Tuberville v Savage

"Tuberville v Savage" (1669) 1 Mod. Rep. 3; 86 ER 684; [1669] [http://www.bailii.org/ew/cases/EWHC/KB/1669/J25.html EWHC KB J25] is a famous English decision on the requirements for the tort of assault. The court held that a conditional threatening statement without an imminent threat of harm does not constitute an assault.

Background

Savage had made some insulting comments to Tuberville.Fact|date=September 2008 In response, Tuberville grabbed the handle of his sword and stated that "If it were not assize-time, I would not take such language from you." Savage responded with force, causing Tuberville to lose his eye. Tuberville brought an action for assault, battery, and wounding, to which Savage pleaded provocation, to-wit Tuberville's statement.

Ruling

The Court considered the language used in the statement and found that since Tuberville did not express any intention to do any harm to Savage in the given circumstances. Tuberville's express words were precisely that he was "not" going to harm Savage because the assizes were in town. Therefore there could be no assault (putting someone in apprehension of immediate violence). There is neither intent nor an act, at least one of which being required to establish an assault. Thus, Savage failed in his action.

Treatment

To constitute assault under English law, s.16, Offences Against the Person Act 1861, the person to whom a threat is made must be put in fear of immediate actual physical harm. An assault may be committed against a third party if that third party is immediately proximal to the person to whom the threat was made; for example "if you do, [or don't do] a particular thing, I'll kill your [relative] ". This is an example of a threat promimally sufficient to constitute an assault against the third party, and quite probably, against the person to whom the threat was made.

"s16. A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out, to kill that other or a third person shall be guilty of an offence and liable on conviction on indictment to imprisonment for a term not exceeding ten years."

External links

* [http://www.bailii.org/ew/cases/EWHC/KB/1669/J25.html Full text from BAILII.org]