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.
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.
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:
- Compensation to the victim for any harm resulting from a breach of defence.
- Discouraging the rescuer from repeating the violation in the future.
Examples of Torts
Some common examples of torts include:
- Negligence-related claims.
- Civil assault/civil battery.
- Wrongful death claims.
- Products liability and dangerous product.
- Intentional infliction of emotional distress.
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.
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.
Difference between Assault and Battery
|Definition||Assault is the attempt to commit battery.||Battery includes intentional application of force to another person without any lawful justification.|
|Important aspect||Threat of violence is enough for assault. No physical contact is necessary.||Physical contact is needed.
|Principle||Create reasonable apprehension in the plaintiff’s mind that immediate force will also be used.||· There should be use of force.
· The same should be, without any lawful justification.
|Objective||To threaten a person.||To cause harm.|
|Nature||Not necessarily physical.||Must be physical.|
Difference between Criminal and Civil Assault
|Civil assault||Criminal assault|
|Meaning||In civil assault, to sue the respondent for the full extent of his loss, including lost earnings and pain and suffering of the past and future.||If the respondent is convicted, he may be imprisoned, and may also have to pay a fine and reinstatement. But the fine would be paid to the government, and restitution would most likely cover only the medical bills, not your non-economic losses such as pain and suffering stemming from the incident.|
|In civil assault case, a District Attorney is not involved. The matter is brought by the plaintiff. The plaintiff has more control in the case of civil assault.
A win for the District Attorney, results in jail term, a fine, or both.
|After an attack, the victim should report to the police. The police will then make an arrest, take action on the alleged attacker and refer the case to the District Attorney.
When the plaintiff wins, the defendant will not go to jail, but will have to pay financial compensation.
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:
- 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.
- Intoxication: In some cases, intoxication can be a legal defense, especially in cases where intoxication affects a person’s ability to act intentionally.
- 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).
- 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.
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. 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.
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.
- 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.
- 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.
- 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 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.
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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