INTRODUCTION
Assault and Battery are often used interchangeably, however, there exists a difference in the meaning of the two. Where the Battery refers to the actual use of force, Assault refers to the apprehension of the battery in the mind of the plaintiff.
Battery
It is the intentional application of force on another person without lawful justification.[1] Thus the two essential requirements to constitute battery are:
- The application of force
- Without lawful justification
1. Use of Force
The force need not be excessive if the force is trivial and has caused no harm it would still constitute the offence of battery. Physical hurt is not an essential requirement to constitute a tort. Moreover, the person may use the force with the help of pistol, stick, knife etc., thus, without being in the physical contact with the another.
Thus, if a person hurts someone by pulling a chair or by throwing water thus causing discomfort to the person will amount to battery.
If the force is entirely passive, a person restricted to enter by closing the door then this is no use of force.[2]
2. Without lawful Justification
Another important point is that the force applied should be without any lawful justification. Thus, if a force is used by a policeman in arresting a person then he is justified in his act of using the force. However, is a person uses the force to annoy someone or to create personal discomfort then the same can not be lawfully justified and hence will amount to battery.
It must be noted that sometimes the situation may demand the use of force and the act may be justified in the eyes of law. For example, if a person uses force to save a person from drowning then such force will not amount to battery.
The harm should be caused intentionally and not accidentally. In Stanley v. Powell[3], the defendant and the plaintiff were part of a shooting club. The defendant fired at the pheasant but the pallet accidentally hit the plaintiff i.e. Stanley and injured him. It was held that it was the sheer accident and the defendant has not done it intentionally. However, if the defendant had the intention to hurt the plaintiff then the plaintiff could have been made liable for battery.
The act of putting handcuffs on an undertrial prisoner and chaining him like an animal during the medical treatment in a hospital is not justified and the same is actionable. It was further held that in such case the intention is not the essential element to be proved as the policeman has exceeded his authority by doing such an act.[4]
If a person uses a force to prevent the trespasser from entering the premises then the act is justified, however, the force used should be reasonable.
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.[5]
The assault refers to the causing of apprehension in the mind of the plaintiff that the defendant will commit battery. Thus, assault is an attempt to commit a battery rather than the act of causing harm to the plaintiff. The test to determine if the assault has been caused or not is that, has the act of the defendant caused the apprehension in the mind of the plaintiff or not.
Thus, if the defendant has pointed an unloaded gun to the plaintiff, and the plaintiff is unaware of the fact that the pistol is unloaded, making the plaintiff believe that the defendant is going to commit a battery will amount to Assault, no matter if the pistol was loaded or not.
It should be noted that there should be a prima facie ability to do the act, if there is no such prima facie ability then the same will not amount to Assault. For example, two trains which are moving in the opposite direction and one of the person threatens another person of the different train then this would not be assault as there is no prima facie ability to do the act.
Similarly, if a person threatens another on the phone call, then such threatening will not amount to assault unless it causes reasonable apprehension in the mind of the Plaintiff.
In Stephens v. Mynes[6] clinching of the fist towards the chairman was held to be assault as it has caused reasonable apprehension of battery.
Generally, assault precedes battery. The Battery is committed when the act is actually committed whereas the assault is when the act is not completed. Thus, showing a fist is assault but once a person hits the person then it is a battery, throwing water is assault until it falls on a person, once it falls on a person it is a battery.
However, it is not always necessary that every act of battery must always be preceded by Assault. For example, if a person hits another from the back then there would be no assault as there was no apprehension in the mind of the person i.e. he had no prior knowledge of the act committed against him.
The difference between Assault, Battery and Mayhem
Mayhem refers to the permanently disabling or disfiguring the person. Mayhem is a tort that causes severe injury to the victim that he is unable to defend oneself from the tortfeasor.[7] Mayhem takes into account even the apprehension of permanent disablement.
The difference between the Assault, Battery and Mayhem lie in the fact that in the Assault the person may not have the apprehension of permanent disablement like loss of limb or any part of the body, however, in Mayhem the person has the apprehension to lose one’s lib or any part of his body permanently.
In Battery, the infliction of force on the plaintiff may be trivial but in the Mayhem the force applied is of a greater degree and the person has to suffer from permanent loss of his part of the body, it only takes into account the permanent disablement of the person and not something that can be treated.
Conclusion
Thus, though the terms Assault, Battery and Mayhem appears to be similar and are quite often used interchangeably, they have different meanings and should therefore not be understood as the same thing.
[1] R.K. Bangia, Law of Torts, ed. 24, 138.
[2] Innes v. Wylie, (1844) 1 C. & K 257.
[3] (1891) 1 Q.B. 86.
[4] P. Kader v. K.A. Alagarswami, A.I.R. 1964 S.C. 205.
[5] Winfield, Tort, 7th ed., 150.
[6] (1830) 4 C. and P. 349: 172 E.R. 735.
[7] https://www.legalbites.in/assault-battery-and-mayhem/
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