TORT 064 Trespass to the Person Assault and Battery and the Defences — Law of Torts Notes for Judiciary

Trespass to the Person: Assault and Battery, Everyday Contact, Medical Treatment, and the Defences

Trespass to the person protects bodily security and personal liberty. It takes three forms: assault, battery and false imprisonment, the last of which is the subject of TORT 065. All three are intentional, direct and actionable per se, so no damage need be proved. Assault is the apprehension of force; battery is the application of it. The same act is commonly both, the raised fist being the assault and the blow the battery, but each exists independently of the other: a blow struck from behind is a battery without an assault, and a threat never carried out is an assault without a battery.

Assault and battery compared, words and conditional threats, everyday contact, medical treatment and the defences

1. Assault

An assault is an act of the defendant which causes the plaintiff reasonable apprehension of the infliction of immediate force upon his person.
The apprehension must be reasonable. A wholly fanciful fear is not enough, and the question is whether a reasonable person in the plaintiff's position would have apprehended immediate force.
The force apprehended must be immediate. A threat of harm at some future time is not an assault, however alarming.
The defendant must appear to have the present ability to carry the threat out. But the appearance is what matters, so pointing an unloaded gun at a person who does not know it is unloaded is an assault, while pointing it at a person who watched it being emptied is not.
No contact is required, and no fright. Apprehension is not the same as fear, and a brave man who expects to be struck and is not frightened is nevertheless assaulted.
The tort is actionable per se, so nominal damages follow even where nothing came of the threat.

2. Battery

A battery is the intentional and direct application of force to another person without lawful justification.
The least touching of another in anger is a battery. The quantum of force is immaterial, and the wrong lies in the affront to bodily integrity rather than in the injury.
No harm or injury need be proved, the tort being actionable per se.
The force may be applied through an object or a medium: throwing water over a person, spitting at him, striking the horse he is riding, pulling away the chair he is about to sit on, setting a dog on him, directing a light or a laser at his eyes.
The contact must be direct. Force that operates only through an intervening voluntary act, or through a chain of consequences, belongs to negligence or to the residual category of intentional infliction of harm.
Hostility in the sense of ill will is not required. What is required is the absence of justification, and a touching done in kindness but without consent may still be a battery.

3. Assault and Battery Compared

	Assault	Battery
What it is	An act causing reasonable apprehension of immediate force	The actual application of force
Is contact required	No	Yes
What the plaintiff experiences	The apprehension	The touching, whether or not he is aware of it at the time
Can it exist alone	Yes. A threat never carried out	Yes. A blow struck from behind, or on a sleeping person
The interest protected	Freedom from the apprehension of violence	Bodily integrity itself
Is damage required	No. Actionable per se	No. Actionable per se

4. Words, and Conditional Threats

Words alone were traditionally said not to amount to an assault, on the footing that a person cannot apprehend immediate force from speech alone.
The modern view is more flexible. Words may constitute an assault where the circumstances make the threat immediate, as where they are spoken in the dark, or down a telephone by a person known to be nearby, and words in any event give the accompanying gesture its meaning.
Words may also negative what would otherwise be an assault. The classic instance is the defendant who laid his hand on his sword and said that were it not assize time he would not take such language, the words showing that no immediate violence was intended.
A conditional threat is an assault where the defendant has no right to impose the condition. Telling a person to leave or be struck, when he is entitled to remain, is an assault; telling a trespasser to leave or be removed is not.

5. Everyday Social Contact

The jostling of a crowded street, a tap on the shoulder to attract attention, a handshake, the ordinary contact of games and of public transport are not batteries.
Two explanations are offered, and both reach the same result. The first is that there is an implied consent to the ordinary contacts of daily life, given by everyone who goes out among other people. The second, and the better one, is that there is a general exception for physical contact which is generally acceptable in the ordinary conduct of daily life, which does not depend on fictional consent at all.
The second explanation is preferred because it works where consent cannot. It explains why a person who is asleep, unconscious or without capacity is not battered by the ordinary contacts of being cared for.
In sport, participants consent to the contact inherent in the game played according to its rules, and to a degree of contact outside them, but not to deliberate violence. The subject overlaps with volenti non fit injuria, examined in TORT 018.

6. Medical Treatment and Battery

A surgical incision without consent is a battery, however skilfully performed and however beneficial to the patient. Every person of sound mind has a right to determine what shall be done with his own body.
Samira Kohli v. Dr. Prabha Manchanda, (2008) 2 SCC 1 holds that consent to a diagnostic procedure is not consent to therapeutic treatment, and that the consent of a relative is not a substitute for the consent of a competent adult patient.
A claim in battery is distinct from a claim in negligence for a failure to warn. Battery lies where there was no consent at all, or where the procedure went outside the consent given; negligence lies where consent was given but the material risks were not disclosed.
The practical difference is damage. Battery is actionable per se and requires no proof of loss; a negligence claim for failure to warn requires the patient to show that he would have decided differently, which is usually the hardest part of the case.
Necessity justifies treatment where the patient cannot consent and the treatment cannot wait, confined to what the emergency requires. The subject is examined fully in TORT 041.

7. The Defences

The defence	What it requires
Consent	Express or implied, and given by a person with capacity, freely and with adequate information. It may be withdrawn, and it does not extend beyond its scope
Self defence	A reasonable apprehension of unlawful force, and the use of force proportionate to the threat. The defence extends to the defence of another person and to the defence of property, with progressively less force being reasonable
Necessity	Where the person cannot consent and the action cannot be postponed: emergency medical treatment, restraining a person about to fall, pulling somebody out of the path of a vehicle
Lawful authority	A lawful arrest, a lawful search, the execution of process, the lawful exercise of a power of detention or restraint conferred by statute
Parental authority	The historical right of a parent, and of a person in loco parentis, to administer reasonable correction. It is now very narrowly confined, and corporal punishment in schools is prohibited by section 17 of the Right of Children to Free and Compulsory Education Act, 2009
The exercise of a common right	Where the contact is an incident of the ordinary exercise of a right shared by all, such as passing along a crowded street

8. Remedies

Nominal damages follow as of course, because the torts are actionable per se.
Compensatory damages for any injury, pain, suffering, medical expenses and loss of earnings actually caused.
Aggravated damages where the manner of the wrong injured the plaintiff's feelings, dignity or pride, and exemplary damages where the conduct was oppressive, arbitrary or unconstitutional, particularly where committed by a public servant.
An injunction to restrain a threatened or repeated assault.
Self help, in the form of self defence, is available at the time and not afterwards; force used in retaliation once the danger has passed is a fresh battery.
And the same facts will usually constitute an offence, so a criminal prosecution ordinarily runs alongside the civil claim, the two proceedings being independent of each other.

⚠ Why these torts are actionable per se

Assault, battery and false imprisonment all give a remedy without proof of damage, and the reason is the same one that makes trespass to land actionable per se. What these torts protect is not an interest in being unharmed but a right: the right to bodily integrity, and the right not to be subjected to the threat of violence. A right of that kind is violated by the interference itself. If the law demanded proof of injury, a man could be struck, spat at or handled so long as he was left undamaged, and would have no means of stopping it. The rule also has a practical consequence worth noting in the Indian context. Where a person has been assaulted or wrongfully handled by a public servant, the civil claim does not fail merely because no lasting physical injury can be proved, and the award may be aggravated or exemplary precisely because the wrong was an abuse of office rather than an ordinary quarrel.

9. The Position Stated Shortly

1. Trespass to the person takes three forms, assault, battery and false imprisonment, and all three are intentional, direct and actionable per se.

2. An assault is an act causing reasonable apprehension of the infliction of immediate force upon the person.

3. The defendant must appear to have the present ability to carry out the threat, so an unloaded gun pointed at a person who does not know it is unloaded is an assault.

4. A battery is the intentional and direct application of force without lawful justification, and the least touching in anger is enough.

5. No harm need be proved, hostility in the sense of ill will is not required, and force may be applied through an object.

6. Words alone were traditionally said not to amount to an assault, though the modern view admits them where the circumstances make the threat immediate, and words may negative an assault.

7. A conditional threat is an assault where the defendant has no right to impose the condition.

8. Everyday social contact is not a battery, whether explained as implied consent or as a general exception for contact acceptable in the ordinary conduct of daily life.

9. A surgical procedure without consent is a battery, and Samira Kohli holds that consent to a diagnostic procedure is not consent to therapeutic treatment.

10. The defences are consent, self defence and the defence of others or of property, necessity, lawful authority, parental authority now narrowly confined, and the exercise of a common right.