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Battery, Assault and Proper of Defence underneath Torts

Battery, Assault and Right of Defence under Torts written by Samyukta P. Menon student of National University of Advanced Legal Studies


The word tort comes from the Latin word ‘tortum’ which means ‘to twist’. It is connected with civil law. It is a wrongful act that arises when there is a breach of duty, independent of contract, which gives rise to a civil cause of action. The Law of Torts consists of various torts or wrongful acts in which the wrongdoer violates some legal right vested in another person. Each individual should respect other legal rights.
The person who commits this tortious action is known to be the tortfeasor. If such action arises, the tortfeasor has to compensate the victim for the harm caused. The Tort Law in India has evolved from the law existing in the UK. In the UK, it is termed as a ‘Judge Made Law.’ The definitions given by various scholars indicate that tort is a civil wrong however not all civil wrongs are torts.


An injury may be caused due to a variety of reasons. When a wrongful act is done on purpose, which in turn causes an injury, it is said to be an Intentional Tort. This particular type of tort contains various wrongful acts such as trespass, assault, and battery. Assault and battery are highly connected. They are like two sides of a coin. These are the most confusing terms that exist in both tort law and criminal law. There are few countries where both assault and battery have merged into one general crime and others where both are treated as separate offenses.


In simple words, assault is an act of the defendant, which causes the plaintiff reasonable apprehension of the infliction of a battery on him. It is generally defined as an intentional act that puts another individual in the apprehension of immediate harm. This action is completed as soon as the defendant creates an apprehension in the mind of the plaintiff that he is going to commit an act against the plaintiff. Usually, if an act causes harm to another, it is considered to be a wrongful act. However, in the case of assault, an attempt to harm itself is wrong. It is an assault that criminalizes a threat of harm. Due to this, it is often termed as an “attempted battery”. Considering a simple example of a defendant pointing a loaded pistol at the plaintiff. Such an act can instill fear in the mind of the plaintiff. It is considered to be a warning signal. But if the plaintiff knows that the pistol is not loaded, then there is no assault.

Elements of an Assault:

Generally, if someone threatens bodily harm to another it comes within the purview of assault. To raise this to a level of actionable offense, two main elements should be present.
a) Reasonable apprehension- This main element makes a wrongful act an assault. The victim must reasonably believe that defendant’s conduct will humiliate him. Apprehension means a fear which is in the mind of a person that something bad or unpleasant may happen. It is an awareness that an injury is imminent. So, if a person has an intention to cause apprehension of imminent harm and succeeds in that, then he said to have committed assault.
b) Apprehension of Imminent Harm- The victim’s fear must be the result of a direct threat or a threat that is imminent. Future threats would not constitute an offense of assault. Whether an act creates an apprehension in the mind of a person varies depending on the situation. It takes less time and effort to create apprehension in the mind of a child than an adult. Another case is where an assailant points a gun at a sleeping person. In this instance too the person is unaware. This would not constitute an offense of assault.
It is to be noted that the above-mentioned essentials must be present with adequate evidence to make a person guilty of assault. But it is difficult to prove the intention of the offender in such cases. So the court usually will consider the viewpoint of a person with sound intellect in that he should be able to perceive what is harmful or aggressive.


Remedies form an important part of the field of law. In tort law, the various remedies available are damages, injunctions, writs, and self-help. These bring back the affected party to their original situation before the event. Various remedies come under assault:
1) Damages- The primary remedy is that the affected party can always bring an action to claim damages. The compensatory damages awarded in this case can be classified into three:
i) General Damages- It is most likely that the plaintiff or the affected party will face emotional pain and suffering and other mental distress after such an apprehension. General damages seek to compensate such victims for the kind of harm that can be expected from the wrong committed. A special request is not needed for such damages.
ii) Special damages- It compensates the plaintiff for specific expenses caused by the assault. If the plaintiff after the apprehension, feels uncomfortable to do his job or if he feels that he requires on-going psychiatric care, he will be compensated. If he cannot work for some time, he will be awarded past lost wages and loss of future wages.
iii) Punitive Damages- It is also known as Exemplary Damages. Such damages are maybe awarded without any claim. It will help the future generation not committing such offenses. The defendant should have the intention to cause the assault, then only such compensation will be rewarded.
2) Self Help- This is yet another remedy available for assault. Law does not require a person to approach a Court for redress. He can himself redress the issue instead of suing the defendant in a court of law.


Generally, assault precedes battery. Showing a clenched fist is assault, but if a physical strike happens, it will amount to battery. However, not every battery cases include assault. If a person is hit by a blow from behind, then this will result in a battery without being preceded by assault. The person being hit does not have prior knowledge of the act. Battery is generally defined as the intentional touching of or application of force to the body of another person or anything related to them, in a harmful or offensive manner without the consent of the person.

Elements of Battery:

The wrong of battery consists of an intentional application of force to another person without lawful justification. The important elements are as follows:
a) Intention- This is the most important element in all criminal and civil offenses. The intention to cause harm to a person is a part of the offense of battery. Even if in the case of transfer of act, for example, A tries to hit B but ends up hitting C. This shows that he had the intention but failed in the intended act. Still, he will be liable.
b) Contact- Contact or use of force is necessary for such a wrongful act. This contact should be made without consent. Cause of harm is not required to show the use of force in the battery. The injury need not be always caused by direct physical touch. The force can be given indirectly. For example, when the tortfeasor beats someone using a stick.
c) No Lawful Justification- It is always necessary that the force so used should be unlawful and without any justification. The complainant has to prove this. When two people are walking on the footpath past each other silently, there might happen to be physical contact. This is not considered to be a battery as it is not unlawful. But if a fight happens between the two, then there is an offense of battery by the person who has started the fight.
d) No consent- This is yet another important essential for this wrongful act. The tortfeasor should have committed the act without the consent of the victim.


Like assault, various remedies are available under the offense of battery.
1) Legal Remedies- Damages are the primary source of remedy for any offense. Here, compensation is given to the affected party by the tortfeasor to compensate for all injuries caused. It can be awarded even in the case of mental suffering and pain created by such an act. Compensation is directly proportional to the victim’s loss.
2) Restitutionary remedies- Such a remedy will help the plaintiff reach back to his original position, which means to the state before all of it happened. It includes a form of remedy known as ‘Replevin’. It helps the affected party to recover his or her personal property that was lost due to battery.
3) Equitable remedies- Such remedies are granted when monetary compensation cannot serve the purpose. In the cases of battery, the victim can obtain a temporary restraining order which prevents the other party from making any contact with the victim. They can also get a temporary or permanent injunction.


In a nutshell, the differences between assault and battery are as follows:
a. Assault is the attempt to commit battery. Battery includes intentional application of force to another person unlawfully.
b. The main aim of an assault is to instill fear in the person whereas in the case of battery it is to harm a person.
c. Assault is considered to be an incomplete battery as there is no actual contact. The threat of violence is enough for an assault. Battery requires actual contact with the person.


General Defences form a vital part of tort law. Whenever the plaintiff brings an action against the tortfeasor for the wrongful act committed by him, he will be held liable. However, the tortfeasor will have some defenses available with him, so as to absolve him from the liability.
Few of the relevant defenses are as follows:
a. Act of God
b. Private defense
c. Volenti non fit injuria or the defense of Consent.
a. Act of God is recognized as a defense which also comes under the rule of Strict liability. This defense is considered when damage is caused by natural events like earthquakes, storms, heavy rainfall, etc.
b. A person has a legal right to protect himself and his property by using reasonable force. This is known as Private or Self-defence. The only condition is that there must be an imminent threat to a person’s life and property. The force used must be reasonable to the apprehending danger.
c. This maxim literally means that if a person voluntarily agrees to do something, then the injury caused through that act will not be considered. The consent given can be either express or implied. It is to be noted that if the act goes beyond the limit of what has been consented, then he will be held liable.
There are few defenses available for both assault and battery cases. The most common defense is Self-defence. The force used for such a defense must be reasonable and proportionate to the harm caused in the case of battery. The defendant should prove that this was the only way available to protect himself. Consent can also be considered as a defense in the case of assault and battery.


According to intentional torts, assault creates an apprehension of the injury. Battery is an intentional tort dealing with creating harm to another person without consent. After understanding the concepts in its entirety, it can be concluded that assault by itself can produce psychological damage and needs special laws of its own.

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