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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

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

ASSAULT
Assault is an act of intentionally causing an apprehension of a harmful or offensive contact. It
means intentionally causing an awareness of a battery.
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. 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, the wrong of assault is completed.
Some definitions of tort: Acc. Winfield: - 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, coupled with an
apparent present ability and intention to do the act.
As observed by Cama case1, any gestures calculated to excite in the party
threatened a reasonable apprehension that the party threating intends immediately to
offer violence, or, in the language of the IPC, is about to use criminal force to the
person threatened, constitute, if coupled with a present ability to carry such intention
into execution, an assault in tort.

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, the wrong of assault is completed. Pointing a
loaded pistol at another is an assault. If the pistol is not loaded then even it may be assault, if
pointed at such distance that, if loaded, it may cause injury. 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 the plaintiff knows that the pistol is unloaded, there is no assault.
It is also essential that there should be prima facie ability to do harm. If the fist or the cane
is shown from such a distance that the threat cannot be executed, e.g., by a person from a
moving train to another standing away on a platform, there is no assault.
Mere verbal threat is no assault unless it creates reasonable apprehension in the plaintiffs
mind that immediate force will be used, e.g. if a man put his hand upon his sword and said: if
1 A.C.Cama v. H.F. Morgan,(1864) 1 BHC 205,206

it were not assizes, I would not take such language from you, there was no assault. Words,
without an act, cannot constitute an assault. For example, 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.
However, if the threatening words are accompanied by some action that indicates the
perpetrator has the ability to carry out a threat, an assault has occurred. It is an assault where
a person threatens to shoot another while pointing a gun, even where the victim later learns
that the gun was not loaded or even real. Moreover, pointing a gun without an accompanying
verbal threat is still an assault, assuming the victim saw the gun.
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, 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.
Besides being civil law, assault is also a criminal law. Section 351 of Indian Penal Code
define assault as whoever makes any gesture, or any preparation, 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.

ESSENTIALS OF ASSAULT
In order to prove assault, a prosecutor must prove beyond all the required elements beyond a
reasonable doubt. It can be a defence to the charge of assault that one or more of the elements
has not been satisfied. 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. Accidental acts do not result in an act of assault.

A reasonable apprehension: This means that the victim had a reasonable belief that
they would be harmed by the defendant. The victim must perceive (apprehend) the
defendants acts

Of imminent harm: The victim must experience fear in response to a threat that is
imminent, or immediately about to occur. Future threats, such as, I will beat you up
next week do not result in assault charges. Also, the harm must present some sort of
perceived physical danger to the victim, and so words by themselves generally do not
constitute assault

That is either harmful or offensive: The defendants conduct must present either a
physical threat or offensive behaviour to the defendant. Thus, pretending to kick the
victim may be an assault, as would be attempting to spit on the victim (offensive
behaviour)

Thus, all of the above elements must be present in order for a defendant to be found guilty of
assault.
Apprehension of Imminent Harm: The victim must have a reasonable apprehension of
imminent injury or offensive contact. This element is established if the act would produce
apprehension in the mind of a reasonable person. Apprehension is not the same as fear.
Apprehension means awareness that an injury or offensive contact is imminent.
Whether an act would create apprehension in the mind of a reasonable person varies
depending upon the circumstances. For example, it may take less to create apprehension in
the mind of a child than an adult. Moreover, if a victim is unaware of the threat of harm, no
assault has occurred. An assailant who points a gun at a sleeping person has not committed an

assault. Finally, the threat must be imminent, meaning impending or about to occur.
Threatening to kill someone at a later date would not constitute an assault.

DEFENCES OF ASSAULT
1. Self-defence
Self-defence is probably the most common defence used in assault cases. In order to establish
self-defence, an accused must generally show:

a threat of unlawful force or harm against them;

a real, honest perceived fear of harm to themselves (there must be a reasonable basis
for this perceived fear);

no harm or provocation on their part; and

There was no reasonable chance of retreating or escaping the situation.

Example A: Adam is confronted by Bill, a large, imposing stranger, who immediately


begins shouting threats at him and lunging at him with fists rose in a highly threatening
manner. Adam is terrified, strikes Bill, and gets away through the nearest exit at his first
available opportunity. Adam may be able to successfully argue that he acted only in selfdefence under such circumstances.
The doctrine of self-defence has a number of limitations in addition to those outlined above.
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. The force used in self-defence must be
reasonable when compared to the threat posed by the victim.

2. Defence of Others
This defence is very similar to that of self-defence, with the only difference being that the
individual must have an honest and real perceived fear of harm to another person. The
limitations that apply to self-defence apply similarly to defending others, and the accused
must have had reasonable grounds for their perceived fear in order to establish this defence.

3. Defence of 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. It is important to note that the
availability and extent of this defence varies from state to state, however. Where available,
this defence generally allows for an individual to use reasonable force in defence of their
property, particularly where a person's own home is involved. The law is more divided on the
issue of defending personal property. Generally, if there is some sort of dispute over personal
property, the owner is not entitled to use force to retrieve it. On the other hand, if property has
been stolen directly from an individual (e.g. by a pickpocket, or purse-snatcher), they may
have the right to use reasonable force to recover such property.

4. Consent
Consent may be available as a defence to an assault, depending on the jurisdiction. Where
available, if an individual has consented voluntarily to a particular act, then that same act
generally cannot be asserted to constitute an assault. But if the extent of the act exceeds the
permission provided, it can still provide grounds for assault. This can be a viable defence
where the victim voluntary entered the situation where the claim of assault could arise.
5. 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.

6. Insufficient evidence
An assault charge can be dismissed due to insufficient evidence. For example, maybe there
were no eyewitnesses of the assault or no visible injuries on the victim. The most common
insufficient evidence defense is an absence of the intent to harm the person. You do not need
direct proof of intent as long as the circumstances infer you acted with intent to harm.
7. 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. There must be evidence that the

defendant intentionally did the act, that the act occurred and that the act resulted in fear
and/or harm. Failure to prove each part will result in a finding of not guilty.

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

Distinction between assault and battery


Main distinction between assault and battery is of contact. A battery is the intentional and
direct application of any physical force to the person of another. It does not matter whether
the force is applied directly to the human body itself or to anything coming in contact with it.
So, pulling away a chair, as a practical joke, from one who is about to sit on it is probably an
assault until he reaches the floor, for while falling he reasonably expects that the withdrawal
of the chair will result in harm to him. When he comes in contact with the floor, it is a battery.
Battery and assault go together like ham and eggs. The application of unlawful force to
another constitutes battery, an action which puts another in instant fear of unlawful force,
through no force may actually be applied, would amount to assault, ie, physical contact is
necessary in battery, whereas in assault, mere fear of physical violence is enough. Battery in
fact, includes assault.
A distinction may be drawn as under:
(i)

Though both are intentional wrongs, assault is the putting of any person in
reasonable fear of immediate battery or it is an inchoate battery; battery is the

(ii)

application of unlawful force to the person of another


Assault creates a reasonable apprehension of immediate violenceit in plaintiffs

(iii)

mind, no creation of such apprehension is necessary in battery.


It is often said that a battery includes an assault but this is not correct; a battery
may be committed without an assault (as when a person struck from behind) an

(iv)

assault may be committed without battery.


An act may be an assault altogether the defendant lacked the power to inflict
violence, e.g., the defendant points a gun which he, but not plaintiff, knows to be
uploaded.

Cases related to the tort of assault


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

The court held that, whatever may be the provocation, there was no justification for
assaulting the plaintiff thereby causing him considerable humiliation and insult. The
defendant was held liable for actionable assault.
4. Black v Barnard: the defendant produced a loaded pistol and aimed it at the plaintiff
threating that he would blow out the plaintiffs brain. This was held to be an act of
assault. Thus it is the intention accompanied by the act that makes the assault
complete; words in such a case give colour to the act, to the effect that there is
absence of intention to make an assault. To say that I will commit an assault, is no
assault.
5. Bavisetti Venkata Surya Rao v Nandipati Muthayya 4: the plaintiff, a well-to-do
agriculturist, was in arrears of land revenue amounting to Rs. 11.60. The village
munsif, who had a duty to collect the amount, went to the plaintiffs residence on
March 31, 1956 for the collection of the amount. On demand being made, 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 defendant insisted to have the payment the very day, that
being the last day of the year for the collection of the revenue. The plaintiff was told
that on his failure to pay, his movable property will be detrained. Since the plaintiffs
house was locked and no other movables were readily available, the defendant told
him that the earring which the plaintiff was wearing would be detrained. The village
goldsmith was called. On the arrival of gold smith, one of the persons present there,
paid off the amount due from the plaintiff by borrowing the same from another
person. The defendant then went away quietly. The plaintiff sued the village munsif
alleging that apart from other wrongs, the defendant had committed assault. It was
held that since the defendant, after the arrival of goldsmith, 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, there was
no assault.

4 A.I.R. 1964 A. P. 382

6. Tubervell v Savage5: in the course of a furious argument, 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. Held: this did not amount to an assault.
7. Read v Coker6: Coker demanded that Read leave the premises where he was, saying
that he would break Reads neck if he did not go. Held: this constituted assault against
Read.
8. R v Ireland7: The defendant made a series of silent telephone calls over three months
to three different women. He was convicted under s.47 Offences against the Person
Act 1861. He appealed contending that silence cannot amount to an assault and that
psychiatric injury is not bodily harm. Held: His conviction was upheld. Silence can
amount to an assault and psychiatric injury can amount to bodily harm.
9. Thomas v National Union of Miners8: During the 1984-85 miners strike, 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. 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.
Dismissing their clam, 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 do not understand how even the most violent of threats or
gesture could be said to constitute an assault. The working miners were effectively
protected by the police and, as a result, the requirements of immediacy and directness
were not met.

5 (1699) 1 Mod Rep 3


6 (1853) 13 CB 850
7 (1998) HL
8 South wales area (1986) HC

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