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59_{(1959) 1 QB 426} 60(1965) 1 QB 232

According to Winfield a battery is the intentional and direct application of force to another. In Eisener v. Maxwell61 _{case the term defined as the application of force to the person of another without lawful} justification amounts to the wrong of battery. This is however trivial the amount or nature of the force may be and even though it neither does nor is intended nor is likely or able to do any manner of him. So even to touch a person without his consent or some other lawful reason is actionable. No anger or hostility is essential to liability; an unwanted kiss may be a battery. Thus intentionally to bring any material object into contact with another’s person is sufficient application of force to constitute a battery for example to throw water upon him, or to pull a chair from under him whereby he falls to the ground or to apply a tone- rinse to his scalp. It is also probably a battery to project heat, light, noise or vapours to cause physical injury or personal discomfort.

Thus to constitute a tort of battery two things are essential, they are:

1. Intention: the intention which is required in battery is not the intention to hurt the claimant but the intention to apply physical force. For e.g. In Potts v. North West RHA62_{, it was held that a surgeon was} performs an operation or other medical procedure without the consent of the patient commits tort of battery though in such cases there may be an intention of the well being of the patient.

Even if the defendant is intended to injure someone other than the claimant, this could be still amount to battery if as a consequence the claimant suffers some application of force. In Livingstone v. Minister of Defence63_{, the claimant succeeded in battery when he was hit by a bullet intended by a soldier for} someone else.

2. Application of Force: The application of force against another person without lawful justification is another necessary ingredient of battery. Any physical contact with the body of or his clothing of a claimant

61 _{(1951) 1 D LR 816} 62 ₁₉₈₃

is sufficient to amount to force. If there is a forcible contact no damage is necessary for trespass is actionable perse.

Where there is consent to the contact there is no battery and the same is true where the claimant though not in fact consenting so conducts himself as to lead the defendant reasonably to believe that consent exists. So held in O’ Brien v. Gunard64_.

ASSAULT

Assault is putting a person in fear of an immediate battery. It is an unlawful attempt to do a bodily hurt to another coupled with the present ability and intention to do the act. According to Winfield assault is an act of the defendant which causes the claimant reasonable apprehension of the infliction of a battery on him by the defendant. Probably mere words do not constitute an assault however insulting or even menancing, the intent to do violence must be expressed in threatening acts not merely in threatening speech. Thus to shake ones fist in a man’s face is an assault, to shake it at a man who by his distance from the scene of action is inaccessible to such violence is not an assault.

In Stephens v Mayors65_{, the defendant advancing with clenched fist upon the claimant at a parish meeting,} was stopped by churchwarden who sat next by one to the claimant. The court held that it amount to an assault. It has been held that immediate intention to carry out his threat into effect is the most important factor. Physical touching or impact is not needed in the case of assault. The touching which is needed is that there must be reasonable apprehension of immediate injury or violence to the plaintiff. A conditional threat is no assault nor is a mere verbal threat unless there is an immediate intention and a present ability

64 _{28 NC 226 Mass. 1891} 65 _{(1840) 4 C& P 349}

to do the act. An Indian case on this point is Bavisetti V S Rao v. Nandipati66_{, in this case the plaintiff was in} arrears of land revenue amounting to rs.11.60. The village munsiff vent to his residence to collect the land revenue. On demand the plaintiff pleaded his inability to pay. He then told the plaintiff that his ear rings would be detrained for default in the payment of land revenue and called a gold smith to take out plaintiff’s ear rings. On arrival of the gold smith another person paid off the amount of arrears. The court held that it was not the case of assault since after the arrival of gold smith the defendant said nothing and did nothing and that the threat of use of force by the gold smith to the plaintiff was too remote a possibility to have put the plaintiff in fear of immediate or instant violence.

But there need be no actual intention or power to use violence for it is enough if the plaintiff on reasonable grounds believes that he is in danger of it. Thus it is actionable to point a gun at a man in a threatening manner even though to the knowledge of the defendant but not to the plaintiff it is unloaded. So held in R v. St. George67 _case.

Does battery include assault?

Many authorities are of the opinion that battery includes assault, but it is not always true. Fear or reasonable apprehension of force as harm on the part of plaintiff is a necessary ingredient of assault. So whenever fear or reasonable apprehension of force or harm on the part of the plaintiff results in battery then assault is included in the battery. But where battery is committed without fear or apprehension of force or harm on the part of the plaintiff then battery does not include assault. For e.g. A blow from behind inflicted by an unseen assailant. In such a case battery does not include assault.