Topic 3 - Trespass to the person (Battery)

Question 1

Principles of Battery (4)

Answer 1

1. Harm caused directly
2. Actionable per se
3. Positive act (The defendant must do a positive act in order to be liable)
4. • Fault element (Can be intentional or negligence - Williams v Hollland)

Question 2

Elements of battery (3)

Answer 2

1. intentional (Hostility? What is the nature of the requisite intent- what must the defendant intend – to touch or to injure? Or what other fault may support the claim?) or negligent act
2. Direct application of force
3. Without consent/lawful justification

Question 3

1. Personal inviolability

2. exceptions

Answer 3

1. Collins v Wilcock [1984] - “It has long been established that any touching of another person, however slight, may amount to a battery”
2. self-defence, consent, contact generally acceptable in the ordinary conduct of daily life.

Question 4

In Re F [1990] 
(Battery. Implied consent/daily life)
1. Facts
2. Rule 
3. Principle

Answer 4

1. F, 36 yr female, patient of mental hospital, in a voluntary relationship with male patient. Due to mental disability F was incapable of giving consent to a sterilisation operation. Mother and next friend of F applied for declaration that sterilisation operation would not be an unlawful act.
2. Cole v Turner (1704) 6 Mod 149, per Holt CJ – “for a touching of another’s person to amount to a battery, it had to be touching “in anger””
3. Medical treatment without consent – battery. Hostility is not a requirement of the tort of battery. The absence of anger or hostile attitude by the person touching another is not satisfactory basis for concluding that the touching was not a battery.

Question 5

Rixon v Star City (2001)
(Battery and assault; acceptable touching? fault?)
1. Facts
2. conclusion
3. Principle

Answer 5

1. The P Mr Rixon. The D Star City Pty Ltd. P went to cassino even after being given an exclusion order, employee put hand on P shoulder and asked if he was Dixon. P brought action for damages, trial judge Balla ADCJ rejected plaintiffs claim for assault and battery. P appealed
2. Battery - Touching “lacked the requisite anger or hostile attitude”
   Assault – Lacked “The requisite intention in relation to assault” and create “In Mr Rixon an apprehension of imminent harmful or offensive contact” Hall v Fonceca [1983] WAR 309
3. Physical contact which is generally acceptable in the ordinary conduct of daily life does not constitute battery. Assault requires an intention to create in another person an apprehension. Of immediate harmful or offensive contact

Question 6

Croucher v Cachia

Answer 6

NSW Court of Criminal Appeal case which confirmed you can bring an action of negligent battery