Assault
Chapter Twenty-Two
Syllabus topic 2.1, "Trespass to Person: Assault, Battery, Mayhem, False imprisonment."
Pages 95 to 97 of 434
In one line
An assault is an act that puts another in reasonable apprehension that force is about to be used on him, whether or not any force follows.
In the wording a student can write in an exam: an assault is any act of the defendant which directly and either intentionally or negligently causes the plaintiff reasonably to apprehend the immediate infliction of force on his person; no contact is necessary and no damage need be proved, since the tort is actionable per se, and what must be shown is a reasonable apprehension of immediate force together with an apparent present ability to carry the threat out.
The essentials
1. An act, not a mere omission. Standing still is not an assault, however alarming the standing man looks.
2. Reasonable apprehension of force. The test is objective. It is not whether the plaintiff was frightened but whether a reasonable person in his position would have expected force to follow. A brave man who is not afraid is still assaulted.
3. The force apprehended must be immediate. A threat of harm next week is not an assault, whatever else it may be. The apprehension must be of force about to be applied now.
4. Apparent present ability. The defendant must appear able to carry out the threat. A man who points an unloaded gun which the plaintiff believes to be loaded assaults him, because the ability is apparent; a man who shakes his fist from a moving train does not, because he cannot reach.
Words, and what they do
The old rule was that mere words are not an assault. The modern position is more careful, and it is what an examiner is looking for.
Words may negative an assault. A raised hand accompanied by "if you were not my friend I would strike you" is not an assault, because the words tell the hearer that no force is coming.
Words may make an act an assault, or explain it. A gesture that would be ambiguous by itself may be an assault when the accompanying words show that force is intended.
A conditional threat may be an assault where the condition is one the plaintiff is not bound to comply with, as where a man is told to leave a place he is entitled to be in or be thrown out.
The criminal counterpart
Section 130 of the Bharatiya Nyaya Sanhita 2023 defines assault: whoever makes any gesture, or any preparation, intending or knowing it to be likely that it will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to him. Section 131 punishes whoever assaults or uses criminal force otherwise than on grave and sudden provocation given by that person. The penal ingredients are a useful check on the civil ones, since the Sanhita too asks for a gesture or preparation causing an apprehension of immediate force.
Assault
A worked example
At a village panchayat meeting, Kiran and Latha quarrel.
One. Kiran raises a stick over Latha's head from three feet away. Latha steps back. That is an assault. There is an act, a reasonable apprehension of immediate force, and an apparent present ability to apply it.
Two. He then lowers the stick, saying "only the chairman's presence saves you today". That is not a further assault, and the words show that no force is coming.
Three. He shouts from across the road, sixty feet away, that he will beat her. That is not an assault, because there is no apparent present ability to apply force immediately.
Four. He telephones her that night saying he will beat her tomorrow. That is not an assault: the apprehension is not of immediate force. It may be an offence of criminal intimidation, and it may found other proceedings, but the tort of assault is not committed.
Five. He points a pistol at her which is, unknown to her, unloaded. That is an assault, because the ability is apparent and her apprehension is reasonable.
Distinctions that carry marks
| Assault | Battery | |
|---|---|---|
| Contact | None | Essential |
| Essence | Apprehension of immediate force | Application of force |
| Can happen without the other? | Yes, if the blow misses | Yes, if the blow comes from behind |
| Damage | Not required | Not required |
| Assault in tort | Criminal intimidation | |
|---|---|---|
| Timing of the threatened harm | Immediate | May be in the future |
| Proceeding | Civil suit by the person threatened | Prosecution |
| Contact | None needed in either |
What it does NOT mean
It does not mean the plaintiff must be frightened. The test is what a reasonable person would apprehend.
It does not mean words alone can never matter. They may negative an act, explain it, or make a conditional threat actionable.
It does not require a real ability to apply force. An apparent present ability is enough, which is why an unloaded gun can be an assault.
It does not cover threats of future harm. Those belong to other branches of the law.
Quick revision
- Assault: an act causing a reasonable apprehension of the immediate application of force.
- No contact, no damage, actionable per se.
- Four essentials: an act, reasonable apprehension, immediacy, apparent present ability.
- Words alone are ordinarily not an assault, but may negative it, explain it, or make a conditional threat actionable.
- Section 130 of the Bharatiya Nyaya Sanhita 2023 defines assault and section 131 punishes assault or criminal force otherwise than on grave and sudden provocation.
- Assault may occur without battery, and battery without assault.
Assault
Test yourself
1. Define assault and distinguish it from battery. An assault is an act of the defendant which directly causes the plaintiff reasonably to apprehend the immediate infliction of force upon his person. Its essentials are an act rather than a mere omission, a reasonable apprehension judged objectively, immediacy of the threatened force, and an apparent present ability to carry the threat out. Battery, by contrast, is the actual application of force. The two are independent: a blow aimed and missed is an assault without a battery, and a blow struck from behind is a battery without any assault, because the victim never apprehended it. Neither requires proof of damage, since both are actionable per se.
2. "Mere words do not amount to an assault." Discuss. The proposition is the traditional rule and it is now stated with qualifications. Words alone, unaccompanied by any act, ordinarily create no apprehension of immediate force and so are not an assault; a threat shouted from a distance or made over the telephone is not actionable as an assault, whatever else it may be. But words work in three other ways. They may negative what would otherwise be an assault, as where a raised hand is accompanied by a statement that no blow will be struck. They may explain an ambiguous gesture and so establish the apprehension. And a conditional threat may be an assault where the plaintiff is not bound to comply with the condition, as where a person lawfully present is told to leave or be thrown out.
3. Is pointing an unloaded gun an assault? Yes, if the plaintiff does not know it is unloaded and a reasonable person in his position would apprehend immediate force. The requirement is an apparent present ability to carry out the threat, not an actual one, because the interest the tort protects is freedom from the fear of force, and that fear is created just as effectively by a gun the victim believes to be loaded. The position is different where the plaintiff knows the gun is unloaded, for then no reasonable apprehension arises, and different again where the defendant is plainly out of reach, since immediacy is then absent.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.