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LAW OF TORTS AND CONSUMER
PROTECTION ACT.

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TORTS AGAINST PERSON AND PERSONAL
RELATIONS: ASSAULT AND BATTERY
INTRODUCTION
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• Assault & Battery are forms of trespass to person.

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• An assault is an attempt or a threat to do a

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corporeal hurt to another, coupled with an apparent

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present ability and intention to do the act.

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• Prof. Winfield defines assault as “an act of the

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defendant which causes to the plaintiff reasonable

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apprehension of the infliction of a battery on him by
the defendant”.
 ESSENTIALS OF ASSAULT
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• The plaintiff must prove the following to be successful in an

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action for assault:

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• a. that there was some gesture or preparation which

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constituted a threat or force,

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

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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

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The defendant told the plaintiff to leave the premises in occupation of the
plaintiff. When the plaintiff refused the defendant collected some of his

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workmen who mustered round the plaintiff, tucking up their sleeves and

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aprons and threatened to break the plaintiff’s neck if he did not leave.

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The plaintiffs left and brought an action of trespass for assault.

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

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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”.
 i k.
Bribal Kalifa v. Emperor, IIR 30 Cal. 97

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The accused was registered as a bad character by the police; a Sub-

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Inspector paid him a domiciliary visit in order to ascertain if he was at

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home. He called to the accused who came out, whereupon the former

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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

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the house and brought a ‘lathi’ saying that he would break the head

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of any on e who asked for it.

It was held that threat being conditional did not amount to assault.
CASE LAW-
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•Stephens v. Myers, (1830) 4 C & P 349

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•It is not every threat, when there is no actual

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personal violence that constitutes an assault;

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there must, in all cases, be the means of carrying
the threat into effect.

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 CASE LAWS -
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• Following acts were held to be assault by the courts.

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• Presenting a loaded pistol at anyone, R v. James, (1844) 1 C

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

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• Pointing or brandishing a weapon at another with the

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

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• Riding after a person and obliging him to seek shelter to
avoid being beaten, Mortin v. Shoppee, (1828) 3 C & P 373
BATTERY
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• A battery is an intentional and direct application of any

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physical force to the person of another.

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• It is the actual striking of another person, or touching him
in a rude, angry, revengeful, or insolent manner.

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• The tort of battery corresponds to the offence “the use of
criminal force” in Section 350 of the Indian Penal Code.
 CASE LAW -
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• Cole v. Turner, (1704) 6 Mod 149

• Holt, C.J. declared:

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

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Secondly, if two or more meet in a narrow passage and without

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any violence or design of harm, the one touches the other gently, it

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will be no battery. Thirdly, if any of them uses violence against the

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other, to force his way in a rude inordinate manner, it will be a
battery.
 INGREDIENTS OF BATTERY
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• The plaintiff must prove in an action for battery the following essential

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ingradients:

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• a. the use of force to him, either to his body, or bringing an object in contact

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with his body.

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• Spitting in the face, The Queen v. Cotesworth, (1704) 6 Mod 172

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• Throwing over a chair or carriage in which another person is sitting,

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Hopper v. Reeve, (1817) 7 Taunt 698

• Taking a person by the collar, Wiffin v. Kincard, (1807) 2 B & P N R 471

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b. that the use of force was intentional i.e. without lawful

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justification

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c. The force must be applied against the plaintiff without his
consent, express or implied.

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Wilson v. Pringle, (1987) Q.B. 237

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For the purposes of battery the required intention is to touch
the person of another unlawfully and it is not necessary that

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there should be intention to cause any harm.
 CASE LAW-
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• Hurst v. Pictures Theatres Ltd. (1915) 1 KB 1

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• The Plaintiff has purchased a ticket for a seat at a cinema show. He was forcibly

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turned out of his seat by the direction of the manager, who was acting under a

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mistaken belief that the plaintiff had not paid for his seat.

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• It was held that the purchaser of a ticket for a seat at a theatre or other similar

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entertainment has a right to stay and witness the whole of the performance,

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provided he behaves properly and complies with the rules of the management.

• Thus the plaintiff was entitled to recover substantial damages.

CASE LAW -
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• Nash v. Sheen, (1953) CLY 3726

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

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in her hair. The shop keeper applied “Two Riuse”, which not

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only dyed her hair in an unpleasing colour but also

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provoked painful rash all over her body.

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

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

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•The petitioner and her minor son were beaten by landlord and

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police in order to get the tenement, in which they were living,

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vacated. As a consequence the son dies. The petitioner was held

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entitled to get compensation for the death of her son from Delhi

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Administration because the death of the petitioners son was

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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.
 CASE LAW -
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• A battery includes an assault which briefly stated is an overt act evidencing

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immediate intention to commit a battery. But there are some points of

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distinction between assault and battery, as follows:

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

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necessary to accomplish it.

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• Pulling away a chair, as a practical joke, from one who is about to sit on it is

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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.

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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.
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• b. An assault is an attempt at battery, or a

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threat to commit battery.

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• If a person angrily advances, it will be an

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assault; but if he comes in actual contact with
the other person, then it would be battery.

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 DEFENCES TO AN ACTION FOR
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ASSAULT AND BATTERY

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• 1. Self defence

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• 2. Expulsion of trespasser

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• 3. Retaking of goods

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• 4. Exercise of parental and quasi parental authority

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• 5. Leave and license

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• 6. Preservation of public peace.
• 7. Legal process

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• E.g. arresting a person, feeding one who is on hunger strike to save
his life etc
 Aspect Assault

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An act causing apprehension of Actual physical contact that
Definition
harmful or offensive contact. causes harm or offense.

Nature
Threatening behavior; no
physical contact required.

a N Involves physical contact; can

be harmful or merely
offensive.

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Intent to cause contact or
Intent to cause apprehension or

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Intent harm, regardless of the intent
fear.
to harm.

Example

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Raising a fist to threaten
someone without striking them.
Hitting someone, pushing
them, or spitting on them.

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Typically results in damages for Results in damages for

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Legal Outcome
emotional distress or fear. physical injury or offense.

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Consent may negate an assault Consent may also negate a
Consent claim if the victim expected the battery claim in similar
conduct. contexts.