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TORTS AFFECTING PERSONAL SAFETY AND SECURITY[1]

(Trespass To Person)

QUESTION BANK

Q.1.  What are the ingredients of Assault and Battery? Discuss.

Q.2.  Define and distinguish between assault and battery. Discuss the various justifications/defenses provided under the law for the same.

Q.3.  Explain the ingredients and defenses of or action of assault and battery?

Q.4. Discuss fully- Assault, Battery, and Mayhem.

Q.5. Define ‘False imprisonment’ and state the defenses to an action for false imprisonment.

SHORT NOTES

1. Assault & Battery
2. False imprisonment.

SYNOPSIS

2. Battery.

• The distinction between assault and battery.
• Defenses to action for ‘Assault’ & ‘Battery’.

• General points of similarity between ‘Assault’ ‘Battery’ ‘Mayhem’:-

4. False Imprisonment –

• Ingredients of false imprisonment.

[Note-Four topics henceforth are not prescribed for the syllabus of Shivaji University; however, they are necessary for a better understanding of the subject ‘Tort”]

Torts affecting personal safety and freedom are often styled as “trespass to person”.

The following are the main forms of trespass to persons.

1) ASSAULT[2]:-

Definition:-

          “An assault is an attempt or a threat to do a corporeal hurt to another, coupled with an apparent present ability and intention to do the act”.

          Actual contact is not necessary. Mere words do not amount to an assault unless they produce fear of immediate violence.

Verbal threat + gesture (causing fear of immediate violence) = Assault.

          However, the words that the threatening party uses at the time may give his gesture such a meaning that he may make such gesture amount to an assault or, on the contrary, may prevent such gesture from becoming an assault.

For instance, ‘A’, a soldier, laid his hands on his sword and said to ‘Z’, ‘ If it did not drill parade time, I would not take such language from you. ‘ This was held not to be an assault because the words show that ‘A’ did not intend then and there to cause violence.

          Similarly, the words “Were you not old man, I would knock you down” negate the threatening gesture, and there is no assault.

Assault is also an offence under S.351 of I.P.C.

Ingredients:-

          In order to succeed in an action for assault, the plaintiff must prove.

1. That there was some gesture or preparation which constituted a threat or
2. That the gesture or preparation was such as to cause a reasonable apprehension of force and
3. That there was a present ostensible ability on the defendant’s part to carry a threat into ‘practice’ immediately.

Thus, if a person brandishes a sword at such a distance that not hurt anyone, it would not be an assault.

In Stephens V/s. Myers [3]

Facts: – The plaintiff was the chairman of a Club’s meeting. The defendant having been vociferous, a motion was moved and carried by a large majority of members that he should be turned out from membership of the club; upon this, the defendant said that he would rather pull the chairman out of the chair than to be turned out of the membership and immediately advanced with a clenched-fist towards the president. He was thereupon stopped by the churchwarden who was next to the chairman, and the witness said that it seemed to them that he was advancing with an intention to strike the chairman.

Held: – Jury fined Defendant damages

2]       Battery[4]: –

          A battery is the intentional and direct application of any physical force to the person of another. It is striking another person or touching him in a rude, angry, revengeful, or insolent manner.

          The force used doesn’t need to be applied directly to constitute a’ Battery’. Even indirect contact with another’s body constitutes ‘Battery’. Thus, throwing water at another person is assault, but as soon as any drop touches the body of the other, it becomes a battery.

          The tort of battery corresponds to the offence known as the use of criminal force in S.350 of the I.P.C.

Ingredients of Battery: –

In action, for battery, the plaintiff must prove-

1. the actual use of force to him either to his body, e.g., slapping or pushing or by bringing an object in contact with his body, e.g., throwing water on him.
2. That the use of force was intentional,e., without any lawful justification.

Hurst V/s. Picture Theatres [5]

Facts– The plaintiff, who had purchased the ticket for a seat at a cinema show, was forcibly turned out of his seat by the manager’s direction, who was acting under the mistaken belief that the plaintiff had not paid for his seat.

Held: – that the plaintiff was entitled to recover substantial damages.

The distinction between Assault and Battery:-

          Battery includes assault; the main points of distinction are-

1. Actual contact is not necessary for an assault, although it is necessary for a battery.
2. An assault is an attempt at a battery or a threat to commit a battery. Thus, throwing water at a person is assault; if any drop of water falls on him as intended, it becomes a battery.

Defences to action for ‘Assault’ and ‘Battery’:-

1.               Self Defence: – “Son assault demesne”:-

         Self-defence or defence of one’s wife, husband, children, parents, master, or even stranger is a good defence. This sort of self-defence is technically known as “son assault demesne”, which means that the act complained of was the effect of the plaintiff’s own attack.

          The legal limitation on such self-defence is that such defence must not be-

1. i) Unnecessary and disproportionate to what is actually required. For instance, if a person mildly strikes another with a little stick on his shoulder, it would not justify the latter to draw a sword and cut the other.
2. ii) Defense of one’s property:-

Assault in defence of possessing a house, goods, and chattels is justifiable, provided no more force is used than necessary.

iii)      Expulsion of the trespasser[6]:-

          If a man enters the property of another without his permission and with force and violence, the owner is justified in turning him out (expel) without a previous request to depart and may use such force as necessary. However, if he enters quietly, he should first be requested to retreat before force can be used to turn him out.

1. iv) Retaking of Goods[7]:-

The rightful owner may justify an assault in order to repossess himself of land or goods which are wrongfully in possession of another.

1. v) Exercise of parental or quasi-parental authority[8]:-

Force may be used for chastisement or correction of a pupil, Child or apprentice, provided such force need not be excessive or unreasonable

1. vi) Leave and License (consent)[9]:-‑

          A man cannot complain of harm to which he has exposed himself with knowledge and of his free will, e.g. boxing, hockey, fencing, football, etc.

vii)     Preservation of public peace[10]:-

          A person who disturbs public worship or meetings may, by reasonable force, be removed, provided that force does not exceed necessity and reasonableness.

viii)    Legal process:-

          Assault may be justified if it was done to serve a legal process, including a search under the law.

3]       Mayhem[11]:-

          Among the personal injuries except for death, the most serious injury is ‘Mayhem’ or ‘maim’. An action for mayhem is maintainable when the person has been deprived of any fighting limb, e.g., loss of feet, hands, legs, fingers, etc. But where it is not a fighting limb that has been deprived of the action would not be for mayhem, but only for the battery, e.g., cutting off the ear or the nose would amount to the battery and not mayhem because no loss of fighting limb.

General points of similarity between Assault, Battery, and Mayhem:-

1. In all three above wrongs, an action will lie without proof of actual damage, violating a person’s right.
2. Prosecution in criminal court for the above offences under I.P.C. does not bar civil action for tort.

• The ‘conviction’ for these offences in criminal court is no evidence in the civil suit for damages.

1. A plea of guilt in a criminal court may be considered in evidence in a civil court, but not ‘ a verdict of conviction.

4]       False Imprisonment[12]:-

          False imprisonment is a total restraint of a person’s liberty for a howsoever short time without lawful exercise. The word ‘false’ means ‘erroneous’ or ‘wrong.’

Ingredients of False Imprisonment:-

1. Total restraint of a person’s liberty- The person’s detention may be either.
2. Actual, i.e., Physical, e.g., laying hands upon a person, or
3. Constructive, i.e., by mere show of authority, e.g., an officer telling anyone he is wanted and taking him with himself.
4. Detention must be unlawful:-

The period for which the detention continues is immaterial. However, it must not be lawful.

*****

[1] व्यक्तीगत सुरक्षे विरुध्द ची अपकृत्ये [ व्यक्तिगत सुरक्षा के विरुद्ध अपराध ]

[2] अंगविक्षेपासह हल्ला करण्याची / मारहाण करण्याची धमकी [  शारीरिक नुकसान के साथ मारपीट/हमले की धमकी]

[3] 1830

[4] हल्ला/मारहाण [  हमला]

[5] 1915 K. B.

[6] अतिक्रमण करणारास हाकलून देणे [  अतिक्रमणकारियों को बेदखल करें ]

[7] माल परत मिळविणे [  सामान लौटाना]

[8] पालक/पालक सदृष्य अधिकाराचा वापर [ माता-पिता/माता-पिता के अधिकार का प्रयोग]

[9] संमती [अनुमति]

[10] सामाजि शांतता ठेवणे [ सामाजिक शांति बनाए रखना ]

[11] विकलांग करणे [ विकलांग करने के लिए]

[12] अवैद्य तुरुंगवास [ अनुपचारित कारावास ]