BISHOP STUART UNIVERSITY

NAME: MAGURU JUNIOR

COURSE: LLB

COURSE UNIT: LAW OF TORTS

FACULTY: LAW

DEPARTMENT: LAW

LECTURER: PROF PATRICK MUKUBWA

QUESTION

Distinguish battery from assault?

Tort is defined as ‘‘Tortious liability arises from the breach of a duty primarily fixed by law; this
duty is towards persons generally and its breach is redressable by an action for unliquidated
damages.’’1 The tort seeks to protect personal integrity, which is regarded as being fundamental
that it is protected even in the absence of damage. The tort of trespass to persons is a fault- based
tort-it is therefore not actionable in the absence of intention.

There are three main forms of trespass to a person, namely, assault, battery and false
imprisonment and their common element is that the wrong must be committed by “direct
means”. Any direct invasion of a protected interest from a positive act was actionable subject to
justification. If the invasion was indirect, though foreseeable, or if the invasion was from an
omission as distinguished from a positive act, there could be no liability in trespass though the
wrong-doer might have been liable in some other form of action.

These torts are actionable without proof of damage (or actionable per se), they can be used to
protect civil rights, and also will protect a person's dignity, even if no physical injury has
occurred.

BATTERY

Battery is the intentional and direct application of force to another person 2. A battery is the actual
intentional infliction of unlawful force on another person as it was stated in Cole v Turner
(1704)

It is mainly distinguishable from an assault in the fact that physical contact is necessary to
accomplish it. Battery is the intentional and direct application of physical force to another
person. It does not matter whether the force is applied directly to the human body itself or to
anything coming in contact with it. Battery requires actual contact with the body of another
person so a seizing and laying hold of a person so as to restrain him; spitting on the face, taking a
person by the collar, are all held to amount to battery.

In the case Njareketa V Director of Medical services,3 the appellant a twenty four year old
patient had a malignant growth on his leg which was amputated out of necessity to save his life.

1
Winfield-Jolowicz-on-Tort-Rogers-18th-Edition page 1
2
Winfield-Jolowicz-on-Tort-Rogers-18th-Edition page 113
3
1950 17 EACA 60
He had at first consented but had afterwards withdrawn his consent. It was held that the
defendant committed trespass against the appellant.

Section 3(1) (a) of the limitation act cap 290 provides that actions founded on contract or tort
cannot be brought after six years and the cause of damages for negligence after three years.

In the case of Lateng v Cooper4, the plaintiff who was at a hotel was sunbathing on a piece of
grass were cars were parked , while she was lying there, the defendant into the car park driving
his caer. He did not see her. The car went over her legs and she was injured. more than three
years on February, the plaintiff brought an action against the defendant for damages for loss and
injury caused by negligence of the defendant in driving the car. the trial judge agreed and
awarded her 575 pounds damages for tress pass to a person

On appeal Lord Denning came up following Fowler v Lanning, held that the only cause of action
where injury was intentional is negligence and is bad by reason of the express provision of the
limitation act.

Assault

Assault is an act of the defendant which causes the claimant reasonable apprehension of the
infliction of a battery on him by the defendant5.

It is an attempt or a threat to hurt another, coupled with an apparent present liability and intention
to do the act. Actual contact is not necessary in an assault, though it is in a battery. But it is not
every threat, when actual personal violence does not lie that constitutes an assault; there must, in
all cases, be the means of carrying the threat into effect.

The intention as well as the act makes an assault. Therefore, if one strikes another upon the hand,
or arm, or breast in discourse, it is no assault, it is but if one, intending to assault, strikes at
another and misses him, this is an assault; so if he holds up his hand against another, making a
fist in a threatening manner, and says nothing, it is an assault. Initially it was thought that mere
words did not amount to an assault. But the words which the party threatening uses at the time
may either give gestures such a meaning as may make them amount to an assault, or, on the other
hand, may prevent them from being an assault.
4
1965 1 QB 232
5
Winfield-Jolowicz-on-Tort-Rogers-18th-Edition page 113
In the majority of cases an assault precedes a battery, but there are cases which occur the other
way around like a blow from behind inflicted by an unseen assailant.

It was stated earlier that some bodily movement was required for an assault and that threatening
words alone were not actionable, as aptly laid down in R v Meade and Belt6, that 'no words or
singing are equivalent to an assault'. This latter stand was rejected by the House of Lords in R.
vs. Ireland, where it was opined that threats on the telephone may be an assault provided the
claimant has reason to believe that they may be carried out in the sufficiently near future to
qualify as “immediate”.

In Stephens v Myers7, the defendant made a violent gesture at the plaintiff by waiving a
clenched fist, but was prevented from reaching him by the intervention of third parties. The
defendant was liable for assault.

According to Blake v Bernad8, according to this case, pointing a loaded gun at someone is an
assault. it is still an assault even if the gun is unloaded unless the plaintiff knows that it is
unloaded or unless the distance from the weapon is so great that any reasonable person would
have realized that he was out of range in which case would be no assault.

In the case Wilkinson v Downton9, Downton (D) made a false and malicious statement to Mrs.
Wilkinson (W) that her husband had been injured in an accident, intending for her to believe it
and suffer some physical harm. As a result, W suffered a shock to her nervous system, causing
weeks of suffering and incapacity. The case establishes the principle that a person can be held
liable for intentionally causing harm to another, even if the specific harm caused was not
anticipated.

Defenses to assault and battery

Lawful arrest.

Where the defendant is carrying out a lawful arrest no tort is committed. The precise procedure
must be carried out in order to make an arrest. The arrested person must be told the true grounds
on which they are being arrested- exceptions are in the event where the person to be arrested is
6
(1823) 1 Lew CC 184,
7
(1830) 172 ER 735
8
173 ER 985
9
[1897] 2 QB 57
 10
resisting. In the case of Asumani Bugembe v. Attorney General ,the court found that the
plaintiff was injured when resisting arrest in his shop at Nakawa, in the city of Kampala but that
the police failed to inform to inform the plaintiff of the reason for his arrest.

Consent

some examples include boxing, sporting events, medical operations. In the case of Chatterton v
Gerson11, the claimant suffered severe pain from a post-surgical scar. She was referred to the
defendant, a specialist in pain treatment, who recommended a surgical procedure to block the
sensory nerves near the scar. The first operation was done after the doctor explained the nature
and risks (including numbness and temporary muscle weakness). She consented and underwent
the surgery, which gave temporary relief but caused numbness in her right leg. A second
operation was performed, but this time the doctor failed to warn her of potential side effects.

The court held that, the claimant consented to the nature of the medical act. Claim for negligence
dismissed. The defendant did not breach his duty of care in failing to warn of risks for the second
surgery. The judge emphasized that informed consent relates to negligence, not battery, unless
consent was entirely lacking or obtained by fraud.

Self- Defence-

Self-defence is a defence where reasonable force is used in defence of the claimant's person,
property or another person. What amounts to self defence will be a question of fact in each case
but the basic principle is that the force used must be reasonable in proportion to the attack.

In the case of Collins v Wilcock12, a police officer approached a woman (Collins), suspecting
her of soliciting for prostitution. Collins refused to speak and attempted to walk away. The police
officer, who had no power to arrest her, grabbed her arm to prevent her from leaving. Collins
scratched the officer in resistance and was charged with assaulting a police officer in the
execution of his duty. Collins argued that the officer was not acting within his lawful powers,
and thus she was entitled to resist the unlawful force. The Court of Appeal quashed Collins’s
conviction and the act of grabbing her amounted to battery because it was an intentional physical
contact, and It went beyond what is generally acceptable in daily life. The police officer had no
10
Civil Suit No. 737 of 1964
11
[1981] QB 432
12
[1984] 1 WLR 1172
lawful authority, so he was not acting in the execution of his duty. Therefore, resisting him was
lawful, and the charge of assault could not stand

Contributory negligence

Prevention of trespass or ejection of a trespasser. It is lawful for any occupier of land, or for any
other person with the authority of the occupier, to use a reasonable degree of force in order to
prevent a trespasser from entering or his movements or to eject him after entry.

In the case of Co-operative Group (CWS) Ltd v Pritchard13, the claimant, Ms. Pritchard, was
assaulted by a fellow employee at her workplace. The defendant, Co-operative Group (CWS)
Ltd, was vicariously liable for the assault. Ms. Pritchard developed a psychiatric condition as a
result of the assault and sued for damages in assault and battery, including for pain, suffering,
distress, and loss of earnings. The defendant argued that the claimant was contributorily
negligent, and this should reduce the damages awarded. Two medical experts (A and B) gave
evidence. The judge preferred A overall but accepted B's view on one critical point that the
causation and progression of the claimant’s psychiatric condition that without providing
adequate reasons. The court laid a principle that contributory negligence is not a defence to the
intentional torts of assault and battery, and damages should not be reduced on that basis. In
assessing causation, a trial judge must give clear reasons when preferring one part of expert
evidence over another, particularly where this impacts quantum of damages

Defendant acting in support of the law.

Sometimes an assault or imprisonment may be justified on the ground that the defendant was
acting in support of the law. The onus of proving legal justification lies on the [Link] the
case of Asumani Bugembe v. Attorney General, the court found that the plaintiff was injured
when resisting arrest in his shop at Nakawa, in the city of Kampala but that the police failed to
inform to inform the plaintiff of the reason for his arrest

Parental and other authority.

A parent is not guilty of an assault if he physically interferes with his or her child by way of
reasonable restraint or chastisement, or therapeutic [Link] the case of Cleary v. Booth 14,
13
[2012] EWCA Civ 120
14
(1893) 1 Q.B. 465
Booth, the defendant, was a school headmaster. Two boys had engaged in a physical fight while
on their way to school, not on school premises. Upon being informed of the incident, Booth
administered corporal punishment to both boys after they arrived at school. Booth was
subsequently charged and convicted of assault and battery. The court held that, discipline is not
limited to school grounds because a child’s moral conduct is often displayed outside, such as
while traveling to and from school. Therefore, a headmaster may exercise reasonable correction
for misconduct occurring outside the school, if it relates to the discipline and moral upbringing of
the child.

Inevitable accident.

Inevitable accident provides a good excuse for a prima facie trespass which is otherwise
actionable. An inevitable accident has been defined as an event over which the defendant had no
control, and the effects of which would not have been avoided by the exercise of the greatest care
and skill. In the case of Stanley v. Powell15 , the plaintiff (Stanley) and the defendant (Powell)
were both members of a shooting party out for a pheasant shoot. The defendant fired his gun at a
pheasant, but the bullet glanced (ricocheted) off a tree and hit the plaintiff in the eye, causing
injury. The plaintiff sued the defendant for negligence, claiming damages for his injuries. There
was conflicting evidence about what caused the bullet to hit the plaintiff. The Court of Appeal
held in favour of the defendant (Powell). Since no negligence was found, and the injury was
accidental, the defendant was not liable. The injury was the result of an inevitable accident, and
the law does not impose liability in tort for harm caused without fault.

In summary, assault is the threat or attempt to harm, while battery is the actual physical harm or
contact. Understanding the difference between these two concepts is crucial in legal contexts, as
they can have distinct implications for charges, defenses, and consequences. In many
jurisdictions, assault and battery are charged together, but recognizing their distinct elements can
help clarify the nature of the offense.

Reference

Limitation act cap 290

15
(1891) 1 Q.B. 86
Winfield-Jolowicz-on-Tort-Rogers-18th-Edition

Case law