Airzooka (Photo credit: Riude)
Ben Fitzpatrick, a law academic at York Law School, has blogged on Battery and the ‘touching’ requirement, in a criminal law context. He discusses principles which translate well to the tort of battery.He raises the question whether using an ‘Air Zooka’, a toy which propels a blast of air towards a target, could meet the requirement in the criminal law of battery that there be ‘touching’, or ‘the application of force’. The same point arises with, for example, a hairdryer.
The ‘touching’ requirement is seen as an essential cornerstone of the tort of battery. In Cole v Turner (1704), it was said that ‘the least touching in anger is a battery’ and in F v West Berkshire Area Health Authority (1990), Lord Goff noted that ‘Any touching of another’s body is, in the absence of lawful excuse, capable of amounting to a battery.’
Ben suggests that:
‘If the essence of battery is the violation of the bodily integrity of [the target] (at however minor a level) through the actions of [the perpetrator], then we might ask what is the difference. Both could interfere with [the target’s] interests in a similar way, by, for example, leaving [the target’s] hair out of place.’
As Tony Weir noted in his Introduction to Tort (2004):
‘…no one in Britain, no one, can justify deliberately touching even a hair on [a claimant’s head], or entering her garden – much less depriving her of her liberty – merely on the ground that it was reasonable to do so, or on the more insidious ground that he reasonably thought that he was entitled to do so.’
You might be forgiven for thinking, at this point, that academics are over-concerned with their hair being out of place, but is the real issue a question of the degree of interference? Trespass to the person is actionable per se, i.e. without the need for a claimant (‘C’) to prove any actual harm or damage from a defendant (‘D’s) actions. This reflects the policy or protecting every person’s right to bodily intregrity. If there is no harm, then C. can still succeed in an action in trespass to the person, but risks recovering nominal damages only. The more harm that C. can establish, the higher any award of damages.
Inevitably, everyday life involves some contact from others, and the tort of trespass to the person recognises this with a notion of implied consent: we are all taken to consent to a degree of contact from others in the course of everyday life. When the bounds of this are exceeded, consent cannot be implied. The courts have looked to other tools to control tort claims in this area, such as the notion of ‘hostility’, but the scope of ‘hostilty’ is far from clear – if indeed it needs to be present.
Can it be said that unaware target of a directed blast of air consents to that activity? Does that stretch beyond the parameters of implied consent to contact in everyday life?
At one end of the spectrum, Ben Fitzpatrick suggests the example of a person breathing on another. There is clearly no touching, applying conventional principles, but should the requirement of ‘touch’ be relaxed to include this unwanted conduct? It is suggested not. Persistent behaviour may well be more suitably dealt with under the provisions of the Protection from Harassment Act 1997.
If the scope of implied contact in everyday life is wrapped up with a rationale based on the degree of force, where does that leave us with other examples of where there is no ‘touching’ but a similar efect, at the other end of the spectrum? What if we were concerned not with D. intentionally targeting an ‘Air Zooka’ at C., but instead a powerful hairdryer, leaf blower or the industrial rotors in a wind tunnel within which C. is standing? Is there a difference between a stream of air and, say, a focussed beam of light energy from a laser, or sound energy from directed sound waves, such as those found in some museums, where sound is audible to a person standing under a shielded dome with a speaker, but not to others? All involve the transfer of energy and pressure by D. towards C.