BATTERY

CONTENTS

1.0       Introduction

2.0       Objectives

• Main content
• Definition of Battery
• The Purpose of the Law of Battery
• Elements of battery

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignments

7.0       References and further reading

INTRODUCTION

In this unit, we shall consider another form of trespass to the person, that is, battery.

OBJECTIVES

By the end of this unit you should be able to:

(i)         define battery;

MAIN CONTENT

Definition of Battery

According to C.F. Padfield, battery is:

"applying force however slight to the person of another, hostilely or against his will.”

And according to Gilbert Kodilinye:

"battery is the intentional application of force to another person.”

In view of the above definitions, it may be explained that battery is the application of force however slight, on another person. Battery is the application of force on a person without his consent and without legal justification. It is contact with another person. Battery is the slighted touch of a person. It is any undesirable contact. Thus the slightest, merest or the least touching of another person is battery. It is the use of unlawful force on another person without his consent. Accordingly, it is the unlawful application of force to another person regardless of its degree. It is any act of the defendant which intentionally causes some physical contact with the person of the plaintiff, without the plaintiffs consent.

It includes striking, or touching a person in a rude, angry, revengeful or insolent manner. The touch must be hostile and the plaintiff must not have consented to it. It is battery to intentionally touch another person or to bring any object into contact with another person. Such contact is sufficient application of force to give right to a claim in battery. Battery includes the application of heat, light, force, gas, odour or any substance or thing whatever, if applied in such a degree as to impact the person, cause any injury or personal discomfort.

Essentially battery is:

1. Unlawful application of force or violence on another person without the person's consent,
2. However, slight the degree of force.
3. Some form of contact, direct or indirect is necessary.
4. Bodily injury need not result.
5. The defendant must have acted intentionally or negligently.

The Purpose of the Law of Battery

The purpose of the law of battery is to protect the body of a person and its dignity from unlawful contact and violence by another person. The harm which the law seeks to prevent is the undesirable contact by another person, irrelevant of whether such contact was violent or not. Under law, everyone is entitled to be free from any intentional, negligent and undesirable physical contact. See the following cases:

Dele Giwa v IGP. Unrep Suit No. M/44/83 of 30/7/84; Mogaji v Board of Custom & Excise (1982) 3 NCLR 552; Fagan v MPC (1969) QB 439; Kenlin v Gardiner (1967) 2

QB 510; and Lane v Holloway (1967) 3 WLR 1003 CA.

Contact Is Necessary

Battery is committed if there is some contact, such as, body to body contact, or if the defendant brings some object or thing into contact with the victim; however slight the degree of contact, force or impact on the body of the victim. Thus, it does not matter whether the battery was inflicted directly on the body of the offender or through the medium of some weapon, instrument, vehicle or any other thing used, controlled or manipulated by the tortfeasor.

As a general rule, medical procedure or medical care is not battery, even when it is carried out without the consent of the patient. Because, even though there is battery, the intention is to act in the best interest of the patient and there is no intention to harm the patient.

The least touch or contact is sufficient for battery, though one may only obtain nominal damages for such contact. Where application of force is unlawful, there is battery. However, where an application of force is lawfully justifiable a claim for battery will fail.

Contact may be direct body to body contact, such as slapping or giving a person a fist blow, grabbing hold of a person by the neck, beating up a person with hands, or by kicking with feet, etc. Also, the contact may be indirect.

Examples of Battery

Battery can be committed in many different ways, for instance:

1. Beating with a stick, pouring water on a person, or shooting a person with a gun.
2. Knocking a person down, or running a person down with a motor vehicle.
3. Spitting on a person's face or throwing stone at a person. See R v Lynsey (1995) 3 All ER 654 CA.
4. Removing a chair from under a person who thereby falls to the ground.
5. Pulling a person away from something for his own good.
6. Setting a dog to attack a person, etc. See Lawal v DSP (1975) 2 WSCA 72

There is battery where for instance C without lawful justification slaps D on the face, or pushes D. So also it is battery to cut a plaintiffs hair without his consent, or to wrongfully take a person's fingerprint. However, where a person has been detained, charged or told that he will be charged with an offence punishable with imprisonment, the fingerprints may be taken without consent under criminal law.

Elements of Battery: What Needs To Be Proved

What a plaintiff needs to prove to succeed in a claim for battery are:

1. Application of force; and
2. Intention to apply force

Also, a plaintiff may prove and recover any damage he has suffered. We shall briefly examine these.

That there was Application of Force:

There must be application of force on the plaintiff, no matter how slight. However, common forms of social touching that are reasonable and are generally acceptable are not battery, principally, because they are not regarded as tortuous and there is implied consent to such touching. Examples of reasonable and generally acceptable social touching which are not regarded as tortuous and to which there is implied consent include tapping a person on the back as part of a congratulation, or to draw a person's attention, jostling in a crowd, etc.

That there was Intention to Apply Force:

It is sufficient for the plaintiff to establish that the intention of the defendant was to apply force. It is not necessary to prove intention to hurt the plaintiff. If there is intention to injure any person other than the plaintiff, there is battery, such as where a stray bullet hits a bystander. See the following cases: Wilson v Pringle (1986) 2 All ER 440; Stanley v Powell (1891) 1 QB 86; and Lane v Holloway, supra

Battery Need Not Be Violent, Inflict Pain, Nor Injury

It is not necessary that the contact be violent or inflict pain and injury need not result. Therefore, touching a person, or touching a person's cloth or anything attached to a person, if done unlawfully, wilfully, or angrily is battery. Therefore there may be battery without violence. Also, a surgical operation when done unlawfully without the patient's consent may constitute battery. Accordingly, battery includes the slightest contact, touch or force, so that harm need not result.

Minimum Contact Is Battery: The Minimum Contact Rule

The least touch or contact is sufficient to constitute battery. Though a plaintiff may only obtain a nominal award of damages for such contact. In light of this, unlawful application of force to a person, or contact with anything attached to a person may be battery in view of the minimum contact rule.

Let us consider some cases.

In Scott v. Shepherd (1558.1774) All ER 295; 96 ER 525., the defendant lit a squib "fire work" at a trade fair and threw it at B's stall. B threw it away to C's stall, and C threw the squib to the plaintiffs stall, where the squib exploded and injured the plaintiff. In a claim for damages for battery the court held: that the defendant who lit the squib was nevertheless liable to the plaintiff. The chain of causation of damage set in motion by the defendant was not broken by the actions of Band C.

Fagan v Metropolitian Police Commissioner (1969) 1 QB 439.

A policeman asked the defendant appellant to park his car. The defendant drove the car onto the policeman's foot on which a tyre then rested. When the defendant realised what he had done, he refused the policeman's request to reverse off his foot. The court held that the appellant was liable for battery.

Collins v Wilcock (1984) 1 WLR 1172.

A police woman wishing to question the plaintiff appellant on suspicion of prostitution, took hold of the appellant's arm to detain her for the purpose of questioning her. The police woman was not exercising a power of arrest at the material time as she was not on duty. Held: that there was battery of the appellant. The defendant police woman's conduct had gone beyond acceptable lawful physical contact between persons and accordingly her act constituted battery on the plaintiff appellant.

F v West Berkshire Health Authority (1989) 2 WLR 1025

The court on application of the health authority allowed sterilization of a woman suffering from a serious mental disability without her consent. In an action for damages for unlawful sterilization without consent, the House of Lords held that the court had the power to make such order under its inherent jurisdiction provided that the operation was accepted as being in the best interest of the patient, that is, the operation was accepted as appropriate treatment by a reasonable body of medical opinion, skilled in that particular form of treatment.

R v Martin (1881) Crim LR 427 CA

The defendant placed an iron bar across an exit door of a hall, put off the lights on the staircase and shouted "fire". In the struggle to escape, several persons were injured. The court held that the defendant was liable for battery.

Leon v Met. Police Commr (1986) 1 CL 318

The plaintiff rastafarian was wrongfully suspected of carrying drugs. The police pulled him off a bus, punched and kicked him. The court held that there was battery of the plaintiff.

Ballard v MPC (1983) 113 NLJ LR 1133

The plaintiffs who were feminists were attacked by police during a demonstration. One was felled down and carried away unconsciously. Another was felled down and poked with a baton in the stomach and hit over an eye. The police hit the head of the third lady with a baton. The court held: that there was battery. See also Freeman v Home Office (1984) QB 524

Pursell v Horn (1838) 112 ER 966.

The defendant threw water on the plaintiff. The court held that it was battery to .throw water on a person.

In Cole v Turner (1704) 87 ER 907. Letang v Cooper (1965) 1 QB 232 at 239, Holt CJ held "that the least touching of another in anger is battery.” To touch another person in anger, though in the slightest degree or under pretence of passing is a battery. If two or more persons meet in a narrow passage and without violence or design of harm one touches the other person gently, it is not battery. However, if any of them uses violence against the other to force his way in an inordinate manner or engages in any struggle about the passage to a degree as may do hurt, it will be a battery. .

Nash v. Sheen (1953) CL Y 3726

The plaintiff went to the defendant hair dresser and requested for a perm. Instead of a perm, the defendant gave the plaintiff an unwanted tone rinse or hair dye which caused rashes on the head of the plaintiff. It was held that the defendant was liable for battery.

R v Day (1845) 1 Cox CC 207

The defendant slit the complainant's clothes with a knife, and as the complainant tried to stop it by reaching for the knife, his hand was cut. Parke, B held that it was battery to use a knife to slit the clothes which a person was wearing and although the complainant's hand was cut in reaching for the knife, it was immaterial as this does not subtract from the offence. In other words, there were two acts of battery; the slitting of the clothes and the cut on the complainant's hand.

Involuntary Contact

As a general rule, involuntary contact, or infliction of force over which a person has no control is not battery and may therefore be excused from liability.

In Gibbons v Pepper (1695) 91 ER 922,

The defendant was riding his horse. The horse, in sudden fright ran away with him on it. He called to the plaintiff pedestrian to get out of the way and upon his failure to do so, the horse ran him over against the defendant's will. The plaintiff sued for assault and battery. The court held: per curiam, that the defendant was liable and judgment was given for the plaintiff. In the court's opinion; if I ride upon a horse and another person whips the horse so that he runs away with me and runs over any other person, he who whipped the horse is guilty and not me. But if I, by spurring the horse, was the cause of the accident, then I am guilty. In the same manner, if A takes the hand of B and with it strikes C; A is the true trespasser and not B. See Leame v Bray (1803)" 102 ER 724.

Battery Need Not Be A Hostile Act

Battery need not be a hostile act. Thus, it may amount to battery to carry out surgery without consent, emergency, or justification or to kiss a woman against her will.

Battery May Be Committed On An Unconscious Person

Battery may be committed on a person not only when the person is conscious, but also while a person is unconscious, such as, when a person is asleep, or unconscious during surgery.

An Omission May Amount To Battery

An omission, especially if it persists may be a battery. For instance, a motorist, who accidentally drove his car on to a police constable's foot while parking his car commits no battery, but he commits battery, if he ignores the constable's plea to 'get off my foot'.

See Fagan v Metropolitan Police Commissioner (1968) 3 All ER 442

The defendant appellant was reversing his car whilst the complainant police constable standing in his front indicated where he should park. He then drove the car onto the policeman's foot and stopped thereon. The constable told the appellant to get off his foot and received an abusive reply. The constable repeated his request several times and the appellant finally said "Okay man, Okay" and slowly reversed off the constable's foot. He was charged with assaulting a police officer in the execution of his duty. The court held that the appellant was liable and his appeal was dismissed. The appellant's conduct could not be regarded as mere omission or inactivity. There was an act of battery which at its inception was not criminal because there was no element of intention, but which became criminal from the moment, the intention was formed to produce the apprehension which flowed from the continuous act of being on the complainant’s foot.

Battery Must Be Intentional, Reckless, or Negligent

An act of battery must be intentional, reckless or negligent. Thus, not all acts of contact or touch are battery. Contacts conforming with accepted practice or ordinary incidents of daily life are not battery and are not actionable. Thus, for instance, to jostle or push in a crowded bus or sports stadium is not battery. Consent is generally presumed. This is so because, a person is expected to put up with the ordinary hazards of daily life, such as stepping on another's foot, and elbowing when walking on the street. To succeed in a claim for battery in such circumstances, a plaintiff is usually required to prove a hostile intention or negligence. However, it may be battery, if a person uses violence to force his way through a crowd in a rude or inordinate manner. To touch a person to attract his attention is not battery.

In Coward v Baddeley (1859) 157 ER 927, in the course of a fire incident, the plaintiff lay his hand on the defendant fire officer to attract his attention. Whereupon the defendant fireman assaulted and beat the plaintiff and gave him to a policeman and caused him to be imprisoned in a police station for a day and afterwards taken into custody after leading him along public streets before a magistrate. The court held that the defendant was liable for trespass to person. A person cannot justify taking another person into custody for merely laying a hand on him to draw his attention, if the touching was not done hostilely.

In Holmes v Mather .(1875) LR 10 Exch 261 at 267, the defendant's horses while being driven by his servant in a public highway were startled by the barking of a dog. The horses ran away in fright and became so unmanageable that the servant could not stop them, but he could to some extent, guide them. While trying to turn a corner safely, the servant guided them so that, without intending it, the horses knocked down and injured the plaintiff who was on the highway. The plaintiff sued for negligence. No negligence was disclosed on the part of the driver. It was held that in the absence of intention or negligence, the defendant was not liable. In this case, Branwell B made his famous dictum:

"For the convenience of mankind in carrying on the affairs of life, people as they go along roads must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid.”

In Stanley v Powell (1891) 1 QB 86, the defendant was a member of a shooting party who were hunting game. The defendant fired his gun and a pellet hit a tree and bounced off into the eye of the beater who was employed to drive birds to the shooting party. The court held: that in the absence of intention or negligence, the defendant was not liable to the plaintiff for battery.

In Fowler v Lanning (1959) 1 QB 426, the defendant shot the plaintiff with a gun. The plaintiff sued for personal injuries. The plaintiff did not allege that the shooting was intentional or negligent but simply averred that the defendant on a certain date and place shot him. The court held that the action must fail. An action for trespass to person does not lie if the trespass was neither intentional nor negligent.

Therefore, where trespass is alleged, the onus lies on he plaintiff to prove either:

1. Intention: or
2. Negligence.

Where the plaintiff fails to do either, the plaintiff’s statement of claim will be regarded as disclosing no cause of action, and it will be dismissed. See the following cases:

In Benson v Sir Frederic Bart (1766) 97 ER 1130, the plaintiff was ordered to be beaten by the defendant noble man who was a colonel in the British army. Following the order, the plaintiff was given numerous strokes of the cane by junior soldiers. The plaintiff sued for battery. The defendant was held liable. See further;

Mogaji v Board of Customs (1982) 31NCLR 552; Amakiri v Iwowari (1974) 1 RSLR 5; Shugaba v Minister of Internal Affairs (1981) 2 NCLR 459; and Dele Giwa v IGP, Unrep. Suit No. M/44/83 of 30/7/84.

In Nwankwa v Ajaegbo (1978) 2 LRN 230, a servant of the defendant acting on the defendant's instructions beat up the plaintiff. The plaintiff brought action. It was held that the defendant was liable for trespass to person.

In Afisi v Aghakpe (1987) 1 QLRN 216, the defendant policemen beat up the plaintiff. It was held that there was unlawful trespass to the plaintiff and they were liable for damages for assault and battery.

In Oyakhire v Obaseki (1986) 1 NWLR Pt. 19, p. 735 CA, the defendant/appellants policemen, in the course of investigating a crime, shot the plaintiff/respondent who was not the suspect they were looking for. The plaintiff sued claiming damages. It was held that the defendants were jointly and severally liable for damages for the accidental shooting of the plaintiff.

Also in Donnelly v Jackman (1970) 1 All ER 987, the defendant appellant was walking along a pavement, when the plaintiff respondent police officer in uniform who suspected him of having committed a certain offence, accosted him to ask him some questions. The appellant ignored the officer's repeated requests to stop and speak to him. At one stage the officer tapped the appellant on the shoulder. Shortly after, the appellant in return tapped the officer on the chest. It became apparent that the appellant had no intention of stopping. The officer then again touched the appellant on the shoulder with the intention of stopping him but without the intention to arrest the appellant. Thereupon the appellant struck the officer with some force. The appellant was charged with assaulting an officer in the execution of his duty and convicted. On appeal it was held that the touching of the appellant's shoulder by the police officer was a trivial interference with his liberty, which did not amount to a conduct outside the officer's duties. Accordingly the appeal was dismissed and the conviction for assaulting the police officer was affirmed.

CONCLUSION

Trespass is the unauthorized intervention with a person, his property or his possession. Where it is trespass to a person, it could take the form of battery assault or false imprisonment. Where it is to his property, it could take the form of trespass to land, detinue or conversion.

SUMMARY

This unit has taught the learners:

1. The basic concept of trespass in the Law of Torts

 

	b.	The tort of assault, elements of assault and essentially the purpose of the Law of assault.
6.0		TUTOR MARKED ASSIGNMENT
		Battery must be intentional, negligent or reckless. Discuss.
7.0		REFERENCES
1.		Bodunde Bankole Tort: Law of Wrongful Conduct: Lipservice Punishment (1998), Lagos.
2.   3.		Fidelis Nwadalo: the Criminal Procedure of the Southern States of Nigeria, Mij Publisher, Ltd, Lagos (1996). John G. Fleming: The Law of Torts (1977), The Law Books Co. Ltd publisher, London.
4.		Sweet & Maxwell. A. Street: The Law of Torts Sweet & Maxwell (1977), London
5.		G. Kodilinye & Oluwole Aluko: Nigeria Law of Torts. Spectrum Law Publishers, 1999.
6.		The Criminal Procedure of the Northern States of