普通法-案例分析笔记

Cole v. Turne

Issue。

Under what circumstances and with what mindsets may a touching constitute battery?

Synopsis of Rule of Law。

The lightest angry touch constitutes battery。A gentle touch made in close quarters with no ill intention is not a battery. A forceful or reckless touch, in close quarters is a battery。

即：

•“the least touching of another in anger is a battery”

•“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"

Key point — the degree of contact is irrelevant: the “least touching” is actionable

But：current rule is that battery does not require anger:

•Is an unwanted kiss battery？Yes.

Shooting a person with the best of intentions? Yes.

No anger, no damages，no have to be conscious at the time of the contact

Collins v Wilcock ［1984] 3 All ER 374

FACT:A police woman took hold of a woman's arm to stop her walking off when she was questioning her. The woman scratched the police woman and was charged with assaulting a police officer in the course of her duty。

Me：the defendant refused to answer police woman’s question and walked away when police woman persisted to follow her and took hold of her arm to restrain her。The defendant swore at and scratched the officer’s arm, As a result，the D was arrested and charged with assaulting a police officer in the course of her duty.

Issue:whether officer can physically hold suspect without arrest?（P3）

Holding：officer’ action is unlawful and amounted to a battery since it went beyond the generally acceotable conduct of touching a person to engage his attention。The defendant's action was therefore in self defence and D’s conviction was quashed(撤销).

Rule: unless there is an arrest, officer cannot use physical force to hold a suspect, and such force may constitute tort of battery

Sidaway v. Bethlem Royal Hospital Governors （1985 HLs）Facts:

Claimant suffered persistent pain in her neck，right shoulder, and arms.

Claimant consented to the neurosurgeon’s recommended treatment of cervical cord decompression。Doctor did tell her even if the operation properly performed，risk of disturbing a nerve root/consequences. But doctor not explain the fact that in less than 1% of the cases，the decompression treatment caused spinal cord damage, paraplegia. Doctor also not informed the plaintiff that this was an operation of choice or "elective operation“ (she didn't need to have it) Plaintiff patient developed paraplegia after the spinal operation

Casebook：Mrs Siddeway suffered persisitent pain in her right arm and shoulder and a surgeon employed by the defendants recommended an operation to her spine to which Mrs sidawat consented。The operation involved a risk，put at least 1%，of damage to the spine and Mrs Sidawat was not informed of the risk ，The operation was properly conducted but unfortunately the risk materialized and the clainmanr became severely disabled.She sue the defendants on the groud that surgeon had failed to inform her of risk

Held:dismissing the appeal ,that the defendant were not liable。

Rule and notable points of law：

Unlike US law, in English law consent not vitiated by the failure of the doctor to give the patient sufficient information before the consent is given

Only if the consent is obtained by fraud or by misrepresentation it could be said that consent is not a true consent，allow battery

Patient’s consent must still be real：to be real patient should be told enough about the treatment to understand what will be done to them

Casebook：at the same time the doctor is not entitled to make the final decision with regard to treatment which may have disadvantages or dangers , where the patient’s heath and future are stake ，the patient must make the final decision. Thus，the right to make the final decision and the duty of the doctor to inform the patient if the treatment may have the special disadvantages or dangers go hand in hand。

●infliction of bodily restraint, which is not expressly or impliedly authorized by the law

●Any restraint of liberty，and can occur anywhere （not just a prison)

●R estraint must be complete

Bird v. Jones, 7 Ad. ＆El. (N.S。) 742，115 Eng. Rep。688 (1845）.