Torts Topics Summary
Trespass to the Person (WK 2)
BATTERY
ELEMENTS
A direct and voluntary act by the defendant.
Physical contact with the plaintiff’s body.
The contact is offensive or unpermitted.
No requirement to prove damage—actionable per se.
MAJOR CASES TO ESTABLISH ELEMENTS
Collins v Wilcock [1984] 1 WLR 1172
Rixon v Star City Pty Ltd (2001) 53 NSWLR 98
IMPORTANT CONSIDERATIONS
Element 1: Direct act
Must be a direct physical act; indirect harm may fall under negligence or another tort.
Example: striking, pushing, spitting, throwing a drink.
Element 2: Intentional/negligent contact
Defendant must intend the physical contact (not necessarily to cause harm).
Recklessness may suffice.
Example: play fighting where contact is still intentional.
, Element 3: Contact with the plaintiff
Includes anything attached or closely related (e.g., bag, clothing).
Collins v Wilcock clarified that even minor touchings without lawful excuse can amount to
battery.
Element 4: Unlawful contact
Consent is key – ordinary social contact (e.g., jostling in a crowd) is impliedly consented
to.
Physical contact outside social norms without consent is unlawful.
COMMON DEFENCES
1. Consent
o Collins v Wilcock – implied consent in ordinary social interactions.
2. Self-defence
o Fontin v Katapodis (1962) 108 CLR 177 – reasonable and proportionate response to threat.
3. Necessity
o E.g., grabbing someone to pull them from danger.
Statutory provisions (if any) that may be relevant to this tort or the defences:
Civil Liability Acts (varies by jurisdiction) – may modify damages or clarify liability in
intentional torts.
Criminal law overlap – assault provisions under criminal statutes, but note the civil action is
separate.
Other general comments about this tort:
No need to prove actual harm – the tort protects bodily autonomy and dignity.
Even minimal or trivial contact can be sufficient if unlawful.
2
, Often overlaps with assault and false imprisonment in pleadings.
Important to distinguish from negligence (requires indirect harm, duty, breach, causation,
damage).
Slaveski v Victoria [2010] VSC 441 at [241] per J Kyrou: Battery is an act that directly
and intentionally (or negligently) causes offensive physical contact with another’s person
ASSAULT
Trespassory Tort or Action on the Case?
✅ Trespassory tort (direct, intentional interference)
ELEMENTS
1. Direct act by the defendant
2. Intentional or negligent act
3. Reasonable apprehension by the plaintiff of imminent, unlawful contact
Major cases cited to establish the above elements:
Stephens v Myers (1830) 172 ER 735
Zanker v Vartzokas (1988) 34 A Crim R 11
Important considerations / sub-issues
Element 1: Direct act
Must be an immediate act, not a future threat or indirect harm.
Words alone usually insufficient, but words plus actions may create apprehension.
Element 2: Intentional/negligent act
Defendant must intend the act that causes apprehension.
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Trespass to the Person (WK 2)
BATTERY
ELEMENTS
A direct and voluntary act by the defendant.
Physical contact with the plaintiff’s body.
The contact is offensive or unpermitted.
No requirement to prove damage—actionable per se.
MAJOR CASES TO ESTABLISH ELEMENTS
Collins v Wilcock [1984] 1 WLR 1172
Rixon v Star City Pty Ltd (2001) 53 NSWLR 98
IMPORTANT CONSIDERATIONS
Element 1: Direct act
Must be a direct physical act; indirect harm may fall under negligence or another tort.
Example: striking, pushing, spitting, throwing a drink.
Element 2: Intentional/negligent contact
Defendant must intend the physical contact (not necessarily to cause harm).
Recklessness may suffice.
Example: play fighting where contact is still intentional.
, Element 3: Contact with the plaintiff
Includes anything attached or closely related (e.g., bag, clothing).
Collins v Wilcock clarified that even minor touchings without lawful excuse can amount to
battery.
Element 4: Unlawful contact
Consent is key – ordinary social contact (e.g., jostling in a crowd) is impliedly consented
to.
Physical contact outside social norms without consent is unlawful.
COMMON DEFENCES
1. Consent
o Collins v Wilcock – implied consent in ordinary social interactions.
2. Self-defence
o Fontin v Katapodis (1962) 108 CLR 177 – reasonable and proportionate response to threat.
3. Necessity
o E.g., grabbing someone to pull them from danger.
Statutory provisions (if any) that may be relevant to this tort or the defences:
Civil Liability Acts (varies by jurisdiction) – may modify damages or clarify liability in
intentional torts.
Criminal law overlap – assault provisions under criminal statutes, but note the civil action is
separate.
Other general comments about this tort:
No need to prove actual harm – the tort protects bodily autonomy and dignity.
Even minimal or trivial contact can be sufficient if unlawful.
2
, Often overlaps with assault and false imprisonment in pleadings.
Important to distinguish from negligence (requires indirect harm, duty, breach, causation,
damage).
Slaveski v Victoria [2010] VSC 441 at [241] per J Kyrou: Battery is an act that directly
and intentionally (or negligently) causes offensive physical contact with another’s person
ASSAULT
Trespassory Tort or Action on the Case?
✅ Trespassory tort (direct, intentional interference)
ELEMENTS
1. Direct act by the defendant
2. Intentional or negligent act
3. Reasonable apprehension by the plaintiff of imminent, unlawful contact
Major cases cited to establish the above elements:
Stephens v Myers (1830) 172 ER 735
Zanker v Vartzokas (1988) 34 A Crim R 11
Important considerations / sub-issues
Element 1: Direct act
Must be an immediate act, not a future threat or indirect harm.
Words alone usually insufficient, but words plus actions may create apprehension.
Element 2: Intentional/negligent act
Defendant must intend the act that causes apprehension.
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