Dr.

Ram Manohar
Lohia
National
Law
University,
Lucknow
Law of Torts
Final project
On

“Assault as in tort”

Submitted to:

Submitted by:

Mr. R.K.Yadav

Sakshi

Asst. professor

B.A LL.B (H)

DR.RMLNLU

1st semester
Section: B
Roll no: 111

TABLE OF CONTENT 1. 4. Introduction Definitions of assault Elements of assault Defence of assault Remedies in assault Distinction between assault and battery Cases related to assault . 7. 5. 3. 6. 2.

intending to assault. Therefore. . It is an intentional tort. causing the reasonable apprehension of an immediate harmful or offensive contact. when there is no actual personal violence. there being no intention to assault. assault is also criminal law. there must. In criminal law it is defined as an attempted but unsuccessful battery. Acting intentionally that is with either general or specific intent. Mere words do not amount to an assault. it would not be an assault. For example to throw water at a person is an assault but if any drops fall upon him it is battery. is an assault. be the means of carrying the threat into effect. or may prevent them from doing so. But the words which the party threatening uses at the time may either give to his gesture such a meaning as may make them amount to assault. For ex. the holding up a fist or shaking a whip. Besides being civil law. so if he holds up his hand against another. strikes at another and misses him. and says nothing. if one strikes another upon the hand. this is an assault.INTRODUCTION Assault is an act of defendant which causes to the plaintiff reasonable apprehension of the infliction of a battery on him by the defendant. Actual contact is not necessary in an assault. it is no assault. in a threatening manner. that constitutes an assault. when near enough to be able to hit. For example when A has raised his stick at the face of B and threated him a blow with it. he has committed the offence of assault by creating reasonable apprehension of danger to his body and life. but if one. in all cases. or arm in discourse. The source of this tort is common law. though it is in a battery. In assault only intent and apprehension is needed. it is an assault. If a sword is flourished at such a distance that it would be impossible to hurt any person. The intention as well as act makes an assault. It is not every threat.

g.” When the defendant by his act creates an apprehension in the mind of the plaintiff that he is going to commit battery against the plaintiff. Mere verbal threat is no assault unless it creates reasonable apprehension in the plaintiff’s mind that immediate force will be used. If the fist or the cane is shown from such a distance that the threat cannot be executed. Morgan.”  An assault is an attempt or a threat to do a corporeal hurt to another. It is also essential that there should be prima facie ability to do harm. by a person from a moving train to another standing away on a platform.(1864) 1 BHC 205. if a man put his hand upon his sword and said: if 1 A. it may cause injury. Assault is an act of the defendant which causes to the plaintiff reasonable apprehension of the infliction of a battery on him by the defendant.ASSAULT Assault is an act of intentionally causing an apprehension of a harmful or offensive contact.C. When the defendant by his act creates an apprehension in the mind of the plaintiff that he is going to commit battery against the plaintiff. It means intentionally causing an awareness of a battery.F. in the language of the IPC.“Assault is an act of the defendant which causes the claimant reasonable apprehension of the infliction of a battery on him by the defendant. The test is whether an apprehension has been created in the mind of the plaintiff that battery is going to be committed against him. or.. e.  As observed by Cama case1.206 . an assault in tort. if coupled with a present ability to carry such intention into execution. coupled with an apparent present ability and intention to do the act. “any gestures calculated to excite in the party threatened a reasonable apprehension that the party threating intends immediately to offer violence. constitute.Cama v.g. the wrong of assault is completed. e. there is no assault. H. there is no assault. Some definitions of tort: Acc. Pointing a loaded pistol at another is an assault. if pointed at such distance that. the wrong of assault is completed. Winfield: . If the plaintiff knows that the pistol is unloaded. if loaded. If the pistol is not loaded then even it may be assault. is ‘about to use criminal force’ to the person threatened.

cannot constitute an assault. Where the defendant does not carry his threat through or even has no intention of doing so but knows that claimant is unaware of this. Words. Moreover. It is an assault where a person threatens to shoot another while pointing a gun. For example. if the threatening words are accompanied by some action that indicates the perpetrator has the ability to carry out a threat.it were not assizes. Section 351 of Indian Penal Code define assault as “ whoever makes any gesture. However. Generally assault is always followed by battery but it is not necessarily so and an assault may be committed without committing a battery. without an act. no assault has occurred where a person waves his arms at another and shouts. In the majority of cases an assault precedes a battery.” . even where the victim later learns that the gun was not loaded or even real. an assault has occurred. intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person is said to commit an assault. there was no assault. "I'm going to shoot you!" where no gun is visible or apparent. or any preparation. I would not take such language from you”. but there are examples of battery without assault in which claimant has no opportunity of experiencing any apprehension before the force is applied for example a blow from behind inflicted by an unseen assailant. assuming the victim saw the gun. Besides being civil law. pointing a gun without an accompanying verbal threat is still an assault. assault is also a criminal law.

An assailant who points a gun at a sleeping person has not committed an .  “A reasonable apprehension”: This means that the victim had a reasonable belief that they would be harmed by the defendant. It can be a defence to the charge of assault that one or more of the elements has not been satisfied. Thus. it may take less to create apprehension in the mind of a child than an adult. such as. pretending to kick the victim may be an assault. For example. all of the above elements must be present in order for a defendant to be found guilty of assault. Moreover. the harm must present some sort of perceived physical danger to the victim. as would be attempting to spit on the victim (offensive behaviour) Thus. no assault has occurred. or immediately about to occur. The elements for the assault:  “An act intended to create”: The defendant must act with the intent to create the state of fear or danger in the victim. This element is established if the act would produce apprehension in the mind of a reasonable person. Apprehension means awareness that an injury or offensive contact is imminent. if a victim is unaware of the threat of harm. Apprehension is not the same as fear. The victim must perceive (apprehend) the defendant’s acts  “Of imminent harm”: The victim must experience fear in response to a threat that is imminent. Also. a prosecutor must prove beyond all the required elements beyond a reasonable doubt. and so words by themselves generally do not constitute assault  “That is either harmful or offensive”: The defendant’s conduct must present either a physical threat or offensive behaviour to the defendant. Whether an act would create apprehension in the mind of a reasonable person varies depending upon the circumstances. Future threats. Accidental acts do not result in an act of assault.ESSENTIALS OF ASSAULT In order to prove assault. “I will beat you up next week” do not result in assault charges. Apprehension of Imminent Harm: The victim must have a reasonable apprehension of imminent injury or offensive contact.

Adam may be able to successfully argue that he acted only in selfdefence under such circumstances. Self-defence Self-defence is probably the most common defence used in assault cases. a large.  a real. Simply because someone acts in self-defence does not mean that all bets are off as far as the amount of force that can be used to defend one's self. Threatening to kill someone at a later date would not constitute an assault. In order to establish self-defence. imposing stranger. 2. The doctrine of self-defence has a number of limitations in addition to those outlined above.assault. an accused must generally show:  a threat of unlawful force or harm against them. honest perceived fear of harm to themselves (there must be a reasonable basis for this perceived fear). 3.  no harm or provocation on their part. who immediately begins shouting threats at him and lunging at him with fists rose in a highly threatening manner. the threat must be imminent. The limitations that apply to self-defence apply similarly to defending others. DEFENCES OF ASSAULT 1. Defence of Property . and the accused must have had reasonable grounds for their perceived fear in order to establish this defence. Defence of Others This defence is very similar to that of self-defence. strikes Bill. and  There was no reasonable chance of retreating or escaping the situation. and gets away through the nearest exit at his first available opportunity. Example A: Adam is confronted by Bill. meaning impending or about to occur. Finally. The force used in self-defence must be reasonable when compared to the threat posed by the victim. with the only difference being that the individual must have an honest and real perceived fear of harm to another person. Adam is terrified.

this defence generally allows for an individual to use reasonable force in defence of their property. But if the extent of the act exceeds the permission provided. they may have the right to use reasonable force to recover such property. Where available. if there is some sort of dispute over personal property. depending on the jurisdiction. if an individual has consented voluntarily to a particular act. On the other hand. The most common insufficient evidence defense is an absence of the intent to harm the person. Service of legal process and preservation of public peace Assault may be justified on the ground that they were committed in serving a legal process or in preservation of public peace or in the words of Salmond when the defendant was acting in support of the law. Where available. maybe there were no eyewitnesses of the assault or no visible injuries on the victim. 5. You do not need direct proof of intent as long as the circumstances infer you acted with intent to harm. Insufficient evidence An assault charge can be dismissed due to insufficient evidence. the prosecution or plaintiff must prove that the person actually committed each part of the crime. by a pickpocket. For example. There must be evidence that the . then that same act generally cannot be asserted to constitute an assault. however. The law is more divided on the issue of defending personal property. 4.g. Inability to prove each element of the claim In order for a person to be convicted of assault. 7. This can be a viable defence where the victim voluntary entered the situation where the claim of assault could arise. the owner is not entitled to use force to retrieve it. it can still provide grounds for assault. Consent Consent may be available as a defence to an assault. It is important to note that the availability and extent of this defence varies from state to state. or purse-snatcher). Generally.A defendant in an assault/battery case may be able to claim that he acted only in defence of his or her property against being invaded or illegally withheld. 6. particularly where a person's own home is involved. if property has been stolen directly from an individual (e.

. exemplary or vindictive. If the defendant acts out of hatred and malice in committing the assault. damages do not constitute a necessary part of the claimant’s case in assault. damages may be substantial. It follows therefore besides civil remedies. once punished. Assault is civil wrong as well as crime. including pain and suffering. and loss of wages. punitive damages are often awarded as well. that the act occurred and that the act resulted in fear and/or harm. since that will affect the amount that can be recovered. the defendant cannot be punished for a second time. REMEDIES OF ASSAULT As you recall.defendant intentionally did the act. Public law remedies have also been extended by the SC to the realm of tort. In case of extreme forms of assault and group. While it is important to prove the extent to which one has been harmed by an assault. However. it is a greater insult to be beaten in public place than in private room. For example. a criminal prosecution may be launches. medical bills. Failure to prove each part will result in a finding of not guilty. As observed in Kidar Nath Case damages vary according to circumstances of each case. Compensation has been directed to be paid on account of police atrocities. The plaintiff can recover compensatory damages for the apprehension.

g. A distinction may be drawn as under: (i) Though both are intentional wrongs. It does not matter whether the force is applied directly to the human body itself or to anything coming in contact with it. an action which puts another in instant fear of unlawful force. for while falling he reasonably expects that the withdrawal of the chair will result in harm to him. pulling away a chair. . as a practical joke. includes assault. The application of unlawful force to another constitutes battery. would amount to assault. It is often said that a battery includes an assault but this is not correct. through no force may actually be applied. it is a battery. e. but not plaintiff. When he comes in contact with the floor. whereas in assault. a battery may be committed without an assault (as when a person struck from behind) an (iv) assault may be committed without battery. Battery and assault go together like ham and eggs. ie. the defendant points a gun which he. An act may be an assault altogether the defendant lacked the power to inflict violence. mere fear of physical violence is enough.Distinction between assault and battery Main distinction between assault and battery is of contact. assault is the putting of any person in reasonable fear of immediate battery or it is an inchoate battery. knows to be uploaded.. So. battery is the (ii) application of unlawful force to the person of another Assault creates a reasonable apprehension of immediate violenceit in plaintiff’s (iii) mind. A battery is the intentional and direct application of any physical force to the person of another. from one who is about to sit on it is probably an assault until he reaches the floor. physical contact is necessary in battery. Battery in fact. no creation of such apprehension is necessary in battery.

3. He was held liable for assault. and immediately advanced with his fist clenched towards the chairman. but there was no indication of any potential harm to the claimant. that the plaintiff was acting as chairman. that the defendant threatened and attempted to assault the plaintiff. but was stopped by the churchwarden. at a parish meeting. that he should be turned out. which was carried by very large majority. there being about six or seven persons between him and plaintiff. the defendant had been vociferous and he interrupted the proceeding of the meeting. There was no assault where a police officer merely stood at a door and barred entry. In the course of some angry discussion. but the witnesses said. It appeared. Innes v Wylie3: the plaintiff belonged to a society which purported to expel him.Cases related to the tort of assault 1. 2 Nisi Prius (1830) 4 C & P 349 3 Nisi Prius (1844) 1 Car & Kir 257 . at a time when he was not near enough for any blow he might have meditated to have reached the chairman. who sat next but one to the chairman. (1959) 25 Cut LT 83: in this case the defendant assaulted the plaintiff at a public place near the court premises. as a passive state is insufficient for liability to be imposed. 2. at which table the defendant also sat. Apart from menacing words the defendant by his action raised his right hand for the purpose of giving a blow and in addition used threating words making it absolutely clear that hi intention was to give a slap to the plaintiff. acting under the defendants’ orders. stopped the plaintiff from entering a room to attend a dinner of the society. than be turned out of the room. His behaviour was passive through obstruction. Stephens v Myers2: The declaration stated. that it seemed to them that he was advancing with an intention to strike the chairman. and a policeman. Upon this the defendant said. he would rather pull the chairman out of chair. An assault does require some active behaviour. a motion was made. and sat the head of a table.

It was held that since the defendant. 382 . to the effect that there is absence of intention to make an assault. Bavisetti Venkata Surya Rao v Nandipati Muthayya 4: the plaintiff. 11. paid off the amount due from the plaintiff by borrowing the same from another person. said nothing and did nothing and threat of use of force by the goldsmith to the plaintiff was too remote a possibility to have put the plaintiff in fear of immediate or instant violence.The court held that. 1964 A. Thus it is the intention accompanied by the act that makes the assault complete. a well-to-do agriculturist. The defendant was held liable for actionable assault. the defendant told him that the earring which the plaintiff was wearing would be detrained. there was no assault. went to the plaintiff’s residence on March 31.I. one of the persons present there. the defendant had committed assault. The plaintiff sued the village munsif alleging that apart from other wrongs. there was no justification for assaulting the plaintiff thereby causing him considerable humiliation and insult. whatever may be the provocation. the plaintiff pleaded his inability to pay the amount that day as his wife had locked the house and gone out for a few days. 4 A. 1956 for the collection of the amount. The defendant then went away quietly. The village goldsmith was called. after the arrival of goldsmith. To say that I will commit an assault. The village munsif. The plaintiff was told that on his failure to pay. On the arrival of gold smith. was in arrears of land revenue amounting to Rs. his movable property will be detrained. On demand being made. is no assault. 4. Black v Barnard: the defendant produced a loaded pistol and aimed it at the plaintiff threating that he would blow out the plaintiff’s brain. who had a duty to collect the amount. P. The defendant insisted to have the payment the very day. 5. that being the last day of the year for the collection of the revenue.R. This was held to be an act of assault. words in such a case give colour to the act. Since the plaintiff’s house was locked and no other movables were readily available.60.

6. The working miners were effectively protected by the police and. the requirements of immediacy and directness were not met. He appealed contending that silence cannot amount to an assault and that psychiatric injury is not bodily harm. Scott J held that the strike-breakers were unable to categorise the action as an assault: ‘the working miners are in vehicles and the pickers are held back from the vehicle. Tubervell v Savage5: in the course of a furious argument. as a result. Thomas v National Union of Miners8: During the 1984-85 miners’ strike. 9.47 Offences against the Person Act 1861. Held: His conviction was upheld. Tubervell put his hand on his sword and said to savage ‘if it were not assize time. a group pf working miners (strike-breakers) sought an interlocutory injunction against the National Union of Mineworkers to prevent its members (striking miners) from verbally abusing and harassing them as they went to work. Silence can amount to an assault and psychiatric injury can amount to bodily harm. 8. R v Ireland7: The defendant made a series of silent telephone calls over three months to three different women. 7. 5 (1699) 1 Mod Rep 3 6 (1853) 13 CB 850 7 (1998) HL 8 South wales area (1986) HC . saying that he would break Read’s neck if he did not go. I would not take such language from you. Dismissing their clam. Read v Coker6: Coker demanded that Read leave the premises where he was. Held: this constituted assault against Read. I do not understand how even the most violent of threats or gesture could be said to constitute an assault’. He was convicted under s.’ Held: this did not amount to an assault. Each day a crowd of some 50-70 picketers gathered at the colliery gates as the working miners entered the workplace in vehicles surrounded by a police guard.