Lecture 8 – Wrongs against the Person: Assault
Assault
• An assault is a wrongful physical act directed against another with the intention of causing
affront, insult or harm.
• An assault which constitutes a criminal offence may also, in principle, give rise to civil liability.
• A claim in delict may be made even where no criminal charge is brought. Even though an
assault is not criminal because of the absence of evil intent, it is still an actionable delict
provided the defender intended to invade the personal integrity of the pursuer. Joe Thomson.
• Bell states:
“Personal violence is so direct and gross an invasion of the right [to personal safety], as to
require reparation where there is no justification... The civil claim of damage is not merely for
damage sustained, but in solatium for affront and insult.” Principles, 2032
• If the assault does not result in serious physical harm, the damages awarded will not be
substantial in spite of the insult caused to the victim.
• Downie v Chief Constable, Strathclyde Police 1998 SLT 8, but fuller report in 1997 SCLR 603
Mr Downie had recently left the royal air force… the police became very aggressive with
Downie, he was innocent, he only answered the door. The police made physical threats
against him, threatening to beat him. They then beat him and handcuffed him more tightly
than was necessary and held him in the cells for an extended period. The police officers were
never prosecuted, the officer which was most vicious is the head of the anti-corruption unit.
Downie sued and he received significant damages because the violence was an unnecessary
and unprovoked assault, also the police officers received no disciplinary action against them.
The pursuer was awarded £1,500 in respect of an assault by two policemen because the victim
had recovered without the need of medical treatment.
• *Ashley v Chief Constable of Sussex [2008] UKHL 25; [2008] 1 AC 962
Ashley was a suspected drug dealer who had also previously been convicted of manslaughter.
The police staged a raid in his home as part of a large-scale investigation into cannabis dealing
organisation. Ashley was in bed with his girlfriend in bed and he heard noises in his flat which
turned out to be the police breaking in. Ashley got out of bed naked walked out of the room
and as he opened the door a policeman saw him and shot him, and he died. The police had
been warned that he may be armed and dangerous. Criminally the four officers were charged
with manslaughter or attempt but they were acquitted. The family sued for cautious assault
to battery, they sued for assault in delict. The police argued that the officer who fired was
afraid for his life, acting honestly in self-defence.
The court held that although the officer might have been reasonably afraid, to shoot a naked
unarmed man to death is unreasonable constituting assault. The officer had no basis to be
afraid into whose home they had just broken into.
• An assault may amount to a breach of Article 3 of the European Convention on Human Rights:
‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’.
, Where this is so, it is competent to seek damages at common law for assault and
compensation for a breach of Article 3 in the same action.
Ruddy v Chief Constable of Strathclyde 2012 – alleged assault by police on the pursuer when
he was arrested and detained in custody.
Different modes of assault:
(i) Where physical contact takes place
The defender with hostile intent makes physical contact with or causes an object to make physical
contact with the pursuer.
Collins v Wilcock [1984] 3 All ER 374
Wilcock was a policeman who suspected that Collins was a prostitute, so he offered to talk to her.
When he engaged Collins, she walked away. He grabbed her arm to stop her from walking away which
at this point Collins resisted and scratched the policeman’s face. She was charged for the assault of a
police officer. The officer had no basis to detain the woman, so when he physically put his hands on
her, he was assaulting her, he had no basis to detain her. Putting his hands on her made it an assault.
It followed that any scratches he received were a direct consequence of his own assault against Collins.
(ii) Where there is no physical contact?
The conduct of the defender is such that the pursuer is put in a state of fear and alarm. Examples
listed in Walker, Law of Delict in Scotland, 2nd edn (1981) at 490.
Intentional infliction of emotional distress?
Wilkinson v Downton [1897] 2 QB 57
Wilkinson owned a pub in East London and Mr Downton was a regular customer. One day Wilkinson
went to watch the horseracing and left his wife in charge. Mr Downton decided it was the right to play
a prank on her. He told her that Wilkinson had been in a terrible accident and that he would die shortly,
told her she needed to take a cab to go to the hospital and take him home. She had a nervous
breakdown at the news and became physically ill. Her hair became partially white as a result and she
vomited among other things. She sued Mr Downton on the basis that she had suffered physical
reaction, so it was assault.
The court said that what Downton had done was to intend to cause distress, he thought it was a funny
prank, but he intended to cause stress. His actions caused a severe physical reaction on Mrs Wilkinson.
She was entitled to damages of assault.
Ward v Scotrail 1999 SC 255
Mostly about vicarious liability: whether Scotrail are liable for what one of their workers did.
Ms ward was a ticket inspector for Scotrail. Another colleague had become obsessed with her and
started following her around, writing her love poems and generally stalking her by swapping shifts so
they would be on the same train. She had to take sick leave as a result. She had told her employers,
but they failed to act. She sued for vicarious liability.
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