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way of injury or pecuniary damage.  However, where physical or psychiatric injury has resulted, basic damages will include compensation for these injuries calculated by reference to personal injury awards.  It is unclear whether feelings of anxiety and humiliation resulting from the fact that the injuries were inflicted deliberately should sound in basic or aggravated damages59.  Subject to that aspect, aggravated and exemplary damages are assessed by reference to the guidance provided by the Court of Appeal in Thompson & Hsu in actions against the police and there seems no reason in principle why that guidance is not also applicable to assault or battery claims against other public authorities.

Inter-Relationship with claims based on articles 3 and / or 8 ECHR

30.As explained above, even relatively trivial touching of a person can found a claim in battery, but it is open to the defendant to then justify that physical contact.  However, for an infringement of article 3, the treatment complained of must attain “a minimum level of severity”60.  If that threshold is reached then the protection conferred by article 3 is absolute and the defendant will not be able to seek to justify the conduct.  Article 3 applies to a sufficiently serious use of excessive force but also much more broadly, so that, for example, conditions in which a person is detained could amount to “inhuman or degrading treatment”.  In considering whether the treatment complained of was inhuman or degrading, the Court will look at its nature and context, its duration, the manner of its exercise, whether it caused actual bodily injury or intensive mental suffering and whether its object was to humiliate and debase and / or showed a lack of respect for human dignity61.

31.The right to respect for private life protected by article 8 includes protection of personal autonomy62.  The severity of treatment necessary to engage article 8 is lower than that required for article 3.  Conduct that engages article 8 may be justified on the basis of one of the exhaustive grounds listed in article 8(2).  Any touching during, for example, a search of a person by the police will amount to a battery, but it is more doubtful that it will engage article 8. The concept of personal

59 Compare Gerald v Commissioner of Police of the Metropolis (1998) The Times 26 June CA and Richardson v Howie [2004] EWCA Civ 1127 (in which it appears that Gerald was not cited).

60 Tomasi v France (1993) 15 EHRR 1.

61 Pretty v UK (2002) EHRR 1; R (B) v Dr S (RMO Broadmoor Hospital) & Ors [2005] HRLR 40.

62 Pretty v UK (above).

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