Assault

Question 1

What are the rights to protection?

Answer 1

“Everyone who lives under the protection of the law has an absolute right to the safety of his person; and wherever this right is invaded there is in Civil law a provision for redress of injury, as well as in penal law a punishment for the crime.”

Question 2

What is the test for civil assault?

Answer 2

1) Did D’s conduct amount to an assault on P?
2) Did D act with the necessary state of mind?
3) Does D have a valid defence?

Question 3

What conduct amounts to an assault?

Answer 3

Conduct will amount to an assault if the defender’s conduct is sufficient to place the pursuer in danger, or in reasonable alarm as to their physical integrity.

Physical proximity likely a relevant factor

Question 4

Can you be successful without injury?

Answer 4

Yes, apprehension of the threat of immediate bodily harm will found a claim for damages even if the threat is not carried out or does not strike the pursuer.

However, if there is no serious physical injury, damages awarded will not be substantial even if successful.

Question 5

What is the necessary state of mind?

Answer 5

The intention to inflict hurt or injury is perfectly apparent in most assaults, but even where harm is not the object of the conduct, the defender will nevertheless be liable if they acted in the knowledge that harm was likely to occur, or acted recklessly, disregarding the possibility of harm.

Basically, unlike criminal assault there is no requirement to establish the intention of injuring the pursuer.

Question 6

If there is no evil intention required, can assaults be involuntary?

Answer 6

No, the act which invaded the pursuer’s bodily integrity, must be a voluntary one.

Pure accidents, such as in Robinson 2018, are not actionable as assaults, but may give rise to a claim in negligence.

Question 7

What are the possible defences?

Answer 7

• consent
• self-defence
• justification
• provocation

Question 8

What about consent?

Answer 8

Unlike in criminal law, the consent of the victim prevents delictual liability for assault from arising.

This is why no liability for assault in sports involving physical contact (boxing, rugby etc.)

Players consent to the ‘risks incident to being a player’ and will only be able to claim in the event of ‘undue violence or unfair play’ far outside the rules of the sport

Question 9

What of self-defence?

Answer 9

A complete defence, where the only option left is to rely upon reasonable force to defend yourself.

Only permitted where the retaliatory action is proportionate and the use of force necessary to resist a perceived threat.

Question 10

What of justification?

Answer 10

A complete defence in circumstances where use of force is justified by the office or role held by the defender.
Mostly police officers but sometimes cases of transport officers.

Defence will fail if they act 1) outside the scope of their powers, such as if the order they are attempting to enforce is unlawful, or 2) if the use of force is unnecessary because the pursuer was willing to comply with the order, or 3) if the force used is excessive in the circumstances.

Question 11

What of provocation?

Answer 11

A partial defence that if established, reduces D’s liability (and correspondingly the amount of damages awarded to the pursuer).

Provoking acts may include physical threats or conduct insufficient to trigger self-defence, abusive language, or even attacking the defender’s pet.

Question 12

Reid v Mitchell 1885

Answer 12

Backs up that there is no need to establish the specific intent to injure the pursuer (so-called ‘evil intent’).

A playfully attacked B to make B engage in sport, it nevertheless constituted an actionable wrong even though it was just done ‘for a lark’.

Question 13

Ewing v Earl of Mar 1851

Answer 13

Original authority that assault is not dependent on injury or physical conduct.

Riding a horse in an “aggressive” manner that put the complainer in fear of his life was deemed to be an assault as well as spitting and shouting.