Essentials of Assault:

1. it must be an direct threat made by the defendant to the plaintiff

2. the act of the defendant must have been such that a reasonable man might fear that violent was
about to be applied to him

It must be an direct threat made by the defendant to the plaintiff

the effect of which is to put the plaintiff in reasonable fear or apprehension of immediate physical
contact with his person. For proving assault there is no need for having suffered any physical harm. For
example, if A takes out the gun pretending it to be loaded, in front of B. B in the apprehension of fear
suffers shock. Then A would be held liable for assault on B, even if the gun wasn’t loaded.

Compare the cases of Stephens v Myers and Read v Coker with R v Constanza

Stephen v. Myers (1830)

The Claimant was a chairman at a meeting sat at a table where the Defendant was sat. There were six or
seven people between the Claimant and Defendant. The Defendant was disruptive and a motion was
passed that he should leave the room. The Defendant said he would rather pull the chairman out of his
chair and immediately advanced with his fist clenched towards the Claimant but was stopped by the
man sat next to the chairman. It seemed that his intention was to hit the Claimant. The Defendant
argued that there was no assault as he had no power to carry out his threat as there were people in
between. The court said that not every threat is an assault. There needs to be a means of carrying that
threat into effect: it must a realistic threat of personal violence . The judge directed the jury (as juries
were still in use at the time) that if the Defendant could have reached the chairman and hit him there
was an assault. But if the Defendant did not have the intention of hitting the Claimant, or it was not
realistic that he could reach the Claimant, then there is no assault. The jury found for the Claimant.

Read v. Coker (1853)

In Read v Coker (1853) the Claimant was told to leave the premises where he conducted his business. He
refused and the Defendant collected some workmen who stood near the Claimant with their sleeves
rolled up and told him that they would not break his neck if he didn't leave. He did leave and later
brought a successful claim for assault as there was a threat of violence and the means to carry it out.
However, not every conditional threat will be an assault.

R v Roberts (1971)

Facts

A man was convicted of assault occasioning actual bodily harm of a female ex-colleague. For a period of
almost two years, the man followed the women home from work, made numerous silent phone calls,
wrote her over 800 letters, drove past her house, visited her house without consent, and wrote
offensive words on her house’s door three times. Following these actions, she received two additional
letters with threatening language. She was soon diagnosed by a doctor as suffering from clinical
depression and anxiety due to apprehended fear caused by the man’s actions and letters.

Held

The Court stipulated that words alone can constitute an assault, without the presence of physical action,
if they cause the victim to apprehend a fear of immediate violence. Concerning the temporal aspect of
the fear of violence, the Court held that, for the purposes of proving an assault, it is sufficient to
demonstrate that the victim feared violence “at some time not excluding the immediate future.” The
Court held that this element was fulfilled, placing emphasis upon the close proximity of the man’s house
to the victim’s and his delivery of the most recent letters to her house. Accordingly, the Court dismissed
the appeal and upheld the conviction for assault occasioning bodily harm caused solely by words.

The act of the defendant must have been such that a reasonable man might fear that violent was
about to be applied to him

If a person of ordinary courage would have been afraid, the fact the particular plaintiff was afraid will
not make the defendant liable. Conversely, the fact that the plaintiff was exceptionally brave and was
not afraid will not prevent him from succeeding in his claim if a person of ordinary courage would have
been afraid.

See the case of: Smith v Superintendent of Working Police

Smith v Superintendent of Working Police [1983]

Facts

The defendant entered the grounds of a private enclosed garden at 11 pm. He stood and looked through
the window of Miss M’s bedroom. Miss M saw the defendant staring at her through the window while
she was in her night closes, causing her to jump and scream in fright. She proceeded to call the police
whilst in her frightened state.

Held

In the present case, the defendant had a clear intention to cause fear, and that intended effect
materialized as his actions frightened Miss M, causing her to scream and be terrified of the defendant’s
potential actions. It is sufficient to identify the intention of the victim to cause a state of fear and created
a situation where the basis of fear instilled in the victim was as to what the defendant would do next. It
is not requisite to identify the exact nature of the victim’s fear or whether it was possible for the
defendant to carry out the threat of immediate violence. As the defendant entered the private property
with the intention of frightening Miss M, and Miss M was indeed frightened, the appeal was dismissed
and the conviction upheld.

Mere words do not amount to an assault but the words which the party threatening uses at the time
may either give gestures such a meaning as may make them amount to an assault, or, on the other
hand, may prevent them from being an assault. Assault of course requires no contact because its
essence is conduct which leads the claimant to apprehend the application of force.

see the case of: R v Ireland

R v Ireland [1998]

The Defendant in this case consistently called three separate women over the course of three months.
During each call he did not speak, but instead breathed heavily on the line. He was prosecuted and
convicted for assault occasioning actual bodily harm contrary to s.47 of the Offences Against the Person
Act 1861 c.100, on the grounds of the psychiatric injury suffered by the victims. The Defendant appealed
his conviction and argued that silence cannot amount to assault and further that psychiatric harm was
not actual bodily harm.

Held

The court held in the affirmative that silence causing psychiatric injury could constitute assault
occasioning ABH under s.47 OAPA 1861. Silence could act as a threat where it was done in a way which
could induce fear in the victim; where the victim is afraid that the threat will be acted on in the near
future, this could amount to an assault. Proximity of the Defendant to the victims is irrelevant to this
determination as fear could be induced equally easily over the telephone as in person. It was held by the
court that repeated phone calls of this nature could be expected to cause a victim to apprehend
immediate and unlawful violence.

Elements of battery

There are three elements that must be conceived to establish a case of battery. The following elements
are as follows:

 An intent to cause harmful

Intention

Ordinary everyday activities can constitute to a battery such as touching someone clothes in a party club
where the touching has to be intentional irrespective of the fact that it was not meant to cause injury. It
will suffice if the defendant brings some material object into contact with the plaintiff, for example,
throwing stones at the plaintiff, to spit on his face, to knock over a chairing which he is sitting or to set a
dog upon him. If the touching was not intentional it would be categorized as negligence.

In the case of Marube vs Nyamuro CA No.8 1983, the appellant, an infant, sued through his father for
battery suffered when the respondent was flogging him with a rope which hit his right eye causing him
to lose that eye. According to testimony of the appellant and other pupils, the injury suffered was a
result of the deliberate act of the respondent.
The defense of the respondent was that it was a mistake and he didn’t intend to hit the appellant on the
eye. The court held that flogging the claimant was intentional irrespective of whether or not harm was
intended. And since harm resulted from this, he would be liable. Thus, damages of 30,000 sh were
awarded.

It should be noted that if the tortfeasor intends to hit someone but he misses and it touches someone
else, the principle of transferred malice would be considered in order to place liability on him.

In the case of Livingstone vs Ministry of Defence 1984 356 NICA, a soldier in Northern Ireland fired a
baton round at a rioter. The round missed the rioter and hit the claimant. The principle of transferred
malice was applied and the soldier was held liable.

2. It Must Be Direct

To be liable for battery, the injury must be as a direct result of the intentional act of the tortfeasor.

In Scott vs Shepherd 1773 WM 1892, Shepherd threw a lighted squib into the market and it landed on
the stall of a ginger bread seller. Willis picked it up and threw it away, it landed on Ryal’s stall, who
picked it up and threw it away. It struck the claimant in the face and blinded him in one eye.

The court held that the injury was a result of the action of defendant and he was held liable for battery.

In Gibbons vs Pepper (1695) ILD RAYM 38, the defendant whipped a horse so that it bolted and ran
down the claimant. It was held that the injury suffered by the plaintiff was a direct result of the
defendant’s action. He was thus held liable for battery.

It should be noted that the force applied does not have to be personal contact. For instance in Pursell vs
Horn (1838) 8 A&E 602, the claimant went to the saloon to get a permanent wave. However, at the
salon, D threw water on the plaintiff. The defendant was held liable.

Use of force

However mere passive obstruction can’t be an offense of battery. Like in the case of Innes vs. Wylie[3]
the policeman wrongfully restrains a person from entering a club. It was held that if the policeman was
entirely passive like a door or a wall put to prevent someone from entering the premises, there was no
battery.

Without Lawful Justification

For the purpose of proving battery, it is always necessary that the force so used should be unlawful and
without any justification. Therefore if for example, if two persons met each other on road and thereby
passed silently by having some physical contact then there can’t be the offense of battery. But if they
pass each other, and while crossing one of them started fighting with other, then there is an offense
committed of battery by the person who has st. However, harm caused by accident and without
intention is not actionable. Like in the case of Stanley vs. Powell[4] the defendant and plaintiff both were
from the shooting party. While the defendant fired at a pheasant the pellet from his gun revered back
from a tree and accidentally wounded the plaintiff. It was held that the defendant was not held liable, as
the act did was neither intentional nor negligently done. arted the fight.

reference

All Answers ltd, 'R v Ireland – 1998' (Lawteacher.net, February 2020)

All Answers ltd, 'Trespass to Person' (Lawteacher.net, February 2020)

All Answers ltd, 'Cases on Non-Fatal Offences | Assault Cases' (Lawteacher.net, February 2020)
<https://www.lawteacher.net/cases/assault-cases.php?vref=1> accessed 20 February 2020

All Answers ltd, 'Smith v Superintendent of Woking Police' (Lawteacher.net, February 2020)
<https://www.lawteacher.net/cases/smith-v-superintendent-of-woking.php?vref=1> accessed 20
February 2020