Torts in a general sense are concerned with a lesser degree of wrongs as
compared to criminal law, essentially leading to the resolve of unliquidated
damages, injunction, compensation etc.
A fundamental aspect of tort law is Assault and battery, in this topic there is
a lot of discussion, confusion and much needed clarification, What is assault
and battery and what comes under its umbrella of discussion.
Assault's definition is accepted as an intentional act by the tortfeasor that
puts the person on whom the act was done, into a state of reasonable
apprehension of imminent harm or offensive contact, the important point to take
into account is that physical touch or force is not needed to constitute an
assault in a legal tortious sense, it is just a mere act of intimidation in its
It is also important to note that, the definition of assault has the term of,
'intentional act', now 'intention' mean an that an act in not intentional, even
though an act may not be accidental, motive is irrelevant, the motive of an act
by the tortfeasor need not have a guilty motive to cause harm or damage, but
rather only the intention to do that specific act, for eg. If A scared B by
pointing a gun at B, and then B subsequently stated that it merely a joke to
scare his friend, B would still be liable.Although now the complications of A
'reasonable apprehension' comes into play.
refers the to persons belief on whom the act is
occurred, whether that act would lead to imminent harm of themselves, an
important factor is that they do not need to prove fear itself, rather they
simply have to prove that it was in their purview of though that this act may
lead to imminent harm, now if the tortfeasor and victim have no connection or
relation to each other, then the legal standard would be what a reasonable
prudent man would think in the role of the victim
On the other hand, if there is known relation between the tortfeasor and the
victim, then based on the prevailing connection between the parties, the
victim's 'reasonable apprehension' would have to determined whether it was
reasonable or not
Now the interpretation of what constitutes an offensive or harmful act can be
inferred by the socially acceptable norms of physical touch and subsequently
violation the social norms, however an inoffensive act may be interpreted as an
offensive one if the tortfeasor was aware that the victim was averse to that
Battery in the other sense is defined as an intentional act that results in
physical impairment or harmful/offensive contact to another person, there is
direct physical contact in this wrong
The degree of physical harmful act is not relevant, as long as there is physical
touch that the victim considered an act that caused them harm, for example a
mere touch of a finger may be considered as battery, but in this cases, the
victim may be given nominal damages even though there was no damage just for the
fact to acknowledge there was a violation. It is also important to note that if
it is proved that the tortfeasor acted with malice, then the victim may be
awarded punitive damages which are additional damages
For battery, it need not be only body to body contact, the act of throwing a
rock on someone or throwing a scalding jug of boiling water would constitute
battery, as there was physical touch.
Consent is one very fundamental aspect at play, only way the tort of battery can
applied in a valid way is when, the act performed was not known to the victim
which was planned by the tortfeasor, for eg If a dentist extracts a tooth and
sells it, lets on the black market, it would constitute as battery, but if the
dentist informed the patient that there was tooth he was going to remove for a
specific reason, and then the dentist extracted the tooth, the dentist would
have no liability over him
Also in the case of battery, the restatement of harm is quite vital, damage is
compulsory for the complete formation of a battery, whether it be physical,
mental or emotional, it is not in a limited bubble of physical harm.
The statements of both the definitions were fundamental to understand the
clarification between the two, we can now understand what defenses are used in
the cases of assault and/or battery to abscond liability.
One very common defense used is the defense of Self-Defense
In this, assault and/or battery is committed to deter or save yourself from an
already ongoing unlawful threat, an important aspect is that the victim needs to
prove that he committed a tort for the sole reason of protecting himself and
needs to prove that there was no provocation on his side to the other party
Although the most common and effective, there are limitations to this defense,
for eg the force used to propel the other needs to be proportionate to force
that affected or threatened to affect him, there are certain elements to be met
for this defense to be valid.
Another defense that can be used is the defense of other, the main point of
difference in this defense, than compared to self-defense is that, in this,
instead of using force or the threat of using force to save yourself, it used to
save another person, there must be an apparent reasonable threat to the other
We then have the defense of property, where the force or threat of force is used
to deter a threat or actual harmful force to another person's property.
There are some other general defenses for torts that can be used as a defense of
assault and battery, for example:
Volenti Non Fit Injuria
which is a defense that states the victim
consents to suffer some misery, If a victims knows about the knowledge of a harm
that can injure him and he willingly consents to suffer some harm, then he
cannnot claim any sort of liability, for example in a fencing match, both
players consent to fight each other using dull edged lances, now one player
cannot sue the other if, while in the process of the match, hurts the other
player with his lance because the player has the knowledge of that and consented
to possibly suffer it.
There is also the defense of Inevitable accident, in this situation, there is an
accident that occurs which could not be anticipated or expected by any
reasonable or prudent man, and could not have been prevented by taking due care,
for eg. in the case of Simon v. Powell,
the two parties had gone hunting
with rifles, now in the course of the hunt, one of them shot at prey, but in
that process, the bullet missed and bounced and ricocheted of a tree trunk and
went back and hit the other party, the other party subsequently sued for the
tort of battery and demanded damages, this case was dismissed under the defense
of inevitable accident, as this situation could not have been prevented by
taking due care and could not be predicted in any sense.
In some rare cases, the defense of Statutory Authority can be used to defer
liability in cases of assault and battery, now any act permitted in the purview
of law is known as statutory authority and cannot have an liability against
them, now in the case of assault and battery, an example of lathi charge can be
taken, where police is allowed to use the force of lathis or strick in order to
control and mediate a riot/protest, the officers using force would not have any
liability against them as this act was permitted by the law and was a sovereign
function of the state.
Some case citations:
Fagan v. M.P.C.
 1 Q.B. 439 Facts: A police officer (V) ordered a
driver (D) to park his car so that the officer could question him. D stopped the
car so that its wheel was on top of V's foot, and turned off the car. V shouted
to D to get off of his foot. D shouted back some angry words and initially
refused, but less than a minute later, he turned the car back on and moved off
of V's foot. It could not be proved that D first hit V's foot deliberately.
D appealed his conviction of assault, arguing that his inaction was an omission,
and one cannot commit assault by omission according to a longstanding rule.
Held: Appeal dismissed. D's leaving the car on V's foot was technically not an
omission, but a "continuing act." A distinction must be drawn between omissions
after completed actions versus continuing actions. D's parking on V's foot was
part of an act that continued as he sat in his car and used words indicating he
would keep it there.
Further, D's conduct was not an assault at first because, although the AR
existed, D lacked MR for assault (which, at that time, was intention not
recklessness). But when D became aware that his car was on V's foot and he
refused to move, he developed the MR and his actions became an assault.
This case establishes a few points:
Thomas v National Union of Mineworkers
- the "continuing act principle" that MR can be formed during an
- One still cannot assault by omission;
- It states the modern AR for assault.
 Ch. 20 (traditional
view) Facts: (This was a civil case involving the tort of assault, which is a
different issue, but it is still relevant to the crime of assault). Coal miners
had voted to go on strike, but some workers broke the strike and continued
working. The striking workers gathered daily at the gates of the colliery and
yelled insults and threats at workers who entered in vehicles.
Police were at the gates to keep order. Some of the workers sued the union under
the tort of assault. Held: There can be no assault where the threat is not
immediately possible. Because the workers were in vehicles and police were
present, no threat could be imminent. This case represents the older,
Written By: Ayush Garg And Kashish Khanduja
Please Drop Your Comments