Element Assault

➢ Mental state of the defendant: has the intention to do his act.

○ Case: Tuberville v Savage

Facts:Plaintiff put his hand upon his sword and said to Defendant, “If it were not
assize-time, I would not take such language from you.” Defendant sued Plaintiff
for assault.

Held:The Court held that an assault requires both (1) the intention and (2) the act
of assault. Even an act of, for example, striking a man, without an intention to
assault, does not constitute an assault. Accordingly, the Court held that the facts
did not give rise as the man merely stipulated that he would have the intention to
assault if it were not assize-time. It was, indeed, assize-time and the man’s
declaration expressly stipulated that he would not and did not intend to commit an
assault. Thus, there could have been no assault as there was no intention nor act of
assault, nor imminent threat thereof

➢ Caused apprehension to the plaintiff that a force will be inflicted upon him.
○ To determine this element, we need to use the reasonable man test. Would a
reasonable man faced with the same situation as the plaintiff, feel apprehensive
that a force would be inflicted upon him?

➢ Defendant had the capability to carry out the threat.

○ This element needs to be measured through the eyes of the plaintiff using a
reasonable man test.
○ Would a reasonable man, who is in the plaintiff’s position, feel that the defendant
has the capability to do the threat?
○ Case: Stephen v Myers
 Facts: The defendant threatened to hit the plaintiff and he advanced with clenched
fists upon the plaintiff. He was stopped by a third party just before he could reach
the plaintiff.

Held:There was an assault as he was capable of carrying the threat if there was no
one who stopped him from doing so.

➢ The body movement of the defendant shows that he will carry out his threat.
○ Positive movement that shows the defendant will carry out his threat.
○ Positive movements here means that the bodily movement only is not sufficient
but it also needs to correspond with the infliction of unwanted force onto the
plaintiff.
○ Case: Innes v Wylie

Facts:A police officer acting under instruction was blocking a doorway to

prevent the plaintiff from entering a room.The plaintiff ran into him and
bounced off, suffering personal injury.

Held: There was no assault on the plaintiff as there was no positive

movement or act of obstruction from the police officer

Element Battery

➢ Mental state of the defendant

○ He must have an intention to do the act.
○ Intention here had a wide meaning as illustrated in the case of Scott v Shepherd.

Facts:The defendant threw a squib, which is a small, lit firework, into a busy
marketplace with lots of people and stalls. In order to protect themselves and
avoid damage, the squib was thrown on by two other people. When it landed near
to the complainant, it exploded and caused injury to his face. He later lost the use
of one of his eyes. The original thrower, the defendant, was charged with assault
and trespass.
 Held: The defendant was liable for the tort of trespass to person although his
initial gesture did not directly affect the plaintiff; The court also said that the two
other people who reacted to protect themselves by throwing the squib did not
have the required ‘intention’ to commit the act.

➢ The defendant’s act was on his own control.

○ The act must be done voluntarily by the defendant.
○ Not like in the case of Gibbons v Pepper

Facts: The defendant was riding a horse when someone hit the horse from behind
causing the horse to bolt. The horse collided with the plaintiff.

Held:Defendant not liable as the incident of the horse bolting and colliding with
plaintiff was outside of the defendant’s control.

➢ Contact
○ There is a need for a contact or a force or unwanted action towards the plaintiff
body or clothing to consider the act as battery.
○ Any physical contact with the body of the plaintiff or his clothing is enough to
constitute that there is a ‘force’ or an unwanted action.
○ Case: Wilson v Pringle

Facts:two boys played in a school yard. The defendant said he had pulled a bag
from the other’s shoulder as an ordinary act of horseplay. However, the plaintiff
said it was a battery.

Held: There must have been a hostile touch before it amounted to battery. Hostile
touch may be established as long as the defendant understands that he is doing
something that the plaintiff may object to. Acceptable conduct and touching is
different for one society to another. So, to constitute hostile touching it will
depend on the facts and the circumstances of each case.

➢ No consent from the plaintiff.

○ Touching another person without consent is unlawful except something that
presumes that consent exists like tapping a person’s shoulder to get his attention
or touching that occurs during queuing.
○ Case: Nash v Sheen

Facts: Plaintiff went to the hairdressers for a permanent wave and ended
up with a tone rinse which no consent being given by the plaintiff. This
mistake gave her a rash all over her body.

Held: The consent given by the plaintiff did not include tone-rinse and its
consequences. Battery was established.