Source 2
Extract adapted from Tort Law Text Cases and Materials. S. I. Strong and Liz Williams. Oxford University Press. 2008. Pp 408-10.
Analytically, assault can be cast in two different lights. Some assaults can be described as an incomplete battery, brought about when the defendant tried but for some reason failed to come into physical contact with the claimant. The other type of assault results when the defendant never intended to touch the claimant but nevertheless created a reasonable anticipation of physical contact in the mind of the claimant …. To prove civil assault, the claimant must establish that the defendant had the same type of mental state as in battery – meaning an intention to do the act that led to the assault …. In assault, the claimant need only prove an intent to cause the apprehension of unlawful physical contact …. In the past the tort of assault could only exist when someone intended, but failed for some reason to commit a battery .… Under the modern law, it is only necessary that the act in question raise the reasonable apprehension of immediate physical contact. Similarly, at one time words alone could not constitute assault. However, in the criminal case of R v Ireland [1998] AC 147, the House of Lords stated that any words that raise a reasonable apprehension of immediate (in other words, within a minute or two) battery can constitute assault. In that case the defendant rang up the victim on the phone but said nothing, only occasionally uttering some heavy breathing. Lord Steyn stated that ‘There is no reason why something said should be incapable of causing an apprehension of immediate personal violence’. In the case of the silent caller, the victim may be ‘assailed by uncertainty about his intentions. Fear may dominate her emotions’. Even though the case was brought in criminal court, rather than civil court, tort law would come to a similar conclusion if faced with similar facts, since Lord Steyn’s view echoes the central premise of civil assault, i.e. the infliction of the fear of unwelcome physical contact. Traditionally, and under contemporary law, courts have held that words can negate an act that would otherwise constitute assault …. Immediacy is a critical part of the tort of assault. In Thomas v National Union of Mineworkers (South Wales Area) [1985] 2 All ER 1, the plaintiff was a miner who was bussed to work during a strike held by the National Union of Mineworkers. As the bus crossed the picket lines, the striking miners made threatening gestures, accompanied by verbal threats. However, the court held that the strikers were not liable for assault, since it was impossible for the striking miners to get to the plaintiff through the line of police protection and the exterior of the bus itself. Therefore a person who stands on one side of a brick wall and shouts, ‘I’m going to beat you to a pulp with my bare hands!’ does not constitute much of a threat to people standing on the other side. An assault has not occurred even if the person is an All England rugby player with a penchant for brawling on and off the pitch. The brick wall means that there is no immediate threat of harm. If the short tempered rugby player were standing on the far side of a chain link fence with an elephant gun, claiming ‘I’m going to shoot you’, it is a different matter. In that case, an assault likely exists, since the elephant rifle can shoot through the fence. On the other hand, if the rugby player stands on his side of the chain link fence and says, ‘I’m going to get my elephant gun and shoot you’, his actions do not constitute assault, since anyone on the far side of the fence has a sufficient amount of time to escape before the rugby player returns with his rifle …. When considering whether an assault has occurred, one must look at the reasonableness of the claimant’s reaction to the alleged assault. The test the courts use is objective, rather than subjective, meaning that they will look at what a reasonable person would think in the same circumstances rather than what this individual claimant thought. |