Source 4
Extract adapted from Tort Law. Kirsty Horsey and Erika Rackley. Oxford University Press. 2009. Pp 384 and 388-89.
Applied literally, battery covers all forms of contact …. Nevertheless, while some form of
limitation is common sense, the courts have experienced difficulties in finding a theoretical
basis as to where to draw the line between a battery and ordinary social contact.
An early, somewhat narrow, attempt to distinguish lawful from unlawful touching was
made by Lord Holt CJ in Cole v Turner who stated that ‘the least touching of another in
anger is a battery’. This was interpreted by the Court of Appeal in Wilson v Pringle [1987]
to mean that in order for a battery to be committed there must be some ‘hostile’ intent. In
this case, a 13-year-old boy suffered serious injury to his hip when a fellow pupil pulled
his school bag off his shoulder in an act of horseplay. The Court .… held that liability
depended on whether the pupil’s actions had been ‘hostile’ and not simply a schoolboy
prank:
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 expression of 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 .… (Croom-Johnson LJ).
This is not particularly helpful. All it does is to restate the question that needs to be
answered: What is hostile intent? Hostile intent appears here to mean ‘little more than
that the defendant has interfered in a way to which the claimant might object’ (Rogers).
But what is ‘hostile’ to one person may seem quite the opposite to another. Is an overenthusiastic
slap on the back or a surgeon’s mistaken amputation of a leg to be regarded
as ‘non-hostile’ and therefore not a battery?
A better approach … is that of Goff LJ in Collins v Wilcock [1984] [1WLR 1172] who
stated that touching will only amount to a battery where it does not fall within the category
of physical contact ‘generally acceptable in the ordinary conduct of general life’. Although
this approach was criticised as ‘impractical’ in Wilson v Pringle, Lord Goff (now in the
House of Lords) restated his views in Re F (Mental Patient: Sterilisation (1990) [2 AC 1]
and explicitly rejected any requirement of hostility as unnecessary:
It has recently been said that the touching must be ‘hostile’ to have that effect .…
I respectfully doubt whether that is correct. A prank that gets out of hand, an overfriendly
slap on the back, surgical treatment by a surgeon who mistakenly thinks
that the patient consented to it – all these things may transcend the bounds of
lawfulness, without being characterised as hostile.
Thus, being jostled at the bar in a nightclub would not be a battery – it being conduct
generally acceptable in a busy club – although … having your bottom pinched while
waiting at the bar would ….
It is likely therefore that this will be the approach adopted in future cases ….
Ultimately, Goff LJ’s notion of generally acceptable touching falls foul of the same
definitional difficulties as Croom-Johnson LJ’s in Wilson v Pringle, what constitutes
contact ‘generally acceptable in the ordinary conduct of human life’ is just as problematic
as what can be considered hostile. Consider, for example, the over-familiar work colleague
who greets everyone – male and female – with a ‘friendly’ pat on their bottom – does this
constitute acceptable or unacceptable behaviour?
Conaghan & Mansell have argued that Goff LJ’s notion of ‘generally acceptable conduct’
is open to feminist charges of bias, as male perceptions of acceptable conduct are hidden
under a guise of neutrality, thereby precluding the recognition of womens’ experiences
and their divergences from those of men: ‘what men may see as a compliment, women
often experience as an insult; what men offer as a gesture of intimacy and friendship,
women may perceive as an invasion of privacy’.
Applied literally, battery covers all forms of contact …. Nevertheless, while some form of
limitation is common sense, the courts have experienced difficulties in finding a theoretical
basis as to where to draw the line between a battery and ordinary social contact.
An early, somewhat narrow, attempt to distinguish lawful from unlawful touching was
made by Lord Holt CJ in Cole v Turner who stated that ‘the least touching of another in
anger is a battery’. This was interpreted by the Court of Appeal in Wilson v Pringle [1987]
to mean that in order for a battery to be committed there must be some ‘hostile’ intent. In
this case, a 13-year-old boy suffered serious injury to his hip when a fellow pupil pulled
his school bag off his shoulder in an act of horseplay. The Court .… held that liability
depended on whether the pupil’s actions had been ‘hostile’ and not simply a schoolboy
prank:
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 expression of 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 .… (Croom-Johnson LJ).
This is not particularly helpful. All it does is to restate the question that needs to be
answered: What is hostile intent? Hostile intent appears here to mean ‘little more than
that the defendant has interfered in a way to which the claimant might object’ (Rogers).
But what is ‘hostile’ to one person may seem quite the opposite to another. Is an overenthusiastic
slap on the back or a surgeon’s mistaken amputation of a leg to be regarded
as ‘non-hostile’ and therefore not a battery?
A better approach … is that of Goff LJ in Collins v Wilcock [1984] [1WLR 1172] who
stated that touching will only amount to a battery where it does not fall within the category
of physical contact ‘generally acceptable in the ordinary conduct of general life’. Although
this approach was criticised as ‘impractical’ in Wilson v Pringle, Lord Goff (now in the
House of Lords) restated his views in Re F (Mental Patient: Sterilisation (1990) [2 AC 1]
and explicitly rejected any requirement of hostility as unnecessary:
It has recently been said that the touching must be ‘hostile’ to have that effect .…
I respectfully doubt whether that is correct. A prank that gets out of hand, an overfriendly
slap on the back, surgical treatment by a surgeon who mistakenly thinks
that the patient consented to it – all these things may transcend the bounds of
lawfulness, without being characterised as hostile.
Thus, being jostled at the bar in a nightclub would not be a battery – it being conduct
generally acceptable in a busy club – although … having your bottom pinched while
waiting at the bar would ….
It is likely therefore that this will be the approach adopted in future cases ….
Ultimately, Goff LJ’s notion of generally acceptable touching falls foul of the same
definitional difficulties as Croom-Johnson LJ’s in Wilson v Pringle, what constitutes
contact ‘generally acceptable in the ordinary conduct of human life’ is just as problematic
as what can be considered hostile. Consider, for example, the over-familiar work colleague
who greets everyone – male and female – with a ‘friendly’ pat on their bottom – does this
constitute acceptable or unacceptable behaviour?
Conaghan & Mansell have argued that Goff LJ’s notion of ‘generally acceptable conduct’
is open to feminist charges of bias, as male perceptions of acceptable conduct are hidden
under a guise of neutrality, thereby precluding the recognition of womens’ experiences
and their divergences from those of men: ‘what men may see as a compliment, women
often experience as an insult; what men offer as a gesture of intimacy and friendship,
women may perceive as an invasion of privacy’.
