TRESPASS TO THE PERSON: ASSAULT

TABLE OF CONTENTS

1.0       Introduction

2.0       Objectives

• Main content
• Definition of Assault
• Purpose of the law of assault
• Elements of assault

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignments

7.0       References and further reading

INTRODUCTION

Trespass to person is any intentional interference with the body of another person. It is interference with the body of another person or his liberty. It is an invasion of the body of another person. Trespass to the person consists of three types of tort.

These are:

1. Assault: putting a person in fear of bodily harm;
2. Battery: any contact, touch, force or bodily harm; and
3. False imprisonment: deprivation of personal liberty or movement, any detention, kidnap or

Where a trespass to person is committed negligently or was a result of negligence, action is usually brought in the tort of negligence.

We shall consider these three types of trespass to the person in the next three units.

OBJECTIVES

By the end of this unit you should be able to:

• define assault;
• understand the purpose of the law of assault; and
• describe the elements of assault.

MAIN CONTENT

Definition of Assault

In ordinary everyday use, the word “assault” means to attack, beat or hit somebody. Thus, in ordinary parlance, the word assault is used to include both assault and battery. However, in the law of tort, assault and battery are two different and separate torts. Under the Criminal Code Act, the word “assault” is often used to cover both assault and battery. Accordingly, in criminal proceedings, they are usually charged. In view of this reason, sections 252-253 and 351-360 of the Criminal Code Act, define various types of assaults.

Assault is a crime and a tort. Since trespass to person is a tort and a crime, a victim may seek redress in both civil and criminal law. However, civil action is often not brought unless the tortfeasor or his employee has money and can afford to pay compensation. Otherwise, criminal action is often brought in the magistrate court by the police on behalf of the state as part of the public policy of the state to sanction crime and maintain law and order.

Furthermore, assault and battery often occur together because they are often committed concurrently or simultaneously. Thus they are often charged together in criminal proceedings just as civil claim is often brought for both because one seldom occurs without the other. In western societies, compensation may be awarded in criminal proceedings. For instance, under the English Criminal Justice Act, 1988 which is administered by the Criminal Injuries Compensation Board, compensation may be awarded to crime civtims. This prevents the need for a separate civil suit to recover compensation. See the following cases:

R v Criminal Injuries Compensation Board, e.p. Lain (1967) 2 QB 864; Holden v Chief Constable of Lancashire (1986) 3 All ER 836; and

Hill v Chief Constable of West Yorkshire (1988) 2 WLR 1049.

In this unit, we shall examine assault in the context of the law of tort. According to Padfield in Law made Simple, 5^th ed, p. 211, assault:

“is an attempt or threat to apply unlawful force to the person of another whereby that other person is put in fear of violence”

Kodilinye (Nigerian Law of Torts, op.cit. p. 12), defines assault as:

"any act which puts the plaintiff in fear that battery is about to be committed against him.”

In other words, an assault is threatening to harm or apply force to another person with the present ability to carry out the threat. An assault is any act which makes another person to fear the immediate application of unlawful force. It is threatening to do violence to a person short of actually striking the person. It is any intentional or reckless act which makes another person to fear the immediate application of physical harm. It is any threat to apply unlawful force to another person. The act must imply personal violence. Therefore any act, gesture, or menace by the defendant which puts the plaintiff in fear of immediate application of force to his person is an assault. Accordingly, any unlawful act of a person which puts another person in reasonable fear of battery is an assault.

As opposed to criminal law, in the law of tort, an assault is essentially:

1. An attempt or threat to apply force or violence to another
2. With the apparent ability to carry it
3. Which puts the person in reasonable fear of battery
4. Contact is unnecessary

SELF ASSESSMENT EXERCISE 1

What do you understand by assault?

The Purpose of the Law of Assault

The purpose of the tort of assault is to prohibit a person from putting another in fear of physical interference. It prohibits all physical interference with another person including revenge attack. The tort of trespass to person is actionable per se on mere occurrence and does not require proof of damage for a successful claim.

The offence that is committed or injury that is done and which the law seeks to prevent; is the putting of a person in fear of impending contact, violence or battery . People should be free to go about their lives without being threatened or subjected to fear of violence, except for instance, by the due process of law. Generally, direct and intentional trespass are dealt with by trespass to person, whilst indirect and unintentional acts are covered by negligence, for instance, road accident cases, etc.

Assault Is Wider In Criminal Law

Assault is wider under criminal law. In criminal law, the offence of assault includes both assault and battery. See sections 252-253 and 351-360 of the Criminal Code Act. Accordingly, under the Criminal Code Act, an accused is usually charged with assault and battery. You will read more in your Criminal Law course materials.

Examples of assaults are many and includes threatening a person with a knife, broken bottle, menaces, advancing towards a person and shaking your fist and threatening to beat him up, or striking at a person with a stick but missing the person, etc. All these are threats of violence and are instances of assaults. It is not necessary that the victim's state of mind should be one of fear, or alarm. It is enough, if the victim merely expects the application of unlawful force to his body, because subjection of a person to fear of immediate application of unlawful force is what the law of tort seeks to prohibit.

Elements Of Assault: What Needs To Be Proved:

The elements a plaintiff needs to prove to succeed in a claim for assault are:

1. That there was a threat to apply force
2. That the act will put a reasonable person in fear of battery. In other words, that it was reasonable for the plaintiff to expect immediate battery.

That there was a Threat to Apply Force:

There can be assault without battery. In assault it is not necessary to prove that the plaintiff was actually put in fear or experienced fear. What needs to be proved is that it was reasonable for the plaintiff to expect immediate battery. As a general principle, pointing an unloaded gun or even a model, or imitation gun at a person who does not know it is unloaded or that it is a model gun and therefore harmless, is an assault.

In R v St. George (1840) 173 ER 921, the defendant pointed a gun he knew to be unloaded at the plaintiff who did not know that it was unloaded, at such a distance that the complainant could have been hurt if the gun was fired. On a claim for assault the court held: that there was an assault, even though the gun was unloaded, because the complainant was put in fear of being shot. See also Logdon v DPP (1976) Crim LR 121.

In Innes v Wylie (1844) 174 ER 800, the defendant policeman who stood motionless in order to block a door way, was held not to have committed assault on the plaintiff by so doing. See also DPP v Little (1992) 1 All ER 299.

In Smith v Supt of Woking Police Station (1983) Crim LR 323: 76 CAR 234, the defendant appellant frightened the complainant by looking through her bedroom window late in the night. The court held that the accused was guilty of assault as the complainant was put in fear of personal violence.

Also in R v Barrett (1980) 72 CAR 212 CA, the defendant advanced towards the complainant, shook his fist angrily and threatened to beat the complainant there and then, as a result of which the complainant was put in fear of immediate application of force to his person. The court held: that there was assault.

In Stephen v Myers (1838) 172 ER 735, the plaintiff was the chairman at a parish meeting where he was sitting at the head of the table with about 6 to 7 persons between him and the defendant. In the course of the meeting, the defendant threatened to eject the plaintiff from the venue of the meeting. He stood up and started advancing to the plaintiff to carry out the threat when he was stopped from reaching the chairman by the person sitting next to the chairman. In a claim for damages for assault the court held that assault was committed. The defendant was proceeding to throw out the chairman, though he was not near enough at the time to have struck him. He advanced with on intention which amounted to an assault in law.

An Order Coupled With A Threat May Be Assault

It is also an assault to threaten to apply force to a person if the person does not immediately proceed to do some act or refrain from an act unless the defendant has legal justification. Similarly, an innocent act or conduct may amount to assault when coupled with threatening words.

Read v Coker (1853) 138 ER 1437.

The defendant had a business disagreement with the plaintiff, his partner. The defendant thereupon ordered his workmen to throw the plaintiff out of the premises. They then surrounded the plaintiff rolling up their sleeves and threatening to break his neck if he did not leave the premises. The court held that there was an assault. There was threat of violence together with an intent to do battery to the plaintiff. Threatening to break the plaintiff’s neck if he did not leave the premises was an assault.

Ansell v Thomas (1974) Crim. LR 31.

The plaintiff who was the managing director of a company left the factory early due to the fact that two policemen invited by his co-directors threatened in words to forcibly eject him from the company's premises, if he did not leave voluntarily. In a claim by the plaintiff, the court held that the co-directors were liable in assault.

Words Alone

As a general rule, words alone, that is mere words do not amount to assault. To amount to an assault, the intention to apply force to the plaintiff must be shown by some action or gesture, however slight or subtle and not just in words or speech. A gesture alone may amount to assault. Similarly, a gesture coupled with words commonly amount to assault. On the other hand, words alone may amount to assault. This is so, for often a thing said is a thing done. Words often put a person in fear of personal violence. Thus, as an exception, whenever words of threat put a person in reasonable expectation of fear, there is assault. See for example the following cases.

R v Ireland & Burston (1997) 4 All ER 225 HL.

The defendants made repeated silent phone calls to three victims. In some calls all he did was resort to heavy breathing. The victims were stalked for months and were afraid to be alone. The victims suffered mental illness or depression. The House of Lords held that there was assault. The silent phone calls having put the victims in fear of violence amounted to assault.

Janvier v Sweeney (1919) 2 KB 316 CA.

The plaintiff, a French woman living in England was engaged to a German, who was detained in the Isle of Man, England during World War I. One of the defendants called at her home and falsely told her that he was representing the military authorities and that she was wanted, because she has been corresponding with her fiancé, a German who was suspected of being a spy. As a result of the false threat, the plaintiff suffered nervous shock and on discovery that the accusation was false she claimed damages. It was held that she was entitled to damages for personal injuries for trespass to person. See also Wilkinson v Downton (1897) 2 QB 57.

Words may negate assault

On the other hand, words may explain and thus negate the possibility of battery or invalidate what would ordinary have been an assault. Thus, words may prevent what would have ordinarily amounted to an assault from coming into being. This was the position in:

Tuberville v Savage (1669) 86 ER 684. The defendant put his hand on his sword, which act amounted to a menace or threat and therefore an assault, and said "if it were not assize time [court session time] I would not take such language from you." It was held that there was no assault. The words of the defendant showed that he did not intend to assault the plaintiff, as the judges were in town for a court session.

In R v Light (1843-60) All ER 934 CA, the accused husband raised a sword over his wife's head and said "were it not for the bloody policeman outside, I would split your head open”. The court held: that the accused husband was guilty of assault. See also R v  Wilson (1955) 1 All ER 744 CA.

Sometimes, a battery may be committed straight away, without first having committed an assault, such as giving a person a blow suddenly from behind, or whilst he is asleep or otherwise unconscious.

That the Act will put a Reasonable Man in Fear of Battery:

Finally, for assault to be committed, the act of the defendant complained about must be such that would put a reasonable man in fear that force is about to be applied to him. The act must put a reasonable man in fear of violence. This test is an objective test and it is not subjective to any particular plaintiff alone. Therefore, where the threat would not put a reasonable person in the shoes of the plaintiff in fear of violence, the tort of assault is not committed.

However, the mere fact that the plaintiff who was threatened with battery is a brave person and was not frightened by the threat, will not bar the plaintiff from successfully claiming damages for assault, as long as the alleged act of assault would make a reasonable man or reasonable person in his shoes to be afraid of battery.

In Hurst v Picture Theatres Ltd (1915) 1 KB 1 CA, the plaintiff paid for admission to the defendant's theatre. The defendants believing that the plaintiff had entered without payment asked the plaintiff to leave. He was not afraid and refused to leave and was forcibly ejected. He sued for damages. The court held that the defendants were liable for assault and false imprisonment.

In Brady v Schatzel (1911) St. R QD 206, the defendant pointed a gun at the plaintiff and threatened to shoot the plaintiff. The plaintiff sued for assault. Giving evidence in court the plaintiff said that he was not scared at the time. The court held that the defendant was nevertheless liable for assault. The act in question amounted to an assault. It was immaterial that the plaintiff was not scared. The purpose of the law is to make people free from threat of violence or immediate application of battery.

Where a threat is impossible of being carried out there may be no assault. Accordingly, where a threat is clearly impossible of being carried out, there is no assault. See Thomas v National Union of Mine Workers (1985) 2 All ER 1.

CONCLUSION

Trespass is the unauthorized intervention with a person his property or his possession. Where it is trespass to a person, it could take the form of battery assault or false imprisonment. Where it is to his property, it could take the form of trespass to land, detinue or conversion.

SUMMARY

This unit has taught the learners:

1. The basic concept of trespass in the Law of Torts
2. The tort of Assault Elements of Assault and essentially the purpose of the Law of Assault.

TUTOR MARKED ASSIGNMENT

1. What is the purpose of the law of assault?
2. Mere words do not amount to an assault.

            REFERENCES

1. Bodunde Bankole, Tort: Law of Wrongful Conduct: Lipservice Punishment (1998), Lagos.
2. Fidelis Nwadalo: the Criminal Procedure of the Southern States of Nigeria, Mij Publisher, Ltd, Lagos (1996).
3. John G. Fleming: The Law of Torts (1977), The Law Books Co. Ltd publisher, London. Sweet &
4. Street: The Law of Torts Sweet & Maxwell (1977), London
5. KODILINYE & Oluwole Aluko: Nigeria Law of Torts. Spectrum Law Publishers, 1999.
6. Criminal Procedure Code of the Northern States of