By: Ajit Singh Sidhu
The case of Tuberville v Savage[1] is one that today cane be described as illogical for today’s context. As with society taking offence towards anything that can impact their safety, liberty and freedom to be unacceptable. The facts of this case was were the defendant did threaten the claimant that “if it weren’t assize time” he would hurt the claimant. The courts felt that there was no assault as the claimant words did mitigate the assault in this context of if it was not a time of peace. It can be observed that the judge probably was influence that the defendant would honour his word not to attack the claimant. In addition it can be seen this case was decided at the 15th century where the gentleman’s promise would be obeyed. In todays this case may not be decide as such .As toady with gang violence[2] and the consensus of society not to behave like a gentleman and obey ones promise would warrant for the courts to overrule this archaic precedent. The English courts could use other persuasive precedents to depart form this case, with the judges’ good reasoning.
The courts may refer to decisions such Rozsa v Samuels[3] as a persuasive precedent as in this case. In this case, 2 taxi drivers were involved in a fight. The defendant pulled out a knife and said “if you punch me I will cut you”. The courts despite being a conditional assault, felt it was likely to happen. Hence the defendant was liable. In my view, this case and reasoning should be followed. As to distinguish Tuberville v Savage, in most cases of assaults the threat is usually going to happen. An example would be a robbery, if the robber would say “give me your money or I will kill you”. This would and should be considered an assault .As here either way the claimant is still going to get hurt and the threat is alive , there was nothing to mitigate the harm form occurring.
Also the courts may consider the Australian decision of Zanker v Vartzokas[4] as the threat that was made that can be argued by the judge in this case “to be playing in his head”. In this context, the defendant picked up a female hitchhiker and started to touch her inappropriately and said he was going to take her to his friend’s house to “fix her up”. Which the claimant leaped from the car .Wills J felt that this was assault as the words and actions were in fact “playing in her head” and not merely future intent as said by the judge . As in the context of a threat by an assailant would in any common man ingrain/ pasted what was said to the claimant mind .Hence the courts would consider this case to distinguish Tuberville v Savage. As if there was a threat of violence it would cause the claimant to fear for his life.
As seen that these cases should be used a platform to “savagely remove” Tuberville v Savage. The courts should consider these precedents and use it to tailor it in todays context.