Flashcards in Trespass to the Person - Battery Deck (39)
What is Battery?
According to Lord Justice Goff in Collins v Wilcock battery is “the actual infliction of unlawful force on another person”.
What are the 3 key components an actionable battery requires?
1. the intentional application of unlawful (though not necessarily hostile) force;
2. which is direct and immediate; and
3. no lawful justification or excuse
What exactly must be intended for an actionable battery?
Under the 'intentional application of unlawful force' component of an actionable battery, what must be intended – or treated with reckless disregard – is the contact with another person. The consequences of the action, the specific unlawful injury, need not be intended.
Which cases illustrate the application of the 'intentional application of unlawful force' requirement?
1. Williams v Humphries
2. Livingstone v Ministry of Defence
What were the details and findings of the Williams v Humphries Case?
The defendant pushed the claimant into the swimming pool as a practical joke, unfortunately this caused the claimant to break his ankle.
The defendant was held to be liable.
What were the details and findings of the Livingstone v Ministry of Defence?
A soldier fired a baton round into a crowd and not directly at the claimant who was injured by it. It was held that the Defendant capable or being liable under the transferred intent rule.
Does 'unlawful force' necessarily have to be hostile?
No, in the Re F (Mental Patient: Sterilisation) Case it was said - ‘it has recently been said that the touching must be ‘hostile’ to have that effect … I respectfully doubt whether that is correct. A prank that gets out of hand; an over-friendly slap on the back; surgical treatment by a surgeon who mistakenly thinks that the patient consented to it – all these things may transcend the bounds of lawfulness, without being characterised as hostile’
What is the purpose of the 'direct and immediate' requirement of Actionable Batteries?
It is used to distinguish trespass from negligence.
How has the 'direct and immediate' requirement been interpreted?
It has been interpreted flexibly, as shown by the cases of Scott v Sheppard and DPP v K (A Minor).
What were the details and findings of the Scott v Sheppard Case?
The defendant who threw a squib into a market place was held to be liable after it was thrown onwards by two stall holders before ultimately exploded injuring a third.
What were the details and findings of the DPP v K (A Minor) Case?
A school child created a bobbly trap by filling a hand dryer with sulfuric acid, which burnt the next child to use it. The defendant was held to be liable.
According to the required absence of any 'lawful excuse or justification' what are the defences to battery?
1. Voluntary Assumption of Risk
Is contributory negligence an applicable defence for battery?
No - per Co-operative Group (CSW) Ltd v Pritchard.
How does consent act as a defence to battery?
Consent is the most important ‘defence’ in this area of law. There is no battery when there is consent to the contact.
When is consent valid?
Consent is only valid if the following conditions are met:
1. C agreed that D could touch her in the way he did
2. At the time of the touching, C’s level of maturity, intelligence and understanding was sufficient enable C to decide to let D touch her
3. C did not agree that D could touch her because she was forced by someone else
Which case clarified what qualifies as 'consent'?
Chatterton v Gerson
What were the details and findings of the case of Chatterton v Gerson?
The claimant had a painful scar, she agreed to having a sensory nerve behind it removed to stop the pain. This was done, but as a side effect she lost some muscle function in the area, a risk she was not told of.
It was held there had been valid consent as she had been told about and understood the ‘general nature of the operation’, she had been ‘informed in broad terms what the procedure involves.’
Where will consent be invalid?
There is no valid consent where a claimant has been mislead as to the nature of what will be done to them.
Which cases illustrate the issuing of invalid consent?
1. R v Williams
2. AG Reference (No 6 of 1980)
What were the details and findings of the R v Williams Case?
A singing teacher had convinced his pupil to have sex with him telling her it was an operation to improve her singing voice. It was held that the consent was invalid and he was convicted of rape.
What were the details and findings of the AG Reference case?
Two men who disliked each other agreed to have a fight at a later date. At the subsequent fight one was injured. It was held that there was no valid consent. “[I]t is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason.”
Can consent be refused?
Yes - generally adults have an absolute right to refuse consent to contact, this is the case even if medical opinion is in favour of their treatment.
Which case illustrated the refusal of consent?
Re T (Adult: Refusal of Treatment)
What was said in the Re T Case?
It was said here, that - ‘[A]n adult patient who … suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it, or to choose one rather than another of the treatments being offered. This right of choice is not limited to decisions which others might regard as sensible’.
What is the defence of necessity?
Where someone’s mental capacity makes them unable to consent to or refuse medical treatment, the common law has said that they may be given medical treatment which is necessary and in their best interests.
What provides the authority for the defence of necessity?
The Mental Capacity Act 2005
What does the MCA 2005 provide by the way of defining 'necessity'?
A person will lack capacity where;
1) They are suffering from an “impairment of, or a disturbance in the mind or brain” which means they are unable to make a decision. (s2)
2) They are;
(a) unable to understand the information relevant to the decision,
(b) retain the information,
(c) use or weigh that information to reach a decision; or
(d) communicate their decision. (s.3)
What must a person acting towards a person without the capacity to consent do to ensure they act lawfully under the defence of necessity?
A person who does an act to an person lacking capacity “in connection with the[ir] care or treatment” will act lawfully if (under s5):
1) Before doing the act D took reasonable steps to establish whether P lacked capacity in relation to the matter in question and
2) When doing the act, D reasonably believed that;
i. that P lacked capacity to consent in relation to the matter and
ii. it was in P’s best interests for the act to be done and
iii. at the relevant time P was not under 16 (s2(5).
What is the laws stance on the ability of children to give consent?
Children with sufficient mental capacity can consent to medical treatment deemed to be in their best interests.