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

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

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

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

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

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

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

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

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

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

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

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

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

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