ASSAULT AND BATTERY IN TORT
INTRODUCTION
“Assault” and “battery” in the context of tort law are viewed as separate offences unlike in viewpoint of criminal law where the two are typically components of a single offence. In this essay, the writer will discuss ‘assault and battery as understood in tort law. To properly exhaust these two torts, it is best to evaluate them separately according to their definitions and the help of their related case laws.
Assault and battery are intentional torts meaning that in these two offences, the tortfeasor actually intends to commit the particular civil wrongful act1.
ASSAULT
An assault, according to Oxford Dictionary of law,2 is “the intentional or reckless act that causes someone to be put in fear of immediate physical harm. Actual physical contact is not necessary to constitute an assault (e.g. pointing a gun at someone is an assault). Assault is a form of trespass to the person and a crime as well as a tort”. It is a mere attempt or offer to apply unlawful force to the person of another3 and for this attempt to qualify as an assault, it must be offered intentionally and there must apparent capacity that the threat issued can ably be carried out e.g. if a twelve year old grade eight pupil tells Esther Phiri that she would ‘teach her a lesson’ it cannot amount to assault because Esther as a senior boxer cannot be beaten by a small girl so she is not expected to fear even if the twelve year old promises to beat her up . The threatening words spoken must be accompanied by an apparent possibility to use such a force and the surrounding circumstance must also indicate eminent danger to the person.
Assault need not involve the actual physical contact with the victim. The only necessary elements for an act to qualify as an assault in tort is that there must be intent to cause fear or apprehension on the part of the tortfeasor and the act must indeed create fear or apprehension in the receiving party or victim. The intent in assault is established if a
“Assault” and “battery” in the context of tort law are viewed as separate offences unlike in viewpoint of criminal law where the two are typically components of a single offence. In this essay, the writer will discuss ‘assault and battery as understood in tort law. To properly exhaust these two torts, it is best to evaluate them separately according to their definitions and the help of their related case laws.
Assault and battery are intentional torts meaning that in these two offences, the tortfeasor actually intends to commit the particular civil wrongful act1.
ASSAULT
An assault, according to Oxford Dictionary of law,2 is “the intentional or reckless act that causes someone to be put in fear of immediate physical harm. Actual physical contact is not necessary to constitute an assault (e.g. pointing a gun at someone is an assault). Assault is a form of trespass to the person and a crime as well as a tort”. It is a mere attempt or offer to apply unlawful force to the person of another3 and for this attempt to qualify as an assault, it must be offered intentionally and there must apparent capacity that the threat issued can ably be carried out e.g. if a twelve year old grade eight pupil tells Esther Phiri that she would ‘teach her a lesson’ it cannot amount to assault because Esther as a senior boxer cannot be beaten by a small girl so she is not expected to fear even if the twelve year old promises to beat her up . The threatening words spoken must be accompanied by an apparent possibility to use such a force and the surrounding circumstance must also indicate eminent danger to the person.
Assault need not involve the actual physical contact with the victim. The only necessary elements for an act to qualify as an assault in tort is that there must be intent to cause fear or apprehension on the part of the tortfeasor and the act must indeed create fear or apprehension in the receiving party or victim. The intent in assault is established if a