Judgement Briefs

Tort Law

Cole v. Turner

(1704) 6 Mod. 149; 87 Eng. Rep. 907

Citation
(1704) 6 Mod. 149; 87 Eng. Rep. 907
Court
King’s Bench at Nisi Prius
Date
1704
Bench
Holt CJ

Facts

  • • Cole v. Turner is an early and very briefly reported English decision concerning the tort of battery.
  • • The claim was brought by a husband and wife, who alleged that the defendant had committed physical interference against them.
  • • The reported dispute concerned persons meeting in a narrow passage or street and whether physical jostling used to get past another person amounted to battery.
  • • Because space was limited, some degree of bodily contact could occur naturally when the persons attempted to pass one another.
  • • The question was whether all such physical contact was legally wrongful or whether the law distinguished ordinary incidental touching from angry or violent interference.
  • • The historical report does not provide a detailed account of the evidence, the precise movements of each party, or a complete separately reasoned judgment. The case is therefore principally studied for Chief Justice Holt’s formulation of the legal test for battery rather than for an extensive factual narrative

Issue

  • • What degree of physical contact is sufficient to constitute battery?
  • • Whether even a very slight touching can be actionable when performed in anger.
  • • Whether ordinary and unavoidable contact in a crowded or narrow place is wrongful.

Rule

  • • Battery is an intentional and unjustified application of physical force to another person.
  • • The force required for battery may be extremely slight. It need not cause pain, injury or visible damage.
  • • The character and circumstances of the touching are more important than its physical strength.
  • • The slightest touching performed in anger may constitute battery.
  • • However, a gentle touching that occurs without violence, hostility or an intention to cause wrongful interference may form part of the ordinary contact of daily life.
  • • Where a person uses violence or forces a way past another in a rude and excessive manner, the contact may constitute battery.
  • • Physical damage is not essential because battery protects personal autonomy and bodily integrity, not merely freedom from physical injury.

Application

  • • The court recognised that people inevitably come into physical contact in ordinary society.
  • • When two persons meet in a narrow passage, one may gently touch or brush against the other while attempting to pass.
  • • Treating every such contact as battery would make ordinary social life impossible. Such touching is understood as permitted by the normal conventions of everyday interaction.
  • • The result changes when the contact is made in anger. An angry touch communicates hostility and deliberately interferes with the other person’s bodily autonomy.
  • • Even where the angry touch is physically light and causes no injury, it may be legally wrongful because the defendant intentionally imposed the contact without permission.
  • • Similarly, a person cannot use unnecessary violence to force a way through a narrow passage.
  • • The degree of force must be evaluated in context:
  • o gentle and socially ordinary contact is not battery;
  • o rude, hostile or excessive force is battery;
  • o a struggle carried to a level likely to cause harm is also battery.
  • • The case therefore did not establish that every touching is unlawful. It distinguished between contact impliedly accepted as part of ordinary life and contact whose hostile manner removes any basis for consent.
  • • Modern battery law continues to reflect this distinction. Everyday touching, such as brushing against another person in a crowd, is generally impliedly permitted. Deliberate hostile touching is not.
  • • Because the historical report is extremely short, it is unsafe to invent a detailed factual finding about exactly how the parties behaved. Its value lies in the legal standard it supplied.

Conclusion

  • • The court laid down that even the slightest touching may constitute battery when done in anger.
  • • Gentle contact made without violence or a wrongful design while passing in a narrow place does not constitute battery.
  • • Violence used to force a passage in a rude or excessive manner does amount to battery.
  • • The case confirms that neither bodily injury nor substantial force is necessary.
  • • Liability depends upon the intentional, hostile or otherwise unjustified character of the contact.