Tuberville v Savage [1669] EWHC KB J25
What is interesting about English common law is the historical and, in this case, ancient application of principles that can still be relevant today. Through the mist of time as we cast our mind back to studies at University some cases stick out. This was the case when it came to an assault under tort law. Think of a tort as a ‘wrong’. There are various torts. Some relate to economic wrongs, others relate to wrongs done about a person like defamation. Some torts relate to the person like battery (bodily hard), personal injury and assault.
Assault in tort law is interesting. It is a trespass ‘to the person’, a wrong where a person directly, whether intentionally or negligently, causes the other person to apprehend contact with his body. Sometimes the word ‘assault’ can be used for actual contact with the body but in this context under tort law, contact is battery and a threat with the apprehension (fear) of harm is an assault.
Thinking about the element of ‘intention’, in Tuberville v Savage the issue in question was whether words spoken in context could remove or negate the apprehension of a threat.
In the time of 1669 in England, the Assize was a Court of the King with Justices (Judges) travelling from county to county hearing cases and grievances. In our case, two men came to a quarrel. Harsh words were said. One famously said to the other, “If it were not the assize time, I would not take such language.” As the gentleman uttered the words, he also had his hand on the hilt (handle) of his sword. If you imagine a time of honour and hurt feelings, leading to duels and ultimately death or at least a maiming, this was serious stuff. The threat was real but it was tempered.
The Justices of the Assize were in town at the time of the grievance. The words uttered were held not to be an assault because the statement expressly stipulated that he would not and did not intend to harm the other because the Court was in town. Probably wise in the circumstances as to harm someone whilst the Justices were in the vicinity to dispense a swift sentence was not optimal. In this case, despite the threatening nature of the interaction, the words spoken by the defendant negated the assault.
June 2023
Note: The information in this article is provided for general informational purposes only. No information contained in this post should be construed as legal advice from Pachmann AG or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this article should act or refrain from acting on the basis of any information included in, or accessible through, this article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s jurisdiction.
