Element 3: intentional infliction

Question 1

What intention is required?

What about motive?

Answer 1

Intention to apply the force; this includes subjective recklessness; where D appreciates the risk that they will apply unlawful force to somebody but continue with the act regardless.

Motive is irrelevant.

Question 2

F v West Berkshire Area HA per Lord Goff:

Answer 2

“A prank that gets out of hand, an over friendly slap on the back, surgical treatment by a surgeon who mistakenly thinks that the patient consented to it: all these things may transcend the boundaries of lawfulness”

Question 3

Transferred malice?

Answer 3

Applies to battery

Question 4

James v Campbell:

Answer 4

“ if one of two persons fighting unintentionally strikes a third, he is answerable in an action”

Question 5

Livingstone v MOD

Answer 5

“ the application of force towards some person is intended, even although the person directly struck may not be the person whom the assailant intended to strike”.

Question 6

Bici v MOD

Answer 6

The rule applies to battery but probably not assault due to the ‘floodgates’ argument

Question 7

Tuberville v Savage

Answer 7

But there may be an assault against the original intended target