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

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

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

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

However. no assault has occurred where a person waves his arms at another and shouts. or any preparation. Moreover. 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.it were not assizes. I would not take such language from you”. For example.” . cannot constitute an assault. an assault has occurred. pointing a gun without an accompanying verbal threat is still an assault. "I'm going to shoot you!" where no gun is visible or apparent. there was no assault. assault is also a criminal law. Generally assault is always followed by battery but it is not necessarily so and an assault may be committed without committing a battery. assuming the victim saw the gun. Words. 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. 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. even where the victim later learns that the gun was not loaded or even real. without an act. Section 351 of Indian Penal Code define assault as “ whoever makes any gesture. Besides being civil law. It is an assault where a person threatens to shoot another while pointing a gun. In the majority of cases an assault precedes a battery. if the threatening words are accompanied by some action that indicates the perpetrator has the ability to carry out a threat.

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

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

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

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

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

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

went to the plaintiff’s residence on March 31. 11. The defendant insisted to have the payment the very day. 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. words in such a case give colour to the act. his movable property will be detrained.The court held that. there was no assault. was in arrears of land revenue amounting to Rs. The village munsif.R. Since the plaintiff’s house was locked and no other movables were readily available. 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. there was no justification for assaulting the plaintiff thereby causing him considerable humiliation and insult. 4. Bavisetti Venkata Surya Rao v Nandipati Muthayya 4: the plaintiff. P. 1964 A. Thus it is the intention accompanied by the act that makes the assault complete.I. The plaintiff was told that on his failure to pay. the defendant had committed assault. 1956 for the collection of the amount. 382 . To say that I will commit an assault. one of the persons present there. a well-to-do agriculturist. On the arrival of gold smith. The village goldsmith was called.60. paid off the amount due from the plaintiff by borrowing the same from another person. that being the last day of the year for the collection of the revenue. The defendant was held liable for actionable assault. This was held to be an act of assault. It was held that since the defendant. the defendant told him that the earring which the plaintiff was wearing would be detrained. The defendant then went away quietly. 5. The plaintiff sued the village munsif alleging that apart from other wrongs. On demand being made. whatever may be the provocation. 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. after the arrival of goldsmith. 4 A. who had a duty to collect the amount. is no assault. to the effect that there is absence of intention to make an assault.

R v Ireland7: The defendant made a series of silent telephone calls over three months to three different women. 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. I would not take such language from you. Tubervell v Savage5: in the course of a furious argument. Held: His conviction was upheld. 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. Thomas v National Union of Miners8: During the 1984-85 miners’ strike. 8. 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.’ Held: this did not amount to an assault. the requirements of immediacy and directness were not met. He was convicted under s. 5 (1699) 1 Mod Rep 3 6 (1853) 13 CB 850 7 (1998) HL 8 South wales area (1986) HC . 9. I do not understand how even the most violent of threats or gesture could be said to constitute an assault’. Held: this constituted assault against Read. The working miners were effectively protected by the police and. Tubervell put his hand on his sword and said to savage ‘if it were not assize time. saying that he would break Read’s neck if he did not go. Dismissing their clam. Silence can amount to an assault and psychiatric injury can amount to bodily harm. as a result.6. 7. He appealed contending that silence cannot amount to an assault and that psychiatric injury is not bodily harm.47 Offences against the Person Act 1861. Read v Coker6: Coker demanded that Read leave the premises where he was.

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