As with other trespasses, trespass to the person is based on a concept of absolute inviolability. You have a legal right not to be touched or restrained in even the slightest manner, or to receive a threat of such, be it only unwelcome. Yet life is full of situations where a person may be touched, restrained or threatened in perfectly reasonable and innocent, or morally excusable ways. Thus trespass to the person is, possibly more than any other law, notorious for its hair trigger characteristics. Fortunately there are exceptions, but by and large the only thing standing between the perpetrator of a trivial tort and an adverse court finding, is that the average “victim” cannot be bothered with the difficulty of suing, or that they go along with the demand of common ethics that they should just get over such a minor offence.

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Battery

At civil law (as opposed to criminal law) when a person touches you without consent, it is called battery. In Rixon v Star City, a case concerning the ejection of a problematic casino patron, Sheller JA confirmed that the slightest touch is battery, stating that every person’s body is inviolate. But he also confirmed that ‘if two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery.’[1] However, he stated that the mere absence of hostility is insufficient as a defence. There are practical exceptions such as punishing children, lawful arrest and self defence. Ordinary touching in day to day situations is subject to implied consent. There is no need that there be anger in the act of physical contact, only the lack of a lawful excuse.

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Assault

While assault is the term used for physical contact at criminal law, at civil law assault means a threat of battery. Typically then, assault is a verbal offence. A threat made with a condition attached ordinarily would not be actionable. But there are exceptions such as where the condition given is unlawful. In Rozsa v Samuels a threat was made on the condition that the victim should back down after making a lesser threat of his own. Mr Rosza, a taxi driver, joined a taxi rank at the head, rather than the tail end, resulting in a conditional threat of beating from Drummond, the driver behind him. The appellant threatened to cut Drummond “to bits” with a table knife and started to get out of his taxi. Drummond backed off. The appellant was convicted of criminal assault. Hogarth J ruled that the threat was not to be interpreted literally, but in a sensible manner and saw in it a believable threat not of butchering, but of stabbing. Even though it was in response to a prior threat, it still went beyond the bounds of self defence. In fact, Mr Rosza could have avoided Drummond’s threat by complying with his demand.

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[1] Rixon v Star City [2001] NSWCA 265; unreported, NSW Court of Appeal, 28 September 2001.

[2] Police v Greaves [1964] NZLR 295.

[3] Rozsa v Samuels [1969] SASR 205.

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