Assault & Battery – essential elements, examples – law of torts
Assault as a civil tort is an act of the defendant which gives the plaintiff a fair apprehension of the battery being inflicted on him by the defendant. Thus, when the defendant, by his actions, creates apprehension in the minds of the plaintiff that a battery may occur against him, an assault takes place. In case of assault charges, they must include behaviour that is aggressive, offensive or causes a person to fear for their protection. Therefore, for claiming assault no physical injury or damage is required. It was in the case of R. Vs. S. George aiming one of the loaded guns to another was considered as an assault. Even pointing of an unloaded gun can be an assault if it is aimed from such a distance that it can cause an injury.
ELEMENTS OF ASSAULT:
- The intention of the defendant: in order to create an attack, the actions of the defendant must be motivated to create a situation of fear or danger in the mind of the victims. Accidental acts do not include allegations of assault.
- Reasonable apprehension: the victims must reasonably assume that the actions of the defendant would injure or humiliate him. The victim must consider the potentially damaging or offensive behaviour of the defendant.
- Imminent harm/ threat: the person’s apprehension of danger should be of an imminent threat. Future threats like,” I will kill you tomorrow”, would not qualify for assault charges. Only words don’t constitute a threat for an attack, it is necessary for them to be accompanied by a possibility of physical harm.
It is alleged that the conduct of the defendant will trigger the victim physical danger or aggressive behaviour. Thus the pretence of kicking or punching the victim can be an assault, as well as an attempt to spit on the victim (aggressive behaviour).
DEFENCES FOR ASSAULT:
There are certain defences to the charges of assault, which may vary among each individual case.
- Act of Self defence: this defence can be used by claiming that the defendant was acting out of self-defence. However, this is not absolute, the aggression due to self-defence should be in proportion to the force acting against. In order to create self-defence, certain criteria need to be fulfilled:
- A danger of unlawful force or damage to it;
- A true honest perceived fear of harm to themselves;
- No harm or provocation on their part;
- There was no fair possibility to escape or avoid opposing force.
For instance, A was walking through a quiet road at night, when he encountered B who threatened him to punch with a tight fist. Seeing no way to go, A takes out his gun to threat B. Here A can claim that he acted out of self-defence.
- Intoxification: In certain situations, intoxication can be a legal defence, particularly in cases where intoxication affects the capacity of an individual to act deliberately.
- Coercion: This may be a defence if the defendant has been forced to attack under threat of harm (for example, if he is being held at a gunpoint and for assault at the behest of someone).
The battery is a tort which can be defined as,” an intentional and direct application of physical force to the body of another person in a harmful or offensive manner without the person’s consent”. Generally, assault is followed by a battery and that is why they may be used together. Therefore, it is only considered where there is direct physical contact without the permission of the individual to injure the person concerned.
ELEMENTS OF BATTERY:
- Intention: for the tort of battery, it is important that coming in contact with the defendant with the victim, was accompanied by the intention to cause make a contact. Basically, non-consensual contact is what is required. The intent of the battery is transferable as when a person attempts to hit a person without his or her permission and ends up hitting another person, but the person is still responsible for the battery. So the intent is the soul of the battery, and it’s really necessary.
- Contact: contact or use of force is a prerequisite to initiating the tort of battery. Whether any physical harm is caused or not doesn’t actually matter here. However, it is not mandatory that the contact should be direct or individual, but physical contact with indirect means also qualifies for physical contact. Thus, there are two means of contact: (a) Direct contact. For example, hitting a person with a fist. (b)Indirect or hostile contact. For example, throwing water on a person’s face. Damaging people with change in heat, smell, odour, light is often known to be the battery.
- Harm: another prerequisite for the battery is damage or harm. Harm, here, is not only confined to physical harm but it can be of any kind, emotional, mental, etc. The victim might have suffered negligible harm, there’s no requirement of any severe damage. Unwanted sexual contact or uncomfortable contact without permission often comes under the battery, as it affects a person physically, emotionally and mentally.
- Lack of consent: it is necessary that the victim must not be aware of the actions expected or planned by the accused. The battery can only occur when the victim has no idea of the touch that was about to happen. For example, in three cases, the battery is a legal hazard. If the patient has been lied to about care or if there is further deception in the informed consent, the full consent is null. The second case is that the patient is incompetent to consent and receives insufficient treatment. The most likely scenario is the third: the patient has denied treatment and is compelled to take care of him or her, normally in an involuntary environment.
- Lack of legal justification: in the case of the battery, there must not be any legal reason or cause to the conduct of the accused. The plaintiff must show that the force used by the accused was unconstitutional and wasn’t justifiable. For example, A was going to a club. But at the entrance, he was stopped for he was not of the acceptable age. He forced the guards to let him enter and consequently they pushed him back. Here, A cannot claim for the battery as there was a legal justification to the act.
DEFENCES TO BATTERY:
- Self-defence: it is one of the most common defences used in battery cases. It means defending or safeguarding yourself from the force or power of another person. Thus, it is formed that the acts of the accused were actions out of self-defence to the force of the victim.
- Consent: consent can also be viewed as a protection in the event of an attack and a battery. The consent is granted when the individual willingly agrees to the intent of the defendant. Thus if the person has given his or her consent to conduct the act, the same act cannot be treated as a battery. However, in cases where the individual exceeds the reach of the act, the act can, on such grounds, be treated as a battery.
Author: SHOBHIT ARORA,
CHRIST UNIVERSITY 1st year student