Berties initial contact

Berties initial contact Disclaimer: This work has been submitted by a student. This is not an example of the work produced by our Law Essay Writing Service . You can view samples of our professional work here . Berties initial contact Bertie’s initial contact, Freddy grabbing his elbow to gain his attention and Bertie pushing him away could all arguably constitute a battery. A battery is the direct infliction of unlawful force on another person without lawful justification. In order for them to be considered a battery they must satisfy the requirements. There must be an application of force, the force must be direct and immediate and the contact must be unlawful. The law prohibits all deliberate touching as ‘it has long been established that any touching of another however slight, may amount to a battery’. There are however some exceptions. Exceptions are made for minor everyday touching, Lord Goff in Collins v Wilcock [1984] 1 WLR 1172 states that ‘boarder exceptions has been created to allow for the exigencies of everyday life’. (Harvey, Barbara & Marston, John (6th Edition) Cases and Commentary on Tort, Oxford University Press p351) Bertie’s initi al contact could be arguably ‘not actionable’ (Harvey & Marston, Tort) because such slight jostling is ‘impliedly consented by all who move in society and expose themselves to the risk of bodily contact’ (Collins v Wilcock). He does not therefore satisfy the first requirement. The touching is perhaps negligent but not intentional. In Cole v Turner it was said that if two or more people meet in a passage and ‘without any violence or design of harm the one touches the other gently it will be no battery’ (Cole v Turner) and the aforementioned dicta highlights that a minor touch is ‘widely accepted as part and parcel of everyday life’. Freddie would therefore on this basis not be liable for a battery. Freddy intentionally grabbing Peters elbow to attract his attention similarly falls into that category. There is an application of force and it was direct, immediate and intentional, however it would not be considered unlawful. There is a clear distinction between an unlawful battery and touching to draw someone’s attention. The circumstances are clear that the purpose was to gain Bertie’s attention. Lord Goff in Collins v Wilcock opined that ‘along such forms of conduct, long held to be acceptable, is touching a person for the purpose of engaging his attention’. It is therefore also likely to be construed also as minor touching. The touching would have to be ‘unjustified for Freddy to be liable therefore Freddy’s would not be liable for battery. However Bertie pushing Freddy away could be considered a battery. In Wilson v Pringle [1986] 2 All ER 440 the court of appeal stated the essence of a battery you required a ‘hostile intentional touching’. However Lord Goff suggested that ‘qualification is difficult to reconcile with the principle that any touching of another’s body is, in the absence of lawful excuse, capable of amounting to a battery’ . This discounted the need for and ‘hostile’ act, and this was confirmed in Collins v Wilcock as the touching of the defendant was considered a battery as there was not a lawful arrest. There was no evidence of hostility in Collins v Wilcock, the requirement was therefore that the touching is merely unlawful. The mental element is also apparent. Lord Denning in Letang v Cooper [1964] 2 All ER 929 opined that ‘if one man intentionally applies force directly to another, the claimant has a cause of action in assault and battery’ (Harvey & Marston, Tort). There can be no doubts that there is an application of force, Bertie’s actions are intentional. The force is direct and immediate and the contact is not one of those excused as everyday jostling. Bertie’s actions will therefore be considered unlawful and therefore they are liable for a battery.