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A direct act by the defendant causing bodily contact with the plaintiff without his or her consent
Reference for battery
- Battiato v Lagana 
- “The direct intentional imposition of any unwanted physical contact on another person constitutes the tort of battery. There is no requirement to prove that the contact caused or threatened any physical harm”
Define the elements of assault
- 1. Positive act (force) on P by D
- 2. Direct interference with P’s body
- 3. Act must be intentional
1. Positive act (force) on P by D reference
- Innes v Wylie (1844)
- Man barred from entering room. Guard stood in doorway, did not move but was compelled to place hand on P and unavoidably push the plaintiff. Held (by jury and CJ) that policeman committed battery. “If the policeman was entirely passive like a door or a wall put to prevent the plaintiff from entering the room, and simply obstructing the entrance of the plaintiff, no battery had been committed on the plaintiff...”
2. Direct interference with P’s body references
- Reynolds v Clarke (1725) (thrown log analogy)
- (from distinction trespass and case) “If a man throws a log into the highway, and in that act it hits me; I may maintain trespass, because it is an immediate wrong; but if as it lies there I tumble over it, and receive an injury, I must bring an action upon the case.”
- Example: fireworks scenario Scott v Shepherd (1773), thrown to second party, second party throws to passerby. First party liable for battery despite the action seemingly is indirect because the acts of other people are involuntary and out of necessity, therefore the first action is the most direct.
- Bunyan v Jordan - if A intends to batter B but instead batters C
3. Act must be intentional
For an act to be intentional for the purposes of battery it has to be voluntary. Directed by personal will. i.e. no battery if done whilst sleepwalking or hitting someone with vehicle if they instantly jump in front of your car.
- Act must also be either:
- 1. Deliberate
- 2. Substantially certain to occur
- 3. Serious risk of bodily contact may occur (reckless) Gray v Barr  Man thought somebody was having affair with his wife (truth). Man decided to go to that guy’s house with a shotgun, meets the guy, shoots the ceiling as a warning shot, struggle, gun goes off again, guy is fatally injured. Held to be a battery, despite defendant intention not to kill the guy, there was a serious risk of bodily contact
What are the defences to battery?
- Implied consent
- Consent as a defence
- Lack of hostility without consent
Implied consent reference
- Collins v Wilcox  (jostles of everyday life)
- The touching must go beyond the ordinary conduct of everyday life. Implied consent given to ordinary contact of everyday life.
Consent as a defence reference
Marion’s Case (1992) where surgical procedures are considered battery without consent
Lack of hostility without consent reference
In re F (Mental Patient: Sterilisation)  (hostile touching?) Lord Goff refers to Collins v Wilcox Any touching of another’s body is, in the absence of lawful excuse, capable of amounting to a battery and a trespass (i.e. touching does not have to be hostile such as a slap on the back).
Onus of proof:
Consent is a defence because the onus is on the defendant to prove there was consent because the plaintiff has to prove positive direct intentional interference.
Cannot go beyond the contact which has been consented to. i.e. in Rugby, consent is given to be tackled, but not to be high tackled. Reference:
McNamara v Duncan (1971) where excessive blows in AFL game is not consented
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