2.2.1 Battery1
Introduction and overview
1.
Members of the jury, in this trial, the plaintiff alleges that on [date], the defendant
committed battery, as a result of which [he/she] suffered injury and loss.
2.
It is only if the plaintiff has proven to you, on the balance of probabilities, that [he/she] was
the subject of a battery by the defendant, and that [he/she] suffered injury and loss as a
result, that [he/she] is entitled to be compensated. If the plaintiff fails to prove these
matters to you, then [his/her] case fails.
3.
The basis upon which this civil proceeding is brought, or, put another way, the plaintiff’s
cause of action, is what the law describes as 'battery'. What is battery? It is a rather old and
obscure word but, for the purposes of this civil trial, it has a specific meaning. Battery is
defined as the intentional contact with another person’s body which is either harmful or
offensive.
Battery compared to assault
4.
You may ask yourself why the law uses the word battery, rather than ‘assault’, which is a
word used in common parlance. However, in a civil case, the word 'assault' has a different
meaning. It does not mean the application of force to another person’s body, but rather
means creating in another person the apprehension of harmful or offensive contact. Thus,
assault is an act which creates the apprehension of contact. Battery is the actual contact.
The elements of battery
5.
Let me again define for you the meaning of battery.2 It is the intentional contact with
another person’s body which is either harmful or offensive. I wish to now break that
definition into a number of parts or elements, each of which must be proven to you on the
balance of probabilities. They are as follows:
6.
Firstly, the contact must be intentional. That is, the plaintiff must satisfy you that the
defendant intended the contact to happen. For example, were you to accidentally brush
Note: This charge is a guide only, and may require modification to fit the facts of an
individual case
2
For a comprehensive discussion of the elements of battery, see Carter & anor. v Walker v anor [2010]
VSCA 340 at [215].
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against someone in a bus or a tram, or inadvertently knock against someone while standing
in a queue, that would not satisfy the requisite element of intent.
7.
It is not necessary that the defendant intended to inflict actual bodily harm or injury upon
the plaintiff. For instance, this element will be satisfied if the contact was intended only to
frighten the plaintiff.
8.
Nor is it necessary that the defendant at the time could foresee that the plaintiff suffered the
actual injury which [he/she] indeed suffered.
9.
The evidence relied upon to establish this element of intent is as follows:

10.
[set out relevant evidence].
Secondly, there must be direct contact with the plaintiff’s person by the defendant.
If the plaintiff may not have been aware of the contact at the time, insert the following shaded
section:
11.
It is not necessary for the plaintiff to have been aware of the contact at the time. For
example, someone may be the subject of battery while asleep or under an anaesthetic,
providing that they learn of the battery at a later time, and it meets the element of being
either harmful or offensive.
12.
It is not necessarily that there be actual and immediate physical contact. A battery may
occur in circumstances where, for example, a person pours water over the head of another,
or pulls out a chair while another is about to sit down, causing them to fall to the floor, or
even where a person seizes an object from another’s hand.
13.
However, mere passive obstruction does not constitute a battery.
14.
The evidence relied upon as constituting this element is as follows:

15.
[set out relevant evidence].
The third element of which the plaintiff must satisfy you is that the contact was either
harmful or offensive. The concept of a battery being harmful is not difficult. It involves the
infliction of an injury. Here, the plaintiff alleges [he/she] suffered the following injury as a
result of the battery:

16.
[set out relevant evidence].
However, a battery may occur where the contact is offensive or insulting. For example,
spitting in a person’s face, cutting [his/her] hair or even kissing a person may be a battery,
depending upon the circumstances in which it occurred.
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17.
The evidence relied upon as constituting this element is as follows:

18.
[set out relevant evidence].
I remind you that the obligation or burden is upon the plaintiff to satisfy you as to each of
these three elements, before you can be satisfied that a battery took place.3
Self-defence
If the defendant alleges self-defence, insert the following shaded section:
19.
In this trial, by way of defence, the defendant, while admitting there was physical contact,
alleges that such contact was undertaken in self-defence. The law provides that a person
who is attacked or threatened with physical aggression may use reasonable force to ward off
the assailant. Every person who is attacked has the right to defend himself or herself.
However, the law further provides that such force must not exceed what is reasonable and
proportionate in the circumstances.
20.
As the defendant is the one who alleges [he/she] was acting in self defence, [he/she] is the
one who must prove this allegation to you. The standard required is the same as the plaintiff
bears, that is, the balance of probabilities.
21.
In order to prove to you he was acting in self defence, the defendant must prove to you two
matters:
(a)
Firstly, that at the time, [he/she] honestly believed it was necessary for [him/her] to do
what [he/she] did;
(b)
22.
Secondly, that belief was based upon reasonable grounds.4
It is clear that the second element of self-defence does not involve an inquiry as to what a
hypothetical reasonable person might have believed in the circumstances, but rather,
whether the defendant had reasonable grounds for [his/her] belief in the circumstances as
[he/she] perceived them to be.
23.
In deciding whether self-defence is made out:
(a)
The proportionality of the defendant’s response is just one factor which is to be taken
into account.
3
For an examination as to whether a person, who sees or hears of injury to another as a result of
battery, and suffers a nervous shock type reaction or some other form of psychological injury, may
bring an action against the assailant, see Carter & anor. v Walker v anor [2010] VSCA 340 at [214].
4
See generally, Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 and Watkins v State
of Victoria & Ors (2010) 27 VR 543.
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(b)
Insofar as the proportionality of the defendant’s response is relevant to the issue as to
whether [he/she] believed on reasonable grounds that it was appropriate for [him/her]
to respond to the plaintiff’s threat in the way in which [he/she] did, the burden of
establishing proportionality rests with the defendant.
(c)
If the circumstances warrant it, account must be taken of the fact that a person may
be reacting instantly to imminent danger, and accordingly, that he or she could not be
expected to weigh precisely the exact measure of self defensive action which was
required of him or her; and that for this purpose, the whole of the circumstances which
confronted him or her must be considered;
(d)
The inquiry should be conducted in a practical manner with proper weight being
afforded to the circumstances with which the defendant was faced which did not afford
[him/her] the opportunity for 'calm deliberation or detached reflection'.
Defence of another
If the defendant alleges defence of another, insert the following shaded section:
24.
In this trial, the defendant, while admitting there was physical contact with the plaintiff,
alleges that such contact was undertaken in defence of another person [X]. The law provides
that a person who witnesses another attacked or threatened with physical aggression may
use reasonable force to ward off the assailant. A person who witnesses an attack on another
has the right to defend that other person, whether that person is relative, friend or even
stranger.5 However, the law further provides that such force must not exceed what is
reasonable and proportionate in the circumstances. Any defensive act in which a person who
sees danger engages, must be reasonably necessary.
Self-defence: reasonableness
If the pressure or intensity of the moment bears on the assessment of reasonableness, and when
the case involves allegations against a police officer, you may insert the following shaded section:
25.
What is critical is that the issue of the reasonableness of the defendant’s conduct be
approached in a realistic manner and that consideration should be given to the reality that
often [police officers] have to make decisions quickly, in emergencies and under pressure.
The conduct should be judged considering the pressure of events at the time, or the agony
of the moment that prevailed, and not with the convenience of hindsight. [Arrests] are often
5
In the criminal context, see R v Portelli (2004) 148 A Crim R 282 at 288.
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made in moments of turmoil, excitement and panic. Bear all this in mind when you come to
consider the reasonableness of the conduct of the defendant.6
26.
The evidence relied upon by the defendant in this regard was as follows:

[set out relevant evidence].
Last updated: 14 April 2014
6
Woodleigh v Boyd [2001] NSW CA 35 at [38], McIntosh v Webster (1980) 43 FLR 112 at 123.
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