Assault

In one minute

Assault is an act that makes another person reasonably fear that unlawful force is about to be used on them at once. No touching is needed. The harm is the fear.

It is actionable without proof of damage. In exams, this topic is asked as "define assault and state its essentials", and as a problem on words, gestures and threats that cannot be carried out.

Legal provision

• No Indian statute defines civil assault. The tort comes from English common law and is applied in India as justice, equity and good conscience.
• Bharatiya Nyaya Sanhita, 2023: assault and the use of criminal force are also offences. The civil claim and the criminal case are separate and can run together.

Meaning and definition

Assault is an act of the defendant that causes the claimant to reasonably apprehend the immediate application of unlawful force to their person. The gist of the tort is the apprehension in the claimant's mind. Physical contact is not part of it. Contact is battery.

Detailed explanation

Step 1: The essentials

1. An overt act or gesture by the defendant, such as raising a fist, pointing a weapon or advancing towards the claimant.
2. Reasonable apprehension in the claimant's mind that force will be used at once. The claimant must perceive the threat. An unseen threat behind the claimant's back is not assault.
3. Present ability, real or apparent, to carry out the threat. A threat of future harm, or a threat the defendant plainly cannot carry out at that moment, is not assault.
4. Intention to cause the apprehension, or recklessness about it.

Step 2: Words alone

• Words alone are traditionally not enough. A gesture or act is needed.
• Words can negate an apprehension created by a gesture. In Tuberville v. Savage (1669), the defendant put his hand on his sword and said that he would not take such language if it were not assize time. The words showed that he did not mean to strike then, so there was no assault.
• Words can also make a gesture threatening. In Read v. Coker (1853), workmen surrounded the claimant with their sleeves rolled up and threatened to break his neck. This was assault.

Step 3: Conditional threats

• A threat is not assault if the condition cannot be enforced at that moment, as in Tuberville v. Savage.
• A threat of force "unless you leave" can be assault when the defendant has the present means to strike at once if the claimant does not comply.

Step 4: Where the apprehension ends

In Stephens v. Myers, Myers advanced with a clenched fist on the chairman and was stopped by a churchwarden before he was near enough to strike. The court held it assault, because he was advancing to strike and would have reached the claimant within a second or two. A threat alone is not enough. There must be the means of carrying it into effect.

Step 5: Defences

• Consent to the apprehension, as in a sport or a stage fight.
• Self-defence or defence of another, with reasonable and proportionate force.
• Lawful authority, for example an officer making a lawful arrest.
• Necessity, to prevent a greater harm.
• The defence fails if the force or threat goes beyond what the situation needs.

Step 6: Remedies

• Assault is actionable per se (without proof of damage). The claimant gets damages for the fear and humiliation.
• An injunction can stop repeated threats.
• Criminal prosecution can follow separately.

1. 1. Did the defendant make an overt act or gesture?If this is missing, there is no claim.
2. 2. Did the claimant see it and reasonably fear immediate force?If this is missing, there is no claim.
3. 3. Did the defendant have the present ability, real or apparent, to carry it out?If this is missing, there is no claim.
4. 4. Is there no defence such as consent or self-defence?If this is missing, there is no claim.
5. 5. ResultAssault, actionable without proof of damage

Don't confuse: assault and battery

Point	Assault	Battery
Nature	Fear of immediate force	Actual application of force
Contact	Not needed	Needed, however slight
Claimant's awareness	Essential	Not essential
Complete when	The apprehension arises	The force is applied

Common mistakes

• Saying that assault needs touching. Touching is battery.
• Saying that words alone always make an assault. A gesture or act is traditionally needed.
• Ignoring the claimant's awareness. A threat the claimant never saw is not assault.
• Ignoring present ability. A threat the defendant cannot carry out at once is not assault.
• Forgetting that assault is actionable per se.

Apply it

Leading case laws

• Stephens v. Myers (1830)

  Facts. Myers, voted out of a parish meeting, advanced with a clenched fist on the chairman Stephens and was stopped by a churchwarden.

  Principle. An advance to strike within a second or two of reaching the claimant is assault, even if stopped.

  Significance. Leading case on assault.

• Tuberville v. Savage (1669)

  Facts. The defendant put his hand on his sword and said he would not take such language if it were not assize time.

  Principle. The words showed no intention to strike then, so there was no assault.

  Significance. Words can cancel a threatening gesture.

• Read v. Coker (1853)

  Facts. Workmen surrounded the claimant with sleeves rolled up and threatened to break his neck.

  Principle. The threat with present means was assault.

  Significance. Words with a threatening act make an assault.

How to write this answer in the exam

Key points to remember

• Assault is fear of immediate unlawful force. No contact needed.
• Three essentials: overt act, reasonable apprehension, present ability.
• Words alone are traditionally not enough, but can cancel or strengthen a gesture.
• Stephens v. Myers (1830) is the leading case.
• Actionable per se. A criminal case can run in parallel.

Quick self-test

Related topics

• Battery
• False Imprisonment
• Torts affecting the person