INTRODUCTION DENIS MARK

Battery has been defined as an intentional and offensive touching without lawful
justification.1 In fact, Stephen’s Commentaries in the Laws of England 2 espouses
that battery is the actual application of the force to the body of the prosecutor that it,
in other words, is the assault brought to completion.

In Holt CJ’s words in the early case of Cole vs Turner (1704), “The least touching
of another in anger is a battery.”Salmond is of the view that intentionally to bring any
material object into contact with another’s person is a sufficient application of force to
constitute a battery.3

The Tort of Battery has its roots tracing all the way back to the feudal period. During
this period the law was basically in form of writs which were in a sense the cause of
action in that for a person to obtain a remedy in law there had to be a writ covering
his or her particular situation. It was following this state of things that the writ of
trespass was introduced towards the end of the thirteenth century and was
reportedly the foundation of all torts including Battery.

Battery originally was persued under the writ of trespass, at the time, it was the
infliction of physical injury and because it was trespass you would be liable despite of
the absence of intention; it was for long a disputed question how far the term
“battery” was…confined to cases of willful or intentional injuries, 4 moreover a long
series of cases affirmed that a battery did not necessarily involve intention 5.
Trespass originated as a criminal action, which looked at the impact ofthe action,
rather than the action in itself. However, Modern trespass on the other hand involves
anintentional act which directly interferes with a protected interest of theplaintiff. This
position was strengthened by Fowler vs Lanning,6 which it was held that in an action
of trespass to the person, intention…must be shown.The tort of battery has therefore
developed over the years out of the general judicial respect of an individual’s

1
Black’s Law Dictionary 8th Edition at page 458
2
62-63 ( L.Crispin Warmington ed.,21st Ed.1950)
3
Salmond on the law of Torts 6th Edition at page 157
4
Long vs Hepworth [1968] 3 ALL E.R. 248
5
Covell vs Laming (1808) 1 Camp.497; Eisener vs Maxwell [1951] 1 D.L.R. 816,827
6
[1959] 1 Q.B.426.
autonomy and right not to be interfered with. 7 And this change has not happened
independently but rather has been the ripple effect of the ever-shifting public policies
and the socio-economic environment over the past decades. Its on that backdrop
that we shall go ahead to highlight the pertinence of the Courts of law being alive to
the wheels of socio-economic change and public policy adjustments while
considering the tort of Battery especially from a contemporary narrative;

RITAH’S

The historical development of the torts of trespass to the person can be divided into
three broad periods namely;the period in which the writ system operated, the period
between the abolition of the writ system and the development of a single tort of
negligence, and the period after the development of a single tort of negligence. In
each of those periods, significant changes can be discerned in the approach taken
by the courts to determining liability for the torts of trespass to the person.As this
essay will show, we shall be examining the liability currently imposed by the courts
for trespass to the person, and how the process and basis for imposing such liability
has evolved so that the courts now both carefully scrutinize how the defendant
engaged in the conduct which interfered with the plaintiff’s personal security and
finely balance a range of competing interests.

Trespass to the Person is the intentional interference of a person’s body with

another. Trespass to the person is actionable “per se” and that is to say, it is
actionable without proof of special damages and this is because the tort seeks to
protect personal integrity, which is regarded as being fundamental in that it is
protected even in the absence of damage. The tort of trespass to persons is a fault-
based tort and therefore, it is not actionable in the absence of intention and this is
seen in the case of FOWLER V. LANNING8. In this case the plaintiff was in a
hunting party that the defendant belonged to and during the hunting, then
defendant’s gun supposedly “went off” and shot him in the process. The plaintiff in
his suit said that it did not matter if it was unintentional or not so long as the plaintiff
shot him. It was held however, that the defendant’s actions couldnot amount to the
tort of trespass to a person if the shooting was unintentional and without negligence

7
Thomas Lundmark, Surgery by an Unauthorized Surgeon as a Battery, 10 J.L. & Health
287, 289 (1995-1996
8
[1959] 1 Q.B. 426.
and the burden lay upon the plaintiff to prove negligence where trespass was not
intentional and thus the defendant was not liable. In the case of M’Ibui V
Dyer9,the plaintiff along with other four traders weretransporting miraa in a
Landover to Nairobi at night. On the way, theland rover developed engine trouble
which made them stop to sort it out.As they started off again, they were attacked
from another vehicle withtwo shots fired in the air. They stopped and three persons
including theplaintiff jumped out. Another shot was fired and hit the plaintiff twice, the
injuries he is claiming damages for in the case. The defendant indefense claimed
that he reasonably thought that these were robbers andas robbers were many fired
to help apprehend them thus denied intentionor negligence. It was held that the
defendant had reasonable grounds tosuspect that the plaintiff had committed a
felony. He was not negligent in using the firearm in the first instance of firing in the
air but wasfound to have been negligent for firing at the plaintiff in the second
instance and thus, he was found liable.

The Tort of trespass to the person comes in three main forms namely Assault,
Battery and false imprisonment and their common element is that the wrong must
be committed by “direct means” and that is to say, it must be committed directly to
the person. However, for the purposes of this essay, our focus shall solely be on the
tort of Battery.

DEFENSES ON BATTERY. ACANA

Before delving in the defenses of the torts of battery, it is important to note that due
to public policy reasons and the current social economic activities, the scope of
defense of battery has broadened and most defendants rely on the following as
defense in order to not be liable.

Consent also known as Volenti is a defense to the torts of battery. Circumstances

here have to be that, the claimant of battery agrees to what the defendant does. This

9
(1967) EA 315
consent can be explicit in a way that one agrees orally or in writing.Hospitals for
instance, make patients sign before carrying out risky medical ventures on them as a
means of exempting themselves from the liability of battery. In the case of Re T10,
Lord Donalson MR pointed out that, a person with capacity has an absolute right to
give or withhold consent for treatment. It is however important to note that explicit
consent only applies to the specific act for which the permission is given. This was
clarified in the case of NASH V SHEEN(1953) where the claimant had only
consented for perm but the defendant who was the hairdresser applied colourant
and it was held to be a battery.Consent can also are implied by behavior. For
instance entering a saloon for hairdressing is an implied consent that the hairdresser
is permitted to touch without necessarily mounting to battery. A person joining sports
also implies consent to physical touch. Therefore alot of socio economic activities
involves these implied and explicit consent as life would be intolerable and the courts
would be overloaded if every touch while going about these activities where
actionable.

A defendant may also claim the defense of self-defense against battery.

Reasonable force is encouraged in case of self-defense as per common law. So long
as the force is proportionate to the danger, this may act as a defense to tort of
battery. Whether or not the force is proportionate is a question of fact. For instance in
the case of COCKROFT V SMITH [1705] 11 Mod 43, an argument broke up
between a clerk and a lawyer in court, the clerk thrust his fingers towards the lawyers
eyes and the lawyer bit of the clerks hand. This force was held not to be
proportionate. In the case of LANE V HOLLOWAY[1967] 3 ALL ER 129, a poor
relationship had existed between neighbors, and when one of them came drunk and
noisy, the wife of the defendant stopped him to keep quiet. The drunk claimant
abused the her as money faced tart. An argument broke up between him and the
defendant. The claimant then made a friendly shove and the defendant respondent
by beating him to the point that he needed 18 stitches on the nose. It was held to be
battery as the beating of the defended wasn’t proportional for self defence.

To add on, due to the social mode of life characterized by family basis in any society,
Parental authority can be used as a defense against battery. A parent won’t be liable
to battery if the force used is by way of reasonable chastisement. This is for the
10
Re T [1992]4 ALL ER 649
purpose of creating discipline as it is the duty of a parent to punish proportionate to
the wrong committed by the child. If battery is to be upheld in this case, then on
public policy grounds, children would clock to the extreme of insolence and even
public order would be threatened. However it is important to note that this defense is
only available to parents. In the case of A V UNITED KINGDOM [1998] it was held
by courts of human rights that Article 3 of the convention of the human rights
prohibited caning of a child by a step parent as it amounted to inhuman and
degrading treatment. It is therefore arguable that the defense of battery be
maintained so long as the ingredient of proportionate punishment is the core and it
be available to only parents.

Statutory authorityalso provides defense for battery. There are a number of statutes
which authorize battery in particular circumstances. In Uganda for instance, in
section 26 of the police act11 without prejudice to section 315 of the penal code act 12
and section 7 of the criminal procedure code act, a police officer is granted
permission to search a person suspected to have stolen something. The police is
also granted powers to arrest and use reasonable force in line with the crime being
committed. What is reasonable in this case is also a question of facts. In the case of
COLLINS V WILCOCK[1984]3 ALL ER 374,a police officer needed to obtain a
woman’s name and address in order to caution her for soliciting prostitution, she in
the process held her by force on the elbow. It was held that this amounted to battery
as the force was not reasonable to the prevented crime. In Uganda,Section 23 of the
police act allows only female police to search a fellow female.In case of a male
police searching a female suspect, this also amounts to battery. However this statute
authority is granted so as to maintain public policy and above all law and order. It
would be argued that without this defense police won’t be able to maintain public
order. Therefore in search a case where a police touches a person in line of duty, he
is not liable for battery so long as he is not ultravires the statutory powers granted.

In the circumstance of inevitable accident, a defendant is also not liable for battery. A
person is not liable for an accident for which he has no control off hence he is not
liable for torts of battery. In the case of STANLEY V POWELL [1891],the defendant
had gone for a shooting party, the claimant was employed to carry their cartridges.

11
Police act cap 303
12
Penal code act cap 120
The defendant fired a shot but the bullet reflected back from the tree and hit the
claimant. It was held that it was an inevitable accident and not liable to battery.
Inevitable mistake in the socio economic activities are inevitable and they can’t
amount to battery as they are out of control of man.

REMEDIES JOSEPHINE.
REMEDIES

Compensatory damages and this caters for the evolution .This is 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.13

 Injunction may be awarded if the conduct is repetitive, to prevent the behaviour

repeating again.

Aggravated damages are also available but only ''when the trespass to the person
constitutes an affront to the claimants dignity, causing them humiliation or injury to
feelings.’’ This can be evident in the battery that is not harmful but offensive in
nature and such as pulling a veil off a nun . ’’ in the case of’’ Appleton v
Garrett,] where a dentist performed unnecessary dental treatment on patients and
because of the deception of the patients the consent did not count.’’ more research

Nominal damages. This is a 'token sum of money which, along with the court's
judgement, records the vindication of the claimant's rights , and this is granted in
slightest occurances as the evolved law recognizes even the slightest touch , to a
party whose’s right has been affected .

ADITTIONS.
1 .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).

Timon Hughes-Davies and Nathan Tamblyn (2020). 'Tort Law'. Oxon: Routledge.

13

pp. 287–310. ISBN 9781138554597
2. A certain amount of contact with one's person must be tolerated in decent society.
Thus, "if two or more meet in a narrow passage, and without any violence or design
of harm, the one touches the other gently, it will be no battery." Per Holt, C. J., in
Cole v. Turner, 6 Mod. Rep. 149, 90 Eng. Rep. 958 (1704), B. 5, H."98, K. 87, G. 6.

3. but if one uses violence against the other, to force his way in a rude inordinate
manner, it will be a battery. same case like above.