39 2.

2 Conduct requirements
If A digs a hole in the road and B later on falls into it, that is not a battery. If A injects a
poison into Bs body, that is a battery. If A puts poison in Bs drink and B later drinks it,
that is not a battery.
B. Assault
For the tort of assault to be committed, a defendant must have performed a positive act
that made the claimant think that someone is about to apply force directly and voluntarily
to their body. Again, let us take these italicised terms in turn, in reverse order.
(1) About. There is no assault on a claimant unless the claimant is made to think that they
are in imminent danger of being attacked.
In Tuberville v Savage (1669), it was held that Tuberville did not commit an assault when
he drew his sword on Savage and said, If it were not assize-time I should not take such
language from you. As it was assize time (that is, the time when the courts had set up in
town to hear any criminal or civil cases), Tubervilles words did not lead Savage to believe
that Tuberville was about to strike him with his sword.
In Thomas v National Union of Mineworkers (South Wales Area) (1986), the claimants
were coal miners who wished to go to work during the miners strike. As they entered the
colliery where they worked they suffered abuse and threats from massed pickets at the
colliery gates. They sought to obtain an injunction against the massed picketing, claiming
among other things that the pickets were committing the tort of assault in abusing and
threatening them as they entered the colliery. This claim was rejected by Scott J on the
ground that the claimants were always driven into the colliery and were separated from the
pickets by ranks of policemen given this, it could hardly be said that the abuse and threats
the claimants received when they entered the colliery put them in fear that they were about
to be beaten up by the pickets.
It is not clear how imminent the threat of an attack has to be for an assault to have been
committed. In R v Ireland (1998) (a criminal case), the defendant made a series of
malicious telephone calls to three women when they answered he would remain silent.
The women all developed psychiatric illnesses as a result of their treatment at the hands
of the defendant. The defendant was charged with committing the offence of assault
occasioning actual bodily harm and was convicted. The House of Lords upheld the
conviction, holding that his silent telephone calls could have led the women in question to
believe they were about to be attacked by whoever was on the other end of the line. This
was so even though there would have been some interval of time before the defendant
could get from wherever he was phoning the women from to their houses. It seems that it
was enough, for the assault to be established, that the women were put in uncertainty as to
whether they were about to be attacked. That is, they were made to think that they might
be about to be attacked.
(2) Think. For an assault to be committed, the claimant must be made to think that she is
about to be attacked. So if A creeps up on B from behind and hits her on the head with a
plank of wood, that is a battery, but not an assault. At no point was B made to think that
she was about to be attacked. It is enough, for an assault to be committed, that the claimant
was made to think that she was about to be attacked. It does not (repeat not) have also to
be shown either: (i) that the claimant was about to be attacked; or (ii) that the claimant was
afraid of being attacked. So, for example, if A points a fake gun at B and says Im going to
shoot you and B is unaware that the gun is fake, that is an assault. It does not matter that