The term “assault” is commonly used to include battery. Although related, assault and battery are two distinct torts. The difference is that assault is an intentional and direct act of the Defendant which causes the Plaintiff reasonable apprehension of the immediate infliction of a force onto his person while battery is an intentional and direct application of force to another person without that person’s consent. This touching need not necessarily involve violence.
In short, assault refers to the act which causes the victim to apprehend imminent physical harm while battery refers to the actual act causing the physical harm.
1) Assault
Assault is an act of the defendant which causes the plaintiff reasonable apprehension of the infliction of a battery on him by the defendant. – Collins v Wilcock
Four elements must be fulfilled in order to establish assault:
(a) The defendant’s intention
In Tuberville v Savage, it was held that if one was struck in discourse, it would not constitute as an assault due to lack of intention. However, if one were to strike another with an intention of assault, but misses, it is an assault.
(b) Effect on the plaintiff (i.e. there’s reasonable apprehension)
To determine if a person feels reasonable apprehension, the objective test is to be used as seen in R v St George where it was held that unless the distance between the plaintiff and the defendant is so far that any reasonable man would know that he is outside the range of the shot (even if the gun is loaded), there is no reasonable apprehension that infliction of force would take place.
(c) Capability of carrying out the threat
This too is objective. In the case of Stephen v Myers, the defendant threatened to hit the plaintiff and advanced with clenched fists, only to be stopped by a third party before he could reach the plaintiff. It was held that assault was established since the defendant would have been able to carry out his threat had he not been stopped.
(d) Bodily movement
In the case of Innes v Wylie, it was held that standing passively to obstruct the entrance did not constitute as assault since there was no bodily movement to denote so.
It should be noted that words alone are normally insufficient of constituting assault unless the facts support a finding of reasonable apprehension of fear on the part of the victim. This may be achieved by threatening phone calls or even silent calls which cause the plaintiff reasonable apprehension of infliction of force within a time that is immediate. In addition, certain words may, in the circumstances, be sufficient for the purpose.
(2) Battery
Battery may be defined as the intentional and direct application of force to another person without the person’s contact. – Collins v Wilcock
Battery consists of four elements:
(a) The defendant’s intention
There has to be the presence of intention. The doctrine of transferred intent also applies. For context, transferred intent is a concept that allows for the guilt to follow the action, regardless of who the victim is.
(b) The act was voluntary (i.e. the act was under their control)
In the case of Gibbons v Pepper, the horse the defendant was riding was hit from behind, causing it to bolt and injure the plaintiff. It was held that he was not liable since such a situation was out of his control.
(c) Contact
In Wilson v Pringle, it was held that there must be hostile touching in order to constitute battery.
(d) Said contact was non-consensual or without legal justification
In Nash v Sheen, the Plaintiff went to hairdresser and had a toner applied to her hair without her consent. Nash got skin complications due to an adverse reaction to the toner. Battery was established since there was no consent by the Plaintiff for the hairdresser to do so.
