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(1986) JELR 87246 (CA)

Court of Appeal  •  26 Mar 1986  •  United Kingdom



LORD JUSTICE CROOM-JOHNSON: This is a judgment of the court. This is an appeal from His Honour Judge Wilson-Mellor QC sitting as a Deputy High Court Judge, giving judgment under Order 14 rule 3, in. favour of the plaintiff for damages to be I assessed. It is necessary to set out the facts.

On 4th December 1980 the plaintiff and defendant were both schoolboys aged 13. On that day at school the plaintiff had I a fall which caused an injury to his left hip, from which he still suffers. In the Statement of Claim it is alleged: "the Defendant jumped on the Plaintiff, causing him to suffer personal injury, loss and damage. The matters aforesaid constitute a trespass to the person of the Plaintiff and/or were caused by the Defendant's negligence. In further and better particulars it is said that the defendant jumped on the plaintiff intentionally.

The defendant put in a defence. It is there denied that the defendant jumped on the plaintiff. Trespass to the person and negligence are both denied. The defendant's version of what happened is set out in paragraph 5. It reads as follows:

"The Defendant will aver that ... after a Maths class which both Plaintiff and Defendant had attended, the Plaintiff was in front of the Defendant in a corridor and was carrying his school bag over his right shoulder. The bag was of the hand grip type, and the Plaintiff was holding the handle in his right hand and holding the bag over his shoulder so that the bag hung down over his back. The Defendant on this occasion pulled the bag off the Plaintiff's shoulder. The Defendant will aver that this act was one of ordinary horseplay as between pupils in the same school and the same class, and that it was induced by the Plaintiff because it was a school regulation that bags should not be carried over the shoulder."

The plaintiff took out a summons under Order 14. It can be rare indeed that actions for damages for personal injuries are suitable for proceedings under Order 14 . This summons was argued on the ground that the defendant had committed a trespass to the person of the plaintiff. If it had been argued on the basis that the defendant had been guilty of negligence there could have been no question of the plaintiff obtaining summary judgment. The question of foreseeability alone would have required a trial on the facts. And whether the argument were based on trespass to the person or on negligence, the first triable issue would be how the plaintiff came to fall. The plaintiff filed an affidavit in which he stated that "the defendant jumped on to me in a way that was consistent with an attempt to grab my sports bag causing me to fall to the ground." On behalf of the defendant an affidavit was filed denying that he had jumped on the plaintiff.

The hearing came before the District Registrar. He refused leave to sign judgment. The plaintiff appealed to the judge. The judge was not able to reconcile the two accounts of the incident. He adjourned the hearing with a view to further evidence being filed. It is recorded that on the resumed hearing "On behalf of the Defendant it is admitted that when the Defendant pulled the sports bag off the Plaintiff's shoulder the Plaintiff fell to the ground and apparently suffered injury." The note of the judgment continues as follows: "Therefore I only address myself to whether paragraph 5" of the defence "leads to an arguable basis for suggesting the Defendant's act did not involve battery or was done with consent express or implied, or justification. I say without hesitation that the pleading as to the school regulations is not one I regard as sufficient to justify the exercise of discipline over the Plaintiff, and is inconsistent with horseplay. The assertion in paragraph 5 of horseplay ... might be well-founded but does not raise any averment that the Plaintiff was playing or horse-playing with the Defendant so as to suggest reciprocation. The assertions in paragraph 5 of the Defence amount to an express admission that the Defendant was doing something in relation to the Plaintiff and his bag which brought the Plaintiff to the ground. In the absence of any allegation of express or implied consent it is a clear admission on the part of the Defendant of an unjustified trespass amounting to a battery. There is no basis for saying that the Defendant has an arguable case that he was not responsible in law for the results of his acts in seizing the Plaintiff's bag and bringing him to the ground." He accordingly gave leave to the plaintiff to sign judgment. Since we have decided that the judge was wrong, we must state our reasons for the guidance of whoever tries the action.

The action of trespass to the person, in its sense where there is an assault to or a battery of the plaintiff, is of great antiquity. The court has been referred to a number of authorities in which the ingredients constituting that tort have been discussed and ruled upon. In the early days the result of the case sometimes depended on whether a particular issue had been raised in the pleadings. Even if it had been raised, it might not amount to a defence to the action. The technicalities were great. One can detect in the reports the development not only of the action of trespass on the case (leading to the modern action of negligence) but also of the action of trespass to the person itself.

A convenient starting point is Weaver v. Ward (1617) Hobart 135 (80 ER 284.) The plaintiff and defendant were exercising in the trained band with live ammunition. The defendant shot the plaintiff. The plaintiff sued the defendant in trespass. The defendant confessed and avoided. He pleaded that he had not shot the plaintiff intentionally. That plea was held to be demurrable. The defendant could not he excused of trespass "except it he judged utterly without his fault". In other words the defendant would he liable in trespass if he acted negligently, even though he had no intention to shoot the plaintiff. Nowadays an action such as that could only be brought in trespass on the case, in negligence.

Tuberville v. Savage (1669) 1 Mod. 3 (86 ER 654) was an action for assault. The defendant clapped his hand upon his sword and said to the plaintiff, "If it were not assize-time, I would not take such language." The court ruled that there was no threat, and accordingly no assault. This case is authority that there must be not only a deliberate threat (in an assault) or a deliberate touching (in battery) but also hostile behaviour. If the intention is obviously hostile, that will suffice, but it was recognised that there are many circumstances in life where contact with one's fellow men is not only unavoidable but even if deliberate may also be innocent.

It was said, "If one were to strike another upon the hand, or arm, or breast in discourse, it is no assault, there being no intention to assault ... but if one, intending to assault, strike at another and miss him, this is an assault."

Cole v. Turner (1704) 6 Mod 149 (87 ER 907) was an action in trespass for assault and battery. Holt G.J. ruled that the least touching is a battery if it is done in anger, but that touching without violence or design of harm is no battery, and that violence in a rude and inordinate manner is a battery. Again, the case is authority for the proposition that for a battery there must be either an intention to harm or overt hostility.

Perhaps the most technical of the old cases is Williams v. Jones (1736) Cas. 7 Hard 299(95 ER 193.) The report bristles with pleading points especially on the subject of what makes an arrest lawful. What it does support is that the use of only a slight degree of force is not a battery every time. The intention of the defendant and the degree of force used are both relevant. A slight degree of force is no battery if done by way of a joke, or in friendship. As Lord Hardwicke expressed it, "a molliter manus in joke is no battery." It also indicates that the onus of proof in an action for trespass is on the plaintiff, a matter which was eventually clearly decided by Diplock J. in Poster v. Lanning (1959) 1 Q.B. 426 .

Cases in the nineteenth century such as Stanley v. Powell(1891) 1 Q.B. 86 (a shooting accident) and Holmes v. Mather LR 10 EX. 261 (a non-negligent highway accident) are of interest for present purposes in that they illustrate the distinction which has to be drawn between an unintended accident (when the action must be brought in negligence) and a deliberate accident (when it may be brought in trespass to the person). In the later cases some of the dicta are not easy to follow because of the synonymous use of words like "wilful", "direct", and "wrongful".

It is not possible, even if it were desirable, to ignore the distinction between torts of negligence and torts of trespass strictly so called. This distinction has to he borne in mind in view of a submission made on behalf of the defendant, which would have had the effect of blurring the lines of demarcation between the two causes of action. In a situation (such as the present) in which both causes of action are sought to be raised it is necessary to be as precise as possible in seeing which of the facts giving rise to that situation are appropriate to which cause of action.

The first distinction between the two causes of action where there is personal injury is the element of contact between the plaintiff and defendant; that is, a touching of some sort. In the action for negligence the physical contact (where it takes place at all) is normally though by no means always unintended. In the action for trespass, to constitute a battery, it is deliberate. Even so it is not every intended contact which is tortious. Apart from special justifications (such as acting in self-defence) there are many examples in everyday life where an intended contact or touch is not actionable as a trespass. These are not necessarily those (such as shaking hands) where consent is actual or to be implied. They may amount to one of the instances had in mind in Tuberville v. Savage which take place in innocence. A modern instance is the batsman walking up the pavilion steps at Lords after making a century. He receives hearty slaps of congratulation on his back. He may not want them. Some of them may be too heavy for comfort. No-one seeks his permission, or can assume he would give it if it were asked. But would an action for trespass to the person lie?

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) 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 he cogent evidence of hostility. But the hostility may he demonstrated in other ways.

The defendant in the present case has sought to add to the list of necessary ingredients. He has submitted that before trespass to the person will lie it is not only the touching that must be deliberate but the infliction of injury. The plaintiff's counsel, on the other hand, contends that it is not the injury to the person which must be intentional, but the act of touching or battery which precedes it: as he put it, what must be intentional is the application of force and not the injury. In support of his contention, counsel for the defendant has relied on passages in the judgments in Fowler v. Lanning(1959) 1 QB 426 and Letang v. Cooper (1965) 1 QB 232.

Fowler v. Lanning was tried at first instance by Diplock J. on a preliminary point. The allegation in the statement of claim stated simply "The defendant shot the plaintiff." No particulars were given. The defendant objected that the pleading disclosed no cause of action. If the case was brought in negligence, it did not tell the defendant what case he had to meet. If the case was brought for trespass to the person (battery), it was necessary to state whether the shooting was intentional. Diplock J. analysed the issues which might arise, and decided that the defendant was right, and that if the shooting was said to be intentional the plaintiff must say so. Equally, if it was said to be negligent, the facts must be pleaded. In both cases, the onus of proof was on the plaintiff.

In the course of his judgment, Diplock J. at page 439 summarised the present law on the onus of proof in four propositions. The first is relied upon by the present defendant: "(1) Trespass to the person" (battery) "does not lie if the injury to the Plaintiff, although the direct consequence of the act of the Defendant, was caused unintentionally and without negligence on the Defendant's part".

That case was considered in Letang v. Cooper, where the plaintiff was sunbathing in the car park of a country hotel, with the result that her legs were run over by the defendant's motor car. She sued him for both negligence and trespass to the person more than three years afterwards. She proved negligence but could not recover because her action was barred by the Limitation Act 1939. But she contended that she could recover in trespass to the person which, she said, was not caught by the three year period. The Court of Appeal held that it was so caught. The court also held that her action lay only in negligence and not in trespass to the person.

The nature of the modern action of trespass was much discussed. Lord Denning M.R. (with whose judgment Danckwerts L.J. agreed) said at page 239: "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. 'The least touching of another in anger is a battery,' per Holt C.J. in Cole v. Turner. 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. If the plaintiff cannot prove want of reasonable care, he may have no cause of action at all."

Lord Denning then referred to Fowler v. Lanning, and continued: "The modern law on this subject was well expounded by Diplock J. in Fowler v. Lanning, with which I fully agree. But I would go this one step further: when the injury is not inflicted intentionally, but negligently, I would say that the only cause of action is negligence and not trespass. If it were trespass, it would be actionable without proof of damage; and that is not the law today.

"In my judgment, therefore, the only cause of action in the present case, where the injury was unintentional, is negligence".

Diplock L.J. dealt with the issues more narrowly, basing his decision on the fact that the injury to Miss Letang had been caused unintentionally and therefore was to be sued for in case. On the facts as pleaded, her action had to be brought in negligence. He also agreed that in any event an action for trespass to the person where the damages claimed included damages for personal injuries was subject to a limitation period of three years.

The judgment of Lord Denning was widely phrased, but it was delivered in an action where the only contact between the plaintiff and the defendant was unintentional. It has long been the law that claims arising out of an unintentional trespass must be made in negligence. A careful reading of his judgment shows that he was not adverting to the point now being made by this defendant. Similarly, the first proposition of Diplock J. in Fowler v. Lanning was not meant to bear the interpretation now given to it by counsel for the defendant. In our view, the submission made by counsel for the plaintiff is correct. It is the act and not the injury which must be intentional. An intention to injure is not essential to an action for trespass to the person. It is the mere trespass by itself which is the offence.

That does not answer the question, what does entitle an injured plaintiff to sue for the tort of trespass to the person? Reference must be made to one further case: Williams v. Humphrey (unreported) decided by Talbot J. on 12 February 1975. There the defendant, a boy just under 16, pushed the plaintiff into a swimming pool and caused him physical injury. The judge found the defendant acted negligently and awarded damages. But there was another claim in trespass. Talbot J. rejected the submission that the action would not lie unless there was an intent to injure. He held that it was sufficient, if the act was intentional, that there was no justification for it. In the present Order 14 proceedings the judge relied upon that decision.

The reasoning in Williams v. Humphrey is all right as far as it goes, but it does not go far enough. It did not give effect to the reasoning of the older authorities, such as Tuberville v. Savage, Cole v. Turner, and Williams v. Jones that for there to be either an assault or a battery there must be something in the nature of hostility. It may be evinced by anger, by words or gesture. Sometimes the very act of battery will speak for itself, as where somebody uses a weapon on another.

What, then, turns a friendly touching (which is not actionable) into an unfriendly one (which is)?

We have been referred to two criminal cases. R v. Sutton(1977) 3 All ER 476 was decided in the Court of Appeal (Criminal Division). It was a case concerning alleged indecent assaults on boys who consented in fact although in law they were too young to do so. They were asked to pose for photographs. The only touching of the hoys by the appellant was to get them to stand in poses. It was touching on the hands, arms, legs or torso but only for the purpose of indicating how he wanted them to pose. It was not hostile or threatening. The court which was presided over by Lord Widgery C.J. held these were therefore not assaults.

A more recent authority is Collins v. Wilcock (1984) 1 WLR 1172 . This case was not cited to the Deputy High Court Judge. It had not been reported at the time of the hearing of the Order 14 appeal. The facts were that a woman police officer, suspecting that a woman was soliciting contrary to the Street Offences Act 1959, tried to question her. The woman walked away, and was followed by the police officer. The officer took hold of her arm in order to restrain her. The woman scratched the officer's arm. She was arrested, charged with assaulting a police officer in the execution of her duty, and convicted. On appeal by case stated, the appeal was allowed, on the ground that the officer had gone beyond the scope of her duty in detaining the woman in circumstances short of arresting her. The officer had accordingly committed a battery.

The judgment of the Divisional Court was given by Robert Goff L.J. It is necessary to give a long quotation to do full justice to it. At page 1177 he said: "The law draws a distinction, in terms more easily understood by philologists than by ordinary citizens, between an assault and a battery. An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person. Both assault and battery are forms of trespass to the person. Another form of trespass to the person is false imprisonment, which is the unlawful imposition of constraint upon another's freedom of movement from a particular place. The requisite mental element is of no relevance in the present case.

"We are here concerned primarily with battery. The fundamental principle, plain and incontestable, is that every person's body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery. So Holt C.J. held in

(1704) 6 Mod. 149 that 'the least touching of another in anger is a battery.' The breadth of the principle reflects the fundamental nature of the interest so protected. As Blackstone wrote in his Commentaries, 17th ed. (1830), vol. 3, p. 120: 'the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner.' The effect is that everybody is protected not only against physical injury but against any form of physical molestation.

"But so widely drawn a principle must inevitably be subject to' exceptions. For example, children may be subjected to reasonable punishment; people may be subjected to the lawful exercise of the power of arrest; and reasonable force may be used in self-defence or for the prevention of crime. But, apart from these special instances where the control or constraint is lawful, a broader exception has been created to allow for the exigencies of everyday life. Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is, within reason, slapped: see

(1669) 1 Mod. 3. Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life. We observe that, although in the past it has sometimes been stated that a battery is only committed where the action is 'angry, revengeful, rude, or insolent' (see Hawkins, Pleas of the Crown, 8th ed. (1824) vol. 1, c. 15. section 2), we think that nowadays it is more realistic, and indeed more accurate, to state the broad underlying principle, subject to the broad exception.

"Among such forms of conduct, long held to be acceptable, is touching a person for the purpose of engaging his attention, though of course using no greater degree of physical contact than is reasonably necessary in the circumstances for that purpose. So, for example, it was held by the Court of Common Pleas in 1807 that a touch by a constable's staff on the shoulder of a man who had climbed on a gentleman's railing to gain a better view of a mad ox, the touch being only to engage the man's attention, did not amount to a battery: see (1807) 2 Bos. and Pul. 471; for another example, see (1859) 4 H. and H. 478. But a distinction is drawn between a touch to draw a man's attention, which is generally acceptable, and a physical restraint, which is not. So we find Parke B. observing in (1837) 3 M. and W. 28, 29, with reference to that 'There the touch was merely to engage [a man's] attention, not to put a restraint upon his person.' Furthermore, persistent touching to gain attention in the face of obvious disregard may transcend the norms of acceptable behaviour, and so be outside the exception. We do not say that more than one touch is never permitted; for example, the lost or distressed may surely be permitted a second touch, or possibly even more, on a reluctant or impervious sleeve or shoulder, as may a person who is acting reasonably in the exercise of a duty. In each case, the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct; and the answer to that question will depend upon the facts of the particular case."

This rationalisation by Robert Goff L.J. draws the so-called "defences" to an action for trespass to the person (of which consent, self-defence, ejecting a trespasser, exercising parental authority, and statutory authority are some examples) under one umbrella of "a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life." It provides a solution to the old problem of what legal rule allows a casualty surgeon to perform an urgent operation on an unconscious patient who is brought into hospital. The patient cannot consent, and there may be no next-of-kin available to do it for him. Hitherto it has been customary to say in such cases that consent is to be implied for what would otherwise be a battery on the unconscious body. It is better simply to say that the surgeon's action is acceptable in the ordinary conduct of everyday life, and not a battery. It will doubtless be convenient to continue to tie the labels of the "defences" to the facts of any case where they are appropriate. But the rationalisation explains and utilises the expressions of judicial opinion which appear in the authorities. It also prevents the approach to the facts, which, with respect to the learned judge in the present case, causes his judgment to read like a ruling on a demurrer in the days of special pleading.

Nevertheless, it still remains to indicate what is to be proved by a plaintiff who brings an action for battery. Robert Goff L.J.'s judgment is illustrative of the considerations which underlie such an action, but it is not practicable to define a battery as "physical contact which is not generally acceptable in the ordinary conduct of daily life."

In our view, the authorities lead one to the conclusion that in a battery there must be an intentional touching or contact in one form or another of the plaintiff by the defendant. That touching must be proved to be a hostile touching. That still leaves unanswered the question "when is a touching to be called hostile?" Hostility cannot be equated with ill-will or malevolence. It cannot be governed by the obvious intention shown in acts like punching, stabbing or shooting. It cannot be solely governed by an expressed intention, although that may be strong evidence. But the element of hostility, in the sense in which it is now to be considered, must be a question of fact for the tribunal of fact. It may be imported from the circumstances. Take the example of the police officer in Collins v. Wilcock. She touched the woman deliberately, but without an intention to do more than restrain her temporarily. Nevertheless, she was acting unlawfully and in that way was acting with hostility. She was acting contrary to the woman's legal right not to be physically restrained. We see no more difficulty in establishing what she intended by means of question and answer, or by inference from the surrounding circumstances, than there is in establishing whether an apparently playful blow was struck in anger. The rules of law governing the legality of arrest may require strict application to the facts of appropriate cases, but in the ordinary give and take of everyday life the tribunal of fact should find no difficulty in answering the question "was this, or was it not, a battery?" Where the immediate act of touching does not itself demonstrate hostility, the plaintiff should plead the facts which are said to do so.

Although we are all entitled to protection from physical molestation, we live in a crowded world in which people must be considered as taking on themselves some risk of injury (where it occurs) from the acts of others which are not in themselves unlawful. If negligence cannot be proved, it may be that an injured plaintiff who is also unable to prove a battery, will be without redress.

Defences like self-defence, and exercising the right of arrest, are relevant here. Similarly, it may be that allowances must be made, where appropriate, for the idiosyncrasies of individuals or (as was demonstrated in Walmesley v. Humenick(1954) 2 DLR 232) the irresponsibility of childhood and the degree of care and awareness which is to be expected of children.

In our judgment the learned judge who tried the Order 14 proceedings took too narrow a view of what has to be proved in order to make out a case of trespass to the person. It will be apparent that there are a number of questions which must be investigated in evidence.

Accordingly we would allow this appeal, and give unconditional leave to defend. The court will invite submissions as to what directions are required for the further conduct of the action.

Order: Appeal allowed with costs here and below, not to he enforced without the order of the court; legal aid taxation.

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