Tort is a civil wrong as it has been accepted by the modern scholars and
social scientists both in India and abroad. Here we shall try to understand how
Trespass is one of the torts which have partly survived in the ever changing
society. Its principle was that any direct invasion of a protected interest from
a positive act was actionable subject to justification.
If the invasion was indirect though foreseeable or if the invasion was from an
omission as distinguished from a positive act, there could be no liability in
trespass though the wrong doer might have been liable in some other form of
action. If the invasion is unintended, though direct and resulting from a
positive act, there will still be no liability if the conduct of the defendant
was reasonable, or even if it was unreasonable, if the invasion was an
The examples help us to understand the above mentioned areas of torts. In
Fowler v Lanning (1959) 1BQ 426
, Diplock, J states that "trespass to the
person does not lie if claimant has been injured, even though the direct
consequences of the defendant act, was caused unintentionally without negligence
on the defendant's part"
In another case, Letang v Cooper (1965) 1 BQ 232
, Lord Denning , MR in
deciding against the plaintiff expressed his approval of fowler v Lanning, and
went one step further in holding that when the injury was not inflicted
intentionally but negligently, the only cause of action is negligence and not
trespass. The unintended invasions have thus been completely eclipsed by the
tort of negligence and what now under trespass are intended invasions. Here the
rules of trespass remain unchanged.
There are two important rules:
- That it is for the defendant to plead and prove justification and not
for the plaintiff to show that the defendant's conduct was unreasonable; and
- That damage is not an essential element and need not be proved by the
plaintiff. However we are confined here to discuss about Assault and Battery
so far as the intentional trespass to the person is concerned.
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. It means
that invariably an assault has to have an attempt and the ability to hurt or
harm to another person. Assault and Battery, both are related but distinct
crimes, battery being the unlawful application of physical force to another and
Assault being an attempt to commit battery or an act that causes another
reasonably to fear an imminent Battery.
These concepts are found in most legal systems in the world to protect the
individuals from rude and undesired physical contract or force and from the fear
or threat thereof. No minimum degree of force is necessary to constitute a
Battery. A mere touch is sufficient. And force need be applied directly. It is
Battery if one strikes a person's cane or horse, administers poison or drugs, or
communicates a disease.
An accident or ordinary negligence that results in injury is not criminally
punishable as Battery unless it occurred during the commission of another
unlawful offence. Generally one does not commit Battery unless one acts with
intent to have or with gross criminal negligence involving a high degree of
carelessness. Even then such action may be justified if it is for the purpose of
the defense of others or of property, or if it is in self defense. Reasonable
force may be used in the performance of duty, as for example, by a police
officer without constituting battery.
Assault is a crime of attempt, the purpose of the law being to deter a possible
Battery by punishing conduct that comes dangerously close to achieving a
Battery. As with most crimes of attempts, a clear line could not be drawn
between a criminal attempt and conduct that is merely preparatory to an assault.
There must be intent to harm, but the intent is not sufficient if it produces
the mere possibility of harm or the threat of battery in the distant future.
Rather, the intent must be evidenced by an imminent danger, some overt acts that
threaten Battery. Thus mere words or intentions alone do not constitute assault.
Some countries like England and America, the civil- law countries have defined
certain types of assaults (such as assault with a deadly weapon or with the
intent to commit robbery or rape) as "aggravated Assaults". This resulting
Battery is also called aggravated one and both crimes are assigned higher
penalties than regular assault and Battery.
A Battery is the 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. In Cole v turner (1704) 6 Mad
149, Halt, CJ declared-that the least touching in anger is Battery. 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. If any of them uses
violence against the other, to force his way in a rude inordinate manner, it
will be a Battery or any struggle about the passage to that degree as may do
hurt will be a Battery.
In Wainwright v Home office
(2003) 4 All ER 969, Robert GOFF,LJ redefined
battery as meaning an intentional physical contact which was not generally
acceptable in the ordinary conduct of daily life. This definition was accepted
by the House of Lords. As mentioned above that a battery includes an assault and
it is mainly distinguishable from an assault in the fact that physical contact
is necessary to accomplish it.
In Jai Bhagwan v Suman Devi
, (2011) 185 DLT29, it is held that in order
to establish the tort of Batter, the plaintiff must however prove that the force
used was without lawful justification. Thus to throw water at a person is an
assault; if any drops fall upon him it is a Battery. So too, of riding a horse
at a person is an assault, riding it against him is a Battery. 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.
When he comes in contact with the floor, it is Battery as stated in Blunt v
(1835) 2 Cr M & R412. But every laying on of hands is not a
Battery. The party's intention must be considered. Touching a person, for
instance, sa as merely to call his attention is no Battery. A friendly clap on
the back on the back of a person may be excused on the ground of implied
consent, but not the hostile or rude hand.
In Stephens v Myers
(1830) 4 C & P349, the plaintiff was the chairman of
a parish meeting. The defendant having been very vociferous, a motion was and
carried by a large majority that we should be turned out. Upon this the
defendant said he would rather pull the chairman out of the chair than he turned
out of the room, and immediately advanced with his fist clenched towards him; he
was thereupon stopped by the church-warden, who sat next but one to the
chairman, at a time when he was not near enough for any blow he might have
meditated to reach the plaintiff; but the witness said that it seemed to them
that he was advancing with an intention to strike the chairman. The jury found
for the plaintiff with one shilling damages. The CJ, Tindal, remarked that "I
think it amounts to an assault in law"
In another case, Read v Coker
, 138 ER1437, the defendant told the
plaintiff to leave the premises in occupation of 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 plaintiff brought an action of
trespass for assault. In holding in favour of the plaintiff, the CJ, Jervis said
"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 in the threat into execution'.
In contrast, in Bavisetti Venkata Surya Rao v Nandipati Muttayya,
1964 AP 382, the defendant who was a village Munsi threatened to distain the
earrings which the plaintiff was wearing for recovery of land revenue on behalf
of the plaintiff. The village goldsmith was called on which someone paid the
land revenue on behalf of the plaintiff and the defendant left the place
quietly. As the defendant said nothing after arrival of the goldsmith, it was
held that it could not be said that the plaintiff was put in fear of immediate
or instant violence and, therefore, the defendant could not be made liable for
If the defendant intended to assault, in other words if he had the capacity to
understand the nature of his act, and he struck the plaintiff, he would be
liable for assault and Battery even if he did not know, because of mental
disease that what he has doing was wrong. But if the mental disease is so severe
that the defendant's act of striking the plaintiff was not a voluntary act at
all, he would not be liable.
A civil action lies for an assault, and criminal proceedings may also be taken
against the wrong doer. 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.
The previous conviction of the wrong doer 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 criminal proceedings. A plea of guilty in a
criminal court may, but a verdict of conviction, cannot be considered in
evidence in a civil court.
Difference between Assault and Battery:
- Every Assault does not include Battery.
- Assault is the attempt to commit Battery.
- This is done to threaten a person.
- Here, physical contact is not necessary.
- For an Assault a mere apprehension of danger is sufficient.
- Every Battery includes Assault. Battery is an aggravate form of assault.
- Battery includes intentional application of force to another person
without any lawful justification.
- This is done to cause harm to a person.
- In Battery there must be a physical contact.
- For Battery there must be an actual application of physical force.