LAW OF TORT

TORTS AFFECTING THE PERSON

ASSAULT

DEFINITION AND ELEMENTS REQUIRED TO ESTABLISH LIABILITY; ACTIONABLE PER SE

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

INTRODUCTION TO ASSAULT

Definition

• Assault is one of the trespass torts protecting a person’s bodily integrity and personal security.

• It occurs when the defendant causes the claimant to reasonably apprehend the immediate application of unlawful force.

• No physical contact is required.

• The essence of assault is the creation of fear or expectation of immediate unlawful force.

Examination Definition

Assault may be defined as:

An intentional or reckless act causing the claimant reasonably to apprehend the immediate infliction of unlawful force.

Nature Of Assault

Protects

• Personal autonomy.

• Personal security.

• Freedom from fear of unlawful violence.

Does Not Require

• Physical injury.

• Physical contact.

• Actual force.

Requires

• Reasonable apprehension of immediate unlawful force.

ASSAULT AND BATTERY

Important Distinction

Assault

• Creates apprehension of force.

Battery

• Actual application of force.

Example

Raising A Fist And Threatening To Punch

• Assault.

Actually Punching

• Battery.

Examination Tip

• Assault protects against anticipated force.

• Battery protects against actual force.

ACTIONABLE PER SE

Meaning

• Assault is actionable per se.

• Claimant does not need to prove damage.

• Claimant does not need to prove injury.

• Claimant does not need to prove financial loss.

Importance

Mere Violation Of The Right Is Sufficient

• The tort is complete once the elements are established.

Why Is Assault Actionable Per Se?

• Law protects personal security.

• Law protects freedom from fear of unlawful violence.

• The infringement itself justifies legal action.

Consequences

Claimant may sue even where:

• No injury occurred.

• No force was used.

• No financial loss occurred.

ELEMENTS OF ASSAULT

To Establish Liability The Claimant Must Prove:

Element 1

• An act by the defendant.

Element 2

• Intention or recklessness.

Element 3

• Reasonable apprehension.

Element 4

• Immediate unlawful force.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

ELEMENT 1

AN ACT BY THE DEFENDANT

General Rule

• Defendant must perform a positive act.

• Mere omission generally insufficient.

Nature Of The Act

The act may consist of:

Words

• Threats.

Gestures

• Raised fist.

Conduct

• Aggressive movement.

Combination

• Words and actions together.

ASSAULT THROUGH GESTURES

Traditional Example

• Raising a fist.

• Moving aggressively towards another person.

• Pointing a weapon.

Leading Case: Stephens v Myers

Facts

• Defendant advanced towards claimant during a meeting.

• Threatened violence.

• Restrained before contact occurred.

Decision

• Assault established.

Principle

• Immediate threat of violence sufficient.

Significance

• Classic assault authority.

ASSAULT THROUGH WORDS

Historical Position

Old Rule

• Words alone could not constitute assault.

Authority

R v Meade and Belt

Suggested:

Words alone cannot amount to assault.

Modern Position

Words Alone Can Constitute Assault

Leading Case: R v Ireland

Facts

• Defendant made repeated silent telephone calls.

• Victims suffered psychiatric harm.

Decision

• Assault possible.

Principle

• Words and silence may create apprehension of immediate violence.

Significance

• Modern leading authority.

Assault By Silence

Principle

• Silence may sometimes communicate a threat.

Authority

• R v Ireland.

WORDS NEGATING ASSAULT

General Rule

• Words can prevent liability where they clearly show no immediate threat exists.

Leading Case: Tuberville v Savage

Facts

• Defendant placed hand on sword.

• Said:

“If it were not assize time, I would not take such language from you.”

Decision

• No assault.

Principle

• Words showed no immediate intention to use force.

Significance

• Words can negate apparent threat.

ELEMENT 2

INTENTION OR RECKLESSNESS

General Rule

• Defendant must act intentionally or recklessly.

Intention

Meaning

• Defendant intends claimant to apprehend force.

Recklessness

Meaning

• Defendant realises risk that claimant may apprehend force and proceeds regardless.

Authority

R v Venna

Principle

• Assault may be committed intentionally or recklessly.

Significance

• Important authority on mental element.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

ELEMENT 3

REASONABLE APPREHENSION

Meaning Of Apprehension

• Apprehension means expectation or anticipation.

• It does NOT mean fear.

Important Examination Point

Fear Not Required

• Claimant need not be frightened.

Awareness Required

• Claimant must anticipate force.

Example

Martial Arts Expert

• May not fear attack.

• Still anticipates attack.

Result

• Assault established.

Objective Element

Requirement

• Apprehension must be reasonable.

Court Considers

• Circumstances.

• Conduct.

• Context.

CLAIMANT MUST BE AWARE

General Rule

• Claimant must perceive the threat.

Example

Threat Made Behind Claimant’s Back

• Claimant unaware.

Result

• No assault.

ELEMENT 4

IMMEDIATE UNLAWFUL FORCE

Meaning

• Claimant must anticipate force that is sufficiently immediate.

Importance Of Immediacy

• Threats relating to distant future generally insufficient.

Examples

Immediate Threat

• “I am going to hit you now.”

Not Immediate

• “I will hit you next month.”

Modern Interpretation

Immediate Does Not Mean Instantaneous

• Courts interpret immediacy flexibly.

Leading Case: R v Ireland

Principle

• Immediate force may exist even though exact timing uncertain.

Significance

• Broadened understanding of immediacy.

UNLAWFUL FORCE

Meaning

• Force threatened must be unlawful.

Lawful Force Not Actionable

Examples

• Lawful arrest.

• Self-defence.

• Lawful restraint.

Requirement

• Threatened force must lack legal justification.

SPECIAL SITUATIONS

CONDITIONAL THREATS

General Rule

• Conditional threats may constitute assault depending on wording.

Example

“If you come closer, I will punch you.”

• May constitute assault.

Compare

Tuberville v Savage

• No assault because words removed immediacy.

TELEPHONE AND ELECTRONIC COMMUNICATIONS

Modern Position

• Telephone calls may constitute assault.

• Electronic communications may constitute assault.

• Focus remains upon reasonable apprehension.

Authority

R v Ireland

ASSAULT AND PSYCHIATRIC INJURY

General Rule

• Physical injury unnecessary.

• Psychiatric harm may occur.

• Tort completed once apprehension exists.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

DEFENCES TO ASSAULT

CONSENT

Meaning

• Claimant voluntarily agrees to conduct.

Examples

• Sporting activities.

• Medical treatment.

Effect

• Complete defence.

SELF-DEFENCE

General Rule

• Reasonable force may be used to protect oneself.

Requirement

• Force must be proportionate.

Effect

• Complete defence.

NECESSITY

Meaning

• Conduct justified to prevent greater harm.

Effect

• May defeat liability.

AO2 APPLICATION

Step 1

• Identify defendant’s conduct.

Step 2

• Determine whether claimant became aware.

Step 3

• Determine whether apprehension arose.

Step 4

• Consider immediacy.

Step 5

• Consider intention or recklessness.

Step 6

• Consider any defence.

Step 7

• Reach conclusion.

AO3 EVALUATION

Strengths Of The Tort

Protects Personal Security

• Prevents threats of violence.

Actionable Per Se

• No need to wait for injury.

Flexible

• Covers modern forms of communication.

Criticisms

Immediacy Requirement

• Sometimes difficult to apply.

Distinction Between Fear And Apprehension

• Can be confusing.

Uncertainty

• Electronic communication cases create challenges.

COMPARISON WITH BATTERY

EXAM QUICK REVISION SHEET

Definition

• Intentional or reckless act causing reasonable apprehension of immediate unlawful force.

Essential Elements

Act

• Words, gestures or conduct.

Intention Or Recklessness

• R v Venna

Reasonable Apprehension

• Expectation of force.

Immediate Unlawful Force

• Threat must be sufficiently immediate.

Key Cases

Stephens v Myers

• Immediate threat.

Tuberville v Savage

• Words can negate assault.

R v Ireland

• Words and silence may constitute assault.

R v Venna

• Intention or recklessness sufficient.

Examination Formula

Defendant’s Act

Intention Or Recklessness

Reasonable Apprehension

Immediate Unlawful Force

=

Assault

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.

Written and Compiled By Sir Hunain Zia (AYLOTI), World Record Holder With 154 Total A Grades, 11 World Records and 7 Distinctions, Educate A Change.