INTRODUCTION:

Tort is concerned with civil wrongs caused by individuals and other legal entities. Tort
has two main objectives. One is to offer compensation to the victims of civil wrongs for
the loss, damage or injury that they have suffered. The most common remedy for tortious
conduct is money, referred to as damages. Tort also acts as a deterrent, and aims to reduce
the harm caused by making the tortfeasor responsible for providing a remedy.
Another type of remedy is an injunction, where the court orders a person not to do
something, for example, not to publish an article in a newspaper. It may also be used to
compel a person to do something, although this is less common.
There are three main elements to a tort claim. First, it must be proved that there was
a wrongful act or omission (failure to act) by the defendant. Second, it must be proved
that the claimant suffered loss, damage or injury as a result. Third, it must be proved that
the defendant had a duty to act in a certain way but didnt, meaning he was at fault.
The most litigated tort is the general tort of negligence, where As careless act or omission
causes damage to B. Other torts include defamation, where A suffers as a result of Bs
spoken or published lies; trespass, where B wrongfully goes onto As land; and nuisance,
where B disturbs As enjoyment and use of his land (for example, by allowing dogs or
cats to run freely there).
In certain cases, such as defective products that cause harm to consumers, strict
liability is used. This means that the defendant will be found liable regardless of fault.
There are some overlaps between tort law and criminal law, and sometimes the same set
of facts may lead to both a criminal prosecution and an action in tort. A famous example
of this was the US case of The People v. Orenthal James Simpson. This criminal trial
involved the former American football star and actor O. J. Simpson, and was heard at the
Superior Court of Los Angeles County, California. Simpson was charged with
two counts of murder following the deaths of his ex wife Nicole Brown Simpson and her
friend Ronald Goldman in June 1994. Simpson was eventually acquitted. However, the
Brown and Goldman families then sued Simpson for damages in a civil suit. The jury
unanimously found there was a preponderance of evidence to find Simpson liable for
damages in the wrongful death of Goldman and battery of Brown.
The standard of proof in civil cases, the preponderance of the evidence, is much lower
than in criminal cases, the facts of which have to be proved beyond reasonable doubt.
Another difference between civil law and criminal law are the consequences of
a finding of liability and a finding of guilt. Damages are awarded in tort cases, and are
meant to compensate the injured party for wrongs caused, and to deter others from acting
negligently. A finding of guilt can subject the defendant to a number of
different punishments, including imprisonment and fines (a sum of money exacted as
a penalty by a court of law or other authority). Some jurisdictions are also able to

award punitive damages, which can be extremely high, in addition to compensatory

damages, where the tort in question has been particularly serious.

ASSAULT:
An assault is a threat or attempt to do a corporeal hurt to another, coupled with an
apparent physical ability and intention to do the act. Actual contact isnt necessary in an
assault. But it is not every threat, where there is no actual personal violence that
constitutes an assault; there must, in all cases, be means of carrying that threat into
effect.1 Any gesture calculated to excite, in the party threatened, a reasonable
apprehension that the party threatening intends immediately to offer violence, or, in the
language of the Indian Penal Code, is about to use criminal force to the person
threatened, constitute, if coupled with a present ability to carry such intention into
execution, an assault in law.2
The intention as well as the act makes an assault. Therefore, if one strikes upon the hand,
or arm, or breast in discourse, it is no assault, there being no intention to assault; but if
one, intending to assault, strikes at another and misses him, this is an assault; so if he
holds up his hand against another, in a threatening manner, and says nothing, it is an
assault.3 The menacing attitude and hostile purpose go to make the assault unlawful, e.g.
presenting a loaded pistol at any one,4 or pointing or brandishing a weapon at another
with the intention of using it,5 or riding after a person and obliging him to seek shelter to
avoid being beaten. Mere words do not amount to an assault. But the words which the
party threatening uses at the time may either give to his gestures such a meaning as may
make them amount to an assault, or, on the other hand, may prevent them from being an
assault. For instance, if A laid his hands on his sword, and said to Z, If it were not assize
time, I would not take such language from you. This was held not to be an assault on the
ground that the words showed that A did not intend then and there to offer violence to Z.
here, there was the menacing gesture, showing in itself a intention to use violence, there
was the present ability to use violence, but there were also words which would prevent
the person threatened from reasonably apprehending that the person threatening was
really then and there about to use violence.
Elements of Assault:
Three elements must be established in order to establish tortious assault: first,
the plaintiff apprehended immediate physical contact, second, the plaintiff had reasonable
apprehension (the requisite state of mind) and third, the defendant's act of interference
was intentional (the defendant intended the resulting apprehension). But intent for
purposes of civil assault can be either general or specific. Specific intent means that when
1

Stephens v. Meyers, (1830) 4 C & P 349 : 34 RR 458.

PER ARNOULD, C.J. in A.C. Cama v. H. F. Morgan, (1864) 1 BHC 205, 206.
3
Tuberville v. Savage, (1669) 1 Mod 3.
4
R. v. James, (1844) 1 C & K 530; Osborn v. Verich, (1858) 1 F and F 317.
5
Genner v. Sparkes, (1704) 1 Sak 79.
2

the defendant acted, he or she intended to cause apprehension of a harmful or unwanted

contact. General intent means that the defendant knew with substantial certainty that the
action would put someone in apprehension of a harmful or unwanted contact.
While the law varies by jurisdiction, contact is often defined as harmful if it objectively
intends to injure, disfigure, impair, or cause pain.
The act is deemed offensive if it would offend a reasonable persons sense of personal
dignity.
While imminence is judged objectively and varies widely on the facts, it generally
suggests there is little to no opportunity for intervening acts.
Lastly, the state of apprehension should be differentiated from the general state of fear, as
apprehension requires only that the person be aware of the imminence of the harmful or
offensive act.
There are some cases which would illustrate the concept better. They are mentioned
under.
Cullison v. Medley6
Facts: Plaintiff Cullison met 16-year-old Sandy Medley in a grocery store parking lot,
invited her to have a soda with him and to come to his home to talk further. A few hours
later he was awoken by a knock at his door. He was confronted by Sandy Medley, her
father Ernest, her brother, brother-in-law, and mother. Ernest had a revolver in a holster
strapped to his thigh. Sandy called him a pervert and her mother berated him. Ernest
kept grabbing and shaking the gun while still in the holster and threatening to jump
astraddle of him if he did not leave Sandy alone. Although no one ever touched
Cullison, he feared he was about to be shot because Ernest kept grabbing the gun as if to
draw it from the holster while threatening him. As a result of this incident, Cullison
sought psychological help to deal with nervousness, depression, sleeplessness, inability to
concentrate, and impotency. He sued the Medleys for assault, among other torts. The
trial court granted summary judgment in favor of defendants on all claims, the appeals
court affirmed, and the Indiana Supreme Court reversed on the assault count.
Issue: Whether threatening language coupled with a holstered pistol rises to the level of
assault.
Held: Yes, it was an assault. Assault occurs when one intentionally creates the reasonable
apprehension of imminent harmful or offensive contact in another. It is a touching of the
mind, if not the body, and as such, the damages which are recoverable are for mental
trauma and distress. It is assault to shake a fist under anothers nose, to aim or strike at
him with a weapon or to hold it in a threatening position, or to surround him with a
display of force. Additionally, the apprehension must be one that would be aroused in the
mind of a reasonable person. In this case, a jury could reasonably conclude that the
Medleys intended to frighten Cullison by surrounding him in his trailer and verbally
threatening him with bodily harm while one of them was armed with a holstered
revolver. Accordingly, the Indiana Supreme Court reversed the summary judgment on
the assault count.
6

570 N.E.2d 27 (Ind. 1991).

Tuberville v. Savage7
Facts: Tuberville put his hand upon his sword and said If it were not assize-time, I
would not take such language from you. Savage sued Tuberville for assault.
Issue: What are the elements of the tort of assault?
Holding and Rule: To be liable for assault at least one of the following must be present:
1. an act intending to cause harmful control to another person, or imminent apprehension,
or 2. a third person put in apprehension if he believes the person can do damage. An
assault exists even if the other party can defend against the action and the action is not
inevitable. Mere threats of future harm are insufficient.
In this case the court held that the declaration of Tuberville was that he would not assault
Savage at that point in time. To commit an assault there must be intention followed by an
act. An assault is present if the fear is reasonable. The court held that in this case there
was clearly no intention of assault.
Disposition: For Tuberville.
Notes: Threats of future harm are insufficient to establish assault. Conditional threats
may suffice where the defendant has no privilege to assert them.

BATTERY:
Battery is the intentional and direct application of any physical force to the person of
another. It is the actual striking of another person, or touching him in a rude, angry,
revengeful, or insolent manner. In Cole v. Turner8, HOLT, C.J. declared: First, that the
least touching of another in anger is a battery. Secondly, if the one touches the other
gently, it will be no battery. Thirdly, if any of them use violence against the other, to force
his way in a rude inordinate manner, it will be a battery. ROBERT GOLF, L.J. redefined
battery as meaning an intentional physical contact which was not generally acceptable in
the ordinary conduct of daily life.9This definition was accepted by the House of Lords in
Wainwright v. Home Office.10
A battery includes an assault which briefly stated is an overt act evidencing an immediate
intention to commit a battery. It is mainly distinguishable from an assault in the fact that
physical contact is necessary to accomplish it. It cannot mean merely an injury inflicted
by an instrument held in the hand, but includes all cases where a party is struck by any
missile thrown by another. It doesnt matter whether the force is applied directly to the
human body itself or to anything coming in contact with it. In order to establish the tort of
battery, the plaintiff must however prove that the force used was without any
justification.11 Thus, to throw water at a person is an assault; if any drops fall upon him it
7

1 Mod. Rep. 3, 86 Eng. Rep. 684 (1669).

(1704) 6 Mod, 149.
9
Collins v. Wilcock, (1984) 3 All ER 374, p. 378.
10
(2004) 4 All ER 969, p. 974, (para 9) (HL).
11
Jai Bhagwan v. Suman Devi, (2011) 185 DLT 29.
8

is a battery.12 So, riding a horse at a person is an assault, and riding it against him is
battery. Pulling away a chair, as a practical joke, away from a person who is about to sit
on it, is assault until he reaches the floor; then it is battery the minute he comes in contact
with the floor. The term assault is commonly used to induce battery. But every lying on of
hands is not a battery. The partys intention must be considered. Touching a person, for
instance, for merely calling him isnt a battery.
In Stephens v. Myers13, the plaintiff was the chairman of a parish meeting. The defendant
having been very vociferous, a motion was made and carried by a large majority that he
should be turned out. Upon this, the defendant said he would rather pull the chairman out
of the chair, than be turned out of the room, and immediately advanced with his fist
clenched towards him; he was thereupon stopped by the churchwarden, who sat next but
one to the chairman, at a time when he was not near enough for any blow, he might have
mediated to reach the plaintiff; but the witness said that it seemed to them that he was
advancing with an intention to strike the chairman. The jury found for the plaintiff with
one shilling damages.
Battery requires actual contact with the body of another person so a seizing and laying
hold of a person so as to restrain him; spitting in the face; throwing over a chair; or
carriage in which another person is sitting; throwing water over a person; striking a horse
so that it bolts and throws its rider; taking a person by the collar; causing another to be
medically examined against his/her will; are all held to amount to battery.
Where the plaintiff, who had purchased a ticket for a seat at a cinema show, was forcibly
turned out of his seat by the direction of his manager, who was acting under a mistaken
belief that the plaintiff had not paid for his seat, it was held that the plaintiff was entitled
to recover substantial damages for assault and battery. The purchaser of a ticket for a seat
at a theatre or other similar entertainment has a right to stay and witness the whole of the
performance, provided he behaves properly and complies with the rules of the
management.14 A civil action lies for assault, and criminal proceedings may also be taken
against the wrongdoer. The fact that the wrongdoer has been fined by a criminal court for
the assault is no bar to a civil action against him for damages. The previous conviction of
the wrongdoer in a criminal court is no evidence of assault. The factum of the assault
must be tried in a civil court, which is not bound by conviction or acquittal in criminal
proceedings. A plea of guilty in a criminal court may, but a verdict of conviction cannot,
be considered in evidence in a civil court.
Garratt v. Dailey15
Facts: Five year old Brian Dailey (D) pulled a chair out from under Ruth Garratt just as
she was about to sit causing her to fall and break her hip. Garratt brought suit for
personal injuries and alleged that Dailey had acted deliberately. The trial court
entered judgment for Dailey and found that he had not intended to injure Garratt.
The court nevertheless made a finding of $11,000 in damages in case the judgment
was overturned on appeal. Dailey appealed.
12

Pursell v. Horn, (1832) 3 N & P 564, 8 A & E 602.

(1830) 4 C & P 349 : 34 RR 811.
14
Hurst v. Picture Theatres, Ltd. (1915) 1 KB 1 : 111 LT 973 : 30 TLR 642.
15
46 Wash. 2d 197, 279 P.2d 1091 (Wash. 1955).
13

Issues:
1. In regards to the intentional tort of battery, is the element of intent satisfied if the
defendant knows with a substantial certainty that his act will result in a harmful or
offensive contact?
2. Can a five year old child be liable for an intentional tort?
Holding and Rule:
1.

Yes. In regards to the intentional tort of battery, the element of intent is satisfied if
the defendant knows with a substantial certainty that his act will result in a harmful
or offensive contact.
2.
Yes. A five year old child can be liable for an intentional tort.
A minor is liable just as any other person when he has committed an intentional tort with
force.
Elements of the Tort of Battery: Under the Restatement of Torts an actor who commits
a direct or indirect act which is the legal cause of a harmful contact with another
is liable if: 1) the act is done with the intention of bringing about a harmful or
offensive contact or an apprehension thereof to the other or a third person, and 2)
the contact is not consented to by the other or the others consent thereto is
procured by fraud or duress, and 3) the contact is not otherwise privileged.
Intent requires that the act must be done for the purpose of causing the contact or
apprehension or with knowledge on the part of the actor that such contact or
apprehension is substantially certain to be produced. A battery would be
established if a party acts with substantial certainty that a result will occur. The
mere absence of any intent to injure, play a prank on, or embarrass the plaintiff, or
to commit an assault and battery on her, would not absolve the defendant of
liability if in fact he had such knowledge. If Garratt has proven to the satisfaction
of the trial court that Dailey moved the chair while she was in the act of sitting
down, his action would patently have been for the purpose or with the intent of
causing her bodily contact with the ground, and she would be entitled to a
judgment against him for the resulting damages.
Talmage v. Smith16
Facts: Talmage and several other children were playing on the roofs of sheds on Smiths
property. Smith ordered the children to get down and threw a stick at one of the boys. The
stick missed its intended target and struck Talmage in the eye. Talmage lost all sight in
the eye and sued for battery to recover for personal injuries.
Evidence was offered showing that Smith threw the stick intending to frighten (i.e.
assault) but not hit a different boy. The trial court entered judgment for Talmage and
Smith appealed on the grounds that he did not have the intent to hit Talmage and was
therefore not liable for battery.

16

101 Mich. 370, 45 Am. St. Rep. 414, 59 N.W. 656 (Mich. 1894).

Issue: If an actor intends to inflict an intentional tort upon one party and accidentally
harms a second party, can the actor be held liable to the second party for battery?
Holding and Rule: Yes. If an actor intends to inflict an intentional tort upon one party
and accidentally harms a second party, the actor can be held liable to the second party for
battery under the doctrine of transferred intent.
If an actor intends an act against a party and that act impacts upon another the actor is
liable for the injuries suffered. The fact that the injury resulted to a party other than was
intended does not relieve the defendant from responsibility. Smith will not be relieved of
liability because he intended to injure someone else.
Disposition: Affirmed.
Transferred Intent: The transferred intent torts under common law are: assault, battery,
false imprisonment, trespass to land, and trespass to chattels. If an actor has the intent to
commit any of the transferred intent torts, the actor will be liable for all other transferred
intent torts that result from that act. The actors liability extends to all parties harmed, not
merely the original intended victim.