Battery as a Tort
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This article is written by Mariya Paliwala of seventh semester, student at MohanLal Sukhadiya University College of Law, Udaipur, Rajasthan.

What is the law of tort?

The literal meaning of the word ‘tort’ is ‘civil wrong’. Further, a ‘civil wrong’ is a wrong which is committed against an individual. And it can be redressed by bringing forth the legal action for compensation against the tortfeasor. As a matter of fact, not every civil wrong such as breach of trust, breach of contract, etc. is a tort. In the case of Ashby v. White, (1703) 92 ER 126, it was held that the tort is a violation of another’s legal rights. It is well said that the bunch of flowers comes with thorns, in the same manner, rights also come with certain obligations and when these rights are used in excess, it results in the infringement of another person’s rights. So the other person’s right is your obligation, and the breach of it leads you to land in the pit of law of torts.

What is Battery?

Battery is an intentional tort wherein one person (the tortfeasor) makes:

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  • Intentional,
  • Harmful,
  • offensive 

Contact with another person (plaintiff/complainant). 

For a tortious act to be a battery contact by the offender may result in harm to the victim, which may be:

  • Immediate and direct harm

For instance: when ‘A’ pushes ‘B’, battery is committed.

  • Immediate and indirect harm

For instance: When ‘A’ throws a rock at ‘B’, who gets hit by the rock, battery is committed.

  • Indirect and remote harm

For instance: ‘A’ lays a trap for ‘B’ and a few days later ‘B’ falls into it. A has committed Battery. 

Moreover, the offence of battery comes under both criminal and civil law. Though the definition of battery is same in both civil and criminal law. However, the only difference in civil and criminal law pertaining to battery is of remedies. If the case is filed under tort (civil wrong) a compensation is granted to the victim/plaintiff, or if the case is filed under criminal law then the offender is punished with imprisonment, as all the laws which are covered under criminal laws, those crimes are considered to be a crime against society.

Essentials of Battery

Battery comes under the purview of intentional tort. It is unlike the act resulting from negligence, battery is an intentional harmful or offensive contact by one person to another. 

The elements which result in the tort of battery are no other than a battery committed under criminal law except the presence of criminal intention. 

There are 3 elements which results in the tort of battery namely:

Intention of the offender

As battery is an intentional tort, the element of intention of an offender to commit the act of battery is necessary. The presence or absence of criminal intention is of no consideration in the case of tort of battery. This means for a tort of battery, a mere touch or contact without consent is requisite. The wrong-doer may not intend to do particular harm but merely a non-consensual touch amounts to the tort of battery. 

Contact by the offender

There must be the non-consensual act of contact by the offender. This means that without the permission of the plaintiff, the offender and either caught hold of his clothes or his body. Battery can be as direct as striking on someone’s face or by digging a pit for someone who falls into it after several days. Moreover, it can be any sexual conduct. 

Harm done to the plaintiff

The offender may cause any kind of harm including physical, mental or emotional. This means the harm is not limited to bodily or physical injuries but also beyond them. All that a plaintiff needs to prove is that there was unlawful contact with a plaintiff’s person or property in an offensive manner. 

Battery as a Crime

For an offence to be a crime it requires 2 essential conditions:

  • Mens rea which means guilty mind (intention)
  • Actus reus which means wrongful act (action)

Mens rea plays a very important role to distinguish between battery as a crime and battery as a tort. If there is the criminal intention of a person to commit battery, it amounts to the offence of battery in crime.
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Suit for Damages 

Once all the elements or essentials of battery are fulfilled then an aggrieved person may file a case against the offender. 

  • Suit for damages under criminal law

In criminal law, the state will file a case against the offender for committing battery, wherein the victim becomes the witness in the case. The main focus of the court is to either prove the accused guilty or innocent and it does not look into the matters pertaining to the grant of damages, and if in case the accused is proven guilty then he is imprisoned for a stipulated period of time.

  • Suit for damages under civil law

Under civil law if the order is passed in favour of the plaintiff, the tortfeasor is liable to pay compensation to the plaintiff. The civil suit is filed with the objective to claim damages and not imprisonment. 

For instance a chain snatcher snatched the chain from a lady. The lady (plaintiff) may ask for compensation to cover the following losses:

  • Property

In the above case the property there is a necklace, which when snatched was damaged or broken.

  • Physical harm/ bodily injury

The physical injury leads to the treatment in the hospital which results in medical bills, apart from economic losses the lady also suffered pain and suffering.

  • Emotional harm caused by the incident 

Apprehension of battery and embarrassment that the lady (plaintiff) has suffered from this incident.

  • Damages in case of medical malpractice

In the cases pertaining to medical malpractice if there is a lack of consent and unauthorised treatment, the patient may sue for all the cost of treatment, procedures and the harm and pain suffered by him. This is applicable even in cases where the treatment was done for the benefit of the patient but without the patient’s consent.

Kinds of Damages

The kind and nature of the damages are assessed by the jury. There are a few kinds of damages namely:

  1. Nominal damages
  2. Special compensatory damages
  3. Wrongful death damages
  4. Punitive damages
  • Nominal Damages

Nominal damages are also known as general damages. General damages pertains to those cases wherein the non-monetary damages are given to the aggrieved party. General damages vary from case to case and victim to victim. The most common type of general or nominal damage are:

  • Suffering
  • Pain
  • Mental Anguish
  • Loss of companionship or consortium 
  • Special compensatory damages

Special compensatory damages include the monetary compensation for the harm done and expenses incurred by the plaintiff. The compensation varies from case to case. The award for the special damages compensate the victim for all the expenses incurred by him or for all the losses suffered by him. The most common type of special compensatory damages are:

  • Loss of earnings
  • Loss of future earnings
  • Medical bills
  • Cost of future medical bills
  • Household expenses
  • Cost pertaining to altered future plans and cancelled trips
  • Wrongful death damages

These damages are claimed when the offender causes the death of a person and the court orders an award under this head for the relatives and the loved ones of the dead. The most common type of death damages are:

  • Funeral and burial expenses of the person.
  • Cost of pre death medical care.
  • Emotional agony and distress of the deceased family and loved ones.
  • Loss of support and service.
  • Loss of job and employment, in the case where he is the sole breadwinner of the family.
  • Loss of consortium and companionship.
  • Punitive damages

In the case of apprehensive or despicable wrongful behavior of the offender, punitive damages are awarded to the injured plaintiff. The most common scenario where punitive damages are awarded by the civil courts is in the cases of malicious acts or fraudulent conduct which includes sexual assault, aggravated battery or a fraudulent conduct which causes a grave financial harm to the plaintiff. 

Defenses for Battery

Self defence as a defence against Battery

The offenders may take the defence that he has committed the tort of battery in self defence. However, for proving self-defence an offender has to prove the following pointers:

  • There was a reasonable apprehension by the person for an immediate threat to person or property.
  • The offender had a genuine fear and apprehension from the other party.
  • The offender has not provoked the plaintiff.
  • There was no reasonable chance in the hand of the offender to escape from that place.

Consent as a defence against Battery

When an individual has consented for the act then it does not constitute the offence of battery. However, if the extent of the permission or consent given is exceeded by the offender then it amounts to battery.

Defence of other person or his property as a defence against battery

Just like in the case of self-defence, action in respect of saving the other person or his property. The proportion of force used must be in accordance with the threat posed on the other person.

Case Laws Pertaining to Battery

Garratt vs. Dailey

Statement of Facts: In this case, the defendant was 5 year boy who visited the plaintiff’s home. When the plaintiff was about to sit on a chair, the defendant moved the chair, as a result, the plaintiff fell down and had his hip broken. In response to this, the plaintiff sued the defendant for battery. The plaintiff’s sister contended that the defendant had intentionally moved the chair. However, the plaintiff contended that he moved the chair with the intention to replace it and prevent the fall.

Court’s observation: The court decided in favour of the defendant by believing in the testimony given by the plaintiff. And concluded that the boy did not possess any unlawful or willful purpose to cause harm to the defendant. Although, the court dismissed the action but the court said that the loss of $11,000 was suffered by the plaintiff.

Rationale: The absence of the intention does not amount to the offence of battery under tort. Thus, tortious liability does arise in this case.

Vosburg vs. Putney

Statement of facts: A Fourteen-year-old plaintiff, had injured his leg, which did not heal quickly. One day his classmate, eleven-year-old boy (defendant), made contact with the plaintiff’s leg just below the knee, whereby technically committing an offence of battery. Initially, the plaintiff did not feel the contact, as it was very light, but a few minutes later the plaintiff experienced severe pain at the site. The injury became so severe, that the plaintiff suffered vomiting and swelling, which resulted in two surgeries, and it was discovered that the bone in the plaintiff’s leg had degenerated so badly that the child lost the use of his leg, thereby leading to permanent impairment. So Andrew Vosburg’s (plaintiff) parents filed a lawsuit against George Putney (defendant) for battery. 

Court’s Decision: The trial court after due investigation decided in plaintiff’s favor, by awarding him $2,800. Defendant’s family appealed, which lead to a new trial was ordered due to an error in the first trial. During the trial, defendant’s defence contended that he had a lack of knowledge that plaintiff already suffered from an injury, and so he had no intention to cause such a severe injury. The trial court again decided in favor of plaintiff by awarding him only $2,500.

Rationale: The case of Vosburg v. Putney is an exclusive example of the rule in common law which is called the “eggshell skull rule,” which means that an individual (the defendant) takes another individual (the plaintiff) as he finds him. It is immaterial that the defendant lacked knowledge that the plaintiff had a prior injury (“eggshell skull”), as he should know that his actions might cause serious injury/ implication on the health to another person.


Wherefore, battery is an offence which has both civil as well as criminal remedies. The plaintiff possesses both the civil and criminal remedies. If the plaintiff wants the compensation then he may knock the doors of civil court and in case he wants to punish the tortfeasor by the imprisonment then he may approach the criminal court.

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