is less than 50% chance of recovery. What do you think?

Reading

Now turn to the following cases:

Cole v Turner (1704) 6 Mod. 149 (see Jones); and
Wilson v Pringle [1986] 2 All ER 440 (Reading 3.1).

 Now let us look at the tort of assault, which is similar to battery in many ways.

  ASSAULT

Assault involves making another person fearful that an offence and unwanted contact are imminent (i.e. in immediate danger of happening). Like battery, there are defences of

  • consent;
  • mistake;
  • self-defence; and
  • necessity.

We will discuss these in further detail in the next section. But, unlike battery, it involves no element of actual contact with the other person.

So is assault really a trespass? It is usually treated as if it were because of its similarities to battery. Maybe it has features that are like negligence in some ways because it is indirect. You need not concern yourself too much at this point with the correctness of the classification.

Apprehension of striking: the essence of assault

The essence of assault is putting a person in fear of being struck. It is that person’s apprehension* of being struck which is important, rather than the aggressor’s actual interference with the body or intention to do harm. Hence Fleming has written:

Since the gist of assault lies in the apprehension of impending contact the effect on the victim’s mind created by the threat is the crux, not whether the defendant actually had the intention or the means to follow it up. The intent required for the tort of assault is the desire to arouse apprehension of physical conduct, not necessarily to inflict actual harm.

Source: Fleming J.G. The Law of Torts, 8th ed., Law Book Company, Sydney, 1992, p. 26.

 When does a threat of striking constitute assault?

Can the aggressor carry out the threat?

An assumption behind the concept of assault is that in the given situation, the aggressor is capable of carrying out the threat of striking. In other situations, an aggressor might make a threat of striking, but it might be impossible to carry out that threat—and therefore assault would not be involved.

Example 3.2: Threat but not assault

Suppose that a woman is standing on one side of a wide river and you are standing on the other side. The woman raises her fist at you in a threatening way. She has not committed an assault because of her distance from you. There is a threat but it is not immediate.

Example 3.3: Threat that is assault

On the other hand, suppose that the woman produces a gun and points it at you. That is assault because there is a real possibility that she can carry out her threat.

 Study task 3.1

The following questions will ensure that you understand the difference between these two situations. To answer them, you will need to study the cases relating to each question and read the relevant sections of Hints at the end of this unit.

  1. Suppose that the circumstances of example 3.2 above were somewhat different. The woman waves her fist threateningly, and the river is fairly narrow and has a bridge over it, or a boat is moored on her side of the river. In those circumstances, she might mean that she is coming across to give you a thrashing. Is that assault?

    Now turn to your Reader and see the decision in:

    Thomas v NUM [1985] 2 All ER 1 (Reading 3.2)

  2. Now suppose that the woman on the other side of the river produces a gun. The evidence later shows that the gun was a toy gun or perhaps a real gun with no bullets in it. You did not know this fact when you were standing by the river. Has the woman committed an assault?

    Consider this question while you compare the following two cases:

    R v St. George (1840) 9 C & P 483 (Reading 3.3).

    Blake v Barnard (1840) 9 C & P 626 (Reading 3.4)

  3. Consider another combination of events. The woman waves her fist, and there is a bridge across the river that she starts to run across while still waving her fist at you. But a group of tourists on the bridge see what is happening and stop the aggressor. Would her behaviour be an assault?

Think about your answer as you read the next case:

Stephens v Myers (1830) 4 C & P 349 (Reading 3.5).

Conditional threats

Threatening actions can constitute an assault. But not all threats will do so. Sometimes the person does a threatening action in such a way or with such accompanying words that we must see the threat as conditional—that is, the person would only carry it out under certain circumstances.

Example 3.4: Conditional threat

Suppose that a salesman comes to your door and asks you to buy some of his company’s products. You are not at all interested in what he has to say as you are tired of being pestered by people like him. You say to him, "You are on my property. I do not want you here. You people are a nuisance. Go away." The salesman does not leave but continues to try to talk to you. You say to him, "You have 10 seconds to get out my front gate or I will punch you in the mouth (belt you in the ear / scramble your brains / break every bone in your body etc.)".

 Study task 3.2

  1. The language used in example 3.3 above certainly shows that you have issued a threat. But the question is: Does that threat constitute an assault?

    Before you answer this question, turn to your Reader and read the following case :

    Tuberville v Savage (1669) 1 Mod Rep 3 (Reading 3.6)
    (Note that an assize* is a circuit court.)

     

  2. Will the decision made in Tuberville v Savage help you if the salesman brought an action for assault against you?

Limitations to ability to assert private rights

There are limits to how much you can assert private rights. If a superior legal authority is involved, it can overtake your private rights.

Note:

You will need to get used to the way that we constantly make a distinction between things which are legal and things which are not.

 Study task 3.3

Suppose that two police officers come to Mr Singh’s door with a warrant to search the property. Mr Singh says, "Get the hell off my property or I will kill you."

That is clearly an assault. Why?

Can words alone be an assault?

Sticks and stones may break my bones but names will never hurt me. (Really?)

Previously words could not constitute an assault

In former times, this old saying was clearly matched in the law relating to assault. According to that law (though it was perhaps not everyone’s view), mere words alone could never constitute an assault, no matter how offensive, insulting or provocative those words were to another person. The use of threatening language might have amounted to what is sometimes called harassment. So such words could have legal consequences, such as being deemed a crime or leading to a break of a contract of employment, which still occurs today. But they could not constitute the tort of assault.

As you will have noted from your reading of Tuberville v Savage (Reading 3.6) above, words could qualify an act which, without those words, would be threatening. That was a different matter though.

Recent changes in approach

However, the question of whether words can be an assault has been contentious for a long time, and the courts appear to be changing their approach to it. Think about it for a moment. People can use words in very threatening ways. Words can create fearful situations, perhaps even more than actions.

In some decisions this century, the courts have held that words alone constitute assault. In Australia, in Barton v Armstrong [1969] 2 NSWLR 451, the court held that words spoken in a phone conversation constituted an assault. According to the court, the words spoken created the appropriate apprehension in the mind of the plaintiff, so it was not possible to regard them as "mere words".

 Reading

Now read:

R v Wilson [1955] 1 All ER 744 (Reading 3.7)

 Assault without bodily movement?

If a person is liable for assault, the act in question must amount to a threat which leads the other person to fear or apprehend offensive contact. Can the aggressor create that apprehension without moving his or her body at all?

This point is debatable, but it is difficult to imagine the circumstances where complete inaction could amount to assault. Could we argue that giving someone "the evil eye" could constitute an assault? Would it be an assault in a culture where magic is practised and the aggressor is the shaman? An interesting question certainly!

 DEFENCES TO ASSAULT AND BATTERY

In this final section, we examine the possible defences to assault and battery, which are:

  • consent;
  • superior lawful authority;
  • mistake (under some circumstances);
  • self-defence;
  • necessity;
  • involuntariness and duress; and
  • the use of force or threats to recover property.

However, provocation is not a defence, as you will see.

 Consent

Consent must be real

If the plaintiff gives consent to the action, that may be a defence for the defendant. However, as we have mentioned already, the consent must be real. That is:

  • it must be an informed consent;
  • the person must give it voluntarily;
  • consent must be genuine; and
  • the defendant must have acted in a way which remained within the scope of the consent which the plaintiff actually gave. The question must be asked: what action did the plaintiff consent to?

Circumstances may imply consent

However, the person does not need to explicitly state the consent in order for the consent to be effective. It may be possible to imply that consent from the circumstances in which the persons are involved.

We have already touched on the example of sports people—although, of course, the kinds of behaviour which a sports player consents to will differ depending on the nature of the sport. For example, by participating in karate, judo, kick boxing and boxing, people by implication consent to contact and aggression as an integral part of the sport. Compared with players of other contact sports such as rugby, they may consent to more contact or perhaps a different form of contact and threatening behaviour.

Even so, rules still define legitimate contact and the acceptable occasions for making it, and these rules are relevant in determining the scope of the consent. For example, suppose a person is limbering up in a karate class before the contest has begun. One of the other class members comes up behind her and kicks her. That is battery.

A second example is where a person willingly undergoes operative surgery, and thus consents to surgical procedures which might be battery without that consent. But note that the important issue in this context is the scope of what is consented to. Consent to one form of operative procedure does not license the surgeon to carry out any operative procedure. 

Superior lawful authority

You have already seen an example of how superior lawful authority may be a defence. Certain persons have legal authority to exercise force and to threaten the use of force on other persons. Usually such authority is granted for the purposes of public peace and order.

Police officers, and citizens under certain circumstances, have authority to exercise force against others. Hotel owners are entitled to eject people from their premises under certain conditions. If owners or proper occupiers of land are faced with a trespasser, they can use reasonable force to eject the trespasser from the land under certain conditions. We will examine these conditions in detail when we deal with trespass to land in LA204

The law has also often held that parents have legitimate authority to apply force against children to discipline them. It also extended such authority to persons in loco parentis (i.e. who stand "in the place of parents") such as guardians and school teachers. But in many jurisdictions today, neither parents nor persons in loco parentis have such authority. Note carefully what Jones has to say about this issue.

 Mistake (under some circumstances)

The difficulty in the area of mistake is that terms such as "mistake" and "accident" are often confused. It has been usually held that unavoidable mistake is not a defence to intentional torts such as trespass. The person intended the consequences but was mistaken as to the significance of those consequences. Thus if a person cuts off the limb of a tree believing innocently that the tree was on their own property then the mistaken belief is no defence. However if the act was done in the belief that the limb would fall on one's own side of the fence and it in fact fell on the neighbour's side of the fence, that would be a defence. The latter is more strictly described as an accident that than a mistake. The defendant intended to do one thing and something other than what was intended happened.

Unavoidable mistake (accident) can amount to a defence when the mistake negates the required element of intention—or, in other words, when the person did not intend the consequences of his or her act. So, for example, a person had no intention of coming into contact with another person but accidentally did so, then there is no battery. Say a police officer mistakenly believes that a felony has been committed and the officer arrests a person whom he/she reasonably believes to have committed the felony. The mistake would excuse the officer from battery or false imprisonment. This was decided in Beckwith v Philby (1827) 6 B & C 635; 108 ER 585, although it is not necessary to read the case at this stage.

However, it is no defence to say that the intended consequences of the act were somehow innocent or had a legal effect that was different from the effect which the defendant assumed. For example, suppose a shopkeeper strikes a child on the assumption that the act is within her lawful authority. The shopkeeper clearly intended the consequences but she is mistaken about the legal effect of the act and her legal right to do it. She did not intend to do something that was unlawful perhaps. But that sort of mistake is no defence to battery or assault or, indeed, to any form of trespass. Or suppose that a police officer has a valid arrest warrant but arrests the wrong person. The mistake will be no defence because the officer actually intended to apprehend the person in question.

Unfortunately the position is rather confused because of the seemingly artificial distinctions between mistake and accident. Unavoidable mistakes often appear as innocent as do the production of accidental (unintended) results. Hence whilst the distinction still appears as a result of the historical development of tort it often appears to have little justification as a matter of policy.

 Self-defence

If you use legitimate force to repel an attack either against yourself or others or against your property, that is a defence to assault or battery.

You can invoke self-defence with respect to other persons because there is an implied duty to come to the aid of your fellow citizens. In contrast to former times, the concept of "other persons" is not limited to particular classes of persons such as family members.

Self-defence must be appropriate to the circumstance

As you have seen (in relation to Sera in the section on battery), the action of self-defence must only be such as is appropriate to repel the attack; it must not be excessive. If an attacker is unarmed, it would be excessive action to repel the attack by shooting him or her. It would also be unreasonable and excessive to kick an attacker after you have knocked him or her unconscious.

A person might use reasonable force to eject a trespasser from land. But again the force must only be such as to remove the trespasser and must be reasonable in the circumstances. If you have warned the trespasser and he or she is in the process of leaving the property, it would be unlawful to strike that trespasser in the back of the head. You also may not set traps which might injure a trespasser unless perhaps you give a clear warning that the consequences of the trespass may be that a trespasser is caught in a trap.

Reading

Now read the following cases in your Reader. They illustrate the principles that we have just been considering:

Lane v Holloway [1968] 1 QB 379 (Reading 3.8)
Bird v Holbrook (1824) 4 Bing 628 (Reading 3.9)
Cope v Sharpe [1912] 1 KB 496 (Reading 3.10 and see Jones 14.4.3)

Necessity

Suppose that it is necessary to apply force to another person in order to save that person’s life. For example, a lifeguard might have to knock out a swimmer who is in danger, in order to be able to bring the swimmer back to shore. Necessity would be a defence in such cases.

What is "necessary" action?

Of course, in many cases there is a fine line between necessary action and assault or battery. For example, in emergency surgical procedures the answer might depend on whether the emergency was real. In a case where the patient’s life would be immediately threatened if the surgeon did not carry out the procedure, then the necessity for action overrides any other requirement of consent. But suppose that the patient’s life is not in immediate danger, and the surgeon could have finished the current procedure and then sought the consent of the patient, thereby postponing the operation until shortly afterwards. In those circumstances, if the surgeon still performs the additional procedure without consent, perhaps because it is convenient to herself or to her employers, then those actions are not a matter of necessity and so necessity cannot be a defence.

Necessity might apply in cases where it relates to a need to defend your own interests or your own health, just as it might apply with respect to the need to protect the interests of others. In such cases, there is clearly an overlap with the defence of self-defence.

Note from Reading 11.4

Reading

Now study a case in which necessity justifies a trespass to the person:

Leigh v Gladstone (1909) 26 TLR 139 (Reading 3.11)

 Involuntariness and duress

Where one person forces another to take some action, then the involuntariness of that action might negate the required element of intention, as the following examples illustrate.

  • Suppose someone takes hold of your hand and forces you to strike another. That is not battery, because it was involuntary, i.e. it was not the product of your intentional act.
  • Suppose you receive threats that force you to take some action which you do not really want to do. In this case, you have acted under duress. The threat overtakes your will.

In former times, duress was not a defence to any form of trespass. But as jurisdictions have adopted an approach that treats trespass primarily as an intentional (rather than a direct) tort, it is now very likely that the courts will hold that duress is a defence.

Use of force or threats to recover property

If your personal property has been stolen, you are entitled to use reasonable force to recover that property. It seems that you have this right even though some time may have lapsed between the time when the person took your property and the time when you try to recover it.

Note from Reading 11.1

  • how the court rejected the old position

  • Do you still believe that judges do not make law?

 Example 3.5: Use of reasonable force

Suppose that Talica has taken your book. You know of this but you take no action to recover it immediately. One month later you see her in the street with the book in her possession. She looks as if she is going to run away after you say to her that you want your book back. You take her arm and remove the book from it. Provided that the force used was no more than reasonable in the circumstances then you have a defence despite your failure to take action to recover earlier.

This position is similar to that in relation to a trespasser on land, discussed earlier. A person who is entitled to possession can use reasonable force to eject a trespasser. However, as you will see when we discuss trespass to land in more detail in LA204, not all forcible ejectment is permissible.

 Provocation is not a defence

It is no defence to assault and battery to claim that the plaintiff provoked the attack. The plaintiff might have uttered words that were very insulting to the defendant. He or she might have abused the defendant’s family or the defendant personally, but the courts do not accept that such provocation is an excuse for the commission of legal assault or battery on the plaintiff.

Impact on claim to damages

However, provocative behaviour might affect any damages which the plaintiff can recover, which in these cases can be:

  • compensatory damages*, i.e. covering actual loss or injury; or
  • exemplary or punitive damages*, which is very similar to a criminal fine but not exactly the same.

The usual proposition is that if provocation is proved, it will reduce exemplary damages, but not compensatory damages.

Note

If you are dealing with damage to persons outside the premises, you must look to:

  • general common law negligence

  • nuisance (public or private)

  • the rule in Rylands v Fletcher (see Jones)

 Reading

Now turn to the following case again:

Lane v Holloway [1968] 1 QB 379 (Reading 3.8)

This case upholds Fontin v Karapodis (1962) 108 CLR 177.

You should then read Jones 12.1–12.5.3.

 Recommended further reading

Offei, pp. 19–25 and chapter 3.

Study task 3.5

Now return to your learning objectives and consider whether you have achieved them satisfactorily.

If not, you should return to any sections that are not completely clear to you before moving on to the next unit.

 Key Terms

Apprehension

Assault

Assize

Battery

Compensatory damages

Consent

Culpability

Exemplary damages

Inevitable mistake

Intention

Lawful authority

Necessity

Punitive damages

Self-defence

Tortfeasor

Hints to selected study tasks

Study task 3.1

3.1(a)

Think about how to answer this question as you read Thomas v NUM. As you read, don’t get too concerned with factual similarities between that case and yours. You should know by now that it is the principles of the law in the case which are binding, not simply whether there are or are not factual similarities.

In Thomas v NUM [1985] 2 All ER 1 you should have found principles that allow you to answer whether the woman on the river bank had committed an assault.

Would your answer be different if the boat moored on the woman’s side of the river had a large hole in it, although neither you nor the woman knew about it? No, you must consider only the facts that you have been given. The assault occurs because of the threatened behaviour, not because of what happened after it. Be careful not to invent your own set of facts, such as suggesting that the woman would have got in the boat and it would have sunk.

3.1(b)

Have you studied both the R v George and Blake v Barnard cases? Whoever said the law was consistent? Which decision is right? The first approach seems to be the best authority, which the courts in the United States and Australia have adopted. Why? Because it is the apprehension or fear of being struck that is the essence of assault.

3.1(c)

Your answer to this question should have been yes, because the assault was complete as soon as the woman started to wave her fist. She had the means of immediately getting access to you.

 Study task 3.2

3.2(a)

The answer is surely yes. You have made a threat but it is a conditional threat. You are the owner of the property and you are entitled to exclusive possession of it. You have said, "If you do not do this (which I am entitled to demand) then I will do so and so". The salesman is not under immediate threat of being struck unless he does not obey the lawful demand.

 Study task 3.3

Mr Singh has committed an assault because the police officers have lawful authority to be on the property. The warrant and their position as police officers give them an authority that overrides the private rights of Mr Singh as the owner of the property.

 REVIEW QUESTIONS

1. Which features establish the difference between assault and battery?

2. Just as Henry is sitting down in a chair, but before he has touched it, John pulls the chair from under him. Henry falls on the ground but is not hurt. Henry gets up off the ground and punches John in the face, breaking John’s jaw.

What rights of action in tort do either Henry or John have against the other person?

3. Jone is driving his car along the road. Sailasa overtakes him in a lorry and nearly runs him off the road. Jone goes wild. He catches up to the lorry and pulls alongside of it. He winds down the window, waves his fist and says, "I will kill you for that, you idiot!" Sailasa laughs and keeps on going.

Has Jone committed an assault in this situation?

4. Eroni points a gun at Eseter as a practical joke. Eseter is short-sighted and thinks the gun was some sort of club.

Has Eroni committed an assault?

5. Consider question 4 again. It was a plastic gun. Eroni says "Bang! Bang! You’re dead." Eseter thinks the gun is real and faints.

Has Eroni committed an assault?

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