Law of torts

1. Law of Torts and Consumer Protection Act
Torts Against Person and Personal
Relations: Assault and Battery

2. Introduction
• 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”.

3. • 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.

4. • 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.

5. Essentials of Assault
• 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.

6. • 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”.

7. • 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 on e
who asked for it.
• It was held that threat being conditional did not amount to
assault.

8. • 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.

9. • 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

10. Battery
• 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.

11. • 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”.

12. Ingredients of 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

13. • 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.

14. • 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.

15. • 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.

16. • 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.

17. • 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.

18. • 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.

19. • 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.

20. • 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.

21. Defences to an action for Assault and
Battery
• 1. Self defence
• 2. Expulsion of trespasser
• 3. Retaking of goods
• 4. Exercise of parental and quasi parental authority

22. • 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

23. Remedy
• 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 tired
in a civil court which is not bound by conviction or acquittal in a
criminal proceeding.

24. • Thank You!