Assault (Delict)

Assault in Delict is The use or threatened use of force against an indivudual. It should not be confused with Assault in Criminal Law which is a seperate issue that can potentially arise from the same event.

Physical contact is not required, however the defender must have been close enough for harm to be possible.

Unlike Criminal Assault, there is no need for malice to be present in order for a delictual liability to be occured.

Case law defining assault
In Ewing v Earl of Mar (1851), the defender rode aggressively towards the complainer and then spit at them. As the riding was deemed to be "Aggressive" and put the complainer in fear of his life, this was deemed to be an assault. Additionally, spitting at another was held to be an assultive insult.

Amusingly, in Gordon v Stewart (1842), the persuer was held to have been "assaulted" through the defender attempting to pull his nose.

Reid v Mitchell (1885) is the origin of the "no malice" rule, seperating the delict of assault from its criminal counterpart.

In Bartley v Fraser (1836), the assailant beat the victim after reading a critical review, the judge holding that rather than the thrashing recieved, 1-2 horsewhips should have been enough.

Case law for defences
There are four possible defences for the delict of assault - consent, self defence, reasonable chastisement of children, and authorisation

Consent
In general, consent is not held to be a defence for Assualt; however there are some specific cases where this has been permitted or suggested.

In Lewis v Buckpool Golf Club 1993 the complainant was injured as a part of a sporting event; the defenders argued that Lewis consented to the risk through his participation in the event, but was not accepted in this case.

Surgery remains one notable exception, with informed consent a valid defence. This "informed consent" was clarified in Moyes v Lothian Health Board (1990) where it was ruled that there is no requirement for informed consent to include every possible risk. The doctor is best placed to decide what information to give the patient. However this must be in line with responsible body of medical information. It is not practical or necessary to know every possible risk. However, there does remain a duty for reasonable care.

Self Defence
Every person has the right to protect himself by using reasonable force to repel an attack, or prevent an imminent attack (Ashley v Chief Constable of Sussex Police (2008))

Self defence is valid only if in fear of your life and without an option to run. Even still, it must be proportional to the force being used. Starting a fight is not however consent to be (Lane v Holoway and Marco v Merrens).

Self defrence requires that the assailant have a "Honest and reasonably held belief" that the person believes they are in physical danger (Ashley v Chief Constable of Sussex Police (2008)). This differs from the level required in criminal Assault to argue self defence.

Reasonable Chastisement of children
This defence is mostly governed by statute. The right was confirmed in the Children and Young Persons (Scotland) Act 1937.
 * Nothing in this section shall be construed as affecting the right of any parent, teacher, or other person having the lawful control or charge of a child or young person to administer punishment to him. (s 12(7), Children and Young Persons (Scotland) Act 1937)

In Guest v Annan (1988) a parent disciplined an 8 year old child for late return and being in the company of children they didn't approve of had an assault conviction quashed.

However, in Peebles v Macphail 1989, a slap in the face to a 2 year old child was held not to be justifiable.

Since this case there have since been stricter definitions in thes Criminal Justice (Scotland) Act 2003 as to what reasonable chastisement is.


 * (1) Where a person claims that something done to a child was a physical punishment

carried out in exercise of a parental right or of a right derived from having charge or care of the child, then in determining any question as to whether what was done was, by virtue of being in such exercise, a justifiable assault a court must have regard to the following factors—
 * (a) the nature of what was done, the reason for it and the circumstances in which it took place;
 * (b) its duration and frequency;
 * (c) any effect (whether physical or mental) which it has been shown to have had on the child;
 * (d) the child's age; and
 * (e) the child's personal characteristics (including, without prejudice to the generality of this paragraph, sex and state of health) at the time the thing was done.
 * (2) The court may also have regard to such other factors as it considers appropriate in the circumstances of the case.
 * (3) If what was done included or consisted of— (a) a blow to the head;
 * (b) shaking; or
 * (c) the use of an implement,
 * the court must determine that it was not something which, by virtue of being in exercise of a parental right or of a right derived as is mentioned in subsection (1), was a justifiable assault; but this subsection is without prejudice to the power of the court so to determine on whatever other grounds it thinks fit.

Authorisation
Authorisation defences apply where an official has by statute a right to perform an act that might otherwise be considered an assault.

This was explored in Tolmie v Scottish Ministers 2003, where a prisoner was held down whilst another guard spread open his anus during a search he did not consent to. The statute authorised only a visual inspection, but with this level of physical contact was still considered a visual search for the purposes of the act.