Written by: Anvesha Agarwal
THE LAW OF TORTS
Tort law in India is primarily based upon the different judgements that have come up over the years. Traditionally, the word “tort” means, “twisted” or “crooked”. It is a civil wrong and based on the principle that the loss should be shifted to the person who did the wrong instead of the wronged party. However, as John Gardener says, corrective justice cannot solely be the answer to the question “what is tort law”. Tort law overlaps with a lot of other branches of law such as the law of contracts and crimes.
In this article, we will focus on two torts- assault and battery. They come under intentional torts. These two torts are very uncommon to use as they are punishable under criminal law as well. The benefit of pursuing a case of assault and battery under criminal law is that firstly majority of the people who committed these are not in a position to pay the compensation. Secondly, since the law of tort is one of the most unpopular subjects of law, not many people know that such a remedy exists or don’t have complete knowledge about it.
Assault is an act of the defendant which causes the plaintiff reasonable apprehension of the infliction of a battery on him by the defendant. In other words, it means that when a person causes the other to reasonably apprehend that battery is going to be committed against him, the tort of assault is said to have taken place. In this case, no actual harm/ damage needs to occur, but only a reasonable belief due to the action of the wrongdoer that such harm is likely to take place. The person must believe that the other person has the ability and resources to do the said harm. Therefore, the mere verbal threat is no assault unless the person has some reasonable apprehension that the harm may indeed be committed.
STEPHENS V. MYERS
In the case of Stephens v. Myers, the plaintiff was the chairman of a Parish meeting. The defendant sat at the same table but 6-7 people apart from the plaintiff. The defendant interrupted the meeting upon which a majority of the members attending the meetings decided to expel the defendant from the meeting. Upon this, the defendant advanced toward the chairman with a clenched fist and said that he would much rather pull the chairman out of the chair than leave the meeting room. He was, however, stopped by the churchwarden, who sat next to the plaintiff. He was held liable for assault..
The tort of battery involves intentional force by the person on another without any lawful justification. There is no level of minimum force required, meaning that the person need not be physically hurt but the basic act of touching in anger constitutes battery. The force applied may even be such that physical touch is not required, for example, hitting with a stick, shooting from a bullet etc. However, in certain cases, the use of force may be justified, for example- a competent surgeon operating to save the life of a person. If the force applied is negligent then it doesn’t amount to the battery and is tried under the tort of negligence.
STANDLEY V. PODWELL
In the above cited case, Powell who was a member of a shooting party fired at a pheasant but the bullet glanced off from a tree and hit the plaintiff. In this case, it was held that the defendant could not be held liable as the act done was not intentional. Had the act done been intentional, he would have been held liable.
DIFFERENCE BETWEEN ASSAULT AND BATTERY
A Canadian judge expressed the view that “the distinction between assault and battery had been blurred and that when we now speak of an assault, it may include a battery”. However, there is a major difference between assault and battery.
Assault (The apprehension of harm) is usually succeeded by battery (actual harm). If in anger a person raises their hand in an attempt to either hit or create a fear in the other person’s brain that they might get hit, then unless his/her hand doesn’t touch the other person it is said to be assault but as soon as it hits the other person, the battery has been committed. If a person throws water on another it is assault until the time the waterfall on him, then it is a battery.
If a person is about to sit on a chair and someone pulls it, then assault has been committed as long as it takes for the person to hit the ground but as soon as he hits the ground, the tort of the battery will apply.
Both assault and battery are independent of each other. This means that both of them can exist without the other. If there is only an apprehension of harm and no actual harm then only assault is committed. If there is some actual harm but the person had no prior knowledge or fear of such harm then the only battery is committed, for example- if a person hits from behind.
If the force applied is negligent then it doesn’t amount to the battery and is tried under the tort of negligence.
According to intentional torts, assault creates an apprehension of the injury. Battery is an intentional tort dealing with creating harm to another person without consent. After understanding the concepts in its entirety, it can be concluded that assault by itself can produce psychological damage and needs special laws of its own.
John Gardner, “What is tort law for? Part 1. The Place of Corrective Justice, Law and Philosophy 30, no. 1 (2011).
F.A. Trindade, “Intentional Torts: Some Thoughts on Assault and Battery”, Oxford Journal of Legal Studies vol.2 No.2 (1982) pp 211.
(1830) 4 C. and P. 346 172 E.R. 735.
(1891) 1 Q.B. 86.
Gambriell v Caparelli (1975) 54 DLR (3d) 661
Pursell v. Horn (1838) A. and E. 602.
Hopper v. Reeve (1817)