An assault is the unlawful laying of hands on another person, or an attempt or offer to do a corporal hurt to another, coupled with an apparent present ability and intention to do the act. Any gestures calculated to excite in the party threatened a reasonable apprehension that the party threatening intends immediately to offer violence, or, in the language of the Indian Penal Code, is 'about to use criminal force' to the person threatened, constitute, if coupled with a present ability to carry such intention into execution, an assault in law.1)
Striking at a person with or without a weapon; holding up a fist in a threatening attitude sufficiently near to be able to strike; presenting a gun or pistol, whether loaded or unloaded, in a hostile and threatening manner, within gun-shot or pistol-shot range, and near enough to create terror and alarm; riding after a man with a whip threatening to beat him; shaking a whip in a man's face; advancing with hand uplifted in a threatening manner with intent to strike, although the person is stopped before he gets near enough to carry the intention into effect; and any gesture or threat of violence exhibiting an intention to assault, with the means of carrying that threat into effect, will constitute an assault.
Mere words do not amount to an assault. But the words which the party threatening uses at the time may either give to his gestures such a meaning as may make them amount to an assault, or, on the other hand, may prevent them from doing so. For instance, where A laid his hands on his sword, and said to Z “if it were not the assize time. I should not take such language from you”. This was held2) not to be an assault, on the ground that the words showed that A did not intend then and there to offer violence to Z (in the language of the Penal Code, was not 'about to use criminal force' to Z). Here there was the menacing gesture, showing in itself an intention to use violence, there was the present ability to use violence, but there were also words which would prevent the person threatened from reasonably apprehending that the person threatening was really then and there about to use violence.3)
A battery is the actual striking of another person, or touching him in a rude, angry, revengeful, or insolent manner. It consists in touching another's person hostilely or against his will, however slightly. In Cole v. Turner Ho It, C. J., declared:
Battery includes assault. It is mainly distinguishable from an assault in the fact that physical contact is necessary to accomplish it. It does not matter whether the force is applied directly or indirectly to the human body itself or to anything in contact with it; nor whether with the hand or anything held in it, or with a missile.4)
But every laying on of hands is not a battery. The party's intention must be considered, for people will sometimes by way of joke or friendship clap a man on the back, and it would be ridiculous to say that every such case constitutes a battery.(William v. Jones))
The accepted test is one laid down by Tindal, G. J., in Stephen v. Myers, in which the plaintiff was chairman of a parish meeting; the defendant having been very vociferous, a motion was made and carried by a large majority, that he should be turned out. Upon this the defendant said he would rather pull the chairman out of the chair than be turned out of the room, and immediately advanced with his fist clenched towards him; he was, therefore, stopped by the churchwarden, who sat next but one to the chairman, at a time when he was not near enough for any blow he might have meditated to reach the plaintiff; but the witnesses said that it seemed to them that he was advancing with an intention to strike the chairman. The jury found for the plaintiff with one shilling damages. The learned Chief Justice said: “It is not every threat, when there is no actual personal violence, that constitutes an assault; there must in all cases be the means of carrying the threat into effect. The question, I shall leave to you will be, whether the defendant was advancing at the time in a threatening attitude, to strike the chairman, so that his blow must almost immediately have reached the chairman, if he had not been stopped. Then, though he was not near enough at the time to have struck him, yet if he was advancing with that intent, I think it amounts to an assault in law. If he was so advancing that, within a second or two of time, he would have reached the plaintiff, it seems to me it is an assault in law. If you think he was not advancing to strike the plaintiff, then only you can find your verdict for the defendant, otherwise you must find it for the plaintiff, and give him such damages as you think the nature of the case requires.”
Where the defendant rode after the plaintiff so as to compel him to run into his garden for shelter to avoid being beaten; it was held that an assault was committed.5)
Where the defendant and his servants surrounded the plaintiff, who had refused to leave their workshop, and threatened to break his neck; it was held that an assault was committed.6)
It is an assault to present an unloaded fire-arm, or anything that looks like a fire-arm7); or a gun in a hostile manner within shooting distance, although it may be at half-cock, because the cocking is a momentary operation.8)
If a policeman handcuffs an unconvicted man, where there is no attempt to escape, and no reason to fear a rescue, it is an assault9); so, too, if a man forcibly takes chattel from the possession of another.10) But it is no assault to touch a man in order to draw his attention to something, or pushing gently, through a crowd.11) If a constable, when he has no power to arrest a person riding a bicycle after dark without a lamp, stops such a person by catching the handle-bar of his machine, causing him to fall, the constable is guilty of an assault.12)
Such a seizing and laying hold as are necessary to restrain; spitting in the face; throwing over a chair or carriage in which another person is sitting; throwing water over a person; striking a horse so that it bolted and threw its rider; the removal of a person from one part of prison to another in which he could not be legally confined; cutting off a pauper's hair, even for the sake of cleanliness and according to the rules of the workhouse; taking a person by the collar by a constable; causing another to be medically examined against his or her will; firing a gun carelessly and hitting another, though the person firing never designed the shot to touch him, are all held to amount to battery.
Leading case: Cole v. Turner.
The fact that a defendant has been fined by a criminal Court for an assault is no bar to a civil action against him for damages.13) The previous conviction of the defendant in a criminal Court is no evidence of the assault. The factum of the assault must be tried in the civil Court.14) A plea of guilty in a criminal Court may, but a verdict of conviction cannot, be considered in evidence in a civil case.15)
Mayhem is a bodily harm whereby a man is deprived of the use of any member of his body or of any sense which he can use in fighting to defend himself or annoy his enemy, or by reason of which he is generally and permanently weakened. It is assault and battery of such an aggravated character as to amount to an actual wounding of the person, e.g., cutting off, disabling, or weakening, a hand or finger, striking out an eye or foretooth, breaking a bone, or injuring the head, or wounding a sinew.
When the assault has been carried to the extent of maiming or crippling, or of wounding a person, the damages will be greater than those awarded for a mere assault or battery.
Assault and battery may be justified in the following cases:
Where a railway traveller lost his ticket and could not produce it when required so to do in accordance with an endorsed condition, and refused ta pay over again; it was held that this did not justify the company in forcibly ejecting him.17) A shop keeper is not bound to sell goods at the prices marked over them, and if one enters a shop and insists on having the goods and refuses to leave the shop, the shopkeeper may, after request to depart, use force to turn out the disorderly person.18) An innkeeper may turn out a disorderly person though there is no actual breach of the peace.
Indian case: Where the plaintiff committed a trespass by riding in the train without a ticket, and was assaulted and forcibly removed, the assault and forcible removal were held to be justifiable by the fact of the plaintiff being a trespasser.19)
Leading case: Dean v. Taylor.
Menace without assault is in some cases actionable. But this is on the ground of its causing a certain special kind of damage; and then the person menaced need not be the person who suffers damage. Verbal threats of personal violence are not, as such, a ground of civil action at all. If a man is thereby put in a reasonable bodily fear he has his remedy, but not a civil one, namely, by security of the peace.
Damages in actions for assault and battery will vary according to the circumstances of each case. But generally the damages should be exemplary.
The circumstances of time and place as to when and where the assault was committed, and the degree of personal insult, must be considered in estimating the nature of the offence and the amount of damages. It is a greater insult to be beaten in a public place than in a private room. Provocation may be shown by way of mitigation, or that the blow was unintentional and an apology was offered; so previous threats by the defendant may be proved as an aggravation of the assault. When the assault is accompanied by a false charge, affecting the honour, character, and position in society, of the plaintiff, the offence will be greatly aggravated, and the damages proportionately increased. But if punishment in person is resorted that must always be an important element in mitigation in subsequently estimating the amount of damages.
The plaintiff's position should be considered for the purpose of seeing how far the compensation awarded is commensurate with the injury inflicted.20) Damages should be commensurate to the injury and annoyance caused, even though there has been no serious personal injury.21)
If two assault another, and one beats violently and the other a little, each is responsible for all the damage received from both; and the criterion of the damages is the injury sustained, and not the act or motives of the most guilty, or the least guilty of the defendants. Probable future damage should be considered, for, if the plaintiff has once recovered for an assault, though it be slight, he can have no fresh action for a subsequent new damage resulting from the same act.22)
Where there has been no serious injury, still damages commensurate to the injury and annoyance caused should be awarded.23) Where the damages awarded in compensation for an assault were beyond the means of the defendant, the Court reduced them on the defendant's tendering a written apology to the plaintiff, expressing his regret for what had passed.24) A plaintiff may be entitled to substantial damages for being beaten with a shoe, notwithstanding that he may not have lost his caste, or sustained a pecuniary loss, or physical injury by the act complained of.25)
An assault made by parties proceeding together and acting in conjunction as to time, place and assault, is a single act, and the cause of action is common to all the parties.26)