In common law, battery is a tort falling under the umbrella term 'trespass to the person'. Entailing unlawful contact which is directed and intentional, or reckless (or, in Australia, negligentlyWilliams v Milotin (1957) 97 CLR 465) and voluntarily bringing about a harmful or offensive contact with a person or to something closely associated with them, such as a bag or purse, without legal consent.
Unlike assault, in which the fear of imminent contact may support a civil claim, battery involves an actual contact. The contact can be by one person (the tortfeasor) of another (the victim), with or without a weapon, or the contact may be by an object brought about by the tortfeasor. For example, the intentional driving of a car into contact with another person, or the intentional striking of a person with a thrown rock, is a battery.
Unlike criminal law, which recognizes degrees of various crimes involving physical contact, there is but a single tort of battery. Lightly flicking a person's ear is battery, as is severely beating someone with a tire iron. Neither is there a separate tort for a battery of a sexual nature. However, a jury hearing a battery case is free to assess higher damages for a battery in which the contact was particularly offensive or harmful.
Since it is practically impossible to avoid physical contact with others during everyday activities, everyone is presumed to consent to a certain amount of physical contact with others, such as when one person unavoidably brushes or bumps against another in a crowded lift, passage or stairway. However, physical contact may not be deemed consented to if the acts that cause harm are prohibited acts.McNamara v Duncan (1971) 26 ALR 584
Elements
Contact Battery is a form of trespass to the person and as such no actual damage (e.g. injury) needs to be proved. Only proof of contact (with the appropriate level of intention or negligence) needs to be made. An attempt to commit a battery, but without making actual contact, may constitute a tort of assault. The tort of battery developed out of a general judicial respect of an individual's autonomy and right not to be interfered with.Thomas Lundmark, Surgery by an Unauthorized Surgeon as a Battery, 10 J.L. & Health 287, 289 (1995-1996)
Battery need not require body-to-body contact. Touching an object "intimately connected", to a person (such as an object they are holding) can also be battery.See, e.g. Fisher v Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (1967). Furthermore, a contact may constitute a battery even if there is a delay between the defendant's act and the contact to the plaintiff's injury. For example, where a person who digs a pit with the intent that another will fall into it later, or where a person who mixes something offensive in food that they know another will eat, has committed a battery against that other when the other does in fact fall into the pit or eats the offensive matter.
Intent The character of intent in civil battery is different from that for criminal battery. The character of intent sufficient for battery also varies between common law countries, and often within differing jurisdictions of those countries. In Australia, negligence in an action is sufficient to establish intent. In the United States, intention to do an act that ultimately results in contact that is either harmful or offensive is sufficient for the tort of battery, while intention to inflict an injury on another is required for criminal battery. In the U.S., courts are split on how to test for sufficient intent. Some courts use the single intent rule which seeks to determine whether or not the defendant intended to touch the plaintiff, while some courts use the dual intent rule which seeks to determine whether or not the defendant sought to harm or offend by touching.
Additionally, courts also follow the transferred intent doctrine in battery claims. For instance, if a person swings to hit one person and instead misses and hits another, they can still be held liable for a battery.Talmage v Smith, 101 Mich. 370, 59 N.W. 656 (Mich. 1894). Intent to commit a different tort can transfer in the same way.Nelson v. Carroll, 735 A.2d 1096 (Md. 1999) If a person throws a rock towards one person intending only to scare them (but not to hit them), they will be liable for battery to a different person who is hit by that rock.Id. at 374 In the United States, critics of this doctrine believe that the tort of negligence has superseded the need for transferred intent.Vincent R. Johnson, Transferred Intent in American Tort Law, 87 Marq. L. Rev. 903, 908 (2004). Available at: http://scholarship.law.marquette.edu/mulr/vol87/iss5/2 One issue is that the statute of limitations can be shorter for intentional torts such as battery than the statutes of limitations for negligent torts.Dobbs, 55.
Awareness The victim of a battery need not be aware of the act at the time for the tort to have occurred. For example, if a surgeon performing an appendectomy on an unconscious patient decides to take out the patient's spleen for his personal collection, the surgeon has committed a battery against the patient. Similarly, a battery occurs if the surgeon allows a cousin who is a plumber with no medical training to help fish out the appendix during the surgery. Although the patient has consented to being touched by the surgeon, this consent does not extend to people who the patient would not reasonably anticipate would be participating in the procedure.
The battery may occur even if the victim is unaware of the contact at the time and the defendant is nowhere near the scene at the time of the contact. If a tortfeasor puts an offensive substance in another person's food, and the other person consumes the offensive substance, the battery has been committed even if the victim is not made aware that they have eaten something offensive until much later.
Defenses The standard defenses to trespass to the person, namely necessity, consent, self-defense, and defense of others, apply to battery. As practical examples, under the defense of necessity, a physician may touch a person without that person's consent in order to render medical aid to them in an emergency.
Consent Under the defence of consent, a person who has, either expressly or impliedly, consented to participation in a contact sport cannot claim in battery against other participants for a contact permitted by the rules of that sport, or expected to occur within the course of play. For example, a basketball player who commits a hard foul against an opposing player does not thereby commit a battery, because fouls are a regular part of the course of the game, even though they result in a penalty. However, a player who struck another player during a time-out would be liable for battery, because there is no game-related reason for such a contact to occur. I.e. in Condon v BasiCondon v Basi 1 WLR 866 you can consent in a sports context to a risk of harm but this does not extend to unreasonable contact, the contact must be reasonable.
Medical consent Moreover, you can also consent to medical treatment:
'All common law persons have the right not to suffer bodily violation without their consent, as seen in F v West Berkshire.F v West Berkshire HA 2 A.C. 1 It is therefore, 'essential that clinicians involved in either treating or advising patients consider the issue of consent.' It is the consent of the patient which prevents the doctor who performs surgery from otherwise being liable in the tort of battery, the courts will only recognise true consent when the patient has been informed in broad terms about the nature of the procedure (as demonstrated in Chatterson v GersonChatterton v Gerson QB 432 (QB)).
A doctor is under a duty to take reasonable care to ensure that a patient is aware of risks to which they are likely to attach significance. Whilst a doctor can withhold information if they consider it detrimental to the patient's health, this exception does not entitle a doctor to withhold information just because the patient may make a decision the doctor disapproves of. As demonstrated in the case of Montgomery v Lanarkshire Health Board.Montgomery v Lanarkshire Health Board UKSC 11
Statute provides that children aged 16 and over can consent to medical treatment,Family Law Reform Act (1969) s.8(1)) provided they have sufficient maturity and intelligence to understand the nature and implications of the proposed treatment. Therefore, any action taken has been consented to and would not constitute a tort of battery.Gillick v West Norfolk and Wisbech Area Health Authority ) Parent consent may also suffice.
Incapacity Some people cannot consent:
Following the statute of the Mental Capacity Act 2005 s. 5:
Following s. 1. 3 A person is not to be treated as unable to make a decision unless all practical steps to help them to do so have been taken without success. Following s. 1. 4 A person must not be treated as unable to make a decision just because they make an unwise decision.Mental Capacity Act 2005Section 2 People who lack capacity'''
(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time they are unable to make a decision for themself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to-
(a) a person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
This provides that care or treatment can go ahead after all, if it is in the best interest of the patient. However, when medical treatment is no longer in the best interests of the patient, then no medical care is allowed and must be withdrawn (Airedale Trust v Bland).Airedale NHS Trust v Bland AC 789 (HL) Also, if a patient, who is mentally competent, refuses to consent, that is the end of the matter and the treatment cannot proceed as doing so would be a battery. Even if it puts at risk the life of the patient's unborn child (St George's Healthcare NHS Trust v S).St George’s Healthcare NHS Trust v S Fam 26 And even if it risks the patient's own death (Re B ).
Self-defence Self-defence as to battery can occur when a person reasonably believes that they are going to be attacked by another person, and involves engaging in a reasonable level of physical contact with that person in order to prevent that person from engaging in a physical attack. This requires an honest and reasonable belief that you are about to be attacked:Lord Scott noted at paragraph of Ashley v Chief Constable of West Sussex PoliceAshley v Chief Constable of West Sussex Police UKHL 25 that 'it is one thing to say that if A's mistaken belief was honestly held that they should not be punished by the criminal law, it would be quite another to say that A's unreasonably held mistaken belief would be subjected to physical violence by A'.
The requirements for self-defence are different from those in criminal law; in civil law, the belief of imminent danger need not be reasonably held, and may allow a pre-emptive attack.
Damages See main article: Damages
The most commonly awarded damages for the tort of battery is compensatory damages, whereby you put the claimant in the position they would have been in had the incident not occurred. This damage only occurs where the claimant has 'suffered injury of some sort', from being battered.