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Published: Fri, 02 Feb 2018
Berties initial contact
Bertie’s initial contact, Freddy grabbing his elbow to gain his attention and Bertie pushing him away could all arguably constitute a battery. A battery is the direct infliction of unlawful force on another person without lawful justification. In order for them to be considered a battery they must satisfy the requirements. There must be an application of force, the force must be direct and immediate and the contact must be unlawful.
The law prohibits all deliberate touching as ‘it has long been established that any touching of another however slight, may amount to a battery’. There are however some exceptions. Exceptions are made for minor everyday touching, Lord Goff in Collins v Wilcock  1 WLR 1172 states that ‘boarder exceptions has been created to allow for the exigencies of everyday life’. (Harvey, Barbara & Marston, John (6th Edition) Cases and Commentary on Tort, Oxford University Press p351) Bertie’s initial contact could be arguably ‘not actionable’ (Harvey & Marston, Tort) because such slight jostling is ‘impliedly consented by all who move in society and expose themselves to the risk of bodily contact’ (Collins v Wilcock). He does not therefore satisfy the first requirement. The touching is perhaps negligent but not intentional. In Cole v Turner it was said that if two or more people meet in a passage and ‘without any violence or design of harm the one touches the other gently it will be no battery’ (Cole v Turner) and the aforementioned dicta highlights that a minor touch is ‘widely accepted as part and parcel of everyday life’. Freddie would therefore on this basis not be liable for a battery.
Freddy intentionally grabbing Peters elbow to attract his attention similarly falls into that category. There is an application of force and it was direct, immediate and intentional, however it would not be considered unlawful. There is a clear distinction between an unlawful battery and touching to draw someone’s attention. The circumstances are clear that the purpose was to gain Bertie’s attention. Lord Goff in Collins v Wilcock opined that ‘along such forms of conduct, long held to be acceptable, is touching a person for the purpose of engaging his attention’. It is therefore also likely to be construed also as minor touching. The touching would have to be ‘unjustified for Freddy to be liable therefore Freddy’s would not be liable for battery.
However Bertie pushing Freddy away could be considered a battery. In Wilson v Pringle  2 All ER 440 the court of appeal stated the essence of a battery you required a ‘hostile intentional touching’. However Lord Goff suggested that ‘qualification is difficult to reconcile with the principle that any touching of another’s body is, in the absence of lawful excuse, capable of amounting to a battery’. This discounted the need for and ‘hostile’ act, and this was confirmed in Collins v Wilcock as the touching of the defendant was considered a battery as there was not a lawful arrest. There was no evidence of hostility in Collins v Wilcock, the requirement was therefore that the touching is merely unlawful. The mental element is also apparent. Lord Denning in Letang v Cooper  2 All ER 929 opined that ‘if one man intentionally applies force directly to another, the claimant has a cause of action in assault and battery’ (Harvey & Marston, Tort). There can be no doubts that there is an application of force, Bertie’s actions are intentional. The force is direct and immediate and the contact is not one of those excused as everyday jostling. Bertie’s actions will therefore be considered unlawful and therefore they are liable for a battery.
A further consideration is that if the earlier minor touch is taken into account. It could also be considered a course of conduct. Therefore action possible could be possible under the Protection from Harassment Act . In order for there to be a claim under the Act there must be a ‘course of conduct’ (Harassment Act) which amounts to harassment of another and which he knows, or ought to know, ‘amounts to harassment of the other’ . A ‘course of conduct’ is defined in the Act as conduct which occurs on ‘at least two occasions’. The facts are that the initial contact was a minor touch and excusable in this instance, it is therefore unlikely that there would be any liability under the act.
It is also unlikely that Bertie will be able to raise a successful defence for the battery. He will not be able to argue that he was provoked by Freddy as Freddy’s actions as mentioned previously would have been impliedly consented by everyday conduct. He may be able to argue that he acted in self defence. However belief must be ‘not only honest but also reasonable’ (Ashley v Chief Constable of West Sussex Police ). It has also been a long established principal that Bertie’s actions would need to be proportionate to the force exerted against them. As the touching again was only minor, it would be unlikely that this defence would succeed.
There is also an arguable trespass of assault when ‘pointing his finger’ Bertie threatens Freddy. An assault is ‘an act which causes another person to apprehend the infliction of immediate, unlawful force on his person’ (Collins v Wilcock ). The first requirement for an assault therefore is intending or being reckless to whether Freddy apprehended ‘the infliction of immediate, unlawful, force on his person’ (Collins v Wilcock). The second being an objective test as to whether a reasonable person would have had that apprehension and finally the threat must be of an immediate application of direct force. The words clearly intimate that Bertie’s intention was to cause Freddy to apprehend unlawful force and they were accompanied with a gesture. The long-established position was always that the requirement of an assault was a threat followed by a gesture. This was confirmed in the case of Read v Coker (1853) 13 CB 850, the words were not considered an assault but when the sleeves were rolled up accompanied by those words it was considered an assault. However Lord Steyn in R v Ireland  4 All ER 225 ended any doubt about whether words were sufficient to amount to an assault, he opined that ‘the proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible’. ‘A thing said is a thing done’ (R v Ireland). The legal position therefore has arguably been satisfied. Bertie intended or is at least reckless to Freddy’s apprehension of unlawful violence. But it is questionable whether there was the immediacy required or whether objectively a reasonable person would have had such an apprehension. Bertie threatened further action if he was touched again. It could be argued that this as in the case of Tuberville v Savage (1669) 2 Keb 545 there was both no immediacy and the words ‘if it were not for assize time I would run this straight through you’. The gesture of grasping a sword as well as words would have been considered an assault however the words themselves negatived the threat. It was assize time so there was no immediate threat of harm and therefore there could be arguably no assault. However Bertie’s words are more likely to be considered ‘a conditional’ threat, against Freddy and in Read v Coker (1853) 13 CB 850 threats of this type were actionable. Although he was aware from the statement that Bertie wasn’t going to hit him unless he touched him again. It could be argued either way that there could be no anticipation of immediate contact and thus no assault as in Thomas v NUM  2 All ER 1. In Thomas v Num the fact that the defendant wasn’t in the position to carry out the threat immediately meant there could be no assault. A more open view was taken of the concept of immediacy in R v Ireland however, Lord Hope opined that ‘whether this requirement, and in particular that of immediacy, is in fact satisfied will depend on the circumstances’. I would say the facts are such that the immediacy would be sufficient for Bertie to be liable for the trespass of assault.
A person may use ‘reasonable force to defend himself, another person, or his property from attack’ (http://www.a-level-law.com/tort/trespass_to_the_person/lecture.htm). Bertie didn’t seemingly believe from the facts that he would be attacked, and his response is disproportionate to the minor touch on him and therefore would be considered unreasonable. It would not therefore be an effective defence.
Freddy’s retaliation of locking the door to Bertie’s room could arguably be considered false imprisonment. False imprisonment is the ‘unlawful imposition of constraint upon another’s freedom of movement from a particular place’ (powerpoint handout). There are three requirements, the first is that Freddy must have intended or be negligent to the restraint. The second requirement is that the restriction must be complete and thirdly they must be unlawfully imprisoned. The first requirement is apparent, Freddie locked the door in an attempt to ‘exact his revenge’, the second requirement is however questionable. In Bird v Jones (1845) 7 QB 742 the fact that there was an alternative route and only one of them was restricted it was not considered to be restraint. Similarly in Robinson v Balmain New Ferry it was found that as long as conditions are reasonable there would be no liability for false imprisonment. However despite the access to room service and their ability to open the door the fact there was an ability to get out and the method of getting out was not necessarily hazardous makes it questionable whether or not the restraint was total. Freddy would however arguable satisfy those requirements and therefore restraint would be considered total. A further consideration is that Bertie was unaware of his restraint. In Herring and Boyle (1834) 6 C & P 496 it was held that knowledge was a requirement for false imprisonment, the court found due to the boy not knowing he had been detained, he was not restricted. However in Meering v GW Aviation (1919) 122 LT 44 it was held that knowledge was not a requirement and this was confirmed in Murray and The Ministry of Defence  2 All ER 521. Lord Griffith stated in Murray that he disagreed that ‘it is an essential element of the tort of false imprisonment that the victim should be aware of the denial of liberty’. Therefore Bertie being unaware of his detention does not negative the trespass. It is therefore likely that Freddie would be liable for the trespass of false imprisonment. In order to ‘reduce or extinguish entitlement Freddy could bring a ‘defence of provocation’, Lane v Holloway  3 All ER 129, however even if considered a valid defence the actions of Freddie would be likely to be considered disproportionate coupled with the fact that the imprisonment occurred later would not be considered an effective defence.
Freddy’s act of pouring salt into Bertie’s tea the result being that ‘he felt very unwell and vomited ‘could lead to liability under the rule in Wilkinson v Downton  2 QB 57. The rule in Wilkinson v Downton relates to the intentional infliction of harm. It was considered and accepted that In order to be successful using this rule the claimant needs to show that they ‘have been harmed by the defendants conduct’ and it is also required to have ‘acted without caring when they caused the harm’ (Wainwright v Home Office  3 WLR 1137). This principle was applied in Janivier v Sweeney. Freddy has caused indirect harm to Bertie. There is no application of force so it cannot be considered a battery. Another significant factor is again that there is possible of liability under the Protection from Harassment Act 1997. Freddy’s action could constitute a ‘course of conduct. If Freddy’s earlier actions are taken into account, the false imprisonment and the indirect harm then there is liability under the Act. The incidents are close together so that aspect is satisfied. Again there is not a likely successful avenue of defence.
A final consideration is that it is likely that Freddy would not be able to bring a case for battery as there was a course of illegal acts and the court using the doctrine of Ex Turpi is unlikely to let him benefit. Ex Turpi is a policy device which is in place to endeavor to stop parties benefitting from immoral acts. Therefore Freddy would be liable the False imprisonment and liable under the principal of Wilkinson v Downton for the indirect harm. But Bertie may be spared liability for the assault and battery due to the doctrine of Ex Turpi. Freddie’s liability would not be negatived as his actions were disproportionate to the preceding assault and battery.
Horsey, Kirsty & Rackley, Erika (2008) Tort Law, Oxford University Press
Harvey, Barbara & Marston, John (6th Edition) Cases and Commentary on Tort, Oxford University Press
R v Ireland  4 All ER 225
Read v Coker (1853) 13 CB 850
Lane v Holloway  3 All ER 129
Collins v Wilcock  1 WLR 1172
Meering v GW Aviation (1919) 122 LT 44
Wilkinson v Downton  2 QB 57
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