What is Assault?
Assault — This tort is unique in the common law in providing relief for a mere emotional disturbance unaccompanied by external physical contact. Assault seeks to protect the plaintiff’s interest in freedom from being subjected to mental anxiety. The law, i.e. the requirements, are substantially the same as that of battery, except that, in assault, there is only an apprehension of imminent physical contact.
Assault may thus be described as an incomplete battery. Timorousness on the part of the plaintiff is relevant; provided the defendant excites apprehension or fear of contact in him, there is assault. But note not just fear; it must be fear of contact. For example, neither a gesture (a) behind bar, or (b) by a person firmly secured from causing harm to others can constitute assault because any fear one feels of being hurt would be considered unreasonable in law. For in the person’s situation, he cannot carry out his threat. This means for the threat of battery to amount to assault, the threat must be real or reasonable.
In Read v. Coker, the plaintiff, a paper stainer, was in financial difficulties and owed rent. The defendant paid the rent and bought his equipment under an agreement which secured for the plaintiff a weekly allowance. One day, the defendant asked him to leave the premises. The lain tiff refused. The defendant thereupon collected together his workmen who mustered round the plaintiff tucking up their sleeves and aprons and threatened to break the p. tin tiffs neck if he did not leave. The plaintiff left, and brought an action for assault. It was held: No words can amount to assault; but there were here threats of violence, exhibiting an intention to execute the threat, coupled with ability to act. i.e. present ability to carry the threat into execution.
As was stated by Jervis C.J: “… If anything short of actual striking will in law constitute Lin assault, the facts here clearly showed that defendant was guilty of assault. There was a threat of violence exhibiting an intention to assault, and a present ability to carry the threat into execution.”
It is not every threat then which constitutes assault. To constitute an assault, there must be an act constituting a threat, to do personal violence to the party, complaining, coupled with a present ability to carry out the threat. There must be some act done denoting an intention to commit a battery plus the ability there and then to carry out the threat. The concern therefore is with an intentional conduct which puts a person in reasonable fear or apprehension of imminent battery.
A vivid analogy is the difference between the BARK of a dog, which equals assault and the BITE which is battery. The law of assault thus has all the ingredients of a battery except physical contact. The tort, however stresses two things: (a) an act manifesting an intention or threat of the defendant to commit battery; and (b) the defendant’s ability to execute this intention, i.e. the defendant was in a position to commit and did manifest an intention to commit battery: see Thomas v. National Union of Mine workers (South Wales Area).
In Stephens v. Myers the plaintiff was acting as chairman at a parish meeting, and sat at the head of the table at which the defendant also sat. There were about six or seven people between the plaintiff and the defendant. In the course of some angry discussion, the defendant made himself totally intolerable (interrupted the proceedings) and a motion was moved and passed to eject him from the meeting. The defendant said he would rather pull the chairman out of the chair than allow himself to be turned out. He advanced threateningly towards the chairman with his fists clenched but he was stopped by the church warden before he got near enough to do any harm. The plaintiff (i.e. the chairman) sued him for assault.
Tindal C.J. in his summing up 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, 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. …”
The jury found for the plaintiff, so it is assault.
Therefore, if we look at assault from this angle, that is, a threat and ability to carry out the threat, to point an unloaded gun at another constitutes no assault. The point is illustrated by the decision in Blake v. Barnard!” Here there was proof of the pointing of a pistol at the plaintiff’s head, but there was no proof of the pistol being loaded. The court held there was no assault.
Attempts have been made to diminish the authority of the case on the grounds that it was decided on a pleading point. But it is entirely consistent with the old law’s conception of assault as a threat of battery plus present ability to effect the threat.
We may also look at the decision in Osborn v. Veitch. There, it was held that to point a half-cocked gun to the head of another, and threaten to shoot was an assault, since cocking the gun was as good as having loaded it. See also Miller v. A-G per Abban J (as he then was): To point a loaded revolver at another in such a hostile manner and within shooting distance and which conduct puts that other person in reasonable fear or apprehension of a battery constitutes assault.
But, in R. v. St. George, it was held that to point an unloaded gun at another in circumstances that if it had been loaded its discharge would have been likely to cause injury is an assault, unless the intended victim knows it to be empty. In contrast with the decision in Blake v. Barnard, it was held that, whether loaded or unloaded, a pistol is a pistol and to point it at a person therefore constitutes assault. Once the plaintiff apprehends imminent physical contact, then, it is an assault. This is contrary to the decision in Blake v. Barnard.
In Mortin v. Shoppee, the defendant chased the plaintiff with an uplifted whip intending to strike him but the plaintiff escaped. Chasing with an uplifted whip was held to be assault, because the defendant was advancing with intent and he had the ability to execute the threat. In Read v. Coker, the mere surrounding of the plaintiff with servants was held to constitute assault.
Can mere words constitute an assault?
In the old law, words per se, no matter how menacing, did not constitute assault. This was justified on grounds that merely saying and not doing does not constitute trespass. In Meade v. Belt’s. Case,11 the defendants went to Meade’s house at night and threatened to show him if he came out. They sang threatening war songs and used violent language. Meade came out with a loaded gun and shot one of them. It was held that the attack on the house at night constituted assault, and not the words per se.
But in R. v. Wilson, the appellant was caught poaching by a gamekeeper. He was charged with assault on the gamekeeper with intent to evade arrest. The arrest was found unlawful because only the name instead of the name plus address, as required by statute, was asked for by the gamekeeper. The poacher was convicted of common assault and appealed. It was held that when he was surprised by the gamekeeper, he shouted “Get out knives.”
Per Lord Goddard, C.J.: “… No doubt what the court thought was the serious part of this case … was that the man threatened to get out knives. He called out “Get out knives”, which itself would be an assault, in addition to kicking the gamekeeper.”
R. v. Wilson thus hold that words can cause assault, provided they create a reasonable apprehension of imminent physical contact.
Even if words alone cannot constitute assault, words accompanying an act can negate assault, so it was held in Tuberville v. Savage. This was an action for assault, battery and wounding; the defendant alleged provocation. The evidence to prove the provocation was that the plaintiff put his hand on his sword and said: “if it were not assize-time, I would not take such language from you.” Was that an assault? The court held that it was not. For what the plaintiff meant was that he would not assault him because the judges were in town. The intention as well as the act equals assault.
“Therefore if one strike another upon the hand, or arm or breast in discourse, it is no assault, there being no intention to assault; but, if one, intending to assault, strike at another and miss him, this is an assault; so if he holds up his hand against another in a threatening manner and says nothing, it is an assault.”
Judgment was given in favour of the plaintiff in the substantive suit. A point to note here is that the touching of the sword was considered an assault by itself.
Bruce v. Dyer,’ provides a reasonable rationalisation of the controversy over loaded and unloaded guns, toy weapons and words. In that case, Ferguson J put die point as follows: “Usually, when there is no actual intention to use violence there can be no assault. When there is no power to use violence to the knowledge of the plaintiff there can be no assault. There need not be in fact any actual intention or power to use violence, for it is enough if the plaintiff on reasonable ground believes that he is in fact in danger of violence. So if a person shakes his fist at another the person so assaulted may strike back, if he, on reasonable grounds, believes that he is in danger.”
Principles governing the award of damages:
battery and assault
Assault and battery are actionable per se. Once the tort is acknowledged, damages are at large. Any consequential loss, e.g. damage to chattels or physical injuries, is recoverable, if it is not too remote. But the quantum of the damages depend on proof of actual loss.
In Nsiah v. Ampratwum, Apaloo J (as he then was) assessed general damages at £1,500 in favour of the plaintiff because he found that “assault was outrageous in the extreme and was, entirely unprovoked. The plaintiff was severely beaten and left for dead and with a stroke of bad luck, may well have died … In all the circumstances of this case, and bearing in mind that the first defendant used these sanitary labourers as tools to vent his private vengeance on the plaintiff and did so callously. …”
See also Glover v. London S. S.W. Rly., and Cobbold v. Grand