Topic 3 - Trespass to the person (Assault)

Question 1

Assault

When is the tort committed?

Answer 1

where the defendant’s intentional or reckless act creates in the plaintiff’s mind the (objectively reasonable) perception of the immediate or imminent application of unlawful force. “immediate” does not necessarily mean “instantaneous” but includes “a relatively short period of time”.
Did the defendant have the present ability to carry out the threat? Need the plaintiff be afraid or scared?
What state of mind, intent or fault is necessary for an assault? Must the defendant intend to make contact with the plaintiff? Can there be a negligent assault?

Question 2

Apprehension (perception) of immediate unlawful violence

ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti (2008)

Answer 2

Facts

• The defendant (appellant) - a public transport company operating rail services in Melbourne
• The plaintiff (respondent) - Joseph Chetcuchi
• P was aggressive towards D’s employees and spat in one of the officers faces. When P was running away he fractured his right wrist.
• P’s defence was that he ran due to fearing being “bashed” by the officers
• P brought action against D for assault and battery – Trial judge awarded substantial damages for assault and officers restraining constituted as battery.
• D appealed

1. A threat by the defendant, by words or conduct, to inflict harmful or offensive contact upon the plaintiff
2. A subjective intention on the part of the defendant that the threat will create in the mind of the plaintiff an apprehension that the threat will be carried out
3. The threat must in fact create in the mind of the plaintiff an apprehension that the threat will be carried out
4. The apprehension in the mind of the plaintiff must be objectively reasonable
5. The plaintiff reasonable apprehension cause injury, loss or damage to the plaintiff
   o Actionable per se

Question 3

Elements of Assault

Answer 3

• D’s intentional/negligent act
• P apprehends immediate (unlawful) force
• Apprehension is objectively reasonable

Question 4

Assault - 
Threats by telephone
Barton v Armstrong [1969]
1. Facts
2. Principle

Answer 4

1. The plaintiff was called in the early hours of the morning by the D and was threatened to be killed by hitman – it was enough to form the basis of assault
2. the words must create in the mind of the plaintiff an apprehension of imminent, unlawful contact.
   Taylor J “i think it matters on circumstance”

Question 5

Assault - conditional threat
Tuberville v Savage (1669)
1. Facts
2. Principle

Answer 5

1. Action of assault, battery, and wounding. The evidence to prove a provocation was, that the plaintiff put his hand upon his sword and said, “If it were not assize-time, I would not take such language from you.” — The question was, If that were an assault?
2. the conditional threat was not an assault, but just because a threat is conditional doesn’t mean that it won’t be an assault in every single case.

Question 6

Assault - Belvin v Thruston (2013)

Answer 6

Telephone calls and messages can be capable of constituting assault depending on the circumstances.
Whether there can be seen to be a threat and whether that threat is one of immediate or imminent violence depends on the circumstances of the case. (established on the facts of the case)