Nivel de conocimiento que tiene el docente en el ámbito de la gestión del

The elements a plaintiff needs to prove to succeed in a claim for assault are:

1. That there was a threat to apply force

2. That the act will put a reasonable person in fear of battery. In other words, that it was reasonable for the plaintiff to expect immediate battery.

That there was a Threat to Apply Force:

There can be assault without battery. In assault it is not necessary to prove that the plaintiff was actually put in fear or experienced fear. What needs to be proved is that it was reasonable for the plaintiff to expect immediate battery. As a general principle, pointing an unloaded gun or even a model, or imitation gun at a person who does not know it is unloaded or that it is a model gun and therefore harmless, is an assault.

In R v St. George (1840) 173 ER 921, the defendant pointed a gun he knew to be unloaded at the plaintiff who did not know that it was unloaded, at such a distance that the complainant could have been hurt if the gun was fired. On a claim for assault the court held: that there was an assault, even though the gun was unloaded, because the complainant was put in fear of being shot. See also Logdon v DPP (1976) Crim LR 121.

In Innes v Wylie (1844) 174 ER 800^, the defendant policeman who stood motionless in order to block a door way, was held not to have committed assault on the plaintiff by so doing. See also DPP v Little (1992) 1 All ER 299.

In Smith v Supt of Woking Police Station (1983) Crim LR 323: 76 CAR 234, the defendant appellant frightened the complainant by looking through her bedroom window late in the night. The court held that the accused was guilty of assault as the complainant was put in fear of personal violence.

Also in R v Barrett (1980) 72 CAR 212 CA^, the defendant advanced towards the complainant, shook his fist angrily and threatened to beat the complainant there and then, as a result of which the complainant was put in fear of immediate application of force to his person. The court held: that there was assault.

In Stephen v Myers(1838) 172 ER 735^, the plaintiff was the chairman at a parish meeting where he was sitting at the head of the table with about 6 to 7 persons between him and the defendant. In the course of the meeting, the defendant threatened to eject the plaintiff from the venue of the meeting. He stood up and started advancing to the plaintiff to carry out the threat when he was stopped from reaching the chairman by the person sitting next to the chairman. In a claim for damages for assault the court held that assault was committed. The defendant was proceeding to throw out the chairman, though he was not near enough at the time to have struck him. He advanced with on intention which amounted to an assault in law.

An Order Coupled With A Threat May Be Assault

It is also an assault to threaten to apply force to a person if the person does not immediately proceed to do some act or refrain from an act unless the defendant has legal justification. Similarly, an innocent act or conduct may amount to assault when coupled with threatening words.

Read v Coker (1853) 138 ER 1437.

The defendant had a business disagreement with the plaintiff, his partner. The defendant thereupon ordered his workmen to throw the plaintiff out of the premises. They then surrounded the plaintiff rolling up their sleeves and threatening to break his neck if he did not leave the premises. The court held that there was an assault. There was threat of violence together with an intent to do battery to the plaintiff. Threatening to break the plaintiff’s neck if he did not leave the premises was an assault.

Ansell v Thomas(1974) Crim. LR 31.

The plaintiff who was the managing director of a company left the factory early due to the fact that two policemen invited by his co-directors threatened in words to forcibly eject him from the company's premises, if he did not leave voluntarily. In a claim by the plaintiff, the court held that the co-directors were liable in assault.

Words Alone

As a general rule, words alone, that is mere words do not amount to assault. To amount to an assault, the intention to apply force to the plaintiff must be shown by some action or gesture, however slight or subtle and not just in words or speech. A gesture alone may amount to assault. Similarly, a gesture coupled with words commonly amount to assault.

On the other hand, words alone may amount to assault. This is so, for often a thing said is a thing done. Words often put a person in fear of personal violence. Thus, as an exception, whenever words of threat put a person in reasonable expectation of fear, there is assault.

See for example the following cases:

R v Ireland & Burston (1997) 4 All ER 225 HL.

The defendants made repeated silent phone calls to three victims. In some calls all he did was resort to heavy breathing. The victims were stalked for months and were afraid to be alone. The victims suffered mental illness or depression. The House of Lords held that there was assault. The silent phone calls having put the victims in fear of violence amounted to assault.

Janvier v Sweeney (1919) 2 KB 316 CA.

The plaintiff, a French woman living in England was engaged to a German, who was detained in the Isle of Man, England during World War I. One of the defendants called at her home and falsely told her that he was representing the military authorities and that she was wanted, because she has been corresponding with her fiancé, a German who was suspected of being a spy. As a result of the false threat, the plaintiff suffered nervous shock and on discovery that the accusation was false she claimed damages. It was held that she was entitled to damages for personal injuries for trespass to person. See also Wilkinson v Downton (1897) 2 QB 57.

Words may negate assault

On the other hand, words may explain and thus negate the possibility of battery or invalidate what would ordinary have been an assault. Thus, words may prevent what would have ordinarily amounted to an assault from coming into being. This was the position in:

Tuberville v Savage (1669) 86 ER 684. The defendant put his hand on his sword, which act amounted to a menace or threat and therefore an assault, and said "if it were not assize time [court session time] I would not take such language from you." It was held that there was no assault. The words of the defendant showed that he did not intend to assault the plaintiff, as the judges were in town for a court session.

In R v Light (1843-60) All ER 934 CA, the accused husband raised a sword over his wife's head and said "were it not for the bloody policeman outside, I would split your head open”. The court held: that the accused husband was guilty of assault. See also R v Wilson (1955) 1 All ER 744 CA.

Sometimes, a battery may be committed straight away, without first having committed an assault, such as giving a person a blow suddenly from behind, or whilst he is asleep or otherwise unconscious.

That the Act will put a Reasonable Man in Fear of Battery:

Finally, for assault to be committed, the act of the defendant complained about must be such that would put a reasonable man in fear that force is about to be applied to him. The act must put a reasonable man in fear of violence. This test is an objective test and it is not subjective to any particular plaintiff alone. Therefore, where the threat would not put a reasonable person in the shoes of the plaintiff in fear of violence, the tort of assault is not committed.

However, the mere fact that the plaintiff who was threatened with battery is a brave person and was not frightened by the threat, will not bar the plaintiff from successfully claiming damages for assault, as long as the alleged act of assault would make a reasonable man or reasonable person in his shoes to be afraid of battery.

In Hurst v Picture Theatres Ltd (1915) 1 KB 1 CA, the plaintiff paid for admission to the defendant's theatre. The defendants believing that the plaintiff had entered without payment asked the plaintiff to leave. He was not afraid and refused to leave and was forcibly ejected. He sued for damages. The court held that the defendants were liable for assault and false imprisonment.

In Brady v Schatzel (1911) St. R QD 206, the defendant pointed a gun at the plaintiff and threatened to shoot the plaintiff. The plaintiff sued for assault. Giving evidence in court the plaintiff said that he was not scared at the time. The court held that the defendant was nevertheless liable for assault. The act in question amounted to an assault. It was immaterial that the plaintiff was not scared. The purpose of the law is to make people free from threat of violence or immediate application of battery.

Where a threat is impossible of being carried out there may be no assault. Accordingly, where a threat is clearly impossible of being carried out, there is no assault. See Thomas v National Union of Mine Workers (1985) 2 All ER 1.

4.0 CONCLUSION

Trespass is the unauthorized intervention with a person his property or his possession.

Where it is trespass to a person, it could take the form of battery assault or false imprisonment. Where it is to his property, it could take the form of trespass to land, detinue or conversion.

5.0 SUMMARY

This unit has taught the learners:

a. The basic concept of trespass in the Law of Torts

b. The tort of Assault Elements of Assault and essentially the purpose of the Law of Assault.

6.0 TUTOR MARKED ASSIGNMENT

1. What is the purpose of the law of assault?

2. Mere words do not amount to an assault. Discuss.

7.0 REFERENCES

1. Bodunde Bankole, Tort: Law of Wrongful Conduct: Lipservice Punishment (1998), Lagos.

2. Fidelis Nwadalo: the Criminal Procedure of the Southern States of Nigeria, Mij Publisher, Ltd, Lagos (1996).

3. John G. Fleming: The Law of Torts (1977), The Law Books Co. Ltd publisher, London.

Sweet & Maxwell.

4. A. Street: The Law of Torts Sweet & Maxwell (1977), London

5. G. KODILINYE & Oluwole Aluko: Nigeria Law of Torts. Spectrum Law Publishers, 1999.

6. Criminal Procedure Code of the Northern States of Nigeria.

UNIT 2 BATTERY