What is an intentional tort?
Tort law governs civil wrongs, situations where one person’s conduct causes harm to another, giving rise to a potential lawsuit for damages. Intentional torts require that the defendant acted with a specific purpose or knew with substantial certainty that a particular result would occur. Battery is one of the oldest and most fundamental intentional torts recognised by the common law (i.e., precedent developed by the courts).
Things you need to know about Battery:
Battery is an intentional tort. It involves intentional and unlawful physical contact with another person without their consent. The focus of battery is on the protection of the right to bodily integrity, rather than suffering of harm. The defendant who directly causes physical contact with the plaintiff will be liable for battery unless they can prove there was an absence of intent and negligence involved in their actions. Battery does not require proof that the victim suffered anything other than the infringement of their right to bodily integrity.
Is battery the same as assault?
No, battery is not the same as assault. Assault is an intentional act that creates a reasonable apprehension of imminent fear of unlawful conduct without physical contact, as established in Ryan v Bunnings Group Ltd [2020] ACTSC 353, while battery requires the actual physical contact with another person. However, in many cases, both torts arise from the same incident.
What do I have to prove?
If you are alleging that the conduct of another person, such as a police officer, amounts to battery, you must prove the following elements:
- The person/officer physically made contact with you;
- The contact was likely to cause injury; and
- The contact was unlawful.
The onus is on the plaintiff to prove the infringement of their right to bodily integrity, after which the defendant must demonstrate an absence of intent or negligence to defeat liability. Once intentional interference is established, the defendant is liable unless they can successfully raise and prove a valid defence, such as consent or statutory authority, which would justify or excuse the interference.
How are damages considered?
Hutchison v Fitzpatrick [2009] ACTSC 53 (at [58]) holds that damages for battery should be assessed in the normal manner when physical injury is established, without additional award flowing from the intentional nature of the tort, except in cases where punitive or exemplary damages may be appropriate. This means that damages are aimed at making up for the harm suffered, including but not limited to pain and suffering, medical expenses, or loss of earnings, rather than punishing the defendant. The intentional nature of the conduct only becomes significant where the defendant’s behaviour was particularly outrageous or malicious, in which case the court may consider awarding additional damages to express the court’s condemnation of the behaviour and to discourage similar actions in the future.
