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2010-06-12 03:56:39
Assault law torts

Assault, law, torts
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  1. Define assault
    “Any direct intentional act which causes another person to reasonably apprehend an imminent battery.”
  2. What are the elements of assault?
    • 1. Positive act (force) constituting a direct physical threat
    • 2. Reasonable apprehension that a battery is imminent
    • 3. The action must be intentional (fault)
  3. 1. Positive act (force) constituting a direct physical threat
    Stephens v Myers (1830) (parish meeting) D was excluded from meeting and went for the plaintiff, was 2 people away when he was physically stopped. CJ Tindall: there must in all cases be the means of carrying the threat into effect. Question: whether the defendant was advancing at the time, in a threatening attitude, to strike the chairman, so that his blow would almost immediately have reached the chairman, if he had not been stopped. Held to have been an assault.

    • Example: words count as a positive act?
    • Words may constitute an assault depending on circumstances

    Example: over the phone threat? Yes. Barton v Armstrong [1969] where D was under duress to sign a deed when a threat of violence was made over the phone. Defendant must have the means and capacity of carrying out the threat
  4. 2. Reasonable apprehension that a battery is imminent
    • a) Apprehension has to be of immediate harmful contact. i.e. threatening to come over at Christmas is not assault. Zanker v Vartzokas (1988) (criminal, “i’m going to take you to my mate’s house to fix you up”) Offering of money to hitchhiker for sexual favours, but was rejected and threatened woman. Even though there was obviously some delay, there was a reasonable fear of immediate violence because she had no idea where the mate’s house was, i.e. immediate fear was continuous. What is important here is the ‘sense’ of immediate threat, despite the threat being carried out sometime afterwards.
    • b) Apprehension must be reasonable. Objective question i.e. from the perspective of a reasonable person, not of the actual plaintiff (person does not have to be scared to be assaulted). *Brady v Schatzel [1911] (courageous policeman) Policeman threatened by D at her residence with a rifle and told the court he was not scared at all. Court held that lack of fear did not matter and that assault had taken place: “In my opinion, it is not material that the person assaulted should be put in fear... If that were so, it would make an assault not dependent upon the intention of the assailant, but upon the question whether the party assaulted was a courageous or timid person.” Fear is immaterial because we want to deter assault as well, not just compensate for harm
  5. 3. The action must be intentional (fault) reference
    • No need for any intention to carry out the threat, all that is required is an intentional action. Hall v Fonceca [1983] where the fact that the defendant did not intend to punch the respondent when he moved his right hand was not relevant. The court said that ‘it would be sufficient to constitute a threat if there had been an intention on the part of the defendant to cause apprehension to the plaintiff’.
    • Point is that bluffing still constitutes an assault
    • 1. Deliberate
    • 2. Substantially certain to occur
    • 3. Knowledge of serious risk (recklessness)
  6. What is a possible element?
    Conditional threats A placing of a condition, e.g. “don’t come any closer or I’ll shoot you”, condition or risk of being shot will only arise if the plaintiff moves closer to the defendant, unless condition is absolutely necessary Tuberville v Savage (1669) (“if it were not for the fact that... I would not take language from you) Held that threat was conditional, and that condition did not apply.
  7. Defences
    • Consent as a defence
    • The law discussed with respect to battery applies equally in relation to assault