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Assault and Essentials of Assault

A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. A tort is when one person or entity inflicts upon another in which the injured party can sue for damages. A tort is different from criminal wrong as it is punishable by the court. In India law of torts was adopted from the United Kingdom which is considered as breach of duty which has harmed the plaintiff in a way which a remedy is available for the plaintiff. Intentional tort is one of the types of law of torts.

An act which can only result from an intentional act of the defendant is known as intentional tort. Depending on the alleged the intent can be given as general or specific intent. To commit an intentional tort, it follows something done for some purpose. To prove that the tort committed is intentional it depends on the mindset of the person who committed the tort. There are several types of intentional torts i.e. Fraud, misrepresentation, defamation, false imprisonment, assault, battery.

Assault and Battery are very closely related. An intentional act which causes another person an apprehension of harm, whether an actual harm is caused or not. A gesture which might cause an apprehension of causing a damage can be constituted as assault. Whereas battery occurs when a physical contact is established. It is defined as harmful or offensive contact with the body of another.

What is an Assault?

An act done by a person which causes and is intended to cause, to another an apprehension of an immediate and harmful or offensive touching of contact with his person is an assault. An Assault is an attempt or offer with violence to do a corporal hurt to another.1

These definitions embody the following essentials

  1. An intent to inflict a battery upon another person or to cause to him an apprehension of a battery;
  2. An act done for this purpose, as distinguished from mere violent or abusive language; and
  3. An apprehension of a battery.

Under common law pleading the appropriate and exclusive form of action for a battery or for an act done with the intention of causing to another person and apprehension of a battery was trespass for an assault and battery. Some courts previously referred to battery as an assault, the averment that a trespass was committed vi et armis; 2 some essentials of a civil assault, in modern law, are identical with those of criminal assault, even though forms of action are no longer of controlling importance and the punitive function of the writ of trespass has been abolished; and some courts in recent cases dealing with assaults, speak of violence offered as causing the plaintiff to strike in self-defense or retreat to avoid blows.

The true test of whether or not the defendant's conduct amounts to an assault is not necessarily its tendency to -produce a breach of the peace, for abusive language has this tendency and it does not, at the common law, constitute an assault. Holds worth refers to a statement in an early case that threatening words which put the plaintiff in fear and caused him damage constituted an assault. But in present threat of violence is necessary to constitute an assault. In modern law the action for an assault is exclusively a private remedy, and it protects the plaintiff's interest in freedom from apprehension of a battery.

What are the essential elements of an Assault?

  1. Physical Contact

    Mere violent and abusive language does not constitute an assault. Threats over the telephone, even at short range, do not constitute an assault. In the latter instance the defendant threatened the plaintiff over the telephone, intimating that he would come over to her home to avenge himself for an assumed wrong. While this would not be an assault, the defendant should have been subject to liability for the intentional infliction of mental suffering.

    "Bare words... are often the exhibition of harmless passion and do not of themselves constitute a breach of the peace, as the law supposes that against mere rudeness of language ordinary firmness will be a sufficient protection." Mere preparation to commit a battery is not an assault. Some physical act, on the part of the defendant, which seems reasonably calculated to result in a battery, is necessary to constitute an assault." There must be an "offer to do violence," or "violence begun to be executed." In most cases the defendant's conduct involved abusive language, or threats, accompanied or followed by a physical act or the use of means reasonably calculated to inflict a battery.

    Thus, in Stephens v. Myers 3 "' the defendant, in the course of an angry discussion, advanced with his fist clenched towards the plaintiff, with an apparent intent to strike him, and was stopped by a third person. The jury was instructed that this constituted an assault. Threatening gestures are sufficient to constitute an assault. Thus, in Motrin v. Shoppe the plaintiff was walking along a footpath and the defendant, who was on horseback, rode after him so as to compel him to run into his own garden for shelter to avoid being beaten; this was held to be an assault on the plaintiff.

  2. Intent

    Ability to Commit a Battery. In addition to a physical act, the defendant must intend to put the plaintiff in apprehension of an immediate and offensive or harmful touching and have the present ability, actual or apparent, to inflict such a touching to be subject to liability for an assault. The intent of the defendant and his ability to commit a battery are generally considered together in the cases, and questions concerning these two essentials usually have been considered in cases involving the use of firearms.

    By the better view, both in civil and criminal assaults, it is not the secret intent of the defendant, nor the undisclosed fact of his ability or inability to commit a battery, that is material; but what his conduct and the attending circumstances denote at the time to the plaintiff. It is the probable and natural effect of the conduct of the defendant on the plaintiff, or the tendency of the defendant's act to induce a breach of the peace, that is important in determining whether or not an assault has been committed.

    Accordingly, an apparent intent and an apparent present ability to commit a battery are, by the better view, sufficient in the law of assault. Thus, where the defendant points a gun at the plaintiff, in a threatening manner, this would constitute an assault, even though the plaintiff may not know whether or not the gun is loaded and even though the gun is not loaded and the defendant knows this."4 All that is necessary is an intentional act on the part of the defendant, reasonably calculated to create apprehension of a present battery, and a fear that he might go further and commit a battery upon the plaintiff's person.

    A reckless act which is likely to produce the personal injury which it actually causes has been held to constitute an assault. Thus, where the defendant whipped up his horses to great speed and yelled loudly and passed the plaintiff and team and vehicle in such manner as to be likely to produce injury, and the act caused the plaintiff's team to run away. An instruction that this constituted an assault was held to be correct." A person who is placed in peril by the negligence of another, but who escapes without physical injury, is not entitled to recover damages because of the apprehension of a physical injury." There is no such thing as a negligent assault.

  3. Apprehension of a Battery

    As a general rule, in order for the defendant's threat or display of force to constitute an assault it must be such as to cause reasonable apprehension of an immediate battery on the part of the plaintiff, that is, the defendant's conduct must be such as would induce a person of ordinary firmness to believe he would immediately receive a harmful or offensive touching. If the plaintiff is peculiarly susceptible to fear and if the defendant knows this and takes advantage of it to intentionally cause him apprehension of a battery, by a threat of display of force that would not affect a person of ordinary firmness, the defendant is subject to liability for an assault. The movement of the defendant, however threatening, which does not cause to the plaintiff a reasonable fear of an immediate battery is not an assault."5

    In some cases dealing with criminal assaults the courts have said that an attempt of the defendant to inflict a battery upon another person may be an assault, even though the other person is ignorant of the attempt until after it has been frustrated or abandoned.

    There is a limitation upon the general rule that the defendant's act or threat must cause the plaintiff reasonable apprehension of an immediate battery, viz., the defendant's threat is an assault though he gives the plaintiff an opportunity to escape the threatened battery by complying with some demand which he (the defendant) has no right to make. In many cases dealing with this limitation there is an apprehension of a battery because the defendant's conduct is such as to cause the plaintiff to doubt the defendant's intent to refrain from inflicting a battery until the demand is complied with or because such immediate compliance is required by the defendant.

    As has been stated in a prior part of this work, mere words, however insulting or abusive, will not constitute an assault. The defendant must do some act in execution of his purpose; and the act and the means used must reasonably appear to the plaintiff to be adapted to the end, or the plaintiff does not suffer a reasonable apprehension of a battery.

    Thus, where the defendant made threatening gestures towards the prosecuting witness with an ax but was not within striking distance of her and not sufficiently near to put her in fear of being struck, he was held not guilty of an assault. On the other hand, while the defendant may not be within "striking distance" of the plaintiff at the time the threatened violence is frustrated or the defendant abandons his purpose, if the distance is such as to induce a person of ordinary firmness to believe he would instantly receive a blow, unless he retreated or struck in self-defense or unless the defendant's efforts were otherwise frustrated or he abandoned his purpose, the plaintiff is placed in reasonable apprehension of a battery.

    Assault occurs when someone threatens bodily harm to another in a convincing way. Assault often is followed by battery, which is defined as unlawful physical conduct (often an act of violence, but also unwelcome sexual contact). Not all threats are considered assault. To rise to the level of an actionable offense (in which the plaintiff may file suit), two main elements must be present:
    1. The act was intended to cause apprehension of harmful or offensive contact; and
    2. The act indeed caused apprehension in the victim that harmful or offensive contact would occur.

    Therefore, a person who intends to cause apprehension of imminent harm and succeeds in doing so has committed the tort of assault, which also is a crime. When determining whether you have a viable cause of action for assault, it's important to fully understand the elements of assault.

  4. Intent to Cause Apprehension

    Assault requires intent, meaning that there has been a deliberate, unjustified interference with the personal right or liberty of another in a way that causes harm. In the tort of assault, intent is established if a reasonable person is substantially certain that certain consequences will result; intent is established whether or not he or she actually intends those consequences to result. Pointing a gun at someone's head is substantially certain to result in apprehension for the victim.

    In criminal law, intent means acting with a criminal or wrongful purpose. Criminal assault statutes often speak of acting "purposely," "knowingly," "recklessly," or "negligently." Acting negligently means to grossly deviate from the standards of normal conduct. Some criminal assault statutes recognize only "purposely," "knowingly," and "recklessly" as the level of intent required to establish that an offense occurred.

  5. 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.
  1. Diva Rai, 'Assault as a tort and its Remedies' (IPleaders, 19 September, 2019) accessed 31 March 2020
  2. W.D. Rollison, 'Assault as a tort' (Norte Dam Law Review, 11 Jan, 1941)
  3. (1830) C and P 349, [1830] EWHC KB J37, [1830] 172 ER 735, [1830] EngR 750, (1830) 4 Car and P 349, (1830) 172 ER 735 (A) Casemine, 'StephenMyers' (Casemine, 2017)
  4. Law library, 'Assault' (Americal Law and LegalInformation, 2020) accessed 31 March 2020
  5. Diva Rai, 'Assault as a tort and its Remedies' (IPleaders, 19 September, 2019) accessed 31 March 2020

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