Battery comprises a direct and intentional [or reckless] act of the defendant which causes some physical contact with the person of the plaintiff without the plaintiff’s consent.
“… The fundamental principle plain and incontestable is that every person’s body is inviolate, and that any touching of another person, however slight may amount to a battery…”
A direct act
‘Direct’ means whether the impact followed so closely on the defendant’s act that it could be considered part of the act.
- NB. An act will also be considered direct if it sets in motion an unbroken series of consequences, the last of which causes contact with the plaintiff.
Physical contact involves immediate contact with a person. However, it is not necessary that the person committing the battery physically touches the person. For example, throwing something at someone, hitting them with a weapon, or spitting on them may constitute a battery. All are considered direct acts.
Note, the person also need not be aware of the unlawful contact at the time of the incident. For example, in medical contexts, a patient may be asleep, unconscious, comatose or anaesthetised. Any act that is not being conducted to preserve the patient’s life, and that he or she has not consented to, would be a battery.
Note also that the contact does not have to cause physical harm. Any touching of a person without consent may amount to a battery.
Does the act need to be intentional?
In Australia, the person committing the battery must have either intended to cause contact with the other person, or had reckless disregard for or been negligent with respect to the consequences of his or her actions.
Note also that the intent does not have to be to harm someone. In a medical context, a health practitioner may intend to help someone, but if they touch them without consent, that will still constitute a battery.
An involuntary act without intention, recklessness or negligence would not be actionable. (For example, fainting and falling on someone).
Are there any defences?
A person’s consent to the alleged battery is a total defence to a claim. Consent may be given expressly by words, or be implied from conduct (for example a person rolling up their sleeve and offering their arm to have their blood pressure taken).
A person is deemed to consent to a reasonable degree of physical contact as a result of social interaction. However, it should not be assumed that just because someone has entered for example, a hospital or doctor’s office, that they consent to whatever might be done to them. A person may refuse treatment at any time, and should be free to leave when they wish.
Make sure you read the other Health Law Central topics on consent by adults, consent by minors, and consent by incapacitated patients.
Statutory authority, self-defence, necessity, emergency
Note other defences to battery include:
- statutory authority
- self-defence (no more force than necessary permitted)
- protecting another person (no more force than necessary permitted)
- defence of property (no more than what is reasonable and necessary)
- emergency (most likely in situations to save somebody’s life)
- necessity (although this usually relates to criminal prosecution; nevertheless has been mentioned in cases such as Rogers v Whitaker.
Click on the button below to read an example of a case in which the court found a dentist had committed battery by giving his patient unnecesary dental treatment without valid consent.