Law of Torts
Assault and Battery: The Apprehension of Force and the Application of It
The two words are used interchangeably in ordinary speech and mean quite different things in law. Battery is the actual application of force to another person without lawful justification, however slight and however little it hurts. Assault is an act which causes another reasonably to apprehend the immediate application of such force. The one is the blow; the other is the threat of it. An assault ordinarily precedes a battery, but either may occur without the other: a blow struck from behind is a battery without an assault, and a fist shaken at a man who ducks is an assault without a battery.
1. The Comparison
Assault | Battery | |
What it is | An act causing a reasonable apprehension of the immediate application of force | The actual application of force to another |
Physical contact | None. Contact would make it a battery | Essential |
What the plaintiff must perceive | The threat. He must be aware of it | Nothing. A sleeping or unconscious person may be battered |
The test | Would a reasonable person in the plaintiff's position apprehend immediate force | Was force applied without consent or lawful justification |
Immediacy | Essential. A threat of future harm is not an assault | Not in issue |
Actionable per se | Yes | Yes |
Intention | Required as to the act and the apprehension | Required as to the act; an intention to injure is not required |
Hostility | Not required in the sense of anger; the act must be unlawful | Not required. An unwanted touching suffices |
Typical instance | Shaking a fist, pointing a weapon, advancing menacingly | A blow, a push, spitting, cutting hair, pulling a chair away, an operation without consent |
2. Battery
- Any intentional application of force to another person without lawful justification is a battery, and the force need not be violent or hurtful. The least touching of another in anger is a battery, and so is an unwanted touching in no anger at all.
- The contact may be indirect. Throwing water, setting a dog on a person, pulling away a chair as he sits, or administering a substance are all batteries, since the defendant need not touch the plaintiff with his own body.
- The plaintiff need not be aware of it. A person who is asleep, anaesthetised or unconscious may be battered, which is the basis of the rule that an operation performed without consent is a battery whatever its clinical success: TORT 130.
- Everyday contact is not a battery, being impliedly consented to by anyone who moves about in society: jostling in a crowd, a tap on the shoulder to attract attention, a handshake.
- Transferred intent applies, so a blow aimed at one person which strikes another is a battery against the person struck: TORT 113.
- An unintentional and non negligent contact is neither, which is the effect of Stanley v. Powell: TORT 118.
3. Assault
📖 Stephens v. Myers, (1830) 4 C and P 349 Facts At a parish meeting the defendant, seated some six or seven places from the chairman, became angry and advanced upon him with a clenched fist, saying he would rather pull him out of the chair than be turned out. He was stopped by the churchwarden before he reached the chairman. Held It was an assault, and damages were awarded. Ratio It is not every threat that constitutes an assault; there must be the means of carrying the threat into effect. But if the defendant was advancing with an intention to strike, and was near enough that the blow would almost immediately have reached the plaintiff had he not been stopped, that is an assault in law, although he was stopped before he could deliver it. |
📖 Tuberville v. Savage, (1669) 1 Mod 3 Facts The defendant laid his hand upon his sword and said, "If it were not assize time, I would not take such language from you." The assizes were then sitting, so the judges were in town. Held This was not an assault. Ratio The words accompanying the act negatived the threat. The declaration was in substance that the defendant would not strike, the assize being in session, so the plaintiff had no reason to apprehend immediate force. Words may therefore unmake an assault which the gesture alone would have constituted. |
- The apprehension must be of immediate force. A threat of harm at some future time, or conditional on an event that has not occurred, is not an assault, though it may be an offence or a ground for other relief.
- The plaintiff must be aware of the threat, since the tort protects him against being put in fear. A gesture made behind his back is nothing.
- The plaintiff need not be frightened, only reasonably apprehensive of immediate contact. A boxer who is unafraid may still be assaulted.
- The defendant need not have the ability to carry it out, if the plaintiff reasonably believes he has. Pointing an unloaded gun at a person who does not know it is unloaded is an assault; pointing it at a person who watched it being emptied is not.
- Words alone were traditionally said not to constitute an assault, though they may qualify, negative or aggravate a gesture, and the modern tendency is to accept that words in some circumstances may suffice.
4. Where One Occurs Without the Other
The facts | The wrong |
A blow struck from behind, unseen | Battery only. There was no apprehension |
A fist shaken at a man who steps back | Assault only. No contact followed |
A fist shaken and then a blow delivered | Assault followed by battery |
An operation performed on an anaesthetised patient without consent | Battery only |
A weapon pointed at a person who is aware of it | Assault only, unless it is discharged |
A chair pulled away as a person sits | Battery, the force being applied indirectly |
A threat to injure tomorrow | Neither, the apprehension not being of immediate force |
5. Defences Common to Both
- Consent, express or implied, which covers surgery, contact sports within the rules of the game, and the ordinary contacts of social life. It must be real and informed, and consent to one procedure is not consent to another: TORT 064 and TORT 129.
- Self defence, defence of another and defence of property, provided the force used was reasonable and proportionate to the threat.
- Lawful authority, including a lawful arrest, the execution of process, and a statutory power to search or restrain.
- Parental and quasi parental authority, now much narrowed, corporal punishment in schools being prohibited by section 17 of the Right of Children to Free and Compulsory Education Act, 2009: TORT 107.
- Necessity, including the emergency treatment of a patient unable to consent, where the doctrine of necessity supplies what consent cannot.
- Inevitable accident, in the sense that an unintentional and non negligent contact is not a battery at all.
6. The Criminal Counterparts
- Both are also offences, and the Bharatiya Nyaya Sanhita, 2023 deals with criminal force and assault in the chapter on offences affecting the human body.
- The civil and criminal proceedings are independent. An acquittal is no bar to the suit, and a conviction is admissible but not conclusive: TORT 101 and TORT 126.
- The civil action is worth bringing chiefly where the defendant has assets or an insurer, or where the plaintiff wants a declaration and an injunction rather than a sentence.
- Where the assault or battery occurred in a domestic setting, the statutory route under the Protection of Women from Domestic Violence Act, 2005 is almost always faster and better, section 22 expressly covering compensation for mental torture and emotional distress: TORT 105.
- And where it occurred in custody, the constitutional tort is the ordinary remedy, sovereign immunity being no defence and fault needing no proof: TORT 135.
⚠ Why the law protects against apprehension at all Battery needs no justification: a person is entitled not to be touched, and the law protects that by making the least unwanted contact actionable. Assault is the harder case, because nothing has happened to the plaintiff at all. He has not been hurt, nothing of his has been damaged, and if he is a man of steady nerves he may not even have been frightened. The tort exists because the interest it protects is not physical integrity but something closer to security: the freedom to go about without being put in fear of violence, which is destroyed by the threat quite independently of whether the threat is carried out. That is also why the requirements are what they are. The apprehension must be immediate, because a threat of harm next week leaves the plaintiff free to go to the police and does not hold him in the grip of the moment. The plaintiff must be aware of it, because a threat he never perceived has taken nothing from him. And the test is what a reasonable person would apprehend, because a tort that turned on the plaintiff's own timidity would make liability depend on the victim rather than the wrongdoer. Tuberville v. Savage is the case that shows the doctrine working precisely: the hand on the sword would have been enough, and the words removed the very thing the tort protects against, which is the belief that the blow is about to fall. |
7. The Position Stated Shortly
1. Battery is the actual application of force to another without lawful justification; assault is an act causing a reasonable apprehension of immediate force.
2. Both are actionable per se, and neither requires proof of damage.
3. The force in battery need not be violent, and the contact may be indirect.
4. A sleeping or anaesthetised person may be battered, which is why an operation without consent is a battery.
5. Everyday contacts are impliedly consented to and are not batteries.
6. Assault requires that the plaintiff be aware of the threat and reasonably apprehend immediate force; he need not be frightened.
7. Stephens v. Myers: an advance with a clenched fist, stopped just short, is an assault, there being the means of carrying the threat into effect.
8. Tuberville v. Savage: words may negative a threatening gesture, and a declaration that no blow will be struck is not an assault.
9. Either may occur without the other: a blow from behind is a battery alone, a fist shaken at a man who ducks is an assault alone.
10. The defences are consent, self defence, lawful authority, parental authority now much narrowed, necessity, and inevitable accident.