Hi, welcome to the Australian Law Student Law Infor podcast, your go-to source for legal
insights in four minutes or less. I'm Nick Hodgkinson and today for our first episode
we're talking about the intentional tort of battery. But first, our obligatory disclaimer.
The Law Infor is produced by law students for law students. It is not, nor is it intended
to constitute, legal advice. If you require legal assistance, you should contact your
local law society who can direct you appropriately. For more information on the Australian Law
Student, visit our website at theoslawstudent.com.
Okay, battery. It's one of three main trespass to the person actions alongside assault and
false imprisonment. Battery revolves around the unlawful touching of one person by another
without consent. Unlike negligence, where damage is crucial, trespass to the person,
including battery, is actionable per se. This means that the plaintiff doesn't need to suffer
any damage before pursuing a legal action.
So what exactly constitutes a trespass to the person?
Well, battery involves a direct and intentional interference with another person, typically
through physical contact. This can range from cutting someone's hair without their consent
to more explicit acts like spitting in someone's face. The key elements to consider in a battery
are directness and positiveness and intention. The touching must both be direct and positive
and intentional for it to qualify as battery.
Interestingly, courts can take a broad view of what constitutes a positive act, especially
if there's a duty involved.
In the case of Fagan and Metropolitan Police Commissioner, the accused's failure to reverse
off of a police officer's foot was deemed a positive act, reinforcing the intentional
nature of battery. It's essential to note that hostility is not always a necessary ingredient
for battery. Even seemingly harmless actions like an over-friendly slap on the back or
a medical procedure with mistaken consent can be considered battery if they transcend
the bounds of lawfulness.
As mentioned earlier, the concept of consent will serve as a defence to battery. If the
plaintiff consents to touching, it will generally prevent a battery claim. As stated in the
Department of Health and Community Services and JWB and SMB , consent
will transform what would otherwise be unlawful into accepted and acceptable contact.
And let's not forget, there's an implied consent to touching in the hustle and bustle
of everyday life. So next time you find yourself in a crowded place, remember, implied consent
might just be at play.
And there you have it, that's the first episode of the Australian Law Student's Law
In 4 podcast where we've covered the elements of battery in 4 minutes or less. Join us
next time on the Australian Law Student Law In 4 podcast.
As always, if you have any suggestions, please email us at team at theoslawstudent.com or
leave a comment in your review on Spotify or Apple Podcasts.