Battery & Assault
Trespass
Trespass covers a wide category of directly inflicted civil wrongs. Trespass to the person includes direct physical assault and threats to do so.
The injury, damage or interference must arise from a direct physical act. If a person has suffered loss, but it cannot be shown to have resulted from direct, intentional action, then he may still be entitled to compensation under negligence rules.
The action must be voluntary in the sense that it must be under conscious control. In many cases, the action will be deliberate and intentional. However, the action need not be intentional in the sense of the result being desired. If a person does a voluntary act and a particular consequence is likely, then he will be deemed to have intended it under trespass law.
There may be trespass to persons, land and goods. Trespass to land covers direct entry onto land by persons and by things intruding onto land by direct action. Trees growing across the boundary do not constitute trespass because they are not the result of deliberate direct action.
Trespass to goods covers taking and detention of goods (detinue) and wrongful appropriation (conversion.)
Actionable in Itself
A person may be sued for trespass even if he does not cause damage. Because some cases may not involve actual injury or financial loss, the level of compensation may be limited.
If injury, loss or damage occurs, compensation may be awarded. Alternatively, or in addition, an injunction (i.e. a mandatory court order) may be granted to prevent future trespass.
No proof of loss or damage is necessary. Trespass is actionable if itself (“per se”).
Civil Battery
A battery is a tort. The injured person may take civil action for damages and other remedies.
Most serious instances of battery will also be criminal offences. There are various gradations of criminal liability for criminal assault.
There may be both civil liability and a criminal offence for the same act. What is commonly considered an assault in criminal law and, in everyday terms, is a battery in civil law.
A battery is the direct application of force without consent. Consent may be expressed or implied. A physical attack constitutes trespass. Pulling a chair in which a person is about to sit or striking a horse so that it gallops off constitutes a battery
No significant physical force or physical injury is necessary. Any physical touching constitutes a battery. Passive touching by itself does not constitute a battery.
Basic human rights and the constitution require protection and vindication of the right to life and bodily integrity. This may require that the courts find and employ a less artificial basis for making a person liable for intentional actions that indirectly cause physical injury.
Nature of Contact
A battery is a direct physical contact with a person without his consent. It is not necessary that there is hostile intention. Any touching or direct contact constitutes a battery.
The contact must have happened as a direct result of what the defendant has done. It need not be physically direct. If something is thrown or directed at a person, this constitutes battery.
Passive obstruction would not generally constitute a trespass. However, if a person obstructs another and interferes with his personal liberty in such a way that leads to an immediate and evitable collision, there may be a battery.
The slightest touching constitutes a battery. It is not necessary that there is any hostile intention. In many everyday situations, there may be implied consent to what would otherwise be a battery. This may occur, for example, in crowds or in another everyday situation. There may be a fine distinction in some cases.
Examples of Battery
The clearest example of a battery is a physical attack. However, any direct application of force will constitute a battery.
Shooting at a person constitutes a battery. Throwing an object at a person is a battery. Setting an animal on another is a battery. So too, is hitting a horse so that it gallops and throws its rider off.
There may be a battery, notwithstanding that no substantial force is used. Any touching without consent will constitute a battery.
Obstruction or blocking of the passage or way by itself is not the battery. There may be limitations to the principle, where a person stands his ground knowing that a person shall involuntarily collide with them. It is said that pulling away from a chair on which a person is about to sit constitutes a battery.
Direct Action
The direct application of force must be caused by the defendant. It is often stated that if a person digs a hole in the road into which another falls, there is no battery.
The absence of liability in trespass for indirect action, even violent action, has been criticised. There will often be a liability in negligence in such cases.
Negligence, for the purpose of liability, includes intentional action. Trespass is a broader basis of liability where the action is intentional.
Civil Assault
A civil assault involves putting a person in reasonable apprehension of an immediate battery. Threatening by words or actions constitutes an assault, where they give rise to a reasonable apprehension of a battery.
Where a person has no apprehension of a battery, there can be no assault. There may be apprehension, even though the claimant is mistaken, provided that his apprehension is reasonable.
There must be fear of immediate physical contact. There is no limit to the circumstances which may cause a putting in fear.
No actual physical contact is required. The immediate threat is enough.
Threatening gestures, which cause a reasonable person to apprehend unconsented physical contact, will suffice.For example, pointing a gun or threatening with a weapon would be a civil assault (as well as carrying criminal consequences).
Words
Words, by themselves, will not usually constitute an assault. Persons are usually expected to exhibit fortitude. Words may constitute an assault if accompanied by other circumstances which reasonably induce fear.
Words, on the other hand, may negate an assault. In a famous case, a man menacingly touched his sword and said that were it not assize time, he would strike him.
Words may constitute an assault by reason of the threat of physical action. Any words that put a person in fear may constitute an assault where there is an imminent threat of battery, i.e. the application of force. Whether or not this is the case will depend on the circumstances and context.
Silence
Silence will not generally constitute an assault. In some circumstances, silence can lead to reasonable fear and apprehension.
Silence can constitute an assault if it leads, in the circumstances, to reasonable fear and apprehension of an immediate battery. In one case, it was decided that a silent telephone caller could be guilty of assault where the victim was given reason to apprehend physical contact. A silent caller may wish and intend to cause fear in the victim, and would accordingly constitute assault.
Consent
Consent will negate a battery. Consent may be implied. In everyday life in crowds, accidental touching” or brushing against is impliedly consented to. Many sports involve implied consent to contact. If this implied consent is exceeded, there may be a battery.
A person may expressly or impliedly consent to touching which might otherwise constitute a battery. In everyday life, implied consent may be given to a certain amount of necessary contact.
For example, in crowded places, there is implied consent to some degree of unintended touching in passing. Examples may include drawing a person’s attention by tapping on the shoulder where necessary and bumping into persons on crowded streets.
Limits to Consent
There are limits to implied consent to physical contact. The contact must not be unwarranted, offend a person’s dignity, be hostile, deliberate, or be outside the bounds of social usage. Much will depend on the context.
It is not possible to consent to acts of physical violence. For example, it is possible to consent to boxing. On the other hand, fist fighting is beyond what can be consented to and will be a battery even with consen
In the context of criminal law, there are limits to the extent to which a person may consent to a battery. A person may not consent to the infliction of serious personal injury as a matter of public policy. The same principle is likely to apply in relation to civil liability
Criminal Battery
Confusingly, a battery for civil law purposes may be an assault for criminal purposes. An assault for civil purposes is the threat of a battery. The range of matters that can be the subject of a claim for battery is wider than those which may constitute a criminal assault.
There are various categories of criminal assault, ranging from assault causing serious bodily harm to less serious “simple “assaults. Each of these also constitutes a battery for the purposes of the law on civil compensation. Generally, the criminal matter would be disposed of first, and the civil claim may be taken afterwards.
Battery and Medical Treatment
A significant and perhaps counterintuitive instance of battery arises in the case of a surgical operation where the patient has not given informed consent. In such cases, there may be a battery, because of the absence of informed consent.
Consent to medical treatment must be informed. Where a person undertakes treatment and does not have the ability to consent or has not given informed consent, the surgery or treatment may constitute a battery.
This has implications in terms of liability for medical malpractice. Trial by jury is available in the case of battery. There is greater scope for recovery for damages than would apply in the case of negligence.
References and Sources
Irish Books
Tully Tort Law in Ireland 2014
McMahon & Binchy Law of Torts 4ed 2013
McMahon & Binchy Case Book on the Law of Torts 3ed 2005
Connolly Tort Nutshell 2ed 2009
Quill Torts in Ireland 4ed 2014
Fahey Irish Tort Legislation 2015
Healy Principles of Irish Torts 2006
EU and UK Texts
Lunney, M. and K. Oliphant Tort law: text and materials. 5ed 2013
Peel, Edwin, Goudcamp, James Winfield and Jolowicz on tort 19 ed 2014
Horsey, K. and E. Rackley Tort law. 6ed edition 2019
Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakin’s tort law 7ed 2012
Giliker, P. Tort 5ed 2014
McBride, N.J. and R. Bagshaw Tort law 6ed 2018
Steele, J. Tort law: text, cases and materials 4ed 2017
O’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and Matthews’ tort: cases and materials 7ed 2015
Horsey, H. and E. Rackley Kidner’s casebook on torts 13ed 2015
Clerk & Lindsell on Torts 22ed 2019
Charlesworth & Percy on Negligence 14ed 2019