INTRODUCTION

The word tort comes from the Latin word ‘tortum’ which means ‘to twist’. It is connected with civil law. It is a wrongful act that arises when there is a breach of duty, independent of contract, which gives rise to a civil cause of action. The Law of Torts consists of various torts or wrongful acts in which the wrongdoer violates some legal right vested in another person. Each individual should respect other legal rights.
The person who commits this tortious action is known to be the tortfeasor. If such action arises, the tortfeasor has to compensate the victim for the harm caused. The Tort Law in India has evolved from the law existing in the UK. In the UK, it is termed as a ‘Judge Made Law.’ The definitions given by various scholars indicate that tort is a civil wrong however not all civil wrongs are torts.

ASSAULT AND BATTERY

An injury may be caused due to a variety of reasons. When a wrongful act is done on purpose, which in turn causes an injury, it is said to be an Intentional Tort. This particular type of tort contains various wrongful acts such as trespass, assault, and battery. Assault and battery are highly connected. They are like two sides of a coin. These are the most confusing terms that exist in both tort law and criminal law. There are few countries where both assault and battery have merged into one general crime and others where both are treated as separate offenses.

ASSAULT

In simple words, assault is an act of the defendant, which causes the plaintiff reasonable apprehension of the infliction of a battery on him. It is generally defined as an intentional act that puts another individual in the apprehension of immediate harm. This action is completed as soon as the defendant creates an apprehension in the mind of the plaintiff that he is going to commit an act against the plaintiff. Usually, if an act causes harm to another, it is considered to be a wrongful act. However, in the case of assault, an attempt to harm itself is wrong. It is an assault that criminalizes a threat of harm. Due to this, it is often termed as an “attempted battery”. Considering a simple example of a defendant pointing a loaded pistol at the plaintiff. Such an act can instill fear in the mind of the plaintiff. It is considered to be a warning signal. But if the plaintiff knows that the pistol is not loaded, then there is no assault.

Elements of an Assault:

Generally, if someone threatens bodily harm to another it comes within the purview of assault. To raise this to a level of actionable offense, two main elements should be present.
a) Reasonable apprehension- This main element makes a wrongful act an assault. The victim must reasonably believe that defendant’s conduct will humiliate him. Apprehension means a fear which is in the mind of a person that something bad or unpleasant may happen. It is an awareness that an injury is imminent. So, if a person has an intention to cause apprehension of imminent harm and succeeds in that, then he said to have committed assault.
b) Apprehension of Imminent Harm- The victim’s fear must be the result of a direct threat or a threat that is imminent. Future threats would not constitute an offense of assault. Whether an act creates an apprehension in the mind of a person varies depending on the situation. It takes less time and effort to create apprehension in the mind of a child than an adult. Another case is where an assailant points a gun at a sleeping person. In this instance too the person is unaware. This would not constitute an offense of assault.
It is to be noted that the above-mentioned essentials must be present with adequate evidence to make a person guilty of assault. But it is difficult to prove the intention of the offender in such cases. So the court usually will consider the viewpoint of a person with sound intellect in that he should be able to perceive what is harmful or aggressive.

Remedies:

Remedies form an important part of the field of law. In tort law, the various remedies available are damages, injunctions, writs, and self-help. These bring back the affected party to their original situation before the event. Various remedies come under assault:
1) Damages- The primary remedy is that the affected party can always bring an action to claim damages. The compensatory damages awarded in this case can be classified into three:
i) General Damages- It is most likely that the plaintiff or the affected party will face emotional pain and suffering and other mental distress after such an apprehension. General damages seek to compensate such victims for the kind of harm that can be expected from the wrong committed. A special request is not needed for such damages.
ii) Special damages- It compensates the plaintiff for specific expenses caused by the assault. If the plaintiff after the apprehension, feels uncomfortable to do his job or if he feels that he requires on-going psychiatric care, he will be compensated. If he cannot work for some time, he will be awarded past lost wages and loss of future wages.
iii) Punitive Damages- It is also known as Exemplary Damages. Such damages are maybe awarded without any claim. It will help the future generation not committing such offenses. The defendant should have the intention to cause the assault, then only such compensation will be rewarded.
2) Self Help- This is yet another remedy available for assault. Law does not require a person to approach a Court for redress. He can himself redress the issue instead of suing the defendant in a court of law.

BATTERY

Generally, assault precedes battery. Showing a clenched fist is assault, but if a physical strike happens, it will amount to battery. However, not every battery cases include assault. If a person is hit by a blow from behind, then this will result in a battery without being preceded by assault. The person being hit does not have prior knowledge of the act. Battery is generally defined as the intentional touching of or application of force to the body of another person or anything related to them, in a harmful or offensive manner without the consent of the person.

Elements of Battery:

The wrong of battery consists of an intentional application of force to another person without lawful justification. The important elements are as follows:
a) Intention- This is the most important element in all criminal and civil offenses. The intention to cause harm to a person is a part of the offense of battery. Even if in the case of transfer of act, for example, A tries to hit B but ends up hitting C. This shows that he had the intention but failed in the intended act. Still, he will be liable.
b) Contact- Contact or use of force is necessary for such a wrongful act. This contact should be made without consent. Cause of harm is not required to show the use of force in the battery. The injury need not be always caused by direct physical touch. The force can be given indirectly. For example, when the tortfeasor beats someone using a stick.
c) No Lawful Justification- It is always necessary that the force so used should be unlawful and without any justification. The complainant has to prove this. When two people are walking on the footpath past each other silently, there might happen to be physical contact. This is not considered to be a battery as it is not unlawful. But if a fight happens between the two, then there is an offense of battery by the person who has started the fight.
d) No consent- This is yet another important essential for this wrongful act. The tortfeasor should have committed the act without the consent of the victim.

Remedies:

Like assault, various remedies are available under the offense of battery.
1) Legal Remedies- Damages are the primary source of remedy for any offense. Here, compensation is given to the affected party by the tortfeasor to compensate for all injuries caused. It can be awarded even in the case of mental suffering and pain created by such an act. Compensation is directly proportional to the victim’s loss.
2) Restitutionary remedies- Such a remedy will help the plaintiff reach back to his original position, which means to the state before all of it happened. It includes a form of remedy known as ‘Replevin’. It helps the affected party to recover his or her personal property that was lost due to battery.
3) Equitable remedies- Such remedies are granted when monetary compensation cannot serve the purpose. In the cases of battery, the victim can obtain a temporary restraining order which prevents the other party from making any contact with the victim. They can also get a temporary or permanent injunction.

DIFFERENCES:

In a nutshell, the differences between assault and battery are as follows:
a. Assault is the attempt to commit battery. Battery includes intentional application of force to another person unlawfully.
b. The main aim of an assault is to instill fear in the person whereas in the case of battery it is to harm a person.
c. Assault is considered to be an incomplete battery as there is no actual contact. The threat of violence is enough for an assault. Battery requires actual contact with the person.

RIGHT OF DEFENCE

General Defences form a vital part of tort law. Whenever the plaintiff brings an action against the tortfeasor for the wrongful act committed by him, he will be held liable. However, the tortfeasor will have some defenses available with him, so as to absolve him from the liability.
Few of the relevant defenses are as follows:
a. Act of God
b. Private defense
c. Volenti non fit injuria or the defense of Consent.
a. Act of God is recognized as a defense which also comes under the rule of Strict liability. This defense is considered when damage is caused by natural events like earthquakes, storms, heavy rainfall, etc.
b. A person has a legal right to protect himself and his property by using reasonable force. This is known as Private or Self-defence. The only condition is that there must be an imminent threat to a person’s life and property. The force used must be reasonable to the apprehending danger.
c. This maxim literally means that if a person voluntarily agrees to do something, then the injury caused through that act will not be considered. The consent given can be either express or implied. It is to be noted that if the act goes beyond the limit of what has been consented, then he will be held liable.
There are few defenses available for both assault and battery cases. The most common defense is Self-defence. The force used for such a defense must be reasonable and proportionate to the harm caused in the case of battery. The defendant should prove that this was the only way available to protect himself. Consent can also be considered as a defense in the case of assault and battery.

CONCLUSION

According to intentional torts, assault creates an apprehension of the injury. Battery is an intentional tort dealing with creating harm to another person without consent. After understanding the concepts in its entirety, it can be concluded that assault by itself can produce psychological damage and needs special laws of its own.

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INTRODUCTION

Torts are one of the important branches of Civil Law. A tort is a civil wrong which means a wrongful act committed by a person, causing injury or damage to another person. These injuries are not limited to physical but also include emotional, economic, reputational injuries as well as a violation of constitutional rights. In torts, the duties imposed are not towards a specific person but towards the public at large. Thus, every individual has a legal obligation to protect the rights enjoyed by other individuals in the society and if there is a failure to this legal duty, the injured can institute a suit in Civil Court for remedy or damages. Thus, according to Section 2(m) of Limitation Act, 1963: “Tort is a civil wrong which is not exclusively a breach of contract or breach of trust.”

POSITION IN INDIA

Tort Law in India derived its roots from English laws. It is relatively a young concept that is still in the process of development and a non-codified state. In advanced countries like the USA, UK, and Canada aspects of tort law have been well codified, therefore, the courts in India along with referring the local judicial precedents have readily referred to the cases from foreign common law jurisdictions. However, more attention is given to local socio-cultural conditions while applying foreign common law principles. Tort law in India contains the combination of both statute and the common laws such as The Indian Penal Code criminalizes certain areas of tort like- defamation, assault, battery, etc. The principles of Law of tort have been also applied in other legislations such as The Consumer Protection Act, 1986, The Motor Vehicles Act, 1988, and The Environment Protection Act, 1986.
Though, the Law of Tort owes its origin to the English laws the Indian courts are not bound to follow the British laws and can evolve as per the requirements of the society. A landmark judgment of the Supreme Court of India in this respect was the case of M.C. Mehta vs The Union of India where it was observed that the rule laid down in Ryland vs Fletcher was not sufficient and the Supreme Court went one step further and introduced the concept of Absolute Liability.

ESSENTIAL CONDITIONS FOR A TORT

There is no such fixed conditions or circumstances which can constitute a tort. Here, the concept is taken in a broad sense and it consists of all the legal injury done by a person to another thereby creating a cause of action for unliquidated damages. However, certain general conditions are essential for tortuous liability:
a) Wrongful act or omission
b) Legal damage
c) Legal remedy

a) Wrongful act or omission

A wrongful act means an action by an individual that goes against the law so as to the violation of the legal rights of another. Therefore, for a tort to happen, the defendant must have first either done something that he was not expected to do. However, the omission of the act is considered as inaction or where there was a duty to perform and liability arises due to non-performance of that duty.
The wrong committed can be of two types-
i. Public wrong- Wrongful acts against people at large in the society are called a public wrong. These acts are tried in Criminal courts.
ii. Private wrong- Wrongful acts against an individual person are called a public wrong. A tort is a private wrong. These acts are tried in Civil Courts.

b) Legal Damage

The wrongful act must result in causing legal injury to another. The act or omission of an act must be bounded by law or the duty must be imposed by law on the individuals. Thus, there exists a legal obligation on a person to protect the rights of other person and breach of that particular duty would be held liable under tort. The remedies provided under the law of tort can be a judicial remedy or extra-judicial remedy i.e. outside the court settlement.

c) Legal remedy

The wrongful act or omission of an act must be of such a nature as to give rise to a legal remedy. The Latin maxim ‘Ubi jus ibi remedium’ meaning, ‘there is no wrong without a remedy’ The right of an individual which is enjoyed by him, can only be understood if a certain legal remedy is provided in the event of its violation. If there exists no legal remedy then there exist no rights of the citizens. In the case of Sardar Amarjit Singh Kalra v. Pramod Gupta, the court introduced the concept of this legal maxim and stated that the courts should focus to protect and preserve the rights and help to enforce the same.

LIABILITY FOR A TORT

Tortious liability arises when all three essential elements satisfy the conditions. Along with this, there has to be a link between the wrongful act and the injury caused to the person. The defendant will not be liable for the damage unless the wrongful act has a direct connection with the injury as the law cannot take account of everything that follows a wrongful act. The defendant cannot be made responsible for remote damages but only the proximate consequences. Thus, some tortious liabilities are as follows-

Strict Liability

There are situations, where the person is held liable for the damages caused by his acts even when the actions are done without any ill intention or negligence on account of equity and justice. This principle was first held in the case of Ryland vs Fletcher where the defendant hired contractors to build a reservoir over his land for providing water to his mill. While digging, the contractors failed to observe some old unused shafts under the site of the reservoir that leads to the plaintiff’s mine on the adjoining land. When water was filled in the reservoir, the water flooded the mine through shafts. The plaintiff sued the defendant. But the defendant pleaded that there was no intention and since he had no knowledge about the shafts, he was not negligent even though the contractors were. J Blackburn observed that when a person, for his purposes, brings to his property anything likely to cause mischief if it escapes, and causes damage, he must be held liable. Thus, the rule should satisfy three conditions-
i. The thing kept must be a non- natural use of land
ii. The thing must escape
iii. The thing must cause harm/damage to the plaintiff.

Product Liability

This liability arises when a product by the manufacturer, distributor, and seller causes injury to its consumer. This can be well explained in the case of Donaghue vs Stevenson where it was held that the manufacturer of a drink has a legal duty towards the consumers to ensure that harmful substances are not included in the drink. Thus, the manufacturer is liable under Product liability for any damage to its consumers through its products. This liability may be extended under the category of Strict Liability for manufacturing products which are unreasonably dangerous.
The history of the law of Product liability is largely connected with the history of privity of contract, which states a stranger to the contract cannot sue for damages or its specific performance. Thus, a manufacturer who was negligent and sold a product to a retailer, who further sold it to the consumer(plaintiff), was not held liable. The plaintiff would not get any remedy in tort as it was the manufacturer and not the retailer’s negligence which caused the harm. Soon the courts dropped the laws of privity of contract where the sellers falsely concealed the defects or where the products were dangerous to health or human life. A well-known case in this regard was Escola v. Coca-Cola Bottling Co. of Fresno where the manufacturer is held absolutely liable when a product is placed in the market by him, knowing that it is to be used without an inspection, proves to be defective and causes injury to the consumers.

Absolute Liability

If an enterprise is dealing with dangerous substances and due to some accident that dangerous thing escapes and causes harm and danger to the lives of people at a large scale, will the rule of Ryland vs Fletcher be applicable in the matter of such mass injury?
In India, as stated earlier, the concept of Absolute liability was witnessed in the case of M.C Mehta vs The Union of India. In this case, oleum gas from a fertilizer plant of Shriram Foods and Fertilizers leaked and caused injury to several people around the vicinity and even killed one advocate. The Honorable Supreme Court went one step further and introduced the rule of Absolute Liability. It observed that the rule of Ryland vs Fletcher was an age-old principle and was not sufficient to decide cases with such severe nature. It held that enterprises that engage in dangerous substances have an absolute responsibility to ensure the safety of common people around the vicinity. Under Absolute Liability, in the event of such an accident, the enterprise is made absolutely liable without any exceptions to the defendant. The reason is that the enterprise has a social obligation to ensure safety and to compensate the people who suffered losses. The Apex Court laid down that the measure of compensation should depend on the magnitude of the enterprise so that it can have a deterrent effect.

Vicarious Liability

Respondent Superior, which means- “let the master answer” is a doctrine that holds the superior party liable for the actions of his servant or employee based on their relationship. Vicarious liability is also known as imputed liability where another person is held responsible for the wrongful acts committed by a person on whom he has authority. This doctrine applies in the relationships of Employer and Employee, Principle and agent, or Parental Liability.
i. Employer/Employee relationship-
An employer is vicariously liable for the acts done by his employee as long as the employee’s actions are under the scope of employment. However, if the employee commits a tort for purely his personal reasons which are unrelated to the employment, most jurisdictions will not hold the employer liable. The Courts sometimes distinguish between an employer’s “detour” and “frolic”. If an employer will be held liable if it’s shown that the employee had gone mere detour as it constitutes a minor departure from the work whereas an employee acting for his own benefit by constituting a major departure from work is undertaking a frolic.
An employer is not held liable for acts committed by independent contractors. However, when inherently dangerous activities or non-delegable duties are involved, an employer can be held vicariously liable.
ii. Principle/Agent relationship-
The owner or the principal is held liable for all the wrongful acts committed by the agent during the course of employment. For instance, the owner of the automobile can be held vicariously liable for negligence by a person acting as an agent under that owner and the agent is using the auto-mobile primarily for the purpose of performing a task for the owner. The Courts have been reluctant to extend this liability to the owners of other kinds of chattels. An owner of an airplane will not be held liable for the actions of a pilot who is performing the act for the owner’s purpose.
iii. Parental Liability-
Under this, the parents are held responsible for their own negligent acts such as, failure to supervise the child or leaving a loaded gun within a child’s reach. A parent’s liability usually ends when the child is emancipated i.e. reaches the age of majority as recognized in the eyes of law.

CONCLUSION

Any right would be meaningless if there was no remedy to restore the original position of the aggrieved party before its infringement. The damages provided under tort are exemplary or vindictive, real damages, or contemptuous damages. Apart from damages, the plaintiff can also sort for an injunction which can be perpetual or temporary or restitution of the property.
The law of Tort works on equity and common conscience and enables a relationship between members of the society to coexist in harmony and that each individual is required to fulfill his legal obligations towards others.

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