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SIDDHARTH COLLEGE OF LAW

LAW OF TORTS

TOPIC: FELONIOUS TORT WITH


RESPECT TO BATTERY

“A project submitted to Siddharth College of Law for the 1st Year LLB. Degree
Course”

Submitted by

Name: Rinal Anil Jain

Roll No.: 167

2019-20

Date: 4/1/2020
INDEX

INTRODUCTION 3

DEFINITION 3

TORTS WITH RESPECT TO BATTERY 4

ESSENTIALS OF BATTERY 5

DEFENSES TO BATTERY 6

REMEDIES 8

CASES 10

CONCLUSION 12

BIBLIOGRAPHY 13

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INTRODUCTION

A tort is a wrongful act or an infringement of a right, which is a civil wrong and the person
who commits a tortious act is legally responsible for the damages suffered by the claimant. A
tort is different than the criminal wrongs as the criminal wrong is punishable by the state. In
India, the law of torts was adopted from the United Kingdom which is considered as a breach
of duty which harmed the plaintiff in a way in which a remedy is available for the plaintiff.
Torts and remedies are linked to each other as a remedy is present for every tortious act if there
is no remedy present, then it can be anything but tort. The word ‘tort’ is derived from the Latin
word “tortum” which means ‘crooked’ or ‘twisted’.

DEFINITION

Sir John Salmond, “a tort us a civil wrong for which the remedy is a common law action for
unliquidated damage & which is not exclusively the breach of contract on the breach of trust
or other merely equitable obligation”.

Essentials of Torts
There are generally four elements for a successful case of tort which determines the legal
accountability of the person against another person:

 Duty
 Breach of Duty
 Causation
 Injury

Types of Torts
Torts are further divided into three categories:

 Intentional Torts
 Negligence Torts
 Strict Liability Torts

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TORT WITH RESPECT TO BATTERY

Battery is a type of intentional tort. The assault is generally an attempt to harm someone else
which also includes threats against other people. So, assault is a planned attempt to violently
harm another person. While the battery is intentional touching another person without the
person’s consent. In the battery, the personal liberty of the person is compromised to cause
physical harm to the person.

Purposely touching or applying force on other persons or things related to the person without
his consent with the intention to harm the person is known as a battery. It is only considered
when there is an actual physical contact without the consent of the person to harm the person.
Generally, assault is followed by the battery which is the reason assault and battery are mostly
used together.

The battery is often considered as trespass to a person, so it is divided into two types:

 Criminal Battery
 Civil Battery

Criminal Battery
Criminal Battery is also known as the battery as a crime. Whenever there is an intention to kill
a person or to hurt the person with an offensive physical contact is considered as the battery of
crime. In a criminal battery, intention plays a major role as the action involves intention to kill
a person.

Civil Battery
Civil Battery is also known as the battery as a tort because it is a civil wrong. When a person
has no intention to hurt someone but commits an act which hurts another person and the
wrongdoer had an idea that the act will hurt another person is known as a civil battery. As the
battery is considered as an intentional tort, but in the civil battery the ,intention to hurt someone
is not present, so the victim can lodge a complaint against the wrongdoer under civil court.

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ESSENTIALS OF BATTERY

Essentials for the battery are:


Intention
The intentions for both civil battery and criminal battery are different. Criminal intent to cause
the injury is not necessary but the intention to cause the act which harms the person is required
as it results in the battery.
The intent of the battery is transferable as when a person tries to hit a person without his consent
and he ends up hitting a different person, but the person is still liable for battery. So, the
intention is the soul of battery and is very essential.

Contact
Contact or use of force is necessary for committing battery. Harm through the force is not basic
requirement but the use of force is basic requirement to conduct battery. It is not necessary that
the contact must be physical or individual but the physical contact through indirect ways is also
considered as physical contact. As the use of sticks or spitting on someone is also considered
as a battery. Harming the people with changing the heat, odor, light is also considered as a
battery.
The battery doesn’t need body-to-body contact as the battery can also be for future events
which means if there is a delay between the accused actions and the injury of the complainant
will still be a battery. For eg, A mixes something harmful in the food of B even after he knows
the fact that B will eat that, A has committed a battery against B.

Harm
Damage is necessary for the completion of the battery. Damage can be of any kind, it can be
physical, mental, or emotional. Battery is not limited to physical damage. The victim must have
suffered in any manner but the harm can be minimum, severe damages are not required.
Unwanted sexual contact or uncomfortable touching without the consent also comes under
battery as it harms the person physically, emotionally, and mentally.

No Consent
The victim must not know about the action which is planned by the accused. The battery is
only committed when the victim had no idea about the contact which was going to happen. For
example, when surgeons steal organs from patients to sell them will be considered as a battery.

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And when the doctor while doing a surgery finds that the appendix in the body will cause some
trouble during the surgery and the doctor informs the patient that he is going to remove the
appendix, in this situation, the doctor is not liable for the battery as there was the consent of
patient involved.

No Lawful Justification
In the event of proving battery, there mustn’t be any legal justification present to justify the
actions of the accused. The complainant has to prove that the force used by the accused was
unlawful and was not justifiable. For example, A and B were walking side by side, suddenly B
started fighting with A, in this situation B is liable for battery but in the other situation when
they were passing and there was an unintentional touch without harming anyone, in this
situation, there wasn’t any battery. So, unintentional damages or damages by accidents are not
actionable.

DEFENCES TO BATTERY

There are certain defenses given to the accused to prevent themselves from wrongful
accusation:
Self Defense

Self-Defense is the most common defense which is used in assault and battery cases. It means
to protect yourself from unlawful force implied by other people. In this defense, it is proved
that the defendant was safeguarding himself from the unlawful force of the complainant. But
in this case, the defendant must prove that he did not provoke the other person and there was
absolutely no other way to save himself.
For example, A started a fight with B, in his defense B attacked A with a stick and ran away,
in this situation B is not liable for the battery as the attack was justified and was in self-defense.
There are many limitations to the doctrine of self-defense, as the force used in the name of self-
defense must be reasonable and proportional to the threat compared to the victim. You can not
do anything in the name of self-defense, as there are limitations to the defense. And the
defendant has to meet all the essentials to use the defense of self-defense.

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Essentials
Essentials of self-defense are:

 The threat of unlawful for or damages.


 Reasonable fear of harm.
 No provocation by the accused.
 No other way to save himself.

Defense of Others

This defense is similar to self-defense, as in this defense the defendant is trying to save another
individual, not himself. In this defense, there must be an honest and reasonable fear of harm to
another person.

Defense of Property

This defense is also very similar to self-defense, as in this defense the defendant is trying to
protect his property, but the force used is only considered when there is an unlawful use of
force against the defendant. The defense is only valid when there is an honest and reasonable
fear of harm to the person’s property. So, in cases of disputes over personal property, the owner
can use force to take his property back.

Consent

Consent can also be considered as a defense in the case of assault and battery. Consent is when
the person voluntarily agrees to the intention of the defendant. So, when the individual has
given his consent to perform the act, then that same act can not be considered as a battery. But
in situations when the person exceeds the extent of the act, on those grounds the act can be
considered as a battery.
These were the defenses that can be used when a person is facing charges for assault and
battery.

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REMEDIES

There are different remedies available under the law of tort:

Legal Remedies

Legal remedies are also known as damages, which is compensation given by the defendant to
the plaintiff to compensate for the injuries, pain, or the sufferings given by the defendant. The
compensation is directly proportional to the victim’s loss not to that of the defendant’s profits.
The damages are considered as the tort claims and the compensation received by the plaintiff
through the Court are known as pain and suffering damages.

Restitutionary Remedies

These remedies try to restore the position of the plaintiff as close as possible to the state before
all of it happened. This remedy includes:

 Restitutionary Damages: These damages are similar to damages but in this, the
compensation is calculated through the defendant’s gains, not the plaintiff’s loss.
 Replevin: This helps the victim to recover his personal property that he lost
because of the battery.
 Ejectment: In this remedy, the court helps in ejecting the person who is staying
unlawfully in the person’s property. This remedy is mostly used in cases of
trespass.
 Property Lien: In the situation when the defendant can not pay the damages, the
judge can lien the property or sell the property as per the situation demands, to pay
damages to the victim.

Equitable Remedies

These are the remedies used when the monetary damages can not restore the initial stage of the
victim. These remedies include:

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 Temporary Restraining Order: In the cases of assault and battery, when the
defendant has physically harmed or harassed the victim, then the victim can obtain
a restraining order which prevents the defendant from making any contact with the
plaintiff or even coming close to the plaintiff.
 Temporary or Permanent Injunction: These injunctions can either prohibit
unlawful activities initiated by the defendant or it can also take affirmative steps to
control the defendant.

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CASES

Vosburg v. Putney (1891) - 80 Wis. 523, 50 N.W. 403, 1891 Wisc. LEXIS 234

RULE:

In an action to recover damages for an alleged assault and battery, the rule is that the plaintiff
must show either that the intention was unlawful, or that the defendant was in fault. If the
intended act is unlawful, the intention to commit it must necessarily be unlawful.

FACTS:

Plaintiff school child lost the use of his leg after he was kicked in the shin by a defendant
school child at school in a classroom. The action was brought to recover damages for an
assault and battery, alleged to have been committed by the defendant (age 11) upon the
plaintiff (age 14). The plaintiff testified, as a witness in his own behalf, as to the
circumstances of the alleged injury inflicted upon him by the defendant, and also in regard to
an earlier wound he received in January, near the same knee, mentioned in the special
verdict. The defendant claimed that such wound was the proximate cause of the injury to
plaintiff's leg, in that it produced a diseased condition of the bone, which disease was in
active progress when he received the kick, and that such kick did nothing more than to
change the location, and perhaps somewhat hasten the progress, of the disease. The trial court
overruled defendant's objection to plaintiff's physician's testimony that the exciting cause of
the injury in question was the injury received at that day by the kick on the shin-bone. The
jury trial resulted in a special verdict for plaintiff for $ 2,500. Defendant appealed.

(Procedural note: A former trial of this cause resulted in a verdict and judgment for the
plaintiff for $ 2,800. The defendant appealed from such judgment to the Supreme Court of
Wisconsin, which reversed and awarded a new trial.)

ISSUE:

In an action for assault and battery, should plaintiff injured student's physician have been
allowed to answer the hypothetical question that called for his opinion in a matter vital to the
case?

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ANSWER:

No

CONCLUSION:

The Supreme Court of Wisconsin reversed the judgment. First, the Court explained that if the
kicking of the plaintiff by the defendant was an unlawful act, the intention of defendant to
kick him was also unlawful. Citing the implied license of the playground, the Court explained
that had the two boys been on the school playground, engaged in the usual sports, with
defendant intending no harm to plaintiff, the Court would hesitate to hold defendant's act
unlawful or to hold defendant liable. However, it appeared that the injury was inflicted in the
classroom, after school began. Under these circumstances, no implied license to do the act
complained of existed, and such act was a violation of the order and decorum of the school,
and necessarily unlawful. Next, the Court held that defendant's objection to the question put
to plaintiff's physician witness should have been sustained. The physician did not have the
necessary facts to form an intelligent opinion, with his opinion based solely upon the fact that
the older child was kicked on the shinbone.The trial court's error in permitting the witness to
answer the question was material, and necessarily fatal to the judgment. The Court held that
plaintiff's action may be sustained; accordingly, the cause was remanded for a new trial.

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CONCLUSION

So, the battery is an intentional tort which deals with creating unconsented harm to another
person or property of the person. In the case of battery, physical contact is very important as
the battery can not be constituted without any physical contact. Since avoiding physical contact
with other people in day-to-day life is next to impossible. So, physical contact must harm or
must be offensive to constitute a battery. So, in order to be liable for battery, a person must
have an intention to continue to perform an act that will harm a person, the act must have any
physical conduct or there must be any physical contact. The contact must damage the person
in any sort of way and the act must not be justified by the law. And the most important thing
is the victim must not know about the act, which means there must be no consent of the victim.
All these elements constitute battery.

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BIBLIOGRAPHY

https://en.wikipedia.org/wiki/Battery_(tort)
www.jstor.org
https://injury.findlaw.com/torts-and-personal-injuries/battery-basics
https://lawtimesjournal.in/battery-law-of-tort/
Law of Tort -Including Compensation under the Consumer Protection Act by Singh S.P.

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