INTENTIONAL TORTS

(BATTERY)

Introduction
Definition of Battery
Elements of Battery
Defences
Conclusion
 INTENTIONAL TORTS
(BATTERY)
Introduction:
• Battery is traditionally defined as the intentional and direct
application of force to another person. There are three elements to
consider: force; direct application ; and intent. In addition, the courts
have tended to add an extra element in an attempt to distinguish
unacceptable physical contact from that which is merely part of
everyday life. In some cases this has been described as ‘hostility’; in
others, it is addressed as an issue of consent, which is a defence to
trespass to the person.
• Battery is the application of direct physical force to the claimant. In
other words, battery is the actual application of physical force,
however slight, without lawful justification.
• Like assault, battery is actionable per se, so the claimant does not
have to show that they were caused any injury or damage.
• All in all, the tort of battery protects an individual from any
interference onto his person, thus it preserves a person’s dignity as
well as reputation.
 INTENTIONAL TORTS
(BATTERY)
Definition of Battery:
Battery
• It may be defined as the intentional and direct application of force to
another person without that person’s consent. This touching need not
necessarily involve violence.
• It is the intentional and harmful or offensive physical contact. It is
important to note that a physical injury need not occur and whether the
contact is offensive is determined by a reasonable person standard.
• Battery involves the actual infliction of unlawful force to another person.
It must also be intentional. Liability is negatived by consent, but the law
does not require real hostility on the part of the defendant. See the case
of Nash v Sheen [1953] CLY 3726- the plaintiff went to a hairdressing
salon where the defendant used a tone-rinse without first obtaining the
plaintiff’s consent. The plaintiff unfortunately developed some skin
complications due to an adverse reaction to the tone-rinse. The court
held that the consent given by the plaintiff did not include the tone-rinse
and its consequences. Battery was established.
 INTENTIONAL TORTS
(BATTERY)
Definition of Battery: (Continuation)
Battery
• Battery is application of direct physical force to the claimant. The merest
touching is probably enough to amount to battery. See the early case of
Cole v Turner (1704)- where Holt CJ said “The least touching of
another in anger is battery”. See also the case of Coward v Baddley
(1859)- where the plaintiff saw the defendant trying to extinguish a fire;
the plaintiff thought water should be directed elsewhere and touched the
defendant to draw his attention; the defendant gave him into the custody
of a policeman. The court held that this was unjustified and there had
been no battery. See also the case of Donnelly v Jackson (1970)- where
a police constable tapped the accused on a shoulder to stop him so as to
talk to him; the accused then retaliated by striking the constable with
some force. The court held that this was not legitimate self-defence as
there had been no tort of battery which protects an individual from any
interference onto his person, thus it preserves a person’s dignity as well
as his reputation.
 INTENTIONAL TORTS
(BATTERY)
Elements of Battery:
(a) The mental state of the defendant/Direct application of force
• The defendant must have applied the force with intention. The intention
which is required in battery is not the intention to hurt the claimant, but the
intention to apply physical force. The tort thus protects the claimant’s
dignity as well as bodily integrity. For example, a surgeon who performs an
operation or other medical procedure without the consent of the patient
commits the tort of battery, but in such a case there may well be every
intention to act in the patient’s best interests as the doctor sees them, and no
intention to harm the patient.
• The defendant need not intend to apply force to the claimant, as long as
they intend to apply it to someone, as a result, it is applied to the claimant.
In other words, even if the defendant intended to injure someone other than
the claimant, this could still amount to battery if as a consequence the
claimant suffers some application of force. See the case of Livingstone v
Minister for Defence [1984] NI 356- where the claimant succeeded in
battery when he was hit by a bullet intended by a soldier for someone else.
[This was a case of direct contact with the wrong person]
 INTENTIONAL TORTS
(BATTERY)
Elements of Battery: (Continuation)
(a) The mental state of the defendant/Direct application of force
• In addition to the above, see also the case of Scott v Shepherd
(1773)- where the defendant threw a lighted squib into a
crowded market place. It landed on a market stall and was
thrown on. It landed on another stall and exploded, injuring the
plaintiff. The defendant was held liable for the injuries to the
plaintiff as they were a direct result of the defendant’s act. The
act of throwing the squib on did not break the link between the
defendant’s act and the plaintiff’s injury, as it was instinctive.
[This was a case of contact by a third party]
• Furthermore, reference could also be made to the case of Pursell
v Horn- where the defendant threw water over the claimant and
was liable despite the indirect nature of the contact. [This was a
case of a contact made indirectly]
 INTENTIONAL TORTS
(BATTERY)
Elements of Battery: (Continuation)
(a) The mental state of the defendant/Direct application of
force
• All in all, the intention which is required in battery is not
the intention to hurt the claimant, but the intention to apply
physical force. In other words, the defendant must intent to
apply force. However, it is important to note that where a
battery causes the claimant harm, the defendant must intend
the application of force, but need not intend the harm,
because the tort is actionable per se.
Note: The requirement of ‘intention’ or ‘intent’ or mental
state of the defendant could be addressed together with the
element of ‘direct application of force’ since the two are
interrelated.
 INTENTIONAL TORTS
(BATTERY)
Elements of Battery: (Continuation)
(b) The defendant’s act was under his control
• The defendant’s act must be done voluntarily. In other words, no battery
is committed if an incident involving contact over which the defendant
has no control occurs. See the case of Gibbons v Pepper- where the
defendant was riding a horse when someone hit the horse from behind,
causing the horse to bolt. The horse collided with the plaintiff, and in an
action against the defendant, the court found the defendant not liable as
the incident of the horse bolting and colliding with the plaintiff was
outside his control. See also the case of Holmes v Mather- where the
defendant's horses while being driven by his servant on a public highway
ran away from a barking dog and became unmanageable that the servant
could not stop them, but could, to some extent guide them. While trying
to turn a corner safely, they knocked down and injured the plaintiff on
the highway. It was held that the action was not maintainable since the
servant had done his best under the circumstances.
 INTENTIONAL TORTS
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Elements of Battery: (Continuation)
(c) Contact
• There is no battery if there is no contact or application of force with
the plaintiff’s body or clothing. The word ‘force’ here is used in the
technical sense. No violence is necessary. Any physical contact with
the body of the plaintiff or his clothing is sufficient to constitute
force. See the early case of Cole v Turner (1704)- where Holt CJ
said “The least touching of another in anger is battery”. See also the
case of Wilson v Pringle [1986] 2 All ER 440- where the Court of
Appeal held that there must be hostile touching before it can amount
to a battery. What is meant by ‘hostile touching?’ As long as the
defendant understands that he is doing something that the plaintiff
may object to, hostile touching would be established. See also the
case of F v West Berkshire Health Authority [1989] 2 All ER 545 at
564, HL- where Lord Goff expressed his doubt whether a touching
must be hostile for the purposes of battery in medical cases.
 INTENTIONAL TORTS
(BATTERY)
Elements of Battery:(Continuation)
(c) Contact
• It is important to note that from what was said by Lord Goff
in the case of F v West Berkshire Health Authority, a
conclusion can be drawn that the contact between the
defendant and the plaintiff is necessary, but ordinary
contacts which are part of daily life are not trespass: they fall
‘within a general exception embracing all physical contact
which is generally acceptable in the ordinary conduct of
everyday life’ (per Lord Goff).
 INTENTIONAL TORTS
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Elements of Battery:(Continuation)
(c) Contact
• The court have always been faced with the problem of distinguishing
those contacts which are part of everyday life and those which are
unacceptable and illegal. This presents difficulties for the courts. Contact
between persons ranges from violent assaults through accidental bumps
in crowded streets. In between are people who play practical jokes,
people who indulge in sexual harassment and doctors who need to treat
unconscious patients. How is a court to draw a line? See the case of
Collins v Wilcock [1984] 3 All ER 374- where Goff LJ stated that the
court started with the fundamental principle that every person’s body is
inviolate. Interference with a person’s body will generally be lawful
where they consented to it. There is also a broad exception to allow for
the exigencies of everyday life such as jostling in the street and social
contact at parties. This is a question of physical contact which is
generally acceptable in the ordinary conduct of everyday life.
 INTENTIONAL TORTS
(BATTERY)
Elements of Battery:(Continuation)
(d) Without the plaintiff’s consent
• One cannot touch another person without his consent or without
lawful justification. However, there are touchings where it is
presumed implied consent exists, such as tapping a person’s shoulder
in order to get his attention, or touching that occurs while queuing to
go on a bus. See the case of Nash v Sheen [1953] CLY 3726- the
plaintiff went to a hairdressing salon where the defendant used a
tone-rinse without first obtaining the plaintiff’s consent. The plaintiff
unfortunately developed some skin complications due to an adverse
reaction to the tone-rinse. The court held that the consent given by
the plaintiff did not include the tone-rinse and its consequences.
Battery was established. See also the case of Tiong Pik Hiong v
Wong Siew Gieu [1964] 30 MLJ 181- where the defendant was
found liable in battery for scratching the plaintiff’s face and hitting
the latter, due to her jealousy of the plaintiff’s friendship with her
husband.
 INTENTIONAL TORTS
(BATTERY)
Elements of Battery:(Continuation)
(d) Without the plaintiff’s consent
• The absence of consent is so inherent in the notion of tortious invasion of
interests in the person that the absence of consent must be established by the
claimant. This might at first sight seem rather odd, but many lingering doubt
that the onus of proving absence of consent lies on the claimant was laid to
rest in Freeman v Home Office (No.2) [1983] 3 All ER 589. In this case, a
prisoner alleged that he had been injected with powerful mood-changing
drugs against his will. The judge held that since the essence of battery is a
specific and unpermitted intrusion on the claimant’s body, it was for the
claimant to establish that the intrusion was unpermitted. This he failed to do.
• In addition to the above, part of the rationale for this approach is that a
contrary result would potentially have posed severe problems for all doctors,
not just prison medical officers. Any contact with a patient e.g. vaccinations
or even examining soar throats with a spatula would prima facie constitute
battery. To escape liability, the doctor would have to prove consent which
would be extremely difficult in cases involving minor procedures where no
written consent had been obtained, or if records had been lost, or if the
doctor had died.
 INTENTIONAL TORTS
(BATTERY)
Defences:
(a) Self-defence
• A person may use such force as is reasonable to protect against and
actual or perceived threat to harm against themselves or another person.
The force used must be proportionate to the threat i.e. it must be no
more than is necessary to repel the threat. Force which is
disproportionate will not fall within self-defence.
• The key to a successful defence of self-defence is the element of
‘reasonableness’, as the defence will only operate if the force used by
the defendant is ‘proportionate’ to that being applied by an attacker.
See the case of Lane v Holloway [1968] 1 QB 379, where the P and D
were neighbours. The P had been drinking and was talking to a friend
outside his house. The D’s wife shouted, ‘you bloody lot’. The P
replied, ‘shut up you monkey faced tart’. The D heard this and said he
wanted to see the P on his own. The P came out and thinking he was
about to be hit., hit the D on the shoulder. The D hit the P in the eye,
which needed 19 stitches. The D’s blow was held to be out of
proportion to the circumstances and the action succeeded.
 INTENTIONAL TORTS
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Defences: (Continuation)
(a) Self-defence
• In addition to the above, see also the case of Cockcroft v Smith- where
the clerk of a court sued an attorney for biting off his forefinger in a
scuffle in court. Holt CJ held that, in itself, it was no defence that C first
run his fingers towards D’s eyes, for a man must not ‘in case of a small
assault, give a violent or an unreasonable return’.
• If a defendant uses force against the plaintiff in a reasonable belief that
the plaintiff is about to commit either an assault or battery or false
imprisonment against him, but the belief is in fact a mistaken belief, as
long as the force exerted to counter this mistaken belief is reasonable,
the defendant will not be held liable. (See the case of Albert v Lavin
[1982] AC 546)
• Point out that a defence under the Penal Code is inapplicable in a claim
for assault or battery in tort action. See the case of Taw Too Sang v
Chew Chin Sai [2000] 4 AMR 4257- where the court rejected a defence
under sec 96 of the Penal Code.
 INTENTIONAL TORTS
(BATTERY)
Defences: (Continuation)
(a) Self-defence
• All in all, an act might otherwise constitute trespass to the
persons may be justified if the defendant is able to establish
that he acted in self-defence: that is, that he was merely
repelling an attack (or threatened attack) on the part of the
claimant. Thus, when may you lay hands on a person
without his consent? In self-defence, obviously, and
obviously not in retaliation: the distinction is drawn, as we
have seen, in terms of whether the party battered was an
assailant, so you cannot thump someone just for being
unforgivably rude.
 INTENTIONAL TORTS
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Defences: (Continuation)
(b) Defence of Another
• The cases clearly establish that an employee may justify a battery in
defence of his employer, and an employer (see the case of Barfoot v
Reynolds) may lawfully strike someone in defence of his employee (see
the case of Seaman v Cuppledick).
• Equally, a wife may defend her husband, and a man may defend any
member of his household. It may be that this form of defence extends to
the protection of other persons, although authority is lacking. For
instance, a guard may be permitted to defend railway passengers.
• It is submitted that the key in each case is whether it is reasonable for the
defendant to protect the other person. And as with self-defence, the
conduct of the defendant must be reasonable in all the circumstances,
and it is conceivable that one relevant factor may be the relationship
between the defendant and the person whom he defended (that is, one
may use greater force in defence of a close relative than of a stranger).
At the very least, the facts must normally be such as to have justified the
third person in defending himself.
 INTENTIONAL TORTS
(BATTERY)
Defences: (Continuation)
(b) Defence of Another
• Still on the above issue or point, for an exception make
reference to the case of Re A [2001] Fam 147, where the
Court of Appeal allowed doctors to separate conjoined twins
even though the separation would result in the near
immediate death of one of the twins (as opposed to the
slower, inevitable death of both of them were the separation
not to be carried out).
 INTENTIONAL TORTS
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Defences: (Continuation)
(c) Consent
• If the claimant agrees to what the defendant does, there is no liability for
trespass. In other words, if, for example, a claimant or a person has
consented to the application of force to their body a claim for battery
will be defeated.
• Consent may be express or implied. For example, when a patient signs a
form agreeing to have an operation. This will be case of where consent is
express or explicit. More often, however, it will be implied by
behaviour: if you go into a hairdressers and sit down in the chair, for
example, you are signalling that you consented for the stylist to touch
you in the process of doing your hair.
• Similarly, someone who takes part in sports or games is giving implied
consent to the kind of physical contact that is within the rules of that
sport, so if you enter a boxing match you cannot sue for battery just
because your opponent hits you, even though you did not actually say
they could.
 INTENTIONAL TORTS
(BATTERY)
Defences: (Continuation)
(c) Consent
• Consent must be given freely by a person who has the mental capacity to
exercise choice and to give or withhold consent. The consent must be
real and not induced by duress, fraud or misrepresentation. Hence, if
consent is obtained under duress, then it is treated in law as being no
consent. Nor is consent procured by a show of authority valid. In other
words, the consent must be given voluntarily (see the case of Latter v
Braddell). Thus, the existence of duress or threats would therefore
vitiate consent. Furthermore, the consent must be given only after the
plaintiff has been fully informed of all relevant risks. For instance,
consent or acquiescence given by a previous landowner to a defendant to
build a wall which encroaches onto the landowner’s land does not
necessarily mean that that consent or acquiescence continues with a
subsequent landowner, particularly where the new landowner is not
aware of any such previous agreements. See the case of Kwong Hing
Reality Sdn Bhd v Malaysia Building Society Bhd [1997] 5 MLJ 670.
 INTENTIONAL TORTS
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Defences: (Continuation)
(c) Consent
• Consent in relation to medical treatment- Consent is a significant issue
in area of medical treatment as any physical contact with a patient
without his consent is prima facie a battery. See the case of F v West
Berkshire Health Authority [1989] 2 All ER 545 at 564, where Lord
Goff said, ‘[e]very human being of adult years and sound mind has a
right to determine what shall be done with his body’. See also the case
of Chatterton v Gerson [1981] QB 432- where the court held that
where a doctor fails to explain in broad terms the nature of the proposed
operation, the patient would not be able to consent to it. In such
circumstances the patient cannot be said to have consented at all and an
action would lie in trespass. If the patient is unconscious, the same rule
applies: a doctor cannot treat or perform surgery on him if the patient
has not given prior consent. Any physical contact by the doctor is prima
facie a battery. The only justification is that of necessity such as the
preservation of life, deemed to be in the best interests of the patient.
 INTENTIONAL TORTS
(BATTERY)
Defences: (Continuation)
(c) Consent
• Consent in relation to medical treatment-
• Consent need not be written and may well be implied from conduct
such as holding out one’s arm to receive an injection. Where surgery or
more serious invasive treatment is contemplated, patients will usually
be asked to sign a standard consent form agreeing to the operation or
other treatment. Such consent is ineffective unless an adequate
explanation of the broad nature of what is to be done to the patient is
provided (see the above case of Chatterton v Gerson [1981] QB 432).
• In addition to the above, it follows that a failure to warn the patient of
the risks or side-effects of the treatment proposed will not vitiate the
patient’s consent. At most it will constitute a breach of doctor’s duty to
give the patient proper and skilled advice and be actionable as
negligence. Only when the defendant actively misleads the patient will
a claim in battery normally be appropriate (see the case of Appleton v
Garret [1996])
 INTENTIONAL TORTS
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Defences: (Continuation)
(c) Consent
• Consent in relation to medical treatment-
• Still on the issue of consent in relation to medical treatment,
reference could also be made to the case of Mallette v Schulman
[1991] 2 Med LR 162- where a doctor who performed blood
transfusion on Jehova’s Witness who had unequivocally refused
such treatment was held liable in battery even though the
treatment was done in order to preserve her life. This decision
may be easily understood and justified on the grounds that the
patient herself had expressly refused the proposed treatment. The
principle is clearly stated that an adult who is mentally competent
may choose whether or not to receive medical treatment. Any
refusal of medical treatment, albeit detrimental to his health, must
be respected. See the case of Re T (Adult: Refusal of Medical
Treatment) [1992] 4 All ER 649.
 INTENTIONAL TORTS
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Defences: (Continuation)
(c) Consent
• Consent in relation to medical treatment-
• One difficulty concerning competent adults that may arise relates to the
situation in which the patient is unconscious- say, because he or she has
been involved in a road accident, or because a complication during
surgery arises while the patient is under anaesthesia. In such a case, a
doctor will act lawfully in providing treatment. See the case of F v West
Berkshire Health Authority- where the House of Lords made it clear
that the basis for such treatment was necessity. And what is ‘necessary’
is to be judged according to the best interests of the patient (usually
taken to mean preservation of life or the prevention of any permanent
damage health). Lord Goff also made it clear that a doctor may only do
that which is reasonably required before the patient recovers
consciousness, and in any event, he may only provide treatment that
would be endorsed by a reasonable body of medical opinion
 INTENTIONAL TORTS
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Defences: (Continuation)
(c) Consent
• Consent in relation to medical treatment-
• Still on the issue of a patient who is unconscionable,
reference could also be made to the case of Hills v Potter-
where the court stated that in an emergency situation where
a person of full age and capacity is temporarily incapable of
agreeing to treatment because he is unconscious, a surgeon
who conducts immediate surgery to save the patient’s life
commits no battery. The action is justified by reference to
implied consent, but not in the case of a mentally disordered
person; or he could not invoke the defence of necessity.
 INTENTIONAL TORTS
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Defences: (Continuation)
(c) Consent
• Consent in relation to medical treatment-
• Still on the issue of consent in relation to medical treatment, at common
law any person or child below sixteen can give effective consent if
mature enough to have a full understanding of the consequences of the
proposed treatment. See the case of Gillick v West Norfolk Area
Health Authority [1986] AC 112- where the House of Lords held that a
doctor faced with a request from a child under 16 could lawfully
prescribe contraceptive treatment without parental agreement if he is
satisfied that she has sufficient understanding of what is involved in the
treatment and its implication for her. It is, however, preferable that he
tries to persuade her to consult her family. In Malaysia, a minor who
has attained sixteen years of age may give a valid consent to medical
treatment as if he were of full age (see sec 8 of the Family Law Reform
Act 1969). However, it is suggested that in Malaysia the age of consent
ought to be eighteen years as this is the age of majority (see sec 2 of the
Age of Majority Act 1971).
 INTENTIONAL TORTS
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Defences: (Continuation)
(c) Consent
• Consent in relation to medical treatment-
• In the case of younger children, the consent of a parent or guardian to
treatment which is reasonably necessary is effective to protect a doctor
from an action for battery. See the case of Re D [1976] All ER 326-
where the court held that in cases of young children, parental consent is
effective and will absolve the doctor of liability, provided of course,
that treatment is for the benefit of the child. See also the case of Re F
(Mental Patient: Sterilization)- where the issue was consent in relation
to a sterilization operation on a 36-year-old mentally handicapped
woman who had the mental age of a child. The House of Lords held
that in view of the fundamental and irreversible nature of the operation
and grave social implications, the approval of the court ought to be
obtained as a matter of good practice. The court has an inherent
jurisdiction to make such a declaration and it is not satisfactory to leave
the decision with the doctor or those caring for her.
 INTENTIONAL TORTS
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Defences: (Continuation)
(e) Necessity
• The necessity defence has two forms: private necessity and public necessity
(see the handout on assault full discussion). The essence of this defence is
that interference with another person may sometimes be necessary to
protect them from a greater evil e.g. grabbing someone to stop them falling
over the edge of a cliff.
• Sometimes people are unable to consent to an invasion which would be in
their interests, perhaps because they are unconscious or unaware of a
pressing danger or too feeble-minded to be able to consent or dissent.
Trespassory invasions under such circumstances may well be justified
under the heading of necessity. Thus, as with consent, necessity has been
used as a means of authorising medical treament of those who are regarded
as lacking the capacity to give consent. See the case of Re F [1999] 2 AC
1- the sterilisation of a female mental patient who was involved in a sexual
relationship with another patient. One member of the House of Lords said
that it would be intolerable if the doctors could be sued in trespass if they
acted and in negligence if they failed to do so.
 INTENTIONAL TORTS
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Defences: (Continuation)
(f) Discipline
• This defence is relevant to the tort of trespass to person, particularly battery
and false imprisonment. The purpose of the defendant’s act is to punish the
plaintiff. Discipline as a defence to an action in tort is usually raised in
relation to children, and the defence may be raised by two categories of
persons- parents and schoolteachers.
(i) Discipline by parents
• The infliction of assault, battery or false imprisonment by parents on their
children may be justified on grounds of discipline. The justification is subject
to the reasonableness of the chastisement at the material time. Reasonable
force by way of correction is generally allowed. It has been suggested that
detention of children by way of punishment is also justifiable.
• However, there is only a right to detain where it is reasonable in the
circumstances. Street asserts that in England at least, change in social mores
and in the status of children have diminished parental rights of discipline and
that a growing body of opinion supports outlawing the physical punishment.
 INTENTIONAL TORTS
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Defences: (Continuation)
(f) Discipline
(ii) Discipline by schoolteachers
• At common law a headmaster and a schoolteacher had the right to use
reasonable force in order to discipline the pupils under the tutelage.
Reasonable force depends on whether it is necessary in the
circumstances to commit what would otherwise amount to an assault,
battery or false imprisonment on the pupil so as to maintain order
either in the classroom or in the school. School rules and parental
instructions are factors that will be taken into account in deciding
whether the teacher’s conduct is reasonable. See the case of A v UK
[1998] Fam LR 118- where the court stated that the use of force in
punishing a child may amount to battery if the level of force is
disproportionate to the child’s behaviour or if the child does not
understand the purpose of the punishment.
 INTENTIONAL TORTS
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Defences: (Continuation)
(f) Discipline
(ii) Discipline by schoolteachers
• In addition to the above, reference could also be made to the case of
Ryan v Fildes [1938] 3 All ER 517- where the plaintiff, a schoolboy
of ten years of age was boxed on the ear by his schoolmistress for his
lack of discipline. As a result of the blow, which was not a violent
one, the boy became deaf in one ear. In an action for damages against
the schoolmistress and the managers of the school, the court held that
the blow, although a moderate one, exceeded reasonable and lawful
correction. The schoolmistress was liable and since she was the
servant of the managers, the latter were jointly liable with her, to the
plaintiff.
 INTENTIONAL TORTS
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Defences: (Continuation)
(f) Discipline
(ii) Discipline by schoolteachers
• The head teacher of a school is responsible for the discipline at school.
See Regulation 4 of the Education (School Discipline) Regulations 1959
made under the (now repealed Education Ordinance 1957) Education Act
1996. Thus, for the purposes of maintaining discipline among pupils the
head teacher may inflict ordinary school punishments that are deemed
necessary and expedient.
• The head teacher therefore has a discretion in determining the types of
punishments at the school. Corporal punishment of girls are however
prohibited, and corporal punishment of boys shall be limited to blows
with a light cane on the palm of the hand or on the buttocks over the
clothes- such punishments to be carried only by the head teacher or a
registered teacher who has been authorised to do so by the head teacher.
(See Education (School Discipline) Regulations 1959, regulation 5(1)(a)
and (b)).
 INTENTIONAL TORTS
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Defences: (Continuation)
(f) Discipline
(ii) Discipline by schoolteachers
• Other than the infliction of corporal punishment the head
teacher may from time to time, subject to specified conditions
or limitations, delegate disciplinary authority and powers of
punishment to other teachers at the school or to such pupils as
the head teacher may appoint for such purpose. (See regulation
6)
(iii) Passengers in public transport
• It appears that those who are in charge of public transport may
use reasonable force against anyone who threatens the safety of
either the vehicle itself or the journey being taken.
 INTENTIONAL TORTS
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Defences: (Continuation)
(g) Lawful Arrest
• The defence of lawful arrest may justify what would otherwise amount
to false imprisonment, battery or interference with goods. For example,
a police officer who reasonably suspects that a seizable offence is being
committed may effect an arrest without a warrant under sec 23 of the
Criminal Procedure Code. Reasonable suspicion includes the arrest of
the ‘wrong’ offender, provided that the circumstances were such that
any reasonable man would have suspected that the plaintiff was the
offender concerned. See the case of Tan Eng Hoe v AG [1933] MLJ
151. Hence, a police officer who arrests someone whom he reasonably
suspects to be committing a seizable offence but who is in fact not
committing such an offence may justify his action on grounds of lawful
arrest. See the case of Ramly & Ors v Jaafar- where a police arrested
the plaintiff based on information from one Zakaria during
interrogation. The trial judge held that the information was not
reasonable and not credible but on appeal it was held the test should be
objective test and it was reasonable.
 INTENTIONAL TORTS
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Defences: (Continuation)
(g) Lawful Arrest
• A police officer is also entitled to arrest any person who in
his presence commits or is accused of committing a non-
seizable offence and thereafter refuses to give details of his
name and address upon the demand of the police officer.
(See sec 24(1) of the Criminal Procedure Code)
• All in all, certain interferences with the person are
authorised by statute and as such it could not amount to tort
of battery or even false imprisonment.
 INTENTIONAL TORTS
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Defences: (Continuation)
(h) Inevitable Accident
• A defendant will not be liable in trespass to the person for an event over
which they had no control, and could not have avoided by using even
the greatest care and skill. In Stanley v Powell (1891), the defendant
was part of a shooting party, and the claimant was employed to carry
their cartridges. The defendant fired a short in the usual way but,
through no fault of his own, the bullet ricocheted off a tree and injured
the claimant. It was held that the injury was an inevitable accident and
the defendant was not liable.
• The defence of inevitable accident is in essence a denial of liability as
the defendant’s plea amounts to a denial of fault on his part since the
accident ‘could not have been obviated by the exercise of ordinary care
and skill. See the case of Thangachimmah & Anor v Flower [1968] 2
MLJ 248. See also the case of Wong Eng v Chock Mun Chong & Ors
[1963] MLJ 204.
 INTENTIONAL TORTS
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Defences: (Continuation)
(h) Inevitable Accident
• The defence rests on the defendant proving that the accident
occurred despite his having taken reasonable precautions at the
material time to avoid it. See also the case of Fardon v
Harcourt-Rivington- where it was stated that people must guard
against reasonable probabilities and not fantastic possibilities.
• The burden of proof is on the defendant to prove that something
happened over which he had no control and the effect of which
could not have been avoided by reasonable care. See the case of
Zainun bte Abdul Ghani & Anor v Chong Ah Seng [1975] 1
MLJ 33. See also the case of Che Jah bte Muhamad Ariff v CC
Scott [1952] MLJ 69. See also the case of Ahmad bin Haji
Abdul Majid v Lee Yat Cheong & Ors [1995] 4 CLJ 721
 INTENTIONAL TORTS
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Defences: (Continuation)
(h) Inevitable Accident
• The usefulness of the defence is very limited. In a case of
negligence, it is the plaintiff who bears the burden of proof
to show that the defendant did not exercise reasonable care.
In cases of trespass to person, or chattels, the defence maybe
relevant. Hence, the burden of proof once again lies on the
plaintiff and once a plaintiff succeeds in proving that the
defendant’s act of trespass is intentional and voluntary, the
defendant cannot then be allowed to say that his ‘intention’
is due to an ‘inevitability’. This defence is no longer useful
in England but in Malaysia it is still raised particularly in
negligence cases i.e. running- down cases.
 INTENTIONAL TORTS
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Defences: (Continuation)
(i) Contributory Negligence
• This defence is applicable to assault, battery and false imprisonment:
trespass to person. It does not apply to any other intentional torts. See
the case of Barnes v Nayer (1986)- where the defendant killed the
plaintiff’s wife a machete and was convicted of manslaughter. His
defence to a civil action by the plaintiff was that he had been provoked.
He put forward three defences. The first was ex turpi causa. It was
held that the defence could apply in an appropriate battery case, but on
these facts was not established. The second was volenti. Again, this
was not made out on the facts. The third defence was contributory
negligence. It was established that the plaintiff’s contributory
negligence could constitute fault within the Law Reform (Contributory
Negligence) Act 1945 sec 1, but because the defendant’s response was
out of all proportion to the plaintiff’s act, it was not applicable on these
facts.
 INTENTIONAL TORTS
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Conclusion:
• The tort of battery protects an individual from any
interference onto his person, thus it preserves a
person’s dignity as well as reputation. However, a
defendant who is being sued for battery may raise
some defences such as: self-defence, defence of
others, consent etc.