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

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

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

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

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

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

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

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

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

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

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

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

The working miners were effectively protected by the police and. Dismissing their clam. 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. He appealed contending that silence cannot amount to an assault and that psychiatric injury is not bodily harm. 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 . saying that he would break Read’s neck if he did not go. Thomas v National Union of Miners8: During the 1984-85 miners’ strike.6. the requirements of immediacy and directness were not met. as a result.’ Held: this did not amount to an assault. I would not take such language from you. R v Ireland7: The defendant made a series of silent telephone calls over three months to three different women. Held: this constituted assault against Read. Read v Coker6: Coker demanded that Read leave the premises where he was. Held: His conviction was upheld. 7. 9.47 Offences against the Person Act 1861. Tubervell put his hand on his sword and said to savage ‘if it were not assize time. Silence can amount to an assault and psychiatric injury can amount to bodily harm. 8. 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. 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. I do not understand how even the most violent of threats or gesture could be said to constitute an assault’. Tubervell v Savage5: in the course of a furious argument.

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