Crime and tort overlap. Many torts are also crimes, sometimes with the same names and with similar elements (for example, assault and battery) and sometimes a civil action in tort is deduced from the existence of a statute creating a criminal offence.” The more serious, “traditional” criminal offences are likely to amount to torts’? provided there is a victim who has suffered damage” but the scope of tort is wider: it is broadly true to say that causing physical damage by negligence is always tortuous, but it is criminal only in certain circumstances or conditions.”
There is no real difficulty in distinguishing criminal prosecutions from tort claims, if only because they are tried in different courts by different procedures. Generally, criminal proceedings are brought by “the state” or some authorised body and although a private prosecution is still possible, the object of the proceedings in any case is the imposition of some sanction in the nature of punishment, for example imprisonment or a pecuniary fine, even though the sanction imposed may have a reformative rather than a strictly punitive purpose. Nevertheless, there are functional overlaps between the two categories.
At least some of tort law, like crime, has the purpose of deterrence and in a very limited class of case tort imposes overt punishment upon defendants in the shape of exemplary damages.” On the other side, criminal proceedings may lead to compensation of the victim without a separate civil action, for since 1972 the criminal courts have had power to order an offender to pay compensation to his victim. Indeed, “.power” ~s a slightly misleading expression, for the court is now required now to give reason on passing sentence if it does not make a compensation order. A magistrates court is not to order compensation in excess of limited amounts and losses resulting from road accidents are generally excluded but the compensation which may be awarded may include a sum for bereavement or anxiety and distress
Assault means something very specific when it comes to torts and personal injury law. In tort law, an assault refers to an attempt or threat of violence – not actual violence itself. This may surprise people. But it’s one of the first things most lawyers’ learned in law school.
Most people think of “assault” as referring to a violent attack. For example, as in “the gang assaulted a rival gang member on the corner of the street” or “the marines began their assault on the enemy position” Violence, or at least some sort of physical contact, is generally implied in the term.
However, while state laws sometimes differ, assault generally doesn’t require that physical contact actually occurred. Instead, legal scholars define assault as an intentional attempt or threat to inflict injury upon a person, coupled with an apparent, present ability to cause the harm, which creates a reasonable apprehension of bodily harm or offensive contact in another.
Notice the words “attempt” and “threat” above. In tort law, assault does not require actual touching or violence to the victim. We use another term for the touching or contact:”battery.” You may have heard the term “assault and battery.” This refers to situation where both an assault (attempting to injure or threatening to injure) and a battery (actually touching someone) occur in the same incident. Often the assault occurs immediately after the battery: Right before Fred shot Jon, Jon saw Fred aiming the loaded rifle at him.
History of Assault
This definition of assault developed at common law. What this means is that courts developed a working definition over the course of centuries, long before it a legislature passed a statute defining civil assault. Modern assault statutes closely reflect this ancient common-law definition. An assault is both a crime and a tort. Therefore, an assailant may face both criminal and civil liability. A criminal assault conviction may result in a fine, imprisonment, or both. In a civil assault case, the victim may be entitled to monetary damages from the assailant.
Civil Assault Cases
Separate from any criminal prosecution for assault, a victim may pursue civil damages for injuries caused by it. After a determination by a judge or jury that an assault was committed, the next step is to determine what compensation is appropriate.
Three types of damages may be awarded. Compensatory damages, such as medical expenses, are meant to compensate for the injury sustained. Nominal damages are a small sum. Nominal damages act as an acknowledgment that a person has suffered a technical invasion of rights. They are awarded in cases where no actual injury has resulted, or where an injury occurred, but the amount has not been established. Finally, punitive damages may sometimes be awarded. Punitive damages may be awarded in particularly egregious circumstances, as a way to further punish the wrongdoer.
Punitive damages go above and beyond compensatory damages Assault can range from the threat of violence (causing apprehension or fear of harm), to unwanted touching (such as groping), to an act of violence. Regardless of the circumstances, you have the right to seek compensation for any injuries — physical and/or emotional — that result from an assault. Have an attorney review your assault claim today, at absolutely no charge.
Any direct intentional interference with the person of another is actionable in the absence of lawful justification. It is now settled that if the interference is unintentional the injured party’s only cause of action lies in negligence.
Trespass to person is actionable per se, i.e., without proof of special damage. The tort seeks to protect personal integrity, which is regarded as being fundamental that it is protected even in the absence of damage.
The tort of trespass to persons is a fault- based tort-it is therefore not actionable in the absence of INTENTION
Assault is an act of a defendant which causes the plaintiff to reasonably apprehend (fear) the infliction of an immediate battery on him or her by the defendant. Fear or apprehension must be proved. Examples of an assault is throwing water at a person which does not touch his body; pointing a finger in anger to somebody or an act of the defendant which causes fear in the plaintiff. In doing so, the defendant should not have physical contact with the plaintiff lest there be committed a battery. Pointing a gun at a person in a threatening manner, even though to the knowledge of the defendant, but not to the plaintiff, it is unloaded. If there is no reasonable fear there is no assault: as for example, when a gun is pointed at a man behind his back. In the language of the penal code chapter 87 of the laws of Zambia section (90); Threatening violence
The fear by the plaintiff must be immediate and the plaintiff must have reasonable belief that the defendant has present ability to affect his purpose. It is not an assault for example where ‘A’ who is in a train that is moving out of a station, shakes his fist at ‘B’ who is on the platform nor to shake a fist at a man who by his distance from the scene of action is inaccessible to such violence. Also, words may negative what would otherwise have been an assault.
Battery is the direct and intentional application of force to another without lawful justification. This is so, however trivial the amount or nature of the force may be, and even though it does nor is intended nor is likely or able to do any manner of harm. Force means any physical contact with the body of the plaintiff. There is a battery when the defendant shoots the plaintiff from a distance just as much as he strikes him with his fist, and probably the infliction of such things as heat or light, if in such a degree as to cause injury or discomfort, will also suffice. Physical hurt is not necessary. It is sufficient if the act is done with hostile intent.
The least touching of another in anger or without his consent or some other lawful reason or spitting in a man’s face, an unwanted kiss, taking finger prints of a person without observing statutory requirements, to pull a chair from under a person where s/he fall to the ground, to forcibly take from a person some object which he holds or wears is battery. In PURSELL V. HORNE 91838) 3N AND P 564, it was held that to throw water at a person is an assault but if any drops fall upon him, it is battery.
In COLE V. TURNER, 6 Mod. 149, Holt C.J. declared that:
The least touching of another in anger is a battery.
If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery.
If any of them use violence against the other, in a rude inordinate manner, it is battery; or any struggle about the passage, to that degree as may do hurt, is battery
The act by the defendant must be voluntary.
Threats of personal violence which are purely oral and do not lead to injury are not actionable.
It is certainly clear that consent is implied to such physical contacts as are a reasonably necessary consequence of social life, e.g. touching another on the shoulder to attract his attention and in crowded conditions there is a judicial tendency to widen this exception.
Fear in the sense of alarm is not an essential ingredient in the tort of battery: a blow from behind is a battery.
The appropriate tort for personal injuries resulting from medical treatment is not battery but negligence.
Assault and battery are crimes as well as torts.
In most societies protection of individual’s bodily integrity is likely to rank high on the agenda of the interest worth protecting; hence one of the earliest remedies provided by the English law was for forcible wrongs against the person.
The essence of trespass to the person is that it provides a claimant’s protection against direct invasion of his bodily integrity. In 1959,it was established that in order to succeed in trespass, it was not enough for the claimant simply to prove a direct invasion of his bodily integrity. In Fowler v. Lanning (1959)1 Q.B 426,
the plaintiff’s statement of claim alleged that on a certain date and at a certain place, the defendant shot the plaintiff and thus suffered injury. The defendant objected that this statement of claim disclosed no cause of action in that it did not allege that the shooting was intentional or negligent.
Diplock J held that to succeed in trespass, it was not enough to prove a direct act; the plaintiff had in addition to prove that the direct act was done intentionally or negligently. This was affirmed byLord Denning in the case of Letang v. Cooper (1964)2 ALL ER 929 CA
– While on holiday, in Cornwall, Mrs. Letang was sunbathing on a piece of grass where cars were parked. Mr. Cooper drove into the car park. He did not see her and ran into her legs injuring her. She claimed damages on both negligence and trespass to person.
In his opinion Lord Denning went ahead to state that when the injury is not inflicted intentionally, but negligently, then the only cause of action is negligence and not trespass. If it were trespass, it would be actionable without proof. Thus, trespass to the person is actionable per se.
Trespass to the person relates to direct and forcible injury to the person, Direct means that the injury must follow so closely on the act that it can be seen as part of the act. However, injuries caused by a car accident are not direct but are regarded as consequential. (Letang v. Cooper)
Forcible – used to describe any kind of threatened or actual physical interference with the person of 3another.
Injury –includes any infringement of personal dignity or bodily integrity. Actual physical harm is however not an essential ingredient of trespass to the person since the tort is actionable per se.
Trespass to the person
It has three components which may either occur together or separately: assault, battery and false imprisonment. In their definitions, these components incorporate the words intentional and direct. This paper will endeavour to discuss the two in relation to the subject matter ie an assault and battery and further proscribe a possible legal action the aggrieved party can take in relation to the question.
The tort has various definitions;
According to Winfield and Jolowicz pg 71, assault is defined as an act of the defendant which causes the claimant reasonable apprehension of the infliction of battery on him by the defendant.
Gold LJ in Collins v Wilcock 19843 All ER 374
defines assault as an act which causes another person to apprehend infliction of immediate, unlawful force on his person. An obvious example can be A pointing a loaded gun at B. In such a case by virtue of pointing the gun the claimant reasonably apprehends the infliction of an immediate battery.
Ingredients of the tort
Direct and intentional (as discussed above)
Conduct amounts to something which threatens the use of unlawful force. In addition to physical action, threats can also be conveyed verbally unlike in the past when threatening words could not amount to an assault. This has been attributed to by the rise of new means of communication e.g. telephone and email. where a verbal threat by these means can weigh the same as a gesture supported by threatening words which can however have the opposite effect by making it clear that the assailant does not intend to carry out the threat (Turberville v. Savage1669
–Tuberville put his hand upon his sword and said ‘If it were not assize-time, I would not take such language from you.’ Savage later sued Tuberville for assault.
The court held that 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.The intention as well as the act makes an assault.
The victim’s fear that the threat is likely to be carried out must be reasonable. This partly depends on a subjective test which looks at the victim’s view of the situation. In R v St George18the judge said that it is an assault to point a weapon at a person though not loaded, but so near that if loaded, it might do injury. However, if the victim knew that the gun was unloaded, any fear would be regarded as unreasonable.
The threat must be capable of being carried out at the time it is made. In cases of telephone threats, the House of Lords in R v. Ireland indicated that the fear should be that the assailant would be likely to turn up ‘within a minute or two’
If the defendant were to be prevented from carrying out the threat, it would still amount to assault if he was advancing with that intent. InStephens v. Myers it was decided that if the D was advancing with the intent, then it amounted to assault. A similar decision was made in the case of Thomas v. National Union of Mineworkers (South Wales Area) 19852 All ER 1
. It therefore arises that ability to carry out the threat must exist at the time the threat is made.
Assault can also be by means of verbal threat. Traditionally the use of threatening words alone could not amount to assault. R v. Meade and Belt 18231 Lew CC 184
but in the modern day there are other forms of communication such as telephone and emails that can be used as channels for assault.
To throw water at a person is an assault but if any drops fall upon him it is battery.
Pulling a chair as a practical joke from somebody who is about to sit on it is an assault until he reaches the floor because as he is falling he reasonably expects that the withdrawal of the chair will result in harm to him. When he hits the floor and gets hurt, then it is a battery.
Abusive and threatening emails and text messages are the most recognized growing forms of assault. This area of law must be looked into since it is a prominent channel being used to commit assault.
According to Salmond and Heuston (p125) battery is the application of force to the person of another without lawful justification.
Goff LJ in Collins v Wilcock states that battery is the actual infliction of unlawful force on another person. He states that touching will only amount to a battery where it does not fall within the category of physical contact generally acceptable in the ordinary conduct of general life.
For there to be liability for battery, the touching must be intentional whether or not the D intended to cause injury, and if it is non-intentional, then it amounts to negligence. (Letang v. Cooper). If the D misses the person he intends to hit and he hits someone else, the doctrine of transferred malice is considered. A intending to hit B, actually hits C, C will have action against A as As’ intention to hit B is transferred to C.
Marube v. Nyamuro (CA) No. 8 1983
The appellant, an infant, sued through his father, for damages for the loss of his right eye after it was hit by a rope that the respondent, his teacher, was using to whip him. The appellant and other pupils gave evidence that he had suffered injury as a result of deliberate act of the respondent. Respondent denied battering and assaulting the appellant and stated that the injury had risen out of accident. It was held that the respondent was liable and was fined sh.30000.
(Livingstone v. Ministry of Defence 1984 NI 356, NICA
– a soldier in Northern Ireland fired a baton round targeting a rioter but he missed and hit the claimant instead. It was held that the soldier had intentionally applied force to the claimant.
The battery must be the direct result of the D’s intentional act. Scott v. Shepherd – shepherd threw a lighted squib into a market house and it landed on the stall of a ginger bread seller. To prevent damage to the stall, Willis picked it up and threw it across the market. Ryal, to save his own stall, picked it up and threw it away. It struck the claimant in the face and exploded, blinding him in one eye. The D intended to scare someone although he did not intend to hurt the particular person who was actually injured, however he was held liable in battery. The force applied does not have to be personal contact e.g. in Pursell v. Horn– Where the D threw water over the claimant. In Nash v. Sheen – the claimant had gone to the D’s hairdressing salon where she was to receive a ‘permanent wave’ D was held liable in battery.
There must be an intentional touching or contact by the D which must be proved to be a hostile touching. Wilson v. Pringle– A School boy admitted that he had pulled a bag which was over the shoulder of another boy making him fall and get injured. Summary judgment on the basis of battery was entered for the claimant. The school boy’s act of pulling the bag was merely a prank, the necessary element of hostility was lacking. This was expounded in R v. Brown Unlawful touching can also be described as unlawful. Though there is the issue of directness of touching, that is the touching must be applied directly from the defendant, case law dating back over the centuries just shows how widely courts are prepared to stretch the meaning of direct.
The remedies available to the victim of a tort are:
It is a characteristic feature of the law of tort that the damages to which a plaintiff is entitled from the defendant in respect of a wrongful act must recovered once and for all. He cannot bring a second action upon the same facts simply because his injury proves to be more serious then was though when judgment was given. There are certain instances however when damages can be recovered more than once.
a. Where two distinct rights are violated. Where distinct wrongful acts of the defendant cause damage to distinct rights of the plaintiff, successive action can obviously be brought. In BRUNSDEN v HUMPHREY (1884) 14 QBD 141, the plaintiffs’ cab was damage by the defendant’s negligence and the plaintiff himself was injured. Having recovered damages in respect of the cab alone the plaintiff was held entitled to bring second action for his personal injuries.
b. Continuing injury. If I wrongfully place something on your land and leave it there, that is not simply a single act of trespass, but is a continuing trespass giving rise to a fresh cause each time damage occurs as a result of it and accordingly successive actions can be brought defendant whipped a horse so that it bolted and ran down the claimant. The defendant was liable in battery for claimant’s injury.
This assignment was based on the tort of assault and battery in as proscribed by legal findings the if one is found in breach of the law as set out in chapter 87 of the laws of Zambia section (9 ) or in as illustrated in the pathorer of cases in or judicial precedent pursuant to the English law (extent of application ) chapter 11 of the laws of zambia.and if at all their exist any remedies or defences to the said breach.
the facts in brief are that two secondary school girls maria and martha are in a heated argument which latter results in the assault and battery of Martha by maria in a bid to understand the findings even further a question can be asked whether a school girl can sue in her own name ? bearing in mind that the age of the two has being omitted in the details .
it is judicial notice that minors can only proceed in a legal action were they have sued through a next friend or legal guardian , if this is the case then the matter in question can proceed as guided .when Maria advanced pushed Martha she in that action alone committed an assault but coupled with the fall and cut to head resulting from the fall she further committed a battery on to the person of another ie Martha. In looking at the reasonable man test as illustrated by lord Atkinson in donogue v stevenson need not go as far because the tort, here in committed is not fault based simply put the negligent act alone of pushing another to the ground makes you guilty without looking at the intention behind your action.
A person committing assault and/or battery and has legal authority for the action cannot be liable for that act. The statutes give this authority to;
The powers of police officers are provided for in the statutes and, provide that they act within the scope of those powers, they cannot be charged with trespass to the person. If the action goes beyond what is permitted, then a police officer may be liable. Collins v. Wilcock 19843 All ER 374
– a police officer needed to obtain a woman’s name and address in order to caution her for soliciting for the purpose of prostitution. The officer detained the woman by holding her by the elbow. The woman scratched the officer and was charged with assaulting a constable in the execution of her duty. The police officer’s action went beyond the generally acceptable conduct of touching a person to engage his or her attention. It therefore follows that the officer’s action constituted a battery on the woman. Reasonable force may be used to make an arrest but that force must be reasonable and proportionate to the crime being prevented.
Health professionals treating people with mental illness
The mental health act 1983 permits treatment for mental disorder to be given to patients who have been compulsorily detained and treatment may be given without the consent of the patient.
Where the claimant has consented to the actions of the D, he lacks any cause of action. Consent may be express or implied. In sports, where a person takes part in a contact sport, then he has consented to the touching which occurs in the playing of the game within the rules. Simms v. Leigh Rugby Football Club 19692All ER 923S
If the touching is not permitted within the rules, then it is unlawful and the D may be liable for trespass to the person. In medical treatment, consent must be real i.e. the victim must understand what it is that they are consenting to, for the D to be exempted from liability. A person with capacity of adult years and sound mind has an absolute right to give or withhold consent to treatment. In Ms B v. An NHS Hospital Trust 2002 EWHC 429
– The claimant was completely paralyzed, able to move her head very slightly and to speak. She was being kept alive on a ventilator and had no hope of any recovery. She faced the rest of her life like this and informed those caring for her that she wanted the ventilator turned off. She was effectively saying that she withdrew her consent to the treatment. The doctors who had been caring for her for over a year found it impossible to accept her decision and argued that she lacked capacity to make her own decisions. The claimant sued for a declaration that she had the necessary capacity and that her continued treatment was a trespass to her person. The Defendants were therefore liable for trespass during the time the claimant had been treated against her will and a small sum by way of damages for battery was awarded. She later went to another hospital where her decision was respected.
Where it is necessary to prevent harm to others then trespass to the person may be justified. It can also be used in medical cases to justify treatment to a person without capacity e.g. in cases of emergency. F v. West Berkshire Health Authority 19902 AC 1 HL
– F aged 36 had serious mental disability and the mental capacity of a child of four. She had formed a sexual relationship with another patient and the doctors were concerned that pregnancy would be disastrous for her so they sought for a declaration from the court for an operation for her sterilization. It was held that it was in F’s best interests to be able to maintain the sexual relationship hence the operation should take place.
ü Parental authority
A parent will not be be liable for assault or battery for inflicting punishment on a child if the force used is reasonable and is proportionate to the wrong committed by the child. The child must understand the purpose of punishment which must be proportionate to the wrong committed by the child.
A person is entitled to use reasonable force in self-defence or to protect others provided that the force used is proportionate to the danger. Cockcroft v. Smith170511
There was a scuffle in court between a lawyer and a clerk where the clerk thrust his fingers towards the lawyer’s eyes so the lawyer bit off one of the clerks fingers. It was held not to be proportionate response to the threat.
STATUTES REFFERED TO:
JUVENILE ACT CHAPTER 53 OF THE LAWS OF ZAMBIA
PENAL CODE CHAPTER 87 OF THE LAWS OF ZAMBIA
ENGLISH (EXTENT APPLICATION ACT) CHAPTER 11 OF THE LAWS OF ZAMBIA
Cockcroft v. Smith170511
F v. West Berkshire Health Authority 19902 AC 1 HL
Ms B v. An NHS Hospital Trust 2002 EWHC 429
Simms v. Leigh Rugby Football Club 19692All ER 923S
Livingstone v. Ministry of Defence 1984 NI 356, NICA
FOWLER V. LANRING 1959 1 Q.B. 426
R v. Meade and Belt 18231 Lew CC 184
American Express Co. v. British Airways Board 19831 W.L.R. 701