Case Facts
The incident giving rise to this case occurred on 4 December 1980 in the corridor of a school. Both the claimant and the defendant were 13-year-old schoolboys at the time. According to the defendant's account, following a Maths class he pulled the claimant's school bag off his shoulder as the two passed in the corridor, causing the claimant to fall and suffer injury to his left hip. The claimant's statement of claim alleged, by contrast, that the defendant had "jumped on" him, constituting trespass to the person and/or negligence. The defendant denied jumping on the claimant and pleaded that what had occurred was ordinary horseplay, and further that it had been induced by the claimant carrying his bag in breach of school regulations. Both parties appeared by their fathers as guardians ad litem, reflecting their status as minors.
The claimant applied for summary judgment under RSC Order 14. The district registrar refused leave to sign judgment, taking the view that a triable issue existed. The claimant appealed, and a High Court judge allowed that appeal, ordering that judgment be entered for the claimant on the basis that the defence, by admitting the defendant had done something in relation to the claimant and his bag which brought the claimant to the ground, had effectively admitted an unjustified trespass amounting to battery. The defendant appealed to the Court of Appeal.
Before the Court of Appeal, the defendant contended that the essential ingredients of trespass to the person were: first, a deliberate touching; secondly, hostility; and thirdly, an intention to inflict injury — and that horseplay, carried out with no intention to injure, could not amount to a battery. The claimant, by contrast, argued that battery required no more than an intentional application of force, such as horseplay involved, regardless of any intention to cause injury.
Held
The Court of Appeal allowed the defendant's appeal and granted the defendant unconditional leave to defend.
The court held, first, that an intention to injure is not an essential ingredient of an action in battery. It is the act of trespass, rather than any resulting injury, which must be intentional. The court drew support from Fowler v Lanning [1959] and Letang v Cooper [1964], both of which confirmed that the act of touching must itself be intentional, but that no intention to cause harm is required.
Secondly, and critically, the court held that the intentional act — the touching or contact — must be proved to be a hostile touching. Hostility, however, cannot be equated simply with ill-will or malevolence. Nor is it determined solely by the obviousness of aggressive intention in acts such as punching, stabbing or shooting, nor solely by an expressed intention (though an expressed intention may be strong evidence of hostility). Whether there is hostility is a question of fact in every case.
Because the defendant's pleaded case did not admit to a hostile act, there remained genuinely triable issues which rendered the entry of summary judgment inappropriate. The High Court judge's reasoning — that the admission of physical contact without consent was sufficient — was rejected. The Court of Appeal reversed that decision and permitted the defendant to defend the claim at full trial.
The court also directed, per curiam, that where the immediate act of touching does not of itself demonstrate hostility, the claimant should plead the specific facts alleged to establish it.
Ratio Decidendi
The ratio of this case comprises two distinct propositions concerning the tort of battery.
The first proposition is that an intention to injure is not a necessary element of battery. What must be intentional is the act of touching itself, not any injurious consequence flowing from it. This resolved any suggestion that horseplay or playful physical contact could never constitute battery merely because no harm was intended.
The second, and more significant, proposition is that in order for an intentional touching to amount to a battery it must be shown to be a hostile touching. This requirement of hostility was derived in part from the historic authority of Cole v Turner [1704], in which Holt CJ had remarked that "the least touching of another in anger is a battery" — the word "anger" pointing toward a concept of hostility as an ingredient of the tort. The court also considered Tuberville v Savage [1669] and the analysis offered in Collins v Wilcock [1984], where Goff LJ had described battery as "the actual infliction of unlawful force on another person" and had distinguished forms of physical contact generally acceptable in the ordinary conduct of daily life.
Hostility, as established by this case, is neither a simple matter of bad motive nor confined to obviously violent acts. It is a factual question to be resolved in every individual case having regard to all the circumstances. Equally, the requirement of hostility does not reduce battery to acts accompanied by expressed anger — context, purpose and the manner of touching must all be examined.
The practical consequence of the ratio is that a claimant who seeks to establish battery in circumstances where the act of touching is not self-evidently hostile must plead and prove the specific facts that demonstrate hostility. Summary judgment will be unavailable where those facts are contested.
Obiter Dicta
Not applicable.