Battery, intention June 15, 2016
 A defendant who directly causes physical contact with a plaintiff will commit a battery unless the defendant proves that the defendant was “utterly without fault”. The requisite direct contact will be present if the defendant uses an instrument (such as gardening shears): Darby v Director of Public Prosecutions  NSWCA 431; 61 NSWLR 558 at .
 Although battery is an intentional tort, a battery may occur when the defendant is merely negligent. It was in those circumstances that a unanimous High Court said in Williams v Milotin (1957) 97 CLR 465 at 474 that “[i]t happens in this case that the actual facts will or may fulfil the requirements of each cause of action” (ie battery and negligence).
 Within the allegations concerning battery, Mr Cachia’s pleading alleged that “[t]he attack was intentional and designed to inflict serious injury” (para 7). That allegation was, strictly speaking, unnecessary in order to establish liability (although, arguably, the allegation was intended to engage s 3B(1)(a) of the Civil Liability Act thereby permitting the award of damages at common law including exemplary damages – see below). It is clear law in this country that trespass to the person caused by a blow does not require the plaintiff to prove anything about intention. I cannot put the point more clearly than did Jacobs JA, with Manning and Moffitt JJA agreeing, in Timmins v Oliver (unreported, New South Wales Court of Appeal, 12 October 1972). Jacobs JA was writing three months after the commencement of the Supreme Court Act 1970 (NSW) which would bring to an end common law issue pleading refined by Baron Parke which had been said by Cotton LJ, shortly after it had been abolished a century earlier in England, in Spedding v Fitzpatrick (1888) 38 Ch D 410 at 414, to “conceal as much as possible what was going to be proved at the trial”. Jacobs JA rejected a demurrer to two bare declarations alleging that the plaintiff had sustained injuries from the defendants driving a motor boat against him, saying:
“Nothing more has ever been required in an action based on trespass than an allegation of the battery and it is too late in the day to change this now. … Can we as the curtain falls for the last time on declarations in trespass which have held the stage for centuries say that the play has all this time been played wrongly and according to a bad script? I think not.”
24 The fact that the onus lay on the defendant, and the nature of what was required to be proven, was explained by Windeyer J in McHale v Watson (1964) 111 CLR 384 and by Street CJ (with whom Ferguson and James JJ agreed) in Blacker v Waters (1928) 28 SR (NSW) 406 at 410, in both cases tracing the matter back to Weaver v Ward (1616) Hob 134; 80 ER 284. There it was said that no man may be excused of a trespass “except it may be judged utterly without his fault”. The position in this respect is essentially unchanged four centuries later.
25 As Gummow J said in Stingel v Clark  HCA 37; 226 CLR 442 at :
“[I]n McHale v Watson, Windeyer J demonstrated that, contrary to the view taken by Diplock J in Fowler v Lanning, in an action for trespass to the person by a blow or missile it was for the defendant to aver and prove the absence of intent and negligence on the defendant’s part, rather than for the plaintiff to aver and prove that the defendant acted either intentionally or negligently.”
Gummow J dissented in the result, but the statement of principle reproduced above is uncontroversial. Further, “negligence” means, in this somewhat unfamiliar context, an absence of fault on the part of the defendant (this is another way in which “negligent” bears a variety of meanings, depending upon the context: see Paul v Cooke  NSWCA 311; 85 NSWLR 167 at -).
99 I also do not accept that a finding that Mr Cachia was committing an assault was not available on the evidence. In addition to what was said in Barton v Armstrong, to which I have earlier referred, the elements of a civil assault were more elaborately stated by Sheller JA, with the agreement of Priestley and Heydon JJA, in Rixon v Star City Pty Ltd  NSWCA 265; 53 NSWLR 98 at -, in terms which emphasised the irrelevance of the defendant’s intention to carry out the threat:
“A traditional definition of assault is ‘an overt act indicating an immediate intention to commit a battery, coupled with the capacity of carrying that intention into effect’; see Clerk & Lindsell 12-12. The irrelevance of the intention to carry the battery into effect is demonstrated by the act of presenting an unloaded firearm in such circumstances that if it had been loaded its discharge would have been likely to cause injury. Such an act is an assault unless the person at whom it is pointed knows that it is empty; see generally Clerk & Lindsell 12-13.
According to Fleming, The Law of Torts, 9th ed, at 31-32:
‘Assault consists in intentionally creating in another person an apprehension of imminent harmful or offensive contact. … there may be an assault without battery if the threat to inflict unlawful force is not in fact carried out. … Since the gist of assault lies in the apprehension of impending contact, the effect on the victim’s mind created by the threat is the crux, not whether the defendant actually had the intention or the means to follow it up. The intent required for the tort of assault is the desire to arouse apprehension of physical contact, not necessarily to inflict actual harm.’
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  WAR 309. If the assault lies in creating an apprehension of impending contact, proof of the assault does not require proof of an intention to follow it up or carry it through.”