Assault (tort)

In common law, assault is the tort of acting intentionally, that is with either general or specific intent, causing the reasonable apprehension of an immediate harmful or offensive contact. Because assault requires intent, it is considered an intentional tort, as opposed to a tort of negligence. Actual ability to carry out the apprehended contact is not necessary. In Criminal Law an assault is defined as an attempt to commit battery, requiring the specific intent to cause physical injury.[1]

Comparison to battery

As distinguished from battery, assault need not involve actual contact; it only needs intent and the resulting apprehension. However, assault requires more than words alone. For example, wielding a knife while shouting threats could be construed as assault if an apprehension was created. A battery can occur without a preceding assault, such as if a person is struck in the back of the head. Fear is not required, only anticipation of subsequent battery.

An assault can be an attempted battery.

Elements

Three elements must be established in order to establish tortious assault: first, the plaintiff apprehended immediate physical contact [2] second, the plaintiff had reasonable apprehension (the requisite state of mind),[3] and third, the defendant's act of interference was intentional (the defendant intended the resulting apprehension).[4] But intent for purposes of civil assault can be either general or specific. Specific intent means that when the defendant acted, he or she intended to cause apprehension of a harmful or unwanted contact. General intent means that the defendant knew with substantial certainty that the action would put someone in apprehension of a harmful or unwanted contact.

While the law varies by jurisdiction, contact is often defined as harmful if it objectively intends to injure, disfigure, impair, or cause pain.

The act is deemed offensive if it would offend a reasonable person’s sense of personal dignity.

While imminence is judged objectively and varies widely on the facts, it generally suggests there is little to no opportunity for intervening acts.

Lastly, the state of apprehension should be differentiated from the general state of fear, as apprehension requires only that the person be aware of the imminence of the harmful or offensive act.

In Australia, the test for proving tortious assault is formulated as requiring 'proof of an intention to create in another person an apprehension of imminent harmful or offensive contact' .[5]

Defenses

Assault can be justified in situations of self-defense or defense of a third party where the act was deemed reasonable. It can also be justified in the context of a sport where consent can often be implied.

References

  1. ↑ Garner, Bryan A. (2011). Black's Law Dictionary. West Group (Law). p. 122. ISBN 0314275444.
  2. ↑ Zanker v Vartzokas (1988) 34 A Crim R 11; see AustLII.
  3. ↑ Barton v Armstrong [1976] AC 104; see also Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24 AustLII.
  4. ↑ Rixon v Star City Pty Ltd [2001] NSWCA 265 AustLII.
  5. ↑ Rixon v Star City Pty Ltd [2001] NSWCA 265, at [56]-[58]; see AustLII.

See also

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