Battery as a Tort and its

Remedies
By
 Diva Rai
 -
October 4, 2019

Image
source- http://bit.ly/2OjEln7
This article is written by  Gaurav Raj Grover, a fifth-year law student at Lloyd
Law College, Greater Noida. This article discusses the Battery and its Remedies
in India.

Introduction
Table of Contents
 Introduction
o Essentials of Torts
o Types of Torts
 Assault and Battery
 Difference between Assault and Battery
 Battery
o Criminal Battery
o Civil Battery
 Essentials of Battery
o Intention
o Contact
o Harm
o No Consent
o No Lawful Justification
 Defenses
o Self Defense
 Essentials
o Defense of Others
o Defense of Property
o Consent
 Remedies
o Legal Remedies
o Restitutionary Remedies
o Equitable Remedies
 Conclusion

A tort is a wrongful act or an infringement of a right, which is a civil wrong and

the person who commits a tortious act is legally responsible for the damages
suffered by the claimant. A tort is different than the criminal wrongs as the
criminal wrong is punishable by the state. In India, the law of torts was adopted
from the United Kingdom which is considered as a breach of duty which harmed
the plaintiff in a way in which a remedy is available for the plaintiff. Torts and
remedies are linked to each other as a remedy is present for every tortious act
if there is no remedy present, then it can be anything but tort. The word ‘tort’ is
derived from the Latin word “tortum” which means ‘crooked’ or ‘twisted’. 

Essentials of Torts
There are generally four elements for a successful case of tort which determines
the legal accountability of the person against another person:

 Duty
 Breach of Duty
  Causation
 Injury

Types of Torts
Torts are further divided into three categories:

 Intentional Torts
 Negligence Torts
 Strict Liability Torts

Assault and Battery

Both assault and battery are the types of intentional tort. The assault is
generally an attempt to harm someone else which also includes threats against
other people. So, assault is a planned attempt to violently harm another person.
While the battery is intentional touching another person without the person’s
consent. In the battery, the personal liberty of the person is compromised to
cause physical harm to the person. 

Difference between Assault and Battery

Assault and battery are like two sides of a coin. They are in a way similar to
each other and are also totally different from each other. 

S.
Assault Battery
No.

The sole intention is to threaten

1. It is used to harm the person.
the person.

2. No physical contact required.  Physical contact is mandatory. 

 Trying to punch a person is an Actually punching the person is considered
3.
assault. as a battery. 

Battery
Purposely touching or applying force on other persons or things related to the
person without his consent with the intention to harm the person is known as a
battery. It is only considered when there is an actual physical contact without
the consent of the person to harm the person. Generally, assault is followed by
the battery which is the reason assault and battery are mostly used together. 

The battery is often considered as trespass to a person, so it is divided into two

types:

 Criminal Battery
 Civil Battery

Criminal Battery
Criminal Battery is also known as the battery as a crime. Whenever there is an
intention to kill a person or to hurt the person with an offensive physical contact
is considered as the battery of crime. In a criminal battery, intention plays a
major role as the action involves intention to kill a person. 

Civil Battery
Civil Battery is also known as the battery as a tort because it is a civil wrong.
When a person has no intention to hurt someone but commits an act which
hurts another person and the wrongdoer had an idea that the act will hurt
another person is known as a civil battery. As the battery is considered as an
intentional tort, but in the civil battery the ,intention to hurt someone is not
present, so the victim can lodge a complaint against the wrongdoer under civil
court. 

Essentials of Battery
Essentials for the battery are:

Intention
The intentions for both civil battery and criminal battery are different. Criminal
intent to cause the injury is not necessary but the intention to cause the act
which harms the person is required as it results in the battery. 

The intent of the battery is transferable as when a person tries to hit a person
without his consent and he ends up hitting a different person, but the person is
still liable for battery. So, the intention is the soul of battery and is very
essential. 

Contact
Contact or use of force is necessary for committing battery. Harm through the
force is not basic requirement but the use of force is basic requirement to
conduct battery. It is not necessary that the contact must be physical or
individual but the physical contact through indirect ways is also considered as
physical contact. As the use of sticks or spitting on someone is also considered
as a battery. Harming the people with changing the heat, odor, light is also
considered as a battery. 
The battery doesn’t need body-to-body contact as the battery can also be for
future events which means if there is a delay between the accused actions and
the injury of the complainant will still be a battery. For eg, A mixes something
harmful in the food of B even after he knows the fact that B will eat that, A has
committed a battery against B. 

Harm
Damage is necessary for the completion of the battery. Damage can be of any
kind, it can be physical, mental, or emotional. Battery is not limited to physical
damage. The victim must have suffered in any manner but the harm can be
minimum, severe damages are not required. Unwanted sexual contact or
uncomfortable touching without the consent also comes under battery as it
harms the person physically, emotionally, and mentally.

No Consent
The victim must not know about the action which is planned by the accused.
The battery is only committed when the victim had no idea about the contact
which was going to happen. For example, when surgeons steal organs from
patients to sell them will be considered as a battery. And when the doctor while
doing a surgery finds that the appendix in the body will cause some trouble
during the surgery and the doctor informs the patient that he is going to
remove the appendix, in this situation, the doctor is not liable for the battery as
there was the consent of patient involved. 

No Lawful Justification
In the event of proving battery, there mustn’t be any legal justification present
to justify the actions of the accused. The complainant has to prove that the
force used by the accused was unlawful and was not justifiable. For example, A
and B were walking side by side, suddenly B started fighting with A, in this
situation B is liable for battery but in the other situation when they were passing
and there was an unintentional touch without harming anyone, in this situation,
there wasn’t any battery. So, unintentional damages or damages by accidents
are not actionable. 

Defenses
There are certain defenses given to the accused to prevent themselves from
wrongful accusation:

Self Defense
Self-Defense is the most common defense which is used in assault and battery
cases. It means to protect yourself from unlawful force implied by other people.
In this defense, it is proved that the defendant was safeguarding himself from
the unlawful force of the complainant. But in this case, the defendant must
prove that he did not provoke the other person and there was absolutely no
other way to save himself. 

For example, A started a fight with B, in his defense B attacked A with a stick
and ran away, in this situation B is not liable for the battery as the attack was
justified and was in self-defense. 

There are many limitations to the doctrine of self-defense, as the force used in
the name of self-defense must be reasonable and proportional to the threat
compared to the victim. You can not do anything in the name of self-defense, as
there are limitations to the defense. And the defendant has to meet all the
essentials to use the defense of self-defense. 

Essentials

Essentials of self-defense are:

  The threat of unlawful for or damages.
 Reasonable fear of harm.
 No provocation by the accused.
 No other way to save himself.

Defense of Others
This defense is similar to self-defense, as in this defense the defendant is trying
to save another individual, not himself. In this defense, there must be an
honest and reasonable fear of harm to another person. 

Defense of Property
This defense is also very similar to self-defense, as in this defense the
defendant is trying to protect his property, but the force used is only considered
when there is an unlawful use of force against the defendant. The defense is
only valid when there is an honest and reasonable fear of harm to the person’s
property. So, in cases of disputes over personal property, the owner can use
force to take his property back. 

Consent
Consent can also be considered as a defense in the case of assault and battery.
Consent is when the person voluntarily agrees to the intention of the defendant.
So, when the individual has given his consent to perform the act, then that
same act can not be considered as a battery. But in situations when the person
exceeds the extent of the act, on those grounds the act can be considered as a
battery. 

These were the defenses that can be used when a person is facing charges for
assault and battery. 
Remedies
There are different remedies available under the law of tort:

Legal Remedies
Legal remedies are also known as damages, which is compensation given by the
defendant to the plaintiff to compensate for the injuries, pain, or the sufferings
given by the defendant. The compensation is directly proportional to the
victim’s loss not to that of the defendant’s profits. The damages are considered
as the tort claims and the compensation received by the plaintiff through the
Court are known as pain and suffering damages. 

Restitutionary Remedies
These remedies try to restore the position of the plaintiff as close as possible to
the state before all of it happened. This remedy includes:

 Restitutionary Damages: These damages are similar to damages but in

this, the compensation is calculated through the defendant’s gains, not
the plaintiff’s loss. 
 Replevin: This helps the victim to recover his personal property that he
lost because of the battery.
 Ejectment: In this remedy, the court helps in ejecting the person who
is staying unlawfully in the person’s property. This remedy is mostly
used in cases of trespass. 
 Property Lien: In the situation when the defendant can not pay the
damages, the judge can lien the property or sell the property as per
the situation demands, to pay damages to the victim. 
Equitable Remedies
These are the remedies used when the monetary damages can not restore the
initial stage of the victim. These remedies include:

 Temporary Restraining Order: In the cases of assault and battery,

when the defendant has physically harmed or harassed the victim,
then the victim can obtain a restraining order which prevents the
defendant from making any contact with the plaintiff or even coming
close to the plaintiff. 
 Temporary or Permanent Injunction: These injunctions can either
prohibit unlawful activities initiated by the defendant or it can also take
affirmative steps to control the defendant. 

Conclusion
So, the battery is an intentional tort which deals with creating unconsented
harm to another person or property of the person. In the case of battery,
physical contact is very important as the battery can not be constituted without
any physical contact. Since avoiding physical contact with other people in day-
to-day life is next to impossible. So, physical contact must harm or must be
offensive to constitute a battery. So, in order to be liable for battery, a person
must have an intention to continue to perform an act that will harm a person,
the act must have any physical conduct or there must be any physical contact.
The contact must damage the person in any sort of way and the act must not
be justified by the law. And the most important thing is the victim must not
know about the act, which means there must be no consent of the victim. All
these elements constitute battery. 
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