Rixon v Star City Pty Ltd

[2001] NSWCA 265 (Supreme Court of New South Wales, Court of Appeal) (relevant to Chapter 2, under heading Battery on p 15 and Assault on p 16) Physical contact which is generally acceptable in the ordinary conduct of daily life does not constitute battery. Assault requires an intention to create in another person an apprehension of imminent harmful or offensive contact. [The plaintiff, Mr Brian Rixon, was the subject of an exclusion order issued by the defendant, Star City Pty Ltd, a casino operator, pursuant to the Casino Control Act 1992 (NSW) (the Act) which authorised a casino operator to prohibit a person from entering or remaining in a casino. The plaintiff was identified playing roulette in the defendants casino in breach of the exclusion order issued to him. The plaintiff was approached by one of the defendants employees who placed his hand on the plaintiffs shoulder, without using any degree of force or causing any injury, and asked the plaintiff if he was Brian Rixon. In the plaintiffs action for damages in the District Court of New South Wales, the trial judge, Balla ADCJ, rejected the plaintiffs claims for assault and battery in respect of the conduct of the defendants employee. Her Honour found that these torts were negatived because the defendants employee who touched the plaintiff lacked the requisite intention in relation to assault and the requisite anger or hostile attitude in relation to battery. The plaintiff appealed.]
SHELLER JA. Battery 51. The placing of the hand on the shoulder could be a battery. As Holt CJ said in Cole v Turner (1704) 87 ER 907 the least touching of another in anger is a battery. On the other hand, as the Chief Justice said, 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. 52. However the absence of anger or hostile attitude by the person touching another is not a satisfactory basis for concluding that the touching was not a battery. In In re F [1990] 2 AC 1 at 73 Lord Goff of Chieveley said: In the old days it used to be said that, for a touching of anothers person to amount to a battery, it had to be a touching in anger (see Cole v Turner per Holt CJ); and it has recently been said that the touching must be hostile to have that effect (see Wilson v Pringle [1987] QB 237, 253). I respectfully doubt whether that is correct. A prank that gets out of hand; an over-friendly slap on the back; surgical treatment by a surgeon who mistakenly thinks that the patient has consented to it all these things may transcend the bounds of lawfulness, without being characterised as hostile. Indeed the suggested qualification is difficult to reconcile with the principle that any touching of anothers body is, in the absence of lawful excuse, capable of amounting to a battery and a trespass. 53. In Collins v Wilcock [1984] 1 WLR 1172 Lord Goff (then Robert Goff LJ) sitting in the Divisional Court, at 1177-8 referred to the fundamental principle, plain and incontestable, that every persons body is inviolate, and that any touching of another person, however slight may amount to a battery. His Lordship referred to Cole v Turner and to Blackstones Commentaries, 17th ed (1830) Vol 3, 120:

Rixon v Star City Pty Ltd

the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every mans person being sacred, and no other having a right to meddle with it, in any the slightest manner. His Lordship continued: But so widely drawn a principle must inevitably be subject to exceptions. For example, children may be subjected to reasonable punishment; people may be subjected to the lawful exercise of the power of arrest; and reasonable force may be used in self-defence or for the prevention of crime. But, apart from these special instances where the control or constraint is lawful, a broader exception has been created to allow for the exigencies of everyday life. Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is, within reason, slapped: see Tuberville v Savage (1669) 1 Mod 3. Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life. We observe that, although in the past it has sometimes been stated that a battery is only committed where the action is angry, revengeful, rude, or insolent (see Hawkins, Pleas of the Crown, 8th ed (1824), vol 1, c15, section 2), we think that nowadays it is more realistic, and indeed more accurate, to state the broad underlying principle, subject to the broad exception. Among such forms of conduct, long held to be acceptable, is touching a person for the purpose of engaging his attention, though of course using no greater degree of physical contact than is reasonably necessary in the circumstances for that purpose. So, for example, it was held by the Court of Common Pleas in 1807 that a touch by a constables staff on the shoulder of a man who had climbed on a gentlemans railing to gain a better view of a mad ox, the touch being only to engage the mans attention, did not amount to a battery: see Wiffin v Kincard (1807) 2 Box & Pul 471; for another example, see Coward v Baddeley (1859) 4 H & N 478. But a distinction is drawn between a touch to draw a mans attention, which is generally acceptable, and a physical restraint, which is not. So we find Parke B observing in Rawlings v Till (1837) 3 M & W 28, 29, with reference to Wiffin v Kincard, that There the touch was merely to engage [a mans] attention, not to put a restraint upon his person. 54. This distinction is explained in Clerk & Lindsell on Torts, 17th ed, 12-06 where the question is posed whether the physical contact imposed on the plaintiff was in excess of that generally acceptable in everyday life. It is pointed out in a footnote that acceptable conduct must be considered in the context of the incident in dispute. For an adult to jump on another and snatch her shoulder bag is clearly unacceptable. Between 13-year-old schoolboys it might perhaps be seen as as unremarkable as shaking hands. 55. No error has been demonstrated which would entitle this Court to interfere with the trial Judges finding that the touching lacked the requisite anger or hostile attitude. More accurately, it could not be said that the conduct of [the defendants employee] in the circumstances found [by the trial judge] and clearly for the purpose of engaging Mr Rixons attention, was not generally acceptable in the ordinary conduct of daily life. Assault 58. Proof of assault requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact; see, for example, Hall v Fonceca [1983] WAR 309. The trial Judge rejected the case in assault by finding that the actions of the defendants employee lacked the requisite intention in relation to assault. By this her Honour must have meant the intention to create in Mr Rixon an apprehension of imminent harmful or offensive contact. Having rejected Mr Rixons account of being grabbed or spun round, her Honours finding that [the defendants employee] placed his hand on Mr Rixons

Rixon v Star City Pty Ltd

shoulder without using any degree of force and said Are you Brian Rixon? led her to conclude that [the defendants employee] had no intention of creating in Mr Rixon an apprehension of imminent harmful or offensive conduct. 59. In my opinion, the evidence left it open to her Honour to find that the necessary intention to create in Mr Rixon an apprehension of imminent harmful or offensive contact was lacking. The appeal against the trial Judges decision that neither battery nor assault was made out accordingly fails.

[Priestley and Heydon JJA agreed with Sheller JA. The trial judge and the New South Wales Court of Appeal also rejected the plaintiffs claim for false imprisonment in respect of the one and a half hours he was detained by the defendant in an interview room at the casino until the police arrived. This detention was authorised in unmistakably clear (Sheller JA) language by the Act.] Appeal dismissed [Editorial comment Rixon v Star City Pty Ltd is an application of basic principles governing battery and assault. The court referred with approval to In re F (Chapter 11 page 361), Collins v Wilcock (Chapter 2 page 15) and Hall v Fonceca (Chapter 2 page 16).]