Tuberville v Savage

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When does verbal abuse constitute assault?

Tuberville v Savage (1669), 1 Mod. Rep. 3, 86 Eng. Rep. 684 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.

Savage had made some insulting comments to Tuberville. 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 brought an action for assault.

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 then there was no basis for Savage to have any immediate apprehension of harm, which is required for assault. Consequently, the elements required to make a claim for assault was not satisfied and so Savage failed in his action.

To constitute assault under English law, [s16. 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."