Torts Against Person and Personal Relations:

Assault and Battery

 Assault & Battery are forms of trespass to person.

 An assault is an attempt or a threat to do a corporeal hurt to

another, coupled with an apparent present ability and
intention to do the act.

 Prof. Winfield defines assault as “an act of the defendant

which causes to the plaintiff reasonable apprehension of the
infliction of a battery on him by the defendant”.
 In A.C. Cama v. H.F. Morgan, (1864) 1 BHC 205, Arnould,
C.J. aptly observed that,

“any gesture calculated to excite in the party threatened a

reasonable apprehension that the party threatening intends
immediately to offer violence, or ……..about to use criminal
force to the person threatened constitute, if coupled with a
present ability to carry such intention in execution, an assault
in law”.

 Assault is an offence under section 351 of the Indian Penal

Code.
 Mere words, may be insulting or menacing, would not
amount to assault unless they produce fear of immediate
violence.

 Mere verbal threat is no assault, nor is a threat consisting of

gestures, unless there be an immediate intention and
present ability to carry out.
 The plaintiff must prove the following to be successful in an
action for assault:

 a. that there was some gesture or preparation which

constituted a threat or force,

 b. that the gesture or preparation was such as to cause a

reasonable apprehension of force; and

 c. that there was a present ostensible ability on the

defendant’s part to carry out a threat into execution
immediately.
 Read v. Coke, 138 ER 1437

 The defendant told the plaintiff to leave the premises in

occupation of the plaintiff. When the plaintiff refused the
defendant collected some of his workmen who mustered
round the plaintiff, tucking up their sleeves and aprons and
threatened to break the plaintiff’s neck if he did not leave.
The plaintiffs left and brought an action of trespass for
assault.

 In holding in favour of the plaintiff, Jervis C.J. observed: “The

facts here clearly showed that the defendant was guilty of
assault. There was a threat of violence exhibiting an
intention to assault, and a present ability to carry the threat
into execution”.
 Bribal Kalifa v. Emperor, IIR 30 Cal. 97

 The accused was registered as a bad character by the

police; a Sub-Inspector paid him a domiciliary visit in order to
ascertain if he was at home. He called to the accused who
came out, whereupon the former wished to take an
impression of his thumb. The accused objected to it, but on
the other hand, extending his hand, the accused went inside
the house and brought a ‘lathi’ saying that he would break
the head of any
one who asked for it.

 It was held that threat being conditional did not amount to

assault.
 Stephens v. Myers, (1830) 4 C & P 349

 It is not every threat, when there is no actual personal

violence that constitutes an assault; there must, in all cases,
be the means of carrying the threat into effect.
 Following acts were held to be assault by the courts.

 Presenting a loaded pistol at anyone, R v. James, (1844)

1 C & K 530; Osborn v. Veirch, (1858) 1 F and F 317

 Pointing or brandishing a weapon at another with the

intention of using it, Genner v. Sparkes, (1704) 1 Salk 79

 Riding after a person and obliging him to seek shelter to

avoid being beaten, Mortin v. Shoppee, (1828) 3 C & P 373
 A battery is an intentional and direct application of any
physical force to the person of another.

 It is the actual striking of another person, or touching him in a

rude, angry, revengeful, or insolent manner.

 The tort of battery corresponds to the offence “the use of

criminal force” in Section 350 of the Indian Penal Code.
 Cole v. Turner, (1704) 6 Mod 149

 Holt, C.J. declared:

 “First, that the least touching of another in anger is a battery.

Secondly, if two or more meet in a narrow passage and
without any violence or design of harm, the one touches the
other gently, it will be no battery. Thirdly, if any of them uses
violence against the other, to force his way in a rude
inordinate manner, it will be a battery; or nay struggle about
the passage to that degree as may do hurt will be a battery”.
 The plaintiff must prove in an action for battery the following
essential ingradients:

 a. the use of force to him, either to his body, or bringing an

object in contact with his body.

 Spitting in the face, The Queen v. Cotesworth, (1704) 6

Mod 172
 Throwing over a chair or carriage in which another
person is sitting, Hopper v. Reeve, (1817) 7 Taunt 698
 Taking a person by the collar, Wiffin v. Kincard, (1807) 2 B
& P N R 471
 b. that the use of force was intentional i.e. without lawful
justification

 c. The force must be applied against the plaintiff without his

consent, express or implied.
 Wilson v. Pringle, (1987) Q.B. 237

 For the purposes of battery the required intention is to touch

the person of another unlawfully and it is not necessary that
there should be intention to cause any harm.
 Hurst v. Pictures Theatres Ltd. (1915) 1 KB 1

 The Plaintiff has purchased a ticket for a seat at a cinema

show. He was forcibly turned out of his seat by the direction
of the manager, who was acting under a mistaken belief that
the plaintiff had not paid for his seat.

 It was held that the purchaser of a ticket for a seat at a

theatre or other similar entertainment has a right to stay and
witness the whole of the performance, provided he behaves
properly and complies with the rules of the management.

 Thus the plaintiff was entitled to recover substantial

damages.
 Nash v. Sheen, (1953) CLY 3726

 A lady went to a hair dressing shop in order to obtain wave in

her hair. The shop keeper applied “Two Riuse”, which not
only dyed her hair in an unpleasing colour but also provoked
painful rash all over her body.

 It was held that to be battery, as she had consented only for

obtaining of wave and not for the application of colouring
matter.
 Saheli v. Commissioner of Police, Delhi, AIR 1990 Sc 513

 The petitioner and her minor son were beaten by landlord

and police in order to get the tenement, in which they were
living, vacated. As a consequence the son dies. The
petitioner was held entitled to get compensation for the death
of her son from Delhi Administration because the death of
the petitioners son was caused by the beating and assault by
the agency of the sovereign power acing in violation and
excess of the power vested in such agency.
 A battery includes an assault which briefly stated is an overt
act evidencing immediate intention to commit a battery. But
there are some points of distinction between assault and
battery, as follows:

 a. In Assault actual contact is not necessary. Physical

contact is necessary to accomplish it.

 Pulling away a chair, as a practical joke, from one who is

about to sit on it is probably an assault until he reaches the
floor, for while falling he reasonably expects that the
withdrawal of the chair will result in harm to him.
 Pursell v. Horn, (1832) 3 N & P 564

 To throw water at a person is an assault; if any drops fall

upon him it is a battery.
 b. An assault is an attempt at battery, or a threat to
commit battery.

 If a person angrily advances, it will be an assault; but if he

comes in actual contact with the other person, then it would
be battery.
 1. Self defence

 2. Expulsion of trespasser

 3. Retaking of goods

 4. Exercise of parental and quasi parental authority

 5. Leave and license

 6. Preservation of public peace.



 7. Legal process
 E.g. arresting a person, feeding one who is on hunger strike
to save his life etc
 A civil action lies for an assault, and criminal proceedings may
also be taken against the wrong doer.

 Akhil Chandra Biswas v. Akhil Chandra Dey, (1902) 6 CWN

915

 The fact that the wrong-doer has been fined by a Criminal Court
for assault is no bar to a civil action against him for damages.

 Ali Buksh Doctor v. Sheikh Samiruddin, (1869) 4 Beng LR

(ACJ) 32

 The previous conviction of the wrongdoer in a criminal Court is

no evidence of assault. The factum of the assault must be tried
in a civil court which is not bound by conviction or acquittal in a
criminal proceeding.
 Thank You!