Friday, November 8, 2013

Tort Noots of Sir,Lecture By M. Mujahid Rana (Advocate High Court)Class LLB Part 1 Q.15

“TRESPASS TO PERSON”

1.  INTRIDUCTION

                                  Assault and Battery are kinds of trespass to person. Both of these torts are actionable per se without the proof of the damage. Assault is also a criminal offence punishable under Sec.351 PPC and battery is also punishable under PPC.

2.  DEFINITION OF TRESPASS TO PERSON

Ratan Lal
                                 Wrongs affecting safety and freedom of the person are often termed               as trespass to person.

3.  KINDS OF TRESPASS TO PERSON

Following are the kinds of trespass to person.

i.          Assault
ii.        Battery
iii.      False imprisonment

4.  DEFINITION OF ASSAULT

                         It is unlawful laying of hands by one person upon the body of another person with an intention and apparent ability to do violence to the assaulted person.

                        Winfield:

                            Assault is an act of defendant which causes to the plaintiff reasonable apprehension of the infliction of battery on him by the defendant.

                        ILLUSTRATION:
                             ‘A’ pointing at ‘B’ unloaded pistol would create fear and apprehension in ‘B’ of injury to his body; it would be an assault by ‘A’ against ‘B’.


5.  ESSENTIAL ELEMENT OF ASSAULT

Following are essentials elements of Assault:




I.       SOME PREPARAION OF GESTURE CONSTITUTING A     THREAT OF FORCE

                               There should be some preparation of gesture constituting a threat of force.

II.    A REASONABLE APPREHENSION OF THE USE OF FORCE

                              There should be reasonable apprehension of the infliction of force. There is no assault when fear of the use of forces absent.

III. DEFENDANT’S ABILITY TO CARRY OUT THREAT

                                                            The plaintiff must have reasonable belief that the defendant has ability or capability to carry his threat.
                                               
6.  DEFINITION OF BATTERY

Battery is the intentional use of force to another person without legal justification.

7.  ESSENTIALS ELEMENTS OF BATTERY

I.        USE OF FORCE

                                There should be use of force by one person against the other.

II.   INTENTION

                                The use of force by one person against another must be intentional.

III.WITHOUT LEGAL JUSTIFICATION

        The use of force must be without legal justification.

8.  SIMILARITIES OF ASSAULT AND BATTERY

i.       Both assault and battery are tort as well as crime.
ii.     Both belong to trespass to person.
iii.  Both are actionable per se.

9.  DIFFERENCE BETWEEN ASSAULT AND BATTERY

i.       AS TOUSE OF FORCE

(a)     There is no use of force in assault.
(b)     In battery there must be use of force.

ii.     AS TO APPREHENSION

(c)     There is apprehension of the use of force in assault
(d)    There is no apprehension of the use of force in battery

iii.  AS TO NATURE

(e)     Assault does not include battery.
(f)     Battery includes assault.

10.         DEFENCES IN AN ACTION UNDER ASSAULT AND BATTERY
                       An action for assault and battery can be defendant by any of the following ground.
i.       SELF DEFENCE:- Assault or battery was committed by the defendant in exercise of his right of defence of property or person.
                             
ii.     PARENTAL OR QUASI PARENTAL AUTHORITY
                              If it is done in exercise of parental or quasi parental authority. Provided that the force is not unreasonable.

iii.  EXPULSION OF TRESPASSER
                              Assault or battery was committed against the plaintiff in exercise of extra judicial remedy of expulsion of the plaintiff who was trespassing in the building of the plaintiff.

iv.  PRESERVATION OF PUBLIC PEACE
                              Assault or battery was committed for preservation of  public peace at public place which was disturbed by the plaintiff.

v.     CONSENT
                                Assault or battery was committed with the consent of the plaintiff.
vi.  LEGAL PROCESS
                                 Assault or battery was committed against the plaintiff who resized the service upon him of the process issued by the court of law.
                               
vii. INEVITABLE ACCIDENT
                                  Inevitable accident is also a defence but if an act is done in negligent manner inevitable can not be pleaded.
11.CONCLUSION
                                 To conclude that I can say that, Assault and Battery are tort as well as crime. Assault is a sudden attack and battery is unlawful touching of another person without lawful justification. Both are actionable per se.



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