Trespass to the Person - Battery

Question 1

What is Battery?

Answer 1

According to Lord Justice Goff in Collins v Wilcock battery is “the actual infliction of unlawful force on another person”.

Question 2

What are the 3 key components an actionable battery requires?

Answer 2

1. the intentional application of unlawful (though not necessarily hostile) force;
2. which is direct and immediate; and
3. no lawful justification or excuse

Question 3

What exactly must be intended for an actionable battery?

Answer 3

Under the ‘intentional application of unlawful force’ component of an actionable battery, what must be intended – or treated with reckless disregard – is the contact with another person. The consequences of the action, the specific unlawful injury, need not be intended.

Question 4

Which cases illustrate the application of the ‘intentional application of unlawful force’ requirement?

Answer 4

1. Williams v Humphries

2. Livingstone v Ministry of Defence

Question 5

What were the details and findings of the Williams v Humphries Case?

Answer 5

The defendant pushed the claimant into the swimming pool as a practical joke, unfortunately this caused the claimant to break his ankle.
The defendant was held to be liable.

Question 6

What were the details and findings of the Livingstone v Ministry of Defence?

Answer 6

A soldier fired a baton round into a crowd and not directly at the claimant who was injured by it. It was held that the Defendant capable or being liable under the transferred intent rule.

Question 7

Does ‘unlawful force’ necessarily have to be hostile?

Answer 7

No, in the Re F (Mental Patient: Sterilisation) Case it was said - ‘it has recently been said that the touching must be ‘hostile’ to have that effect … I respectfully doubt whether that is correct. 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 bounds of lawfulness, without being characterised as hostile’

Question 8

What is the purpose of the ‘direct and immediate’ requirement of Actionable Batteries?

Answer 8

It is used to distinguish trespass from negligence.

Question 9

How has the ‘direct and immediate’ requirement been interpreted?

Answer 9

It has been interpreted flexibly, as shown by the cases of Scott v Sheppard and DPP v K (A Minor).

Question 10

What were the details and findings of the Scott v Sheppard Case?

Answer 10

The defendant who threw a squib into a market place was held to be liable after it was thrown onwards by two stall holders before ultimately exploded injuring a third.

Question 11

What were the details and findings of the DPP v K (A Minor) Case?

Answer 11

A school child created a bobbly trap by filling a hand dryer with sulfuric acid, which burnt the next child to use it. The defendant was held to be liable.

Question 12

According to the required absence of any ‘lawful excuse or justification’ what are the defences to battery?

Answer 12

1. Voluntary Assumption of Risk
2. Illegality
   (standard/general defences)
3. Consent
4. Necessity
5. Self-Defence

Question 13

Is contributory negligence an applicable defence for battery?

Answer 13

No - per Co-operative Group (CSW) Ltd v Pritchard.

Question 14

How does consent act as a defence to battery?

Answer 14

Consent is the most important ‘defence’ in this area of law. There is no battery when there is consent to the contact.

Question 15

When is consent valid?

Answer 15

Consent is only valid if the following conditions are met:

1. C agreed that D could touch her in the way he did
2. At the time of the touching, C’s level of maturity, intelligence and understanding was sufficient enable C to decide to let D touch her
3. C did not agree that D could touch her because she was forced by someone else

Question 16

Which case clarified what qualifies as ‘consent’?

Answer 16

Chatterton v Gerson

Question 17

What were the details and findings of the case of Chatterton v Gerson?

Answer 17

The claimant had a painful scar, she agreed to having a sensory nerve behind it removed to stop the pain. This was done, but as a side effect she lost some muscle function in the area, a risk she was not told of.
It was held there had been valid consent as she had been told about and understood the ‘general nature of the operation’, she had been ‘informed in broad terms what the procedure involves.’

Question 18

Where will consent be invalid?

Answer 18

There is no valid consent where a claimant has been mislead as to the nature of what will be done to them.

Question 19

Which cases illustrate the issuing of invalid consent?

Answer 19

1. R v Williams

2. AG Reference (No 6 of 1980)

Question 20

What were the details and findings of the R v Williams Case?

Answer 20

A singing teacher had convinced his pupil to have sex with him telling her it was an operation to improve her singing voice. It was held that the consent was invalid and he was convicted of rape.

Question 21

What were the details and findings of the AG Reference case?

Answer 21

Two men who disliked each other agreed to have a fight at a later date. At the subsequent fight one was injured. It was held that there was no valid consent. “[I]t is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason.”

Question 22

Can consent be refused?

Answer 22

Yes - generally adults have an absolute right to refuse consent to contact, this is the case even if medical opinion is in favour of their treatment.

Question 23

Which case illustrated the refusal of consent?

Answer 23

Re T (Adult: Refusal of Treatment)

Question 24

What was said in the Re T Case?

Answer 24

It was said here, that - ‘[A]n adult patient who … suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it, or to choose one rather than another of the treatments being offered. This right of choice is not limited to decisions which others might regard as sensible’.

Question 25

What is the defence of necessity?

Answer 25

Where someone’s mental capacity makes them unable to consent to or refuse medical treatment, the common law has said that they may be given medical treatment which is necessary and in their best interests.

Question 26

What provides the authority for the defence of necessity?

Answer 26

The Mental Capacity Act 2005

Question 27

What does the MCA 2005 provide by the way of defining ‘necessity’?

Answer 27

A person will lack capacity where;
1) They are suffering from an “impairment of, or a disturbance in the mind or brain” which means they are unable to make a decision. (s2)
and
2) They are;
(a) unable to understand the information relevant to the decision,
(b) retain the information,
(c) use or weigh that information to reach a decision; or
(d) communicate their decision. (s.3)

Question 28

What must a person acting towards a person without the capacity to consent do to ensure they act lawfully under the defence of necessity?

Answer 28

A person who does an act to an person lacking capacity “in connection with the[ir] care or treatment” will act lawfully if (under s5):

1) Before doing the act D took reasonable steps to establish whether P lacked capacity in relation to the matter in question and
2) When doing the act, D reasonably believed that;
i. that P lacked capacity to consent in relation to the matter and
ii. it was in P’s best interests for the act to be done and
iii. at the relevant time P was not under 16 (s2(5).

Question 29

What is the laws stance on the ability of children to give consent?

Answer 29

Children with sufficient mental capacity can consent to medical treatment deemed to be in their best interests.

Question 30

Which case illustrated the notion that children, in some circumstances, may be able to give valid consent?

Answer 30

Gillick v West Norfolk AHA

Question 31

What are the details and findings of the Gillick Case?

Answer 31

This case was brought by the mother of 5 daughters under 16. She challenged the Department of Health’s policy that doctors could prescribe contraceptives to girls under 16 without the knowledge or consent of the parents. It was held that a child of 16 or under who had sufficient mental competence to understand the treatment could consent to treatment which was in their best interests.

Question 32

Can the refusal to consent to treatment by a child be overridden?

Answer 32

Yes - both parents and the courts can override a refusal of treatment by a child where that treatment is in their best interests - s.8 Family Law Reform Act 1969.

Question 33

Which cases illustrate the ability to overrule the refusal of a child to consent to treatment in their best interests?

Answer 33

Re W 
Re A (Conjoined Twins: Surgical Separation)

Question 34

What were the details and findings of the Re W Case?

Answer 34

A 16 year old girl with anorexia nervosa refused consent to the doctor’s recommendation to transfer her to a specialised treatment unit. It was held that the parents can consent to the treatment of a child which the child refuses. Though parents cannot refuse treatment to which a child with the necessary capacity has consented to.

Question 35

What were the details and findings of the Re A Case?

Answer 35

Two twins were born conjoined. If they were not separated both would die within a few months, if they were separated then one would immediately die but the other would live. The doctors recommended the operation but the parents refused. The court ordered the separation, using its inherent jurisdiction to override both a child or a parent’s consent to or refusal of treatment.

Question 36

What are the pre-requisites for a defence of self-defence for battery?

Answer 36

It was established in the case of Ashley v CC of Sussex Police that;

(1) the claimant must have a reasonable belief that they are about to be attacked, and;
(2) the force they use must be proportionate to the circumstances.

Question 37

Which cases illustrate the consideration of the pre-requisites for a defence of self-defence laid down in Ashley v CC of Sussex Police?

Answer 37

1. Cockcroft v Smith

2. Cross v Kirby

Question 38

What were the details and findings of the Cockcroft v Smith Case?

Answer 38

The Claimant had run towards the defendant with his finger pointed towards the defendant’s eye. The defendant bit the claimant’s finger off. It was held that there had been use of disproportionate force so it was not valid self-defence.

Question 39

What were the details and findings of the Cross v Kirkby Case?

Answer 39

A Farmer hit a hunt saboteur with a baseball bat, after being hit by the saboteur from whom he had wrestled the bat, causing severe injury. It was held that the action was proportionate taking into account the anguish of the moment and so did not preclude self-defence.