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Tort of Assault and its Remedies

What exactly is a Tort?

The term tort is derived from the Latin term "Tortum" which means "Twist." Tort law refers to wrongful acts in which the wrongdoer violates the legal rights of another person. The law imposes a duty on members of society to respect their legal rights, and the person who violates that duty is said to have committed the wrongful act. Intentional acts, breach of duty, or law violations can all result in violations.

Tortfeasor is the party who has committed a tort. When a tortfeasor incurs tort liability, it means that they must compensate the victim for the harm they caused. In other words, if the tortfeasor is found "liable" or responsible for a person's injuries, he must pay damages.

The tort law in India evolved from the tort law in the United Kingdom, which is popularly known as "Judge Made Law," and the tort law does not come from a statute and is uncodified. Despite this, it has existed for many years, though the number of tort cases has decreased. The number of tort cases or tort litigation is lower than in the United Kingdom and the United States. The Indian tort law evolved from the tort law principle developed in the United Kingdom. The majority of landmark tort decisions in India are based on decisions of the House of Lords/ courts in England.

Tort cases are tried in civil courts in India, and the relief awarded includes monetary compensation or an order of injunction or restitution.

Tort Law Serves Two Fundamental, Common Goals:

  1. Compensation to the victim for any damages caused by a breach of defence.
  2. Preventing the rescuer from repeating the offence in the future.

Torts Examples:

Torts Are Commonly Used In The Following Situations:
  • Claims based on negligence.
  • Civil assault and battery
  • Claims for wrongful death
  • Trespassing.
  • Product liability and hazardous goods
  • Intentionally causing emotional distress.


In common law, assault is a tort, defined as an act of the defendant that gives the plaintiff reasonable fear of the defendant inflicting a battery on him. The wrong of assault is completed when the defendant creates his act by instilling fear in the plaintiff's mind that he is going to commit battery against the plaintiff. The wrong consists of attempting to do harm rather than causing harm. In assault charges, offensive conduct that is offensive or causes another person to fear for their safety must be included.

This clearly implies that one can be charged with assault even if he or she does not physically harm the victim. In the case of R. v. S. George, pointing a loaded gun at another person is considered an assault.

Even if the pistol is not loaded, pointing it at a distance that could cause injury may constitute an assault. There is assault if a person advances in the manner of threatening to use force. Stephens v. Myers was the case that decided this.

Assault Elements
It can be a defence to an assault charge if one or more elements are not met. Assault crimes include the following elements:

An act or behaviour intended to produce:
To establish a criminal attack, the defendants' behaviour must be motivated by a desire to instil fear or danger in the victim's mind. Allegations of assault are not included in accident acts.

A reasonable fear:
The victim must also have a reasonable fear that the defendant's actions will harm or humiliate him. The victim must be aware of the defendant's potentially harmful or offensive behaviour.

Imminent harm:
The victim's fear must be a direct reaction to an impending threat. Threats like "I'll beat you tomorrow" will not result in assault charges in the future. Furthermore, there must be some kind of perceived physical threat to the victim in the loss; as a result, words by themselves do not generally constitute an attack.

It is believed that the defendant's actions would endanger or abuse the victim physically. Thus, pretending to kick or punch the victim is an attack, as is attempting to spit on the victim (aggressive behaviour). If found guilty of the attack, all of the above elements must be present, and the evidence must be supported by evidence.

It can be difficult to prove whether the defendant intended to carry out the attack. Similarly, judges frequently spend a significant amount of time determining whether a defendant's actions are harmful or abusive. In determining this, they will take into account what the average person might perceive as harmful or aggressive.

Difference between Assault and Battery

Assault Battery
Definition The attempt to commit battery is known as assault. The intentional use of force against another person without a legal justification is referred to as battery.

Physical Contact Violence alone is sufficient to constitute assault. Physical interaction is required.
Principle Create a plausible fear of immediate force being used in the plaintiff's mind.
  • Force should be used
  • The same ought to apply, without any legitimate justification..
Objective Threat against a person Harm to cause.
Not always physically. Physical interaction is required.

Difference Between Criminal and Civil Assault

Civil Assault Criminal Assault
Meaning Sue the respondent in a civil assault case for the full amount of his damages, including lost wages and past and future pain and suffering. If the respondent is found guilty, he may face jail time, a fine, and reinstatement in society. However, the fine would be paid to the government, and restitution would probably only pay for medical expenses, leaving you with no compensation for non-financial losses like pain and suffering resulting from the incident.
Procedure: The district attorney is not involved in civil assault cases. The plaintiff filed the complaint. In the event of a civil assault, the plaintiff has more power. The victim of an assault should call the police right away. The police will then detain the alleged attacker, take appropriate action against him, and refer the matter to the district attorney.
Punishment: If the district attorney prevails, they may receive a jail sentence, a fine, or both. If the plaintiff prevails, the defendant will be forced to make restitution and not face jail time.

Legal Rebuttals To Assault Allegations

There may be some defences to assault charges, just like there are for other criminal offences. This will vary depending on the specifics of each case as well as other elements like state law. Typical offences that result in assault charges include:

If the defendant was acting in self-defense, this may be a defence. They must only use or display force in proportion to the force being used against them, according to the circumstances.

In some circumstances, intoxication may serve as a legal defence, particularly when it impairs a person's capacity for deliberate action.

If the defendant was coerced into attacking under duress, this could be a defence (for example, if they are being held at gunpoint and for assault at the behest of someone).

Lack of proof:
As previously mentioned, if the elements of proof are missing or not backed up by the proper evidence, it may be used as a legal defence.

Fagan v. Metropolis Commissioner of Police
Fagan was driving when a police officer approached him and asked him to take the car. Fagan did this, flipping his vehicle over and rolling over a policeman's leg. Fagan swore at the officer and refused to take the car, which the officer then demanded he do in order to shut off the engine. Fagan was found guilty of attacking a police officer who was performing his duty. Later, Fagan appealed the verdict.

The court ruled that although assault is a separate offence and must be handled as such, for all intents and purposes today, assault and battery are synonymous. Due to this, it was determined that Fagan had committed a continuous act of battery rather than simply refusing to move the car away from the officer's foot. This was because he had driven right up to the officer's foot and decided not to stop. As a result, an assault was committed because actus reus and mens rea were present. The verdict against Fagan was upheld.

R. v. Constanza
A man was found guilty of assaulting an ex-coworker who suffered actual bodily harm. For nearly two years, the man drove past the woman's house, visited her without her permission, followed her home from work, made numerous silent phone calls, wrote her more than 800 letters, and three times scrawled offensive words on her door.

She then received two more letters with threatening language as a result of these actions. A doctor soon determined that she had clinical depression and anxiety as a result of her perception of the man's actions and letters as being frightening. A man was found guilty of assaulting an ex-coworker who suffered actual bodily harm.

For nearly two years, the man drove past the woman's house, visited her without her permission, followed her home from work, made numerous silent phone calls, wrote her more than 800 letters, and three times scrawled offensive words on her door. She then received two more letters with threatening language as a result of these actions. A doctor soon determined that she had clinical depression and anxiety as a result of her perception of the man's actions and letters as being frightening.


Action for Damages:

In the event that the plaintiff has been unjustly detained, he may always file a claim for damages. Compensation may be sought not only for harm to one's liberty but also for potential humiliation and disgrace. According to McGregor on damages, there are few specifics about how damages in false imprisonment work: typically, it is not a financial loss or a loss of dignity and is left to the jury and their discretion. The main categories of harm would seem to be the injury to liberty, or the loss of time from a non-financial perspective, and the injury to feelings, or the loss of dignity, mental anguish, disgrace, and humiliation with any ensuing loss of social standing.

Self Help:

Instead of waiting for legal action to be taken and obtaining his release thereby, a person who is still in detention has access to self-help as a remedy.

Habeas Corpus:

This is a quicker option for getting someone wrongfully imprisoned released. A High Court may issue such a writ in accordance with Article 226 of the Indian Constitution or the Supreme Court may do so in accordance with Article 32. The person holding the person is required by this writ to present the held person before the court and provide a defence for the hold. The person being held must be released right away if the court determines there is no legitimate reason for their detention.

It is just possible that by the time the habeas corpus writ is resolved, the person who was unjustly detained may have been released. In these situations, the court hearing the petition may award compensation as ancillary relief. In the writs of habeas corpus cases Rudal Shah v. State of Bihar and Bhim Singh v. State of J&K, the Supreme Court granted such compensation.

The law is designed to deter potential battery by punishing behaviour that poses a risk of obtaining battery because assault is an attempted offence. It is difficult to distinguish between criminal behaviour and actions that are merely attack preparation, as is the case with the majority of attempted crimes. It is necessary to have the intent to harm, but it is insufficient if doing so raises the risk of harm or battery in an altered future. In its place, some overt act that puts the battery in danger must be used to remove the intent. Intentions or words therefore go beyond simple attack.

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