Published: Wed, 07 Mar 2018
Livingstone v Ministry of Defence  NI 356
Battery and intention, transferred malice in tort law
A group of soldiers were dispatched to establish control over a riot. However, the soldiers were attacked by the rioters. In response to being attacked, the soldiers fired baton rounds (a type of large rubber bullet often fired from a shotgun) into the crowd. The Claimant was struck and injured by one such round. The Defendant soldier had fired the round deliberately; however he had not aimed at the claimant but at another target. Therefore he had not deliberately shot the round at the Claimant with the intention of striking him. The claimant started a claim based on negligence, assault and on battery.
The issue was whether it was possible for a claim in battery to be made given the fact that the claimant had not been the intended target and that he had been hit accidentally.
The court held that it was possible for a claim of battery to be based on facts where the Claimant was not the intended target. This was based on a reasoning similar to the doctrine of transferred malice in criminal law, with the court holding that where a soldier wanted to hit one rioter but hit another, he could still be said to have hit that rioter intentionally.
‘In my judgment when a soldier deliberately fires at one rioter intending to strike him and he misses him and hits another rioter nearby, the soldier has ‘intentionally’ applied force to the rioter who has been struck. Similarly if a soldier fires a rifle bullet at a rioter intending to strike him and the bullet strikes that rioter and passes through his body and wounds another rioter directly behind the first rioter, whom the soldier had not seen, both rioters have been ‘intentionally’ struck by the soldier and, assuming that the force used was not justified, the soldier has committed a battery against both.’ (Hutton J)
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