-
Touching must be proved to be hostile touching to constitute battery. Elements of hostility must be a question of fact ().
Collins v Wilcock
A police officer touched a woman without an intention to do more than to restrain her temporarily. This was hostile contact because the officer was acting unlawfully, having no power to restrain her. It is a fundamental principle that everybody’s body is inviolate.
Wilson v Pingle
The exception of trivial social contact has been effectively extended to the practical joker, if he can establish as a question of fact that the prank was ‘generally acceptable in the ordinary conduct of life’.
F v West Berkshire Health Authority [1989]
Golf LJ doubted if touching must be hostile for the purpose of battery:
‘A prank that gets way out of hand, an over friendly slap on the back, a surgical treatment by a surgeon who may, mistakenly think that the patient has consented to it, all things may transcend the bounds of lawfulness, without being considered hostile’.
The defendant must have intended to commit the act, which constitutes the trespass, but an intention to injure is not necessary (Wilson v Pingle).
James v Campbell (1832)
If A strikes B but misses and hits C, A is liable to C on the basis of ‘transferred’ intention.
Livingstone v Ministry of Defence
Soldier fired a baton round at a rioter but missed and struck the plaintiff. It was held to have intentionally applied force on the plaintiff.
Nash v Sheehan [1984]
The defendant hairdresser was liable in battery when a ton rinse was given to a plaintiff who had requested a permanent wave.
Harassment
Wilkinson v Downton (1897)
D had told W, as a joke, that her husband was seriously injured in an accident. P suffered nervous shock. D was liable because he had wilfully done an act calculated to cause harm to the plaintiff (i.e. infringe on her legal rights to personal safety and thereby cause harm). Since the defendant’s act was obviously intended to produce some effect of the kind that it did cause, an intention to produce the harm was imputed to the defendant and it was no answer to say more harm was done than anticipated.
Janvier v Sweeney [1919]
Verbal threats could be actionable if they caused illness, and to the extent that there were threats to assault the plaintiff made in the course of the defendant’s campaign of harassment, they could be restrained by an injunction even without consequent illness since they were threats to commit a tort.
Following Janvier, the court was entitled to look at the defendant’s conduct as a whole and restrain those aspects of his campaign of harassment, which could not strictly be classified as threats to commit torts or assault or battery.
Khorasandjian v Bush [1993]
B intentionally harassed K by telephone calls. CA extended the principle in Wilkinson. The plaintiff succeeded because there was a risk that the cumulative effect of the unrestrained telephone calls would cause physical or psychiatric damage.
Protection from Harassment Act 1997
The Act creates a specific tort and criminal remedy against harassment. It adopts an objective standard.
Harassment is not defined in the Act but s7 (2) gives an indication of prohibited outcomes from the conduct of the defendant.
Wong v Parkside Health NHS Trust [2001]
A catalogue of rudeness and unfriendliness cannot be regarded as behaviour so calculated to infringe the claimant’s legal rights to personal safety that an intention to do so should be imputed to the second defendant. The court emphasised that the damage must result in physical harm, or recognized psychiatric illness. In order to be categorized as an act ‘calculated to cause physical harm to the claimant the defendant must have intended to violate the claimant’s interest in her freedom from such harm. The defendant’s conduct must be such that the degree of harm was so likely to result that the defendant cannot be heard to say that he did not mean it to do so. He will be taken to have meant it to do so by the combination of the likelihood of such harm being suffered as a result of his behaviour and his deliberately engaging in that behaviour.
W v Home Office [2001]
The question was whether Wilkinson could be applied to claimants who have been strip-searched when visiting a relative in prison in a manner, which breached the Prison Services rules. W claimed to have suffered emotional distress as a result.
It was held that there is no general tort of invasion of privacy and that the rule in Wilkinson does not provide a remedy for distress, which does not amount to psychiatric injury. The outrageous nature of the defendant’s conduct producing emotional distress was not enough to impose liability Emotional distress alone was not sufficient, but if severe emotional distress has caused bodily harm, and the defendant either intended this or was reckless as to the consequences, then there would be liability.
Insofar as there may exist a tort of intention under which such looses are recoverable, no sufficient intention had been established on the facts. The act was done in good faith. Sloppy procedures did not amount to an intention to humiliate.
Defence
- Reasonable parental chastisement (Children and Young Person’s Act)
Nevertheless still depends on nature and contest of the defendant’s behaviour, duration of the behaviour, physical and mental consequences in respect of the child; reasons for administering the punishment In any even, parental authority must be administered in the welfare of the child.
A participant in a sport where physical contact is part and parcel of the game impliedly consents to contact that occurs within the rules of the game. But he does not consent to a force which could not reasonably be expected to happen in the course of the game.
R v Bilinghurst [1978]
IN the course of a rugby game, the plaintiff, who did not have the ball at the time, was deliberately punched in the face by an opponent.
It was held that that was battery. Even though players are deemed to consent force ‘of a kind which could reasonably be expected to happen during a game’ foes not include foul play that goes beyond what a reasonable participant would expect.
Condon v Basi [1985]
The plaintiff suffered a broken leg as the result of a foul tackle in the course of a game of football.
It was held that consent to reasonable contact is consent only to non-negligent behaviour. The defendant was found negligent.
Lane v Holloway [1968]
The plaintiff, a retired gardener aged 64yrs, came back from the pub. He provoked the defendant by calling his wife a ‘monkey face tart’. The defendant struck the plaintiff a violent blow in the eye and inflicted a wound requiring stitches.
It was held that there is no action in battery available to those who take part in fights, especially, ‘an ordinary fight with fists’ because they would have taken to have consented to battery.
Murphy v Culhane [1977]
Plaintiff’s husband was killed by the defendant, who subsequently pleaded guilty to manslaughter. It was alleged that this occurred during a course of criminal affray brought about by the deceased and others who decided to beat up the defendant.
Denning said that the deceased would probably be unable to sue if ‘he got more than what he bargained for’ because either he has assumed the risk or ex turpi.
Self-defence will be a justification to an action in battery if the force used is reasonable.
Cockroft v Smith [1703]
The plaintiff C was a clerk of the court. During a scuffle, he ran his finger through Smith’s eye. Bit then bit of his finger.
It was held that a person may use reasonable force in self-defence.
Force may be used defensively under the s3 Criminal Law Act 1967.
Chaplain of Gray’s Inn Case
If one is threatened with an assault, he does not necessarily have to wait for the other to give his first blow, as it would be too late.
Cross v Kirkby [2000]
The claimant struck K following a struggle with a baseball bat. CA held that the defendant acted in self-defence. Medical evidence that force of the blow was greater than average was not a basis for overlooking the wider question of whether the defendant had done what he honestly thought was necessary for his own defence in the anguish of the moment.
The defence of necessity to trespass to the person may be invoked where the defendant acts for the purpose of protect the plaintiff’s own health and safety.
Leigh v Gladstone [1909]
A plaintiff, the suffragette prisoner on hunger strike was forcibly fed by prison staff. She claimed damages for trespass.
It was held that it was lawful for prison officials to intervene because they had a duty to preserve the life and health of those in their custody.
Medical
In the case of a competent adult patient, any medical diagnosis or treatment, which requires a direct application of force, performed without consent of the patient constitutes a battery. An adult patient has an absolute right to refuse to consent to treatment; even if the consequence is that she will suffer serious injury or die.
Re AK (Adult Patient) (Medical Treatment Consent) [2001]
A competent adult patient suffering from motor neurone disease was being kept alive in hospital on a ventilator. He asked that the doctors remove the ventilator 2 weeks after he lost the ability to communicate; a step that would inevitably result in his death.
The court granted a declaration that the doctors would not be acting unlawfully by ceasing ventilation at the patient’s request. Indeed, the continuation of treatment without the patient’s consent would be unlawful. There is nothing in ECHR to alter this.
A competent pregnant woman is entitled refuse non-consensual intervention by way of a Caesarean section delivery even if, without intervention she is likely to die or suffer serious injury or the foetus is likely to die.
There is no legal basis for overriding the decision of a competent patient to refuse surgical intervention.
If a patient is incompetent and therefore incapable of giving a valid consent to or refusal of refusal of medical treatment, then it will be lawful to treat the patient under the principle of necessity.
Re MB (Medical Treatment) [1997]
CA asserted the right of a competent pregnant woman to refuse a caesarean section, but nonetheless, the court found that MB was not actually competent because she had acute needle phobia which put her in a state of such panic about the prospects of surgery that she was incapable of making a decision and therefore incompetent.
Chatterton v Gerson [1981]
C was suffering from severe pain caused by a trapped nerve for which the defendant, a specialist in the treatment of chronic intractable pain, gave her spinal injection. This relieved her pain but left her leg numb.
It was held that the defendant was not liable to trespass. Where a patient is informed in broad terms of the nature of the procedure and consent is obtained failure to disclose the associated risks does not invalidate the consent.
In order to be valid the patient’s consent must be real, but once a patient is informed in
broad terms of the nature of the intended procedure and gives consent the consent are real.
A failure by the doctor to disclose the risks associated with the procedure, which would have allowed the patient to make an informed decision about giving consent does not invalidate consent.
Sidaway v Bethelm Royal Hospital Governors [1985]
Any action in respect of a doctor’s failure to disclose relevant information must be based in negligence, where the question is not whether the patient had a right to know but whether a reasonable doctor would have acted as the defendant did.
Gold v Harringay HA [1987]
This principle applies to both therapeutic and nontherpeutic treatments.
Gillick v W Norfolk Area HA [1985]
With children under 16, the child’s capacity depends on whether he has sufficient understanding and intelligence to know what is involved in the procedure. Where children lack the sufficient capacity, parental consent is necessary and sufficient.
Re R (A minor) [1991]
It now appears to be the case that even where a minor is ‘Gillick competent’, and therefore has the capacity to give valid consent to medical treatment, this is not sufficient to enable the minor to refuse medical treatment where either the court, exercising its inherent jurisdiction for the protection of minors, authorizes treatment or the minor’s parental consent.
F v W Berkshire HA
With adult patients who need emergency treatment but are unable to consent because they are unconscious, it has long been assumed that a doctor would be justified in proceeding based on the defence of necessity.
The test of what is necessary is the ‘best interest of the patient’ and this is determined by the Bolam test – the treatment was necessary if a responsible body of medical professional opinion agree that it was in the best interest of the patient to have treatment.
Bolam v Friern HMC [1957]
In a case of temporary unconsciousness, the doctor should do no more than is reasonably required in the best interest of the patient, before he recovers consciousness nor would it be justifiable to proceed contrary to known wishes of the patient, to the extent that he is capable of forming such a wish.
It will not only be lawful for doctors, on the ground of necessity, to operate on or give other medical treatment to adult patients disabled from giving consent; it will be their common law duty to do so. An operation or treatment would be in the best interests, if and only if, it is carried out to save the patient’s life, ensure its improvement, or prevent deterioration of mental or physical health.
F v W Berkshire HA
HoL appear to confer great latitude on the medical profession in determining whether medical treatment is necessary since Bolam test allows for the fact that there are many several responsible bodies of professional opinion.
Where an adult permanently lacks the requisite capacity to give a valid consent, there is no equivalent of the wardship jurisdiction by which the court can act on the patient’s behalf. The same principles of necessity will apply, however, in justifying treatment without consent but it will be wider in its application covering both emergency and routine medical procedures, provided the ‘best interest’ test is satisfied. This will be extended to the sterilisation of mentally handicapped women.
Murray v McMurchy [1949]
Where it would not have been unreasonable to postpone the operation, and was merely convenient to perform it while the patient was under general anaesthetic, the doctor would be liable in trespass.
Airedale NHS v Bland
In the case of a permanently unconscious and insensate patient, it cannot be said to be in the patient’s best interest to continue to receive medication or nourishment, which is futile, and therefore the justification for continuing treatment under F v W Berkshire HA does not apply. Accordingly, it is not unlawful to terminate medical treatment or nourishment of the patient even though it is known, and is indeed it is the intention, that the consequence will be that the patient will die.
NHS Trust A v M [2001]
The withdrawal of artificial nutrition and hydration in such cases does not constitute an act, by someone acting on behalf of the state, resulting in death; rather a responsible decision by a medical team based on clinical judgement that it is no longer in the patient’s best interest to continue treatment is an omission. Thus, it cannot amount to an intentional deprivation of life by the state contrary to Article 2 of ECHR.
Consent is limited to the act for which permission is given.
Scweizer v Central Hospital (1975)
Consent to an operation on the claimant’s toe is not consent to spinal fusion.
Allan v New Mt.Sinai Hospital
Consent to an injection o one arm is not consent to an injection in the other arm where the patient has specifically refused permission for an injection in that arm.
What the patient has consented for is an question of fact.
Davis v Barking, Havering and Brentwood HA [1993]
The plaintiff signed a general consent form authorising the performance of an operation and the administration of a general anaesthetic. During the operation, the anaesthetist administered a caudal block. The plaintiff alleged that since she had not been informed about the possibility of a caudal block being performed she had not consented to the procedure, which left her with some residual disability.
It was held that she had been informed in sufficient detail to have consented to caudal block. There was no obligation to explain every detail of what was proposed, and whether a particular aspect was a matter of detail or was in realty a matter sufficiently separate to call for a separate mention was a question of fact and degree.
Brashett v Cowan [1990]
The consent to a muscle biopsy was held to cover bone biopsy on the basis that the plaintiff had consented to a diagnostic procedure, and in the circumstances, this was sufficient consent to the bone biopsy.
Freeman v Home Office [1983]
A person’s apparent consent might be vitiated by the defendant’s exercise of authority over him, without any threat of physical violence.
Re T (Adult: Refusal of treatment)
T, was n urgent need of blood transfusion and undergone a caesarean operation. T’s mother, a Jehovah’s Witness, prevailed upon T, in her weakened physical condition, to refuse consent to blood transfusion.
CA held that T had not been fit to make a genuine decision due to her medical condition and the fact that she ad been subjected to undue influence of her mother which vitiated the decision to refuse blood transfusion. In the absence of either a valid consent o a valid refusal, the doctors acted lawfully, under the principles of F v W Berkshire, in giving transfusion.
Consent induced by fraud or misrepresentation is not valid. It will only be valid if the mistake is in consequence of the act.
Sidaway
‘It is only if the consent is obtained by fraud or by misrepresentation of the nature of what is to be done that an apparent content is not a true content…the cause of action based on trespass to the person is closely analogous’.
Re T [1992]
A failure to inform a patient about risks went to negligence rather than invalidating consent.
![Pete could be liable for the psychiatric injury suffered by Alan. The term psychiatric injury, 'denotes a traumatic response to an act'[1], which in this case is the recurrence of depression suffered by Alan.](https://mbt-essays-prod-public.s3.eu-west-1.amazonaws.com/92371/listing/92371_1.jpg)
