TORT 1.2 ASSAULT
ASSAULT
An assault means intentionally putting a person in fear of an imminent battery. It is an Attempt or offer to beat another without touching him[1]–Blackstone’s Dictionary on Private Wrongs. For there to be an assault, the following elements must be proved:
- The defendant made a threat.
- Which puts the plaintiff in fear of imminent danger (objective test is applied).
- The defendant/tortfeasor has the ability to (immediately) carry out the threat[2].
Note the following key-points and principles on assault:
:: There is no requirement for physical harm… mere apprehension would suffice.
In Stephens V. Meyers, the defendant approached the claimant with clenched fists but he was prevented by someone (the church warden) staying next to the chairman. The court held that he assaulted the plaintiff notwithstanding that there was no actual physical harm done.
:: Assault usually precedes battery.
:: “Fear” is the determinant word as such. If the plaintiff is not afraid, there can be no assault.-R v. Barret. Conversely, in R v. St George, the defendant pointed an unloaded gun at the plaintiff. Held: Assault… because the plaintiff was still put in fear.
:: Words alone (even threats over the phone) may amount to assault provided there is the ability to immediately execute and it puts the victim in fear of imminent danger. In R v. Burstow, the defendant had a brief relationship with a woman She ended the relationship and he could not accept her decision and embarked on a campaign of harassment against her over a period of 8 months. He made silent telephone calls, abusive telephone calls, he appeared at her house, took photos of her and distributed offensive cards to her neighbours and hate mail. As a result she suffered a severe depressive illness. Held: assault and harassment.
:: Silence can also amount to an assault. In R v. Ireland, the plaintiff made silent phone calls to different women. Held: assault.[3]
:: Acts which could otherwise amount to assault can be negated with words. In Tuberville V. Savage, Savage had made some insulting comments to Tuberville. In response, Tuberville grabbed the handle of his sword and stated, “If it were not for assize[4] time, I would not have taken such language from you.” Savage responded with force, causing Tuberville to lose his eye. Tuberville brought an action for assault, battery, and wounding, to which Savage pleaded provocation, to-wit Tuberville’s statement. The court held that words can negate unlawful actions[5].
:: Otherwise innocent acts can be negated with words: we have noted that words can make “assaultable” actions harmless. Conversely, harmless and normal acts can be negated with words. In Read V. Coker, Read and some of his men rolled up their sleeves and said that they were going to break Coker’s neck if he did not leave the premises. Held: the oral threat made the circumstance (rolling up their sleeves[6]) amount to an assault.
:: The court shall apply the Objective view rather than subjective view: it involves asking the question; “would a reasonable man in the shoes of the defendant be afraid?” In Hurst v. Picture Theatres ltd, the defendant had forcibly ejected the claimant form the theatre, the plaintiff was not afraid however, the defendants were still held liable for assault and false imprisonment… because a normal person in the shoes of the defendant would have felt threatened. In Brady v. Schatzel, the defendant pointed a gun at the plaintiff. It was established that the plaintiff was not afraid and the plaintiff even said that he was not afraid (while the gun was being pointed at him). Held: Assault. Because a reasonable man would have been afraid if a gun was being pointed at him.
[1] E.g. A points a gun at B. or A raises his hand and gestures as if to slap B.
[2] In Thomas v. National Union of Mineworkers. The plaintiff was in a vehicle that was to convey him to work. As the vehicle drove by, the striking workers made angry gestures at those inside the bus. The court held that those inside the bus were well protected and there was no ability to immediately carry out the threat so there was no assault.
[3] Look at movie scenarios where Mr A is tied up to a chair for interrogation and the interrogator (Mr B) brings out his torture tool box filled with all kinds of instruments. Mr A asks: “what are you gonna do to me”. But Mr B keeps quiet and keeps unpacking and setting up the various torture instruments.
[4] “Assizes” meant travelling courts. So what the claimant was saying was that he would not risk using the sword on the defendant because the judge was in town
[5] But in R v. Light, a husband raised a sword over the head of the wife and said, “were it not for the bloody policemen outside, I would split your head open”. But the court held that the husband was guilty of assault. This shows that it depends on the facts of each case… In Light’s case, the circumstances show that the wife would still have been afraid. Look at another example where Mr A Points a gun at Mr B and says; chai, you are lucky… if this gun was loaded I would have shot you. These words have negated the assault because Mr A’s statement should put Mr B’s mind at rest.
[6] Rolling up one’s sleeve is normally a harmless action.
