Torts Against Person and Personal Relations: Assault and Battery

Assault & Battery are forms of trespass to person.

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.

Prof. Winfield defines assault as “an act of the defendant which causes to the plaintiff reasonable apprehension of the infliction of a battery on him by the defendant”.

In A.C. Cama v. H.F. Morgan, (1864) 1 BHC 205, Arnould, C.J. aptly observed that,

“any gesture calculated to excite in the party threatened a reasonable apprehension that the party threatening intends immediately to offer violence, or ……..about to use criminal force to the person threatened constitute, if coupled with a present ability to carry such intention in execution, an assault in law”.

Assault is an offence under section 351 of the Indian Penal Code.

Mere words, may be insulting or menacing, would not amount to assault unless they produce fear of immediate violence.

Mere verbal threat is no assault, nor is a threat consisting of gestures, unless there be an immediate intention and present ability to carry out.

The plaintiff must prove the following to be successful in an action for assault:

a. that there was some gesture or preparation which constituted a threat or force,

b. that the gesture or preparation was such as to cause a reasonable apprehension of force; and

c. that there was a present ostensible ability on the defendant’s part to carry out a threat into execution immediately.

Read v. Coke, 138 ER 1437

The defendant told the plaintiff to leave the premises in occupation of the plaintiff. When the plaintiff refused the defendant collected some of his workmen who mustered round the plaintiff, tucking up their sleeves and aprons and threatened to break the plaintiff’s neck if he did not leave. The plaintiffs left and brought an action of trespass for assault.

In holding in favour of the plaintiff, Jervis C.J. observed: “The facts here clearly showed that the defendant was guilty of assault. There was a threat of violence exhibiting an intention to assault, and a present ability to carry the threat into execution”.

Bribal Kalifa v. Emperor, IIR 30 Cal. 97

The accused was registered as a bad character by the police; a Sub-Inspector paid him a domiciliary visit in order to ascertain if he was at home. He called to the accused who came out, whereupon the former wished to take an impression of his thumb. The accused objected to it, but on the other hand, extending his hand, the accused went inside the house and brought a ‘lathi’ saying that he would break the head of any one who asked for it.

It was held that threat being conditional did not amount to assault.

Stephens v. Myers, (1830) 4 C & P 349

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.

Following acts were held to be assault by the courts.

Presenting a loaded pistol at anyone, R v. James, (1844) 1 C & K 530; Osborn v. Veirch, (1858) 1 F and F 317

Pointing or brandishing a weapon at another with the intention of using it, Genner v. Sparkes, (1704) 1 Salk 79

Riding after a person and obliging him to seek shelter to avoid being beaten, Mortin v. Shoppee, (1828) 3 C & P 373

A battery is an intentional and direct application of any physical force to the person of another.

It is the actual striking of another person, or touching him in a rude, angry, revengeful, or insolent manner.

The tort of battery corresponds to the offence “the use of criminal force” in Section 350 of the Indian Penal Code.

Cole v. Turner, (1704) 6 Mod 149

Holt, C.J. declared:

“First, that the least touching of another in anger is a battery. Secondly, if two or more meet in a narrow passage and without any violence or design of harm, the one touches the other gently, it will be no battery. Thirdly, if any of them uses violence against the other, to force his way in a rude inordinate manner, it will be a battery; or nay struggle about the passage to that degree as may do hurt will be a battery”.

The plaintiff must prove in an action for battery the following essential ingradients:

a. the use of force to him, either to his body, or bringing an object in contact with his body.

Spitting in the face, The Queen v. Cotesworth, (1704) 6 Mod 172

Throwing over a chair or carriage in which another person is sitting, Hopper v. Reeve, (1817) 7 Taunt 698

Taking a person by the collar, Wiffin v. Kincard, (1807) 2 B & P N R 471

b. that the use of force was intentional i.e. without lawful justification

c. The force must be applied against the plaintiff without his consent, express or implied.

Wilson v. Pringle, (1987) Q.B. 237

For the purposes of battery the required intention is to touch the person of another unlawfully and it is not necessary that there should be intention to cause any harm.

Hurst v. Pictures Theatres Ltd. (1915) 1 KB 1

The Plaintiff has purchased a ticket for a seat at a cinema show. He was forcibly turned out of his seat by the direction of the manager, who was acting under a mistaken belief that the plaintiff had not paid for his seat.

It was held that the purchaser of a ticket for a seat at a theatre or other similar entertainment has a right to stay and witness the whole of the performance, provided he behaves properly and complies with the rules of the management.

Thus the plaintiff was entitled to recover substantial damages.

Nash v. Sheen, (1953) CLY 3726

A lady went to a hair dressing shop in order to obtain wave in her hair. The shop keeper applied “Two Riuse”, which not only dyed her hair in an unpleasing colour but also provoked painful rash all over her body.

It was held that to be battery, as she had consented only for obtaining of wave and not for the application of colouring matter.

Saheli v. Commissioner of Police, Delhi, AIR 1990 Sc 513

The petitioner and her minor son were beaten by landlord and police in order to get the tenement, in which they were living, vacated. As a consequence the son dies. The petitioner was held entitled to get compensation for the death of her son from Delhi Administration because the death of the petitioners son was caused by the beating and assault by the agency of the sovereign power acing in violation and excess of the power vested in such agency.

A battery includes an assault which briefly stated is an overt act evidencing immediate intention to commit a battery. But there are some points of distinction between assault and battery, as follows:

a. In Assault actual contact is not necessary. Physical contact is necessary to accomplish it.

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.

Pursell v. Horn, (1832) 3 N & P 564

To throw water at a person is an assault; if any drops fall upon him it is a battery.

b. An assault is an attempt at battery, or a threat to commit battery.

If a person angrily advances, it will be an assault; but if he comes in actual contact with the other person, then it would be battery.

1. Self defence

2. Expulsion of trespasser

3. Retaking of goods

4. Exercise of parental and quasi parental authority

5. Leave and license

6. Preservation of public peace. 7. Legal process E.g. arresting a person, feeding one who is on hunger strike

to save his life etc

A civil action lies for an assault, and criminal proceedings may also be taken against the wrong doer.

Akhil Chandra Biswas v. Akhil Chandra Dey, (1902) 6 CWN 915

The fact that the wrong-doer has been fined by a Criminal Court for assault is no bar to a civil action against him for damages.

Ali Buksh Doctor v. Sheikh Samiruddin, (1869) 4 Beng LR (ACJ) 32

The previous conviction of the wrongdoer in a criminal Court is no evidence of assault. The factum of the assault must be tried in a civil court which is not bound by conviction or acquittal in a criminal proceeding.

Thank You!