The Tort Of Assault

Definitions Of The Tort Of Assault

In ordinary everyday use, the word “assault” means to attack, beat or hit somebody. Thus, in ordinary parlance, the word assault is used to include both assault and battery. However, in the law of tort, assault and battery are two different and separate torts. Under the Criminal Code Act, the word “assault” is often used to cover both assault and battery. Accordingly, in criminal proceedings, they are usually charged. In view of this reason, sections 252-253 and 351-360 of the Criminal Code Act, define various types of assaults.

Assault is a crime and a tort. Since trespass to person is a tort and a crime, a victim may seek redress in both civil and criminal law. However, civil action is often not brought unless the tortfeasor or his employee has money and can afford to pay compensation. Otherwise, criminal action is often brought in the magistrate court by the police on behalf of the state as part of the public policy of the state to sanction crime and maintain law and order.

Furthermore, assault and battery often occur together because they are often committed concurrently or simultaneously. Thus they are often charged together in criminal proceedings just as civil claim is often brought for both because one seldom occurs without the other. In western societies, compensation may be awarded in criminal proceedings. For instance, under the English Criminal Justice Act, 1988 which is administered by the Criminal Injuries Compensation Board, compensation may be awarded to crime civtims. This prevents the need for a separate civil suit to recover compensation.

There have been various definition preferred for the tort of assault. According to Winfield and Jolowicz p.71, assault is defined as: “an act of the defendant which causes the claimant reasonable apprehension of the infliction of battery on him.”

Gold LJ in Collins vs Wilcock 1984 All ER 374 defines assault as: “an act which causes another person to apprehend infliction of immediate and unlawful force on his person.”

For instance, Mr A points a loaded gun at B. In such a case, by pointing a gun at Mr B, Mr A has put him in immediate fear of battery.

Elements  or Ingredients Of Assault

The elements a plaintiff needs to prove to succeed in a claim for assault are:

1.          That there was a threat to apply force

2.         That the act will put a reasonable person in fear of battery. In other words, that it was reasonable for the plaintiff to expect immediate battery.

1. That there was a Threat to Apply Force:

There can be assault without battery. In assault it is not necessary to prove that the plaintiff was actually put in fear or experienced fear. What needs to be proved is that it was reasonable for the plaintiff to expect immediate battery. As a general principle, pointing an unloaded gun or even a model, or imitation gun at a person who does not know it is unloaded or that it is a model gun and therefore harmless, is an assault.

In R v St. George (1840) 173 ER 921, the defendant pointed a gun he knew to be unloaded at the plaintiff who did not know that it was unloaded, at such a distance that the complainant could have been hurt if the gun was fired. On a claim for assault the court held: that there was an assault, even though the gun was unloaded, because the complainant was put in fear of being shot. See also Logdon v DPP (1976) Crim LR 121.

In Innes v Wylie (1844) 174 ER 800, the defendant policeman who stood motionless in order to block a door way, was held not to have committed assault on the plaintiff by so doing. See also DPP v Little (1992) 1 All ER 299.

In Smith v Supt of Woking Police Station (1983) Crim LR 323: 76 CAR 234, the defendant appellant frightened the complainant by looking through her bedroom window late in the night. The court held that the accused was guilty of assault as the complainant was put in fear of personal violence.

Also in R v Barrett (1980) 72 CAR 212 CA, the defendant advanced towards the complainant, shook his fist angrily and threatened to beat the complainant there and then, as a result of which the complainant was put in fear of immediate application of force to his person. The court held: that there was assault.

In Stephen v Myers (1838) 172 ER 735, the plaintiff was the chairman at a parish meeting where he was sitting at the head of the table with about 6 to 7 persons between him and the defendant. In the course of the meeting, the defendant threatened to eject the plaintiff from the venue of the meeting. He stood up and started advancing to the plaintiff to carry out the threat when he was stopped from reaching the chairman by the person sitting next to the chairman. In a claim for damages for assault the court held that assault was committed. The defendant was proceeding to throw out the chairman, though he was not near enough at the time to have struck him. He advanced with on intention which amounted to an assault in law.

An Order Coupled With A Threat May Be Assault

It is also an assault to threaten to apply force to a person if the person does not immediately proceed to do some act or refrain from an act unless the defendant has legal justification. Similarly, an innocent act or conduct may amount to assault when coupled with threatening words.

Read v Coker (1853) 138 ER 1437.

The defendant had a business disagreement with the plaintiff, his partner. The defendant thereupon ordered his workmen to throw the plaintiff out of the premises. They then surrounded the plaintiff rolling up their sleeves and threatening to break his neck if he did not leave the premises. The court held that there was an assault. There was threat of violence together with an intent to do battery to the plaintiff. Threatening to break the plaintiff’s neck if he did not leave the premises was an assault.

Ansell v Thomas (1974) Crim. LR 31.

The plaintiff who was the managing director of a company left the factory early due to the fact that two policemen invited by his co-directors threatened in words to forcibly eject him from the company's premises, if he did not leave voluntarily. In a claim by the plaintiff, the court held that the co-directors were liable in assault.

2. That the Act will put a Reasonable Man in Fear of Battery:

Finally, for assault to be committed, the act of the defendant complained about must be such that would put a reasonable man in fear that force is about to be applied to him. The act must put a reasonable man in fear of violence. This test is an objective test and it is not subjective to any particular plaintiff alone. Therefore, where the threat would not put a reasonable person in the shoes of the plaintiff in fear of violence, the tort of assault is not committed.

However, the mere fact that the plaintiff who was threatened with battery is a brave person and was not frightened by the threat, will not bar the plaintiff from successfully claiming damages for assault, as long as the alleged act of assault would make a reasonable man or reasonable person in his shoes to be afraid of battery.

In Hurst v Picture Theatres Ltd (1915) 1 KB 1 CA, the plaintiff paid for admission to the defendant's theatre. The defendants believing that the plaintiff had entered without payment asked the plaintiff to leave. He was not afraid and refused to leave and was forcibly ejected. He sued for damages. The court held that the defendants were liable for assault and false imprisonment.

In Brady v Schatzel (1911) St. R QD 206, the defendant pointed a gun at the plaintiff and threatened to shoot the plaintiff. The plaintiff sued for assault. Giving evidence in court the plaintiff said that he was not scared at the time. The court held that the defendant was nevertheless liable for assault. The act in question amounted to an assault. It was immaterial that the plaintiff was not scared. The purpose of the law is to make people free from threat of violence or immediate application of battery.

Where a threat is impossible of being carried out there may be no assault. Accordingly, where a threat is clearly impossible of being carried out, there is no assault. See Thomas v National Union of Mine Workers (1985) 2 All ER 1.

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