TABLE OF CONTENTS

Sr. No. Particulars Page No.

1. Introduction 1

2. Objective 1

3. Definition 1

4. Elements of Assault as Tort 1

4.1 An intent to cause an apprehension of fear or harm 2

4.1.1 - Case law : Fagan v Commissioner of Police 2

4.1.2 - Case law : In Tuberville v Savage 78 D 3

4.2 A positive act done for this purpose 3

4.2.1 - Case law : Stephens v Myers 3

4.2.2 - Case law : Bavisetti v Nandipati Muthayya 4

4.3 A reasonable apprehension of an imminent fear or harm 5

4.3.1 - Case law : R v Ireland [1998] AC 147 5

5. Conclusion 6

6. Bibliography 7
1. INTRODUCTION
Assault as tort, one of the earliest torts, is an intentional tort that serves as basis for a civil
lawsuit. A person can be guilty of assault even if he/she did not physically harm the victim.
The first case to hold that an unsuccessful attempt to commit a battery is an assault is I de S
et ux v. W de S. 1
Law of Torts in India is not enacted by legislature or codified yet. It has evolved from the
Law of Torts in UK. Most of the landmark judgments about civil assault in India are based
on the judgments of courts in England2. It is popularly known as ‘Judge made law’ as its
interpretation is at the discretion of the judge. Tort cases are decided by the court by referring
the landmark judgements and case laws. So, it is necessary to understand the case laws which
are usually referred by courts to decide on civil assault cases.

2. OBJECTIVE :
i. To elaborate the requisite elements of the civil assault
ii. To analyze case laws regarding civil assault from UK and India and understand the
court interpretation of legal provisions.

3. DEFINITION
Assault is an act of the defendant which causes to the plaintiff reasonable apprehension of the
infliction of a battery on him by the defendant. 3 Fredrick Pollard defines it as ‘An action
which puts another in instant fear of unlawful force, though no force be actually applied, is
the wrong called assault’.4 An assault is any unlawful attempt or offer with force or violence
to do a corporal hurt to another, whether from malice or wantonness.5
The definitions for assault vary from state to state, but it can be simply understood as an
intentional positive act, by an able defendant, to cause a reasonable apprehension of
imminent fear or harm to the plaintiff.

4. ELEMENTS OF ASSAULT AS TORT

The definitions of civil assault embody the three main essentials as (1). An intent to cause an
apprehension of fear or harm (2) A positive act done for this purpose (3) A reasonable
apprehension of an imminent fear or harm.
While determining whether defendant’s act comes within the purview of civil assault and
plaintiff has a viable cause of action for civil assault, all the main elements must be present
with adequate support. If one of the elements is not evident then the assault cannot be
established.
1
W.D.Rollision Notre Dame Lawyer, Vol XVII Nov, 1941 at page 13
2
Bavisetti vs Nandipati at https://indiankanoon.org/doc/1639812/ point no. 18 last accessed on 11/05/2021
3
Dr. R.K. Bangia, Law of Torts, 25th edition, Allahabad Law Agency, 2020 at 140
4
Frederick Pollard, The Law of Torts 4th edition, Stevens & Sons, 1895 at 196
5
John Bouvier, A Law dictionary, Rev sixth edition, 1856 at 210

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4.1 An intent to cause an apprehension of fear or harm.
Intention is the most important element of a civil assault. It is essential to establish that the
defendant’s act was intentional and he/she intended to induce an apprehension of harm in
plaintiff’s mind. But, if an apprehension of harm gets induced by an unintentional act then it does
not amounts to a civil assault. Assault can be committed even without physically contacting a
victim or even without speaking a single word but not without an intent.
It is not necessary that the intent is present since inception of an act, intent may get developed
subsequently on continuing act. But if intent gets developed on completed act then it will not
amount to an assault. Similarly, the intention may be present at the inception of the act but may
get negated subsequently then it is not an actionable assault.
If a person had an intention of creating apprehension of fear or harm in plaintiff’s mind but he is
duty bound or legally protected then assault cannot be established.

4.1.1 Case law : Fagan v Commissioner of Police for the Metropolis

Facts - The defendant was reversing a motor car and the plaintiff, a police officer, was
directing him. The defendant drove forward with the offside wheel on the plaintiff’s foot.
The plaintiff urged him to get off his foot but the engine of the car stopped running. The
defendant then slowly turned the engine on and reversed it off the plaintiff’s foot.
The defendant’s counsel argued that the omission or failure to remove the wheel when asked
could not be an assault and there is no mens rea to convert original act into an assault.
The plaintiff’s counsel argued that first mounting on the foot was an actus reus which
continued till the wheel was removed. During this act the appellant formed the necessary
mens rea and as it gets added to the continuing act, an assault took place.6
Issue – Whether mounting a wheel of a car on foot and not removing it when asked amounts
to assault
Verdict – Verdict for the plaintiff
Analysis – The question before the court was whether the defendant’s act amounts to an
assault. Court mention that to constitute the offence of assault intentional act must be
performed and mere omission of act cannot amount to an assault. Mounting the wheel of car
on the plaintiff’s foot was unintentional; it was mere an accident hence it would not amount
to an assault. But court further clarified that though the intention is not necessarily be present
at the inception of an act, intention can be superimposed upon the continuing existing act and
this amounts to actionable assault. Court held the defendant had no intention initially, but it
developed subsequently after mounting of wheel on the foot and the defendant continued the
act intentionally causing continuous apprehension of harm to the plaintiff and this is an
actionable assault.

6
Fagan v Commissioner of Police at https://www.bailii.org/ew/cases/EWHC/QB/1968/1.html

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4.1.2 Case law : Tuberville v Savage
Fact - The plaintiff laid his hand on his sword and said “If it were not assize time, I would
not take such language from you.” 7
Issues - Whether the plaintiff’s act was an actionable assault
Verdict - Verdict for the plaintiff
Analysis – The question before court was whether the plaintiff’s act amounts to an actionable
assault. Court held that both a positive act and intention are essential for constituting an
assault. By putting his hand on the sword, the plaintiff had acted in positive but,
subsequently, his words assured the defendant that he has no present intention of causing any
harm. Upon his words, his threat became a conditional threat whose execution was not
probable at that time. If the plaintiff had acted in positive but said nothing then it would have
been an assault.
In present case, the defendant had intention of causing harm at the inception of his act but it
gets negated by his words and the threat ceased. Whereas, in case of Fagan v Commissioner
of Police, the defendant did not have intention at the inception of the act but it developed
subsequently to make it actionable assault. This clearly shows that the present intention is
essential for establishing an assault.

4.2 A positive act done for this purpose

Positive act is not limited to threatening gestures or threatening words. It is the means of creating
apprehension of harm in plaintiff’s mind. Even intentional silent phone calls or an inaction may
create apprehension of fear and harm in plaintiff’s mind establishing it as a civil assault.
Mere verbal threat is no assault unless the defendant has present ability to act on his threat and it
should create reasonable apprehension in the plaintiff’s mind that immediate force will be used.

4.2.1 Case law : Stephens v Myers

Facts - The plaintiff was acting as chairman at a meeting. The plaintiff and the defendant sat
were sitting at the same table but at a distance. The defendant had some angry discussions
and interrupted the meeting. A motion to turn out the defendant was made and passed. Upon
this, the defendant threatened to pull the chairman out of the chair and immediately advanced
with his fist clenched towards the chairman, but was stopped by the churchwarden who sat
close to the chairman. Witness said that it seemed to them that he was advancing with an
intention to strike the chairman.
The defense counsel contested that no assault had been committed as there was no power in
the defendant to execute his threat and there was no present ability. Defendant had not the
means of executing his intention at the time he was stopt8.
7
Tuberville v Savage at https://www.casemine.com/judgement/uk/5a8ff86060d03e7f57ebeee2
8
Stephens v Myers at https://www.casemine.com/judgement/uk/5a8ff71f60d03e7f57ea7f2a

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 Issues - Whether the defendant’s act amount to actionable assault.
Verdict - Verdict for the plaintiff.
Analysis –. The defendant had claimed inability and non-execution of his intentions. Court
had admitted the requisite of positive act for a threat to be constituted as assault. The
question before the court was whether the defendant acted in positive to effect his threat.
Court observed that the defendant, upon declaring his intent to strike the plaintiff, was
advancing towards the plaintiff in a threatening attitude and would have struck the plaintiff,
if not stopped. This convinced the court that, the defendant had acted in positive to execute
his intention of harming the plaintiff and thus the plaintiff’s apprehension of harm was
reasonable. All the requisite elements of assault were undoubtedly present.
It seems that the testimony of witness may have played decisive role in this case.
Defendant heavily relied on claim of no assault due to non-completion of act and lack of
present ability which he could not prove. Court also clarified that if the defendant had not
advanced, his mere verbal threat would have not constituted to an assault.

4.2.2 Case law : Bavisetti Venkata Surya Rao v Nandipati Muthayya

Facts - The plaintiff had arrears of land revenues. The defendant, a munsif accompanied by
the Kamam of the village, approached the plaintiff and demanded the arrears due by him.
Thereafter, as per plaintiff’s version, the plaintiff said that his house is locked and he would
pay next day. The defendant insisted as it was last day of collection and threatened to distrain
the plaintiff’s earrings. As the goldsmith came, (DW2) borrowed and handed over to the
defendant and obtained a receipt. The defendant then went away. In cross examination the
plaintiff admitted that the defendant did not touch him or abuse him or threaten him.
As per defendant’s version, it was plaintiff who offered that, he might attach his earrings. …
and upon payment he went away and remitted the amount in treasury on same day.9
Issues - Whether the acts alleged by the plaintiff amounted to assault or intimidation and
Whether the defendants had the legal authority to distrain the earrings.
Verdict - Second appeal is allowed.
Analysis – Court first considered whether defendant’s act amounts to any of the tort as
understood by English law. Court referred Salmond on Torts and Halsbury’s Law of England
to decide on assault and found that purely oral threats can never amount to an assault. In
cross-examination the plaintiff admitted to no such threat or abuse by the defendant. Also
there was no such positive act by the defendant that could induce apprehension of immediate
harm. Court concluded that there were no enough grounds to convict the defendant as threat
to the plaintiff was improbable and the apprehension of imminent harm was unreasonable.

9
Bavisetti vs Nandipati at https://indiankanoon.org/doc/1639812/

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 Court concluded that the defendants had the legal authority to distrain the earrings. His sole
aim was to collect the arrears and he was acting within the bounds of his lawful authority.
It seems that, court had applied the principle of Nullus Commodum Capere Potuse De Injuria
Sua Propria to this case. The plaintiff had done wrong by defaulting on payment of arrears
and could have avoided it by paying in time but he was evasive and trying to implicate the
defendant who was doing his lawful duty. By this judgement, court had not allowed the
plaintiff to take any advantage of his wrong.
In present case, though the defendant threatened the plaintiff, he did not act in positive to
execute it and had legal protection too. Whereas, in the case of Stephen v. Myers, the
defendant threatened the plaintiff and subsequently acted in positive to execute his threat.
The element of positive act had led these cases to different verdicts.

4.3 A reasonable apprehension of an imminent fear or harm

Apprehension of fear or harm is also very important element. Not only words or threatening
gestures creates an apprehension of harm but even a silence can create an apprehension of harm.
The only thing is that the apprehension should be reasonable, realistic and present.

4.3.1 Case law : R v Ireland [1998] AC 147

Facts - the defendant consistently called three separate women over the course of three
months. During each call he did not speak, but instead breathed heavily on the line. He was
prosecuted for assault occasioning actual bodily harm, on the grounds of the psychiatric
injury suffered by the victims. The Defendant appealed his conviction and argued that silence
cannot amount to assault and further that psychiatric harm was not actual bodily harm.10
Issues - Whether silence could amount to assault occasioning actual bodily harm.
Whether psychiatric harm can amount to actual bodily harm.
Verdict - Verdict for plaintiff.
Analysis - On the issue of whether silence could amount to assault, court adopt the
observation of Holroyd that silence is equivalent to an assault. Court held that the
defendant’s intention was to induce apprehension of fear in plaintiff’s mind that they can be
harmed anytime and he was using his silent calls as a means to execute it. Court found the
plaintiff’s apprehension as reasonable and realistic.
On the issue of whether psychiatric harm can amount to actual bodily harm, court found legal
provisions insufficient to deal with the issue. Court held that definition of bodily harm must
include psychiatric illness as the psychiatric illness was not considered when the law was
enacted. Court applied wider interpretation of the legal provision to decide on the case.

10
R. v Ireland [1998] AC 147 at https://www.lawteacher.net/cases/r-v-ireland.php

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5. CONCLUSION
Assault is an actionable wrong which requires no physical contact. All the three elements
of assault, an intent, positive act and apprehension are essential for establishing an
assault. Absence of any of these elements is a defense for the defendant.
Dealing with an assault is not as simple as it seems, as assault can also be committed by
inaction as well as silence, words may induce threat as well as negate threats. Also, the
means of causing apprehension of harm are changing as a result a psychiatric harm can
amount to actual bodily injury.
As the law of Torts us not legislated or codified yet, all the tort cases including civil
assault are decided by referring landmark judgements and case laws. Its outcome largely
depends on the discretion of the court which may vary judge to judge. This may lead to
apprehension of unjust and dissatisfaction in the minds of parties as well as legal
practitioners. Our country need to take steps to get it codified for delivering better justice.

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 BIBLIOGRAOHY

Statute
No statute available as Law of Tort is not legislated yet.

Books
1. Dr. R.K. Bangia, Law of Torts, 25th edition, Allahabad Law Agency, 2020
2. Akshay Sapre, The Law of Torts, 28th edition, LexisNexis, 2021
3. Frederick Pollock, The Law of Torts, 4th edition, Stevens & Sons, 1895 (PDF copy)
4. John Bouvier, A Law dictionary, Rev sixth edition, -, 1856 (PDF copy)

Articles
1. Notre Dame Lawyer, Vol XVII Nov, 1941 at page 13 at
https://scholarship.law.nd.edu/ndlr/vol17/iss1/1/ last accessed on11/05/2021

Websites
1. https://www.findlaw.com/criminal/criminal-charges/assault-and-battery-overview.html
last accessed on11/05/2021
2. https://blog.ipleaders.in/assault-as-a-tort-and-its-remedies last accessed on11/05/2021

3. https://lexforti.com/legal-news/battery-assault-and-right-of-defence-under-torts/
last accessed on11/05/2021

Case laws
1. Fagan v Commissioner of Police available at
https://www.bailii.org/ew/cases/EWHC/QB/1968/1.html
2. Tubervell v Savage available at
https://www.casemine.com/judgement/uk/5a8ff86060d03e7f57ebeee2
3. Stephens v Myers available at
https://www.casemine.com/judgement/uk/5a8ff71f60d03e7f57ea7f2a
4. Bavisetti Venkata Surya Rao v Nandipati Muthayya available at
https://indiankanoon.org/doc/1639812/
5. R v Ireland [1998] AC 147 available at
https://www.lawteacher.net/cases/r-v-ireland.php