Assault Flashcards
Assault
An assault in the civil law is distinct from a battery. It is constituted by a direct, intentional positive threat that places the plaintiff in reasonable apprehension of imminent physical contact by the defendant. It therefore protects the plaintiff against immediate physical threats to their person, whereas battery protects them against actual physical contact. It is the apprehension of the contact, as opposed to the contact itself, which is tortious (White v South Australia).
Elements of assault
- Direct
- Positive
- Intentional
- Threat
- Causing the Plaintiff to reasonably apprehend
- The imminent application of force
Direct
The traditional requirement of ‘directness’ (Reynolds v Clarke) can be connected to the requirement that any threat be one of ‘imminent’ contact with the plaintiff’s person. Did the defendants act cause P’s apprehension?
Bird v Holbrook
Alternatively, a directness requirement may only be met where the threat is of harm directly resulting from conduct of the person making the threat. If D says to P I will tell a TP that you have seduced their daughter and they will surely beat you up or I have set up a trap for you that you will set off when you leave the room, this is not direct enough to constitute assault. In the first example the contact would be by a third party, and in the second the contact, although a result of D’s conduct, would not be a direct result. Such cases may also be explicable on the basis that there is no threat of imminent contact.
Positive
Innes v Wylie
A threat to the person must be constituted by a positive act, usually in the form or words and gestures. Exceptionally, the mere expression of words may count, provided that they convey a sufficiently imminent prospect of contact by the defendant with the plaintiff’s body that a reasonable person in the plaintiff’s position would interpret the words as such.
Intentional
In assault what must be intended is the consequence that the plaintiff should reasonably apprehend an imminent battery.
This question will be determined by reference to the nature of D’s act, as the consequence will be part and parcel of the act itself.
Hall v Fonceca
Principle: Assault requires that D’s purpose in acting was for P to have had a reasonable apprehension of an imminent battery.
In assault, a single threat can give rise to an apprehension f battery in a number of people. D’s purpose in acting may have been an intention to create reasonable apprehension within the group, or D may have been reckless to the consequences of the conduct
Rixon v Star City Pty Ltd
Principle: The intention requirement has nothing to do with intent to carry out the threat
Threat
Tuberville v Savage
Principle: The condition associated with the threat was such to render it harmless.
Facts: “if it were not assize-time I would not take such words from you”. The court took the view that T was stating he would not assault S as the judges were in town.
Police v Greaves
Principle: There is also a category of conditional threats that will amount to assault even though the condition indicates no force will be used. If D gets a gun and tells P they will be shot of they turn of the water when P has that authority, then there is an assault. D makes it clear to P that no bodily contact will ensue if P obeys the orders, this is no different to the threat of the highway man.
Barton v Armstrong
Principle: Threats over the phone can constitute assault.
R v Ireland
Principle: repeated silent phone calls could constitute assault
Read v Coker
Principle: No amount of preparation for a bodily contact (e.g. purchasing a gun) will constitute assault unless it is followed up by a threat.
Reasonable apprehension
Brady v Schatzel
Principle: there is no requirement that P be put in fear – merely that they apprehend some violence is to ensue.
E.g. if D creeps up behind P with a knife, there is no apprehension of impending violence and thus no assault.
Facts: Two policemen came to a house to interview a boy. A woman in the house pulled out a rifle, appeared to load it, and pointed the barrel at one of the policemen, threatening to shoot it. The policemen stated that he had not been afraid as he was used to violence. He did, however, apprehend that violence was to ensue.
Stephens v Meyers
Principle: for someone to have reasonable apprehension, D must have the means of carrying out the threat. A present actual ability to carry out a threat may be prevented by a third party. E.g. D being held back by someone.
Logdon v DPP
Principle: The preset actual ability for D to carry out the threat is judged from P’s perspective with P’s knowledge of the situation. E.g. toy gun.
In relation to reasonableness, the test is whether a reasonable person in P’s position would apprehend imminent physical contact.
Imminent application of force
Stephens v Myers
Principle: there must be a possibility that physical contact will eventuate. It is not every threat that constitutes an assault, there must be the means if carrying the threat into effect.
Facts: D advanced towards P with clenched fists but was held back by a TP before he could get close to P.
Zanker v Vartzokas
Principle: if the threat is ongoing, and it is not clear at what point the threat will eventuate, the threat is of imminent contact.
There was no indication to how far away the mate’s house was, so that a present fear of imminent violence was kept alive in P’s mind
Facts: A young woman accepted a lift from the accused. While the van was moving, he offered her money for sexual favours. She rejected his advances and demanded to be let out of the van. The accused accelerated his vehicle, saying ‘I am going to take you to my mate’s house. He will really fix you up’. She was afraid and jumped out of the moving vehicle. Although the vehicle was moving at approximately 60 km/h, she was not injured seriously.
R v Mostyn
Principle: a strike against a person, even at such a distance to make contact impossible, may constitute assault if it brings about fear of immediate violence in the bearer.
Facts: D had already been violent towards P and had a short time before coming at her in her car.
Purdy v Wosnesensky
Principle: A statement “you’re next” to a daughter by D who proceeds to beat up a father would be sufficient to constitute an assault as the threat raises in the mind of the daughter a reasonable apprehension of imminent bodily contact.
Reynolds v Clarke
ELEMENT: DIRECT
The traditional requirement of ‘directness’ (Reynolds v Clarke) can be connected to the requirement that any threat be one of ‘imminent’ contact with the plaintiff’s person. Did the defendants act cause P’s apprehension?
Bird v Holbrook
ELEMENT: DIRECT
Alternatively, a directness requirement may only be met where the threat is of harm directly resulting from conduct of the person making the threat. If D says to P I will tell a TP that you have seduced their daughter and they will surely beat you up or I have set up a trap for you that you will set off when you leave the room, this is not direct enough to constitute assault. In the first example the contact would be by a third party, and in the second the contact, although a result of D’s conduct, would not be a direct result. Such cases may also be explicable on the basis that there is no threat of imminent contact.
Innes v Wylie
ELEMENT: POSITIVE
A threat to the person must be constituted by a positive act, usually in the form or words and gestures. Exceptionally, the mere expression of words may count, provided that they convey a sufficiently imminent prospect of contact by the defendant with the plaintiff’s body that a reasonable person in the plaintiff’s position would interpret the words as such.
Hall v Fonceca
ELEMENT: INTENTIONAL
Principle: Assault requires that D’s purpose in acting was for P to have had a reasonable apprehension of an imminent battery.
In assault, a single threat can give rise to an apprehension f battery in a number of people. D’s purpose in acting may have been an intention to create reasonable apprehension within the group, or D may have been reckless to the consequences of the conduct
Rixon v Star City Pty Ltd
ELEMENT: INTENTIONAL
Principle: The intention requirement has nothing to do with intent to carry out the threat
Tuberville v Savage
ELEMENT: THREAT
Principle: The condition associated with the threat was such to render it harmless.
Facts: “if it were not assize-time I would not take such words from you”. The court took the view that T was stating he would not assault S as the judges were in town.
Police v Greaves
ELEMENT: THREAT
Principle: There is also a category of conditional threats that will amount to assault even though the condition indicates no force will be used. If D gets a gun and tells P they will be shot of they turn of the water when P has that authority, then there is an assault. D makes it clear to P that no bodily contact will ensue if P obeys the orders, this is no different to the threat of the highway man.
Barton v Armstrong
ELEMENT: THREAT
Principle: Threats over the phone can constitute assault.
R v Ireland
ELEMENT: THREAT
Principle: repeated silent phone calls could constitute assault
Read v Coker
ELEMENT: THREAT
Principle: No amount of preparation for a bodily contact (e.g. purchasing a gun) will constitute assault unless it is followed up by a threat.
Damages for battery and assault
Nominal
Compensatory
Aggravated
Exemplary
Nominal damages
Tort doesn’t cause any damage
May be awarded merely for the interference
Compensatory damages
Tort results in personal injury
Place them back in the position they would be in had the tort not occurred
Aggravated damages
Tort caused insult, indignity, disgrace or humiliation.
Still described as compensatory damages
Exemplary damages
Court wishes to express disapproval for D’s behaviour by awarding a punitive sum that goes beyond any amount that could reasonably be awarded as compensatory or aggravated damages.
Provocation can be taken into account to reduce the amount of an award of exemplary damages that might otherwise be awarded.
