● 1. Assault
○ Assault gives rise to two types of action: criminal and civil.
○ Civil liability is the consequential result of assault in terms of protecting
one’s personal interests aside from physical harm.
○ Civil action:
■ Reparation for patrimonial damage
■ Award for trouble and distress suffered on the occasion
○ Bell, Principles page 2032 - ‘Personal violence is to direct and gross an
invasion of the right [of personal safety], as to require reparation
wherever there is no justification on account of official duty; or absolute
necessity; or self-defense; or the defense of one’s wife or child, or
property; or excuse by unavoidable accident.’
○ Requirements for Assault:
■ Requires some physical contact
● Collins v Wilcock [1984]
■ Requires intent
● Reid v Mitchell - Assault is an intentional delict - the
defender must have acted deliberately with the intent of
inflicting injury (including indignity) or in the knowledge that
injury might ensue even if he did not positively desire that
outcome.
○ Delict covers sexual assault.
■ DC v DG - A woman was awarded civil damages when her criminal
action failed and which the pursuer successfully claimed damages
from the defenders in respect of their having committed the
common law wrongs of sexual assault and rape against her.
○ Relevance of Consent
○ Defenses
■ Self-Defense
, ● Reasonable physical force may be used to protect oneself or
others or one’s property
● However, mistaken self-defense is not a defense: Ashley v
Chief Constable of Sussex [2008] - per Lord Scott ‘I would
have no hesitation whatever in holding that for civil law
purposes an excuse of self-defense based on non-existent
facts that are honestly but unreasonably believed to exist
must fail’
■ Provocation
● Provocation by the pursuer can reduce the amount of
damages awarded.
● McLaughlin v Morrison 2014 - This case held that
provocation can indeed reduce the amount of damages
awarded for civil liability but the act of provocation must be a
wrongful act and there must be a causal connection between
the alleged act of provocation and the delictual response.
■ Exercise of Duties by the Public Authorities (Police Powers)
● In the exercise of their duties, public authorities (police) have
to engage in conduct which at least gives rise to the risk of
committing a delict.
○ Police require to physically restrain people, even in
cases where there is a risk of injury and to deprive
them of their liberty. Their exercise of their duties
permits means that no wrong is done but there are
limits to the protection thus afforded.
● Thus, where the exercise of official duty is justified, there is a
complete defense to delictual liability.
● Whitehouse v Lord Advocate [2019] -
● Robertson v Keith 1936 - This case set out 8 limits of powers
of public authorities and provides a basic distinction between
1
,acts within lawful competence and those that are not.
Liability for those outwith lawful competence is no different
from the general public’s position. Liability for actions within
competence only arises where there is malice and want of
probable cause.
○ “1. An act is prima facie within the competence of the
public official doing or authorising it when it is the kind
of act that is within his ordinary duty to discharge.
○ 2. When a public official does an act that is prima
facie within his ordinary duty, there is a presumption
that he has acted within his authority.
○ 3. This presumption is not absolute, but may be
rebutted by showing that the act was unrelated to any
duty arising on the particular occasion, in which case
the act ceases to be within the authority or
competence of the public official and becomes
unlawful.
○ 4. When an act is within the competence, no civil
liability arises from the doing of the act, unless it can
be shown that the act was done maliciously and
without probable cause.
○ 5. Want of probable cause and malice are not
necessarily unrelated and independent. The absence
of just cause may go to prove malice, and similarly
the presence of oblique or dishonest motive may go
to show the absence of probable cause.
○ 6. Malice may be inferred from recklessness, and the
facts and circumstances from which it may be inferred
need not be extrinsic to the circumstances in which
the act is done or to the manner of doing it.
2
, ○ 7. Circumstances may show that an act was done
with malice, or without probable cause, or that it was
an act outwith the competence of the person doing or
authorising it. In some cases, according to the angle
from which the question is approached, the same
facts may be habile to infer each of these
conclusions.
○ 8. The onus probandi is on the pursuer to show that
the act complained of is outwith the competence of
the person doing or authorising it, or, if within the
competence, that it was done maliciously and without
probable cause.”
● Grier v Lord Advocate [2022] CSIH 57
○ Developed a test for malice:
○ ‘That test requires that a prosecutor initiate or
continue a case not with a bona fide purpose of
bringing a criminal to justice but for some other, and
thus necessarily improper, motive. The analysis in
Glinski v McIver [1962] AC 726 (Lord Devlin at 766)
accurately reflects how malice ought to be seen in
Scots law. It covers not only spite and ill will but also
any motive other than a desire to bring a criminal to
justice and circumstances in which the prosecutor is
attempting to obtain some extraneous benefit. In
relation to the latter, Willers v Joyce [2018] AC 779
(Lord Toulson at para 55) offers a useful critique. The
Lord Ordinary synthesized the foreign and domestic
jurisprudence and arrived at a correct view of what is
required. That is encapsulated succinctly in four
words: improper purpose or motive.”
●
3
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