The tort of battery is committed by the intentional application of force to another by direct means or

through an unwelcome, physical contact, irrespective of whether intent to harm or hostility involved.

The elements of this tort are:

1. Direct act of defendant

The general principle is that, trespass lies when injury results directly from the act of the defendant.
Where a person causes an act knowing that it will produce an effect, the act of an intermediary who acts
for his defence does not become a new act; the act remains the act of the originator and he must
answer for that effect.
This requirement may be illustrated by the following cases:

InScott v. Shepherd (1773), per De GreyC.J. (not lawfulness or unlawfulness lest but direct or indirect).

In the case above, the court held that, Trespass vi et armis would lie because the defendants’s action
directly caused the injury. Reason behind it is that, the defendant should have known some injury would
occur as a result of his action. Therefore, any injury that happened as a result was directly attributable to
the defendant and so an action of trespass vi et armis could lie against the defendant.

In Leame v. Bray (1803), Lord Ellenborough observed:

"it is a settled distinction that where the immediate act itself occasions a prejudice or is an injury to the
plaintiff's person, land etc. trespass vi et armis will lie: where the act itself is not an injury but a
consequence from that act is prejudicial to the plaintiffs person goods etc., trespass will not lie ... If the
injury be committed by the immediate act complained of, the action must be trespass; if the injury be
merely consequential upon act, an action upon the case is the proper remedy."

In Miller v. Attorney-General (1975), per Abban J, “It is commonplace that in order to found an action in
assault and battery there must have been a direct and intentional application of physical force to the
person of the plaintiff by the defendant, such as a blow inflicted with the hand or with a weapon or
some other object."

The court stated at p. 39: "To point a loaded revolver at another in such a hostile manner and within
shooting distance, as in the present case, and which conduct puts that other person in reasonable fear
or apprehension of an immediate battery constitutesan"assault"

In Covell v. Laming (1808)per Lord Ellenborough: “Whether the injury complained of arises, or follows
consequentially, from the act of the defendant, I consider as the only just and intelligiblecriterion of
trespass and case.”

From the cases, it can be concluded that this element is not a 'directional.' Point but an issue of
"causation”. The defendants conduct must have caused the basis in the case of battery that would be
the physical contact.

2. The act complained of must be voluntary

This refers to controllability, not whether the defendant acted willingly.

This is illustrated by the case of Gibbons v. Pepper (1675), the court held that, trespass lies when an
injury inflicted results from an instrument or medium controlled by the defendant. (D is liable to P if a
frightened horse, upon which D is riding, strikes P.).The case, rests on the idea that a person's animal is
the passive instrument of the person.

The illustration therefore is that, (If I ride upon a horse and J.S. whips the horse so that it runs awaywith
me and runs over another person, he who whipped the horse is guilty of battery and not me ... if A takes
the hand of B and with it strikes C, A is the trespasser and not B).

3. State of mind of defendant

To succeed, the plaintiff must establish that the defendant acted either intentionally or negligently.

In Holmes v Mather (1875), the court held that, to maintain an action for battery to the person the
injurious act must be intentional or the result of negligence.

As noted earlier, intentionally here means deliberately; negligently refers to inadvertence or

recklessness.

There can be a thing like negligent trespass or battery, however, this was doubted by Lord Denning in
Letang v. Cooper (1965).

Lord Denning observed that, "The truth is that the distinction between trespass and case is obsolete. We
have a different sub-division altogether. Instead of dividing actions for personal injuries into trespass
(direct damage) or case (consequential damage), we divide the causes of action now according as the
defendant did the injury intentionally or unintentionally. If one man intentionally applies force directly
to another, the plaintiff has a cause of action in assault and battery, or, if you so please to describe it, in
trespass to the person ... if he does not inflict injury intentionally but only unintentionally, the plaintiff
has no cause of action today in trespass. His only cause of action is in negligence and then only on proof
of want of reasonable care."

In Stanley v Powell (1891), the court held that, the defendant was not liable as the act was not
intentional and the plaintiff could not prove negligence on the part of the defendant, because,trespass
to a person is not actionable if it be neither intentional nor the result of negligence.

In Fowler v Lanning, per Diplock J at p. 439: "Trespass to the person does not lie if the injury to the
plaintiff, although the direct consequence of the act of the defendant, was caused unintentionallyand
without negligenceon the defendant'spart."

4. There must be physical contact with the person of plaintiff.

This contact can be person to person or through an instrument controlled by the defendant.

The following cases illustrate the principle:

In R. v. Cotesworth (1704), per Holt C.J., the defendant was liable for battery through an instrument
controlled by him. In this case the saliva is an extension of the defendant's body.

InDumbell v. Roberts, per Scott LJ, taking the fingerprints of a person before he is convicted or
committed to stand trial is trespass if it is done without the consent of the person.
In Fagan v Metropolitan Police Commissionerit washeld that although the initial act was not intentional,
the act of leaving the car on the constable's foot was intentional and thus the defendant was liable
becausein the case of battery, injury should result either from personal contact or through the medium
of an instrument controlled by the defendant, per Lord Parker.

In Cole v. Turner, Holt CJ stated that, "(1) The least touching of another in anger is a battery. (2) If two or
more meet in a narrow passage, and without anyviolence or design of harm, the one touches the other
gently,it is no battery. (3) If any of them use violence againstthe other, to forcehiswayin arude inordinate
manner, it is a battery;or anystruggleabout the passage,to that degree as maydo hurt, is abattery."

Also, in Wilson v Pringle, Croom-Johnson LJ stated at p. 248: "Another ingredient in the tort of trespass
to the person is that of hostility. The references to anger sufficing to turn a touch into a battery (Cole v
Turner, 6 Mod. 149) and the lack of an intention to assault which prevents a gesture from being an
assault are instances of this. If there is hostile intent, that will by itself be cogent evidence of hostility.
But the hostility may be demonstrated in other ways."

It should be stretched out that, it is battery to throw water over a man or to overturn a chair on which
he is sitting.

In Hopper v Reeve, it was held thata person commits trespass if he drives his carriage against the
carriageof another when that person is sittingin it.

Per Gibbs CJ: "I am of the opinion that he who throws over a chair or a carriage in which another person
is sitting commits a direct trespass against the person of him who is sitting in that carriage or chair, and
that an action for trespass maywellbe maintained for it."

In Guarro v U.S. (1956),it was held: The defendant's act constituted battery because Non-violent sexual
contact constitutes assault if it is done without the consent of the other person.

5. Lack of Consent

The plaintiff must prove that he or she did not consent to the contact.

This can be proved in three ways:

(i) Express consent: It is not a battery, if the defendant proves that the plaintiff expressly agreed or
submitted to the contract.

Many events of everyday occurrence, e.g. a haircut, a surgical operation or a passionate embrace will be
battery but for the fact that consent operates as a defence to action in battery.

In Christopher v. Bare, it was held thatassault must be an act against the will of a party assaulted.
Therefore, it cannot be said that a party has been assaulted with his own permission.

In Nash v. Sheen, it was held that the dye was applied without the plaintiff's express consent; the
consent which was given was for a permanent wave. So, there was a battery.

(ii) Presumption of consent: There is a presumption, in general, of consent to all non-hostile contacts
merely incidental to living in a community. See what Holt CJ held in Cole v Turner.
(iii) Privileged contact:these are contacts allowed by law. The principle that there is a presumption, in
general, of consent to all non-hostile contacts merely incidental to living in a community.

In Wiffin v Kincard,it was held thatthe touch in order to engage the plaintiff's attention was not battery.

Also, in Coward v Baddeley,the court held, the plaintiff was not liable since he did not touch him in a
hostilemanner because a touch to draw one's attention is not battery if done not hostilely.

To determine whether a contact is privileged, look at:

a) Nature of the act: was it a blow or a pat? and

b) Intention with which the act was done.

Sexual touching can amount to a battery. See Guarro v US (supra)

6. Positive act not omission to act

In battery, liability depends on an act, not a failure/omission/refusal to act.

The maxim is: 'Not Doing Is Not Trespass'.

The principle is therefore that, trespass requires a positive act from the defendant. A person does not
commit trespass if he is only passive and does not act.

In Innes v Wylie (1844, the court held that since the policeman acted and was not merely passive, he
was liablefor assaulton the plaintiff.

In Adu Kofi v Amanadoand Others [1967],the court held thatthe defendants (group)were jointlyliableto
plaintiff because the principle is that, trespass will lie if a group, jointly, applies force to a person. A
person who acts in concert with others is jointly liable for battery with the others if the evidence shows
that at least some of the people committed the tort.

In Shale v Gale [2005]it washeld that the defendant was a joint tortfeasor though not liable for the
knifeattackinflictedon the deceased.

In XA v YA [2010], it washeld that the mother wasnot ajoint tortfeasor, for the principle is that,for a
person to be held as a joint tortfeasor, it must be shown that he had been involvedin the commission of
the tort.