7/9/22, 2:22 PM Assault as a tort and its Remedies : Overview and Analysis

Assault as a tort and its Remedies

By Diva Rai - September 21, 2019

Image source - http://bit.ly/2lZgfCi

This article is written by Shubhangi Sharma, a 5th-year student of BA LLB in Lloyd Law
College, Greater Noida. The article discusses about assault as tort and its remedies.

Table of Contents 
1. What is a Tort?
2. Examples of Torts
3. Assault
4. Elements of Assault
4.1. Difference between Assault and Battery
4.2. Difference between Criminal and Civil Assault
4.3. Legal defenses on charges of Assault
5. Cases
6. Remedies
7. Conclusion

What is a Tort?
The word tort has been derived from the word “tortum” is a Latin term which means
twist. The law of tort consists of wrongful acts whereby the wrongdoers violates some
legal rights vested in another person. The law imposes a duty to respect the legal rights
vested in the members of society and the person making breach of that duty is said to
have done the wrongful act. Violations may be due to intentional acts, breach of duty or
violation of law.

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The party who has committed a tort is known as tortfeasor. When a tortfeasor incur tort
liability, which means that they have to compensate the victim for the harm which has
caused by them. In other words, the tortfeasor will have to pay damages if he is found
“liable” or found responsible for a person’s injuries. 

The law of Tort in India has evolved from the Law of torts in the UK which is most
popularly known as “Judge Made Law” and the law of tort does not come from a statute
and is uncodified. Despite this, it has existed for many years, although the number of
cases of tort have declined. The number of cases of tort or tort litigation is less as
compared to the cases of tort filed in Britain and the United States. The Indian law of
tort got its shape after the principle of law of tort developed in the UK. Most of the
landmark judgements of tort in India is based on the judgements of House of Lords/
courts in England. In India, the tort cases are tried in civil courts and the relief awarded
includes damages by way of monetary compensation or an order of injunction or
restitution. The law of Tort serves two basic, common objectives:

1. Compensation to the victim for any harm resulting from a breach of defence.

2. Discouraging the rescuer from repeating the violation in the future.

Examples of Torts
Some common examples of torts include:

1. Negligence-related claims.

2. Civil assault/civil battery.

3. Wrongful death claims.

4. Trespassing.

5. Products liability and dangerous product.

6. Intentional infliction of emotional distress.

Assault
In common law, assault is a tort, an act of the defendant which causes to the plaintiff
reasonable apprehension of the infliction of a battery on him by the defendant. When the
defendant creates his act by an apprehension in the mind of the plaintiff that he is going
to commit battery against the plaintiff, the wrong of assault is completed. The wrong
consists of an attempt to do harm rather than the harm being caused thereby. In assault
charges must include conduct that is offensive which is offensive or causes another
person to the fear of their safety. This clearly means that one can be guilty of assault
even if he/she did not physically harm the victim. In the case of R. v. S. George, the
pointing of loaded gun to another is an assault. If the pistol is not loaded, then even it
may be an assault, if pointed at such a distance that it may cause injury. if a person
advances the manner of threatening to use force , then there is assault. This was
decided in the case of Stephens v. Myers.

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Elements of Assault
If one or more elements have not been satisfied then It can be a defense to an assault
charge. Elements of the crime of assault are:

An act or conduct intended to created: To prove a criminal attack, the defendants’

behaviour must be motivated to create a situation of fear or danger in the victim’s mind.
Accident acts do not include allegations of assault.

A reasonable apprehension: Further, the victim must reasonably believe that the
defendant’s conduct will harm or humiliate him. The victim must understand the
defendant’s potentially harmful or offensive acts.

Of imminent harm: The victim’s fear must be a direct response to a threat that is
imminent. Future threats, such as “I will beat you tommorrow”, will not result in assault
charges. In addition, there must be some kind of perceived physical threat to the victim
in the loss; For this reason, words by themselves generally do not constitute an attack.

It is believed that the defendant’s actions would cause physical danger or abusive
behaviour to the victim. Thus, the pretence of kicking or punching the victim may be an
attack, as will attempt to spit on the victim (aggressive behaviour).

All of the above elements must be present and the evidence must be supported with
evidence if found guilty for the attack.

It can be difficult to prove whether the defendant actually intended the attack. Similarly,
judges often spend a lot of time determining whether a defendant’s actions are
considered harmful or abusive. In determining this, they will consider what an average
person may perceive as harmful or aggressive.

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Difference between Assault and Battery

  Assault Battery

Battery includes intentional

Assault is the attempt to commit application of force to another
Definition
battery. person without any lawful
justification.

Physical contact is needed.

 
Threat of violence is enough for
Important
assault. No physical contact is  
aspect
necessary.
 

· There should be use of force.

Create reasonable apprehension in
· The same should be, without any
Principle the plaintiff’s mind that immediate
lawful justification.
force will also be used.

Objective To threaten a person. To cause harm.

Nature Not necessarily physical. Must be physical.

                Click Above

Difference between Criminal and Civil Assault

  Civil assault Criminal assault

Meaning In civil assault, to sue If the respondent is convicted, he may be

the respondent for the imprisoned, and may also have to pay a fine
full extent of his loss, and reinstatement. But the fine would be paid
including lost earnings to the government, and restitution would most

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and pain and suffering likely cover only the medical bills, not your
of the past and future. non-economic losses such as pain and suffering
stemming from the incident.
Procedure
 
In civil assault case, a
District Attorney is not
 
involved. The matter After an attack, the victim should report to the
is brought by the police. The police will then make an arrest,
 
plaintiff. The plaintiff take action on the alleged attacker and refer
has more control in the case to the District Attorney.
 
the case of civil  
assault.
 
   

 
  When the plaintiff wins, the defendant will not
go to jail, but will have to pay financial
 
A win for the District compensation.
Attorney, results in jail
Punishment
term, a fine, or both.

Legal defenses on charges of Assault

As with other types of criminal charges, there may be some defenses to assault charges.
This will depend on each individual case, as well as other factors such as state law.
Faults commonly charged with assault charges include:

1. Self-defense: This could be a defense if the defendant was acting out of self-
defense. They should only use the amount or display of force that is appropriate in the
situation and in proportion to the force being used against them.

2. Intoxication: In some cases, intoxication can be a legal defense, especially in cases

where intoxication affects a person’s ability to act intentionally.

3. Coercion: This may be a defense if the defendant was forced to attack under threat
of harm (for example, if they are being held at gunpoint and for assault at the behest
of someone).

4. Lack of proof / proof: As stated above, if the elements of proof are not found or
supported with the correct evidence, it can serve as a legal defense.

Many other types of avoidance may exist depending on the circumstances.

Cases
Fagan v Commissioner of Police for the Metropolis

Fagan was sitting in his car when he was approached by a police officer who asked him
to take the vehicle. Fagan did so, overturned his car and rolled over a police officer’s leg.
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The officer forcefully asked him to remove the car from his leg, to which Fagan swore
him and refused to take the vehicle and shut down the engine. Fagan was convicted of
assaulting a police officer in the execution of his duty. Fagan later appealed the decision.
The court held that, Although assault is an independent crime and is to be treated as
such, for practical purposes today, assault is generally synonymous with battery. On this
basis, it was held that Fagan’s crime was not the refusal to move the car but that having
driven on to the foot of the officer and decided not to cease the act, he had established a
continual act of battery. This meant that actus Reus and mens rea were present and as
such, an assault was committed. Fagan’s conviction was upheld.

R. V. Constanza

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. 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.

Remedies
1. Action for damages- Whenever the plaintiff has been wrongfully detained, he can
always bring an action to claim damages. Compensation may be claimed not only for
injury to the liberty but also for disgrace and humiliation which may be caused
thereby. According to McGregor on damages, the details of how the damages worked
in false imprisonment are few: generally, it is not a pecuniary loss or of dignity and is
left to the jury and their discretion. The principle heads for damage would appear to
be the injury to liberty, i.e., the loss of time considered primarily from a non-
pecuniary viewpoint, and the injury to feelings, i.e., the dignity, mental suffering,
disgrace and humiliation with any attendant loss of social status.

2. Self help– This is the remedy which is available to a person who while he is still
under detention instead of waiting for legal action and procuring his release thereby.

3. Habeas Corpus– It is speedier remedy for procuring the release of a person who is
wrongfully detained. Such a writ may be issued either by the Supreme Court under
Article 32 or by a High Court under Article 226 of Indian Constitution. By this writ
person detaining is required to produce the detained person before the court and
justify the detention. If the court finds the detention is without any just or reasonable
ground, it will order that the person detained should be immediately released.

It is just possible that the person wrongfully detained may have been set free by the
time the writ of habeas corpus is disposed off. The court hearing the petition may grant
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compensation as ancillary relief in such cases . in the case of Rudal Shah v. State of
Bihar and Bhim Singh v State of J&K, the Supreme Court granted such compensation in
writs of habeas corpus.

Conclusion
Assault is an attempted offense, the law is intended to prevent possible battery by
punishing conduct that comes in a dangerous way to obtain battery. As with most
attempted crimes, a clear line cannot be drawn between a criminal attack and conduct
that is merely an attack preparation. There should be an intention to cause harm, but it
is not enough if it creates the possibility of damage or the danger of battery in a
distorted future. Instead, the intent must be taken out of imminent danger, some overt
act that endangers the battery. Thus, words or intentions do not constitute mere attack.

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